In re the Termination of the Parent-Child Relationship of J.C. and R.C. (Minor Children) and B.C. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc.

FILED

Sep 24 2019, 9:00 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Valerie K. Boots INDIANA DEPARTMENT OF

Matthew D. Anglemeyer CHILD SERVICES

Marion County Public Defender – Curtis T. Hill, Jr.

Appellate Division Attorney General of Indiana

Indianapolis, Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Termination of the September 24, 2019

Parent-Child Relationship of J.C. Court of Appeals Case No.

and R.C. (Minor Children) and 19A-JT-350

B.C. (Mother), Appeal from the Marion Superior

Court

Appellant-Respondent,

The Honorable Marilyn A.

v. Moores, Judge

The Honorable Scott B. Stowers,

Indiana Department of Child Magistrate

Services, Trial Court Cause Nos.

49D09-1803-JT-347

Appellee-Petitioner,

49D09-1803-JT-348

and

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019 Page 1 of 31

Child Advocates, Inc.,1

Appellee-Guardian ad Litem.

Mathias, Judge.

[1] B.C. (“Mother”) appeals the order of the Marion Circuit Court terminating her

parental rights to her children J.C. and R.C. (collectively “the Children”). On

appeal, Mother presents three issues, which we reorder and restate as:

I. Whether the trial court erred by denying Mother’s motion

to dismiss the petition to terminate her parental rights

because the evidentiary hearings were not completed

within the statutory 180-day time frame;

II. Whether the trial court abused its discretion by admitting

into evidence the results of Mother’s drug screens; and

III. Whether the trial court’s termination orders are supported

by sufficient evidence.

Concluding that Mother waived the statutory time limit, that the admission of

the drug screen results was harmless, and that there is sufficient evidence to

support the trial court’s termination orders, we affirm.

1

DeDe K. Connor filed an appearance on behalf of Child Advocates, Inc., but did not file a brief.

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Facts and Procedural History

[2] Mother, born in August 1986, has struggled with addiction since she was a

teenager. Mother admitted to having used a “slew” of illicit drugs, including

marijuana, cocaine, spice, and “probably” methamphetamine. Tr. Vol. 2, pp.

16, 125. Mother is the biological mother to five children, including the two sons

involved in the present case: J.C., born in July 2014, and R.C., born in

November 2015.2

[3] On May 28, 2016, Mother overdosed on her prescription medication and was

found unresponsive in her home. The Department of Child Services (“DCS”)

removed the Children from the home and, on May 31, 2016, filed a petition

that the Children were children in need of services (“CHINS”).3 On August 2,

2016, Mother admitted that the Children were CHINS. The trial court entered a

dispositional decree that ordered Mother to participate in a variety of services,

including participating in home-based therapy and home-based case

management, undergoing a substance abuse assessment and following all

recommendations, and submitting to random drug screens. The Children were

placed in foster care. The permanency plan was reunification of the Children

with Mother.

2

Mother’s three other children, all older, were also the subject of DCS intervention. These children were

found to be in need of services, and Mother ultimately voluntarily terminated her parental rights to these

children.

3

The CHINS petition was subsequently amended to add the alleged fathers of J.C. and R.C.

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[4] Mother was initially compliant with her home-based case worker, who set three

goals for Mother: housing, employment, and sobriety. During the first month of

her interaction with Mother, the home-based case worker met with Mother

weekly to assist Mother in meeting these goals. After the first month, however,

the meetings became more sporadic: once per month or less. Mother disclosed

to her case manager that she was in an abusive relationship with her boyfriend.

The case manager offered to provide Mother with domestic violence services,

but Mother refused. Eventually, the case worker closed the home-based case

management services as unsuccessful.

[5] Mother initially attended scheduled visitations and generally interacted well

with the Children. Mother then relapsed into drug use, and DCS requested that

Mother’s visitations be suspended. The trial court granted this request at a

periodic review hearing on February 28, 2017. Mother’s visitation resumed in

June 2017. From August until December of that year, Mother visited the

Children once per week. Between February 2018 and March 2018, Mother

missed several scheduled visitations with the Children. On one occasion when

Mother did attend a scheduled visitation, she appeared paranoid and did not

engage with the Children. She told the visitation supervisor that she thought her

boyfriend was going to kill her. On those occasions where Mother did not show

up for her scheduled visitation, the Children became upset and disappointed.

Mother’s last visitation was in March 2018.

[6] In October 2017, Mother was referred to an intensive outpatient (“IOP”)

alcohol and drug treatment program. Mother was “a little evasive” about her

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drug use to the IOP director. The director recommended that Mother

participate in IOP, which included weekly one-hour home-based sessions and

three weekly three-hour sessions. The treatment plan was for Mother to refrain

from drug and alcohol use and attend all sessions. Mother appeared to be

highly motivated but failed to see her marijuana use as a problem, arguing that

marijuana should be legalized. Mother’s participation in IOP was spotty; she

missed approximately half of the sessions due to alleged transportation issues.

She then signed an agreement not to miss any more sessions but last attended a

session in February 2018, after which time she was kicked out of the program.

A few weeks before the October 11, 2018 evidentiary hearing on the petition to

terminate Mother’s parental rights, Mother contacted the director of the IOP

program saying she was interested in rejoining the program.

[7] Mother’s problems with services were related to her continued use of illicit

drugs. Mother missed several scheduled drug screens, claiming that she had

transportation issues. Her case manager therefore gave her bus passes. But

Mother still missed numerous drug screens.

[8] On March 22, 2018, Mother was arrested after police found her in a truck with

her boyfriend in possession of a handgun and illicit drugs. Mother was later

arrested again, this time for resisting law enforcement by fleeing. Mother failed

to appear at a hearing on the criminal matter, and the criminal court issued a

warrant for her arrest. Mother chose not to appear for several court hearings in

the CHINS and termination cases because she did not want to be arrested.

Mother eventually pleaded guilty on October 2, 2018 to Level 4 felony

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possession of cocaine, Level 5 felony possession of a handgun without a license,

and Class A misdemeanor resisting law enforcement. Mother was sentenced to

six years with three years executed on home detention and three years

suspended to probation.

[9] On March 15 and 27, 2018, DCS filed petitions to terminate Mother’s parental

rights to R.C. and J.C., respectively. At a pre-trial hearing held on June 25,

2018, the trial court set the evidentiary hearing on the termination petition to be

held on September 26 and October 10, 2018. At the beginning of the September

26 hearing, Mother moved for a continuance that the trial court denied. At the

end of the October 10 hearing, the trial court continued the matter to the next

day. At the beginning of the October 11 hearing, Mother moved for dismissal,

claiming that the trial court had failed to conclude the termination hearings

within the statutorily mandated timeframe. The trial court denied this motion.

At the conclusion of the October 11 hearing, the trial court continued the

hearing to November 26. On October 18, Mother filed a motion to reconsider

the court’s ruling on her oral motion to dismiss, which the trial court denied

after a hearing. On January 14, 2019, the trial court entered findings of fact and

conclusions of law terminating Mother’s parental rights to the Children. Mother

now appeals.

I. Motion to Dismiss

[10] Mother argues that the trial court erred by denying her motion to dismiss the

State’s petition to terminate her parental rights because the termination hearing

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was not completed within 180 days of the filing of the petition. The statute

governing the time limits for hearings on termination petitions provides:

(a) Except when a hearing is required after June 30, 1999, under

section 4.5 of this chapter,[4] the person filing the petition shall

request the court to set the petition for a hearing. Whenever a

hearing is requested under this chapter, the court shall:

(1) commence a hearing on the petition not more than ninety

(90) days after a petition is filed under this chapter; and

(2) complete a hearing on the petition not more than one

hundred eighty (180) days after a petition is filed under this

chapter.

(b) If a hearing is not held within the time set forth in subsection

(a), upon filing a motion with the court by a party, the court shall

dismiss the petition to terminate the parent-child relationship

without prejudice.

Ind. Code § 31-35-2-6 (emphases added).

[11] Here, DCS filed the petition to terminate Mother’s parental rights to R.C. on

March 15, 2018, and filed the petition to terminate Mother’s parental rights to

J.C. on March 27, 2018. Thus, pursuant to Indiana Code section 31-35-2-6, the

hearings on the petition regarding R.C. should have commenced no later than

June 13, 2018 and completed no later than September 11, 2018. And the

4

Neither party contends that this subsection is applicable here.

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hearings on the petition regarding J.C. should have commenced no later than

June 25, 2018 and completed no later than September 24, 2018.5

[12] However, the trial court did not commence a hearing on the termination

petitions until September 26, 2018, and did not complete the hearings on the

petition until November 26, 2018. Mother therefore argues that the trial court

violated the plain language of subsection (a)(1) and (a)(2) of Indiana Code

section 31-35-2-6, and that subsection (b) required the trial court to dismiss the

petitions.

[13] At first blush, Mother’s argument appears to have merit. But Mother’s

argument overlooks the fact that she failed to object to any delay in the

hearings. Specifically, the trial court held a pre-trial hearing on June 25, 2018,

which was already past the ninety-day deadline in R.C.’s case and was the last

day of the ninety-day deadline in J.C.’s case. Mother appeared by counsel, and

the trial court set the termination petition for evidentiary hearings to be held on

September 26 and October 10, 2018. Mother did not object to the setting of

these dates, which were outside both the ninety and 180-day time limits set

forth in Indiana Code section 31-35-2-6. Not only did Mother fail to object, the

trial court specifically noted that Mother affirmatively waived the “180 day

requirement.” Appellant’s App. p. 75. Additionally, when the trial court began

the hearing on September 26, Mother’s counsel did not object to the lateness of

the hearings but instead moved for a continuance. Mother did not indicate any

5

September 23, 2018 was a Sunday; thus the next business day was September 24.

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issue with the delay in the hearings until the third day of the evidentiary

hearing, when she orally moved to dismiss. When the trial court denied her oral

motion, Mother filed a written motion to reconsider, which the trial court also

denied.

[14] The State contends that these facts demonstrate that Mother waived any

objection to the delay in the hearings. We agree. This court addressed a similar

situation in In re N.C., 83 N.E.3d 1265 (Ind. Ct. App. 2017). In that case, DCS

filed a petition to terminate the parental rights of the father of N.C. The hearing

on the termination petition was not commenced within ninety days of the filing

of the petition, nor was it completed within 180 days after the filing of the

petition. Instead, it was conducted 222 days after the filing of the petition.

[15] On appeal, the father argued that the trial court should have dismissed the

petition when he orally moved to dismiss at the start of the evidentiary hearing.

The N.C. court disagreed, holding that the father had waived any argument that

the hearings were held beyond the statutory deadlines.6 Id. at 1267. The N.C.

court held that the father had acquiesced to the hearing date, writing:

At a hearing conducted on December 9, 2016, [N.C.]’s Mother

requested a continuance and a discussion ensued as to available

court dates. The court reporter suggested March 21, 2017, and

Father’s counsel responded: “That sounds good.” Father’s

counsel then inquired about the specific length of the fact-finding

hearing, whether all day or one-half day. In general, “waiver”

6

The N.C. court also noted that the father orally moved to dismiss and filed no written motion, despite the

plain language of the statute contemplating the filing of such a motion. Id. In this respect, N.C. differs from

the present case because Mother did file a written motion after she orally moved to dismiss.

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connotes an “intentional relinquishment or abandonment of a

known right.” Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49,

53 (Ind. 2013). We agree with the DCS that Father waived his

right to challenge the setting of that factfinding hearing date,

although it fell outside the statutory 180 days. As such, Father

can be afforded no relief in this appeal.

Id. (record citations omitted).

[16] The same is true here. At the pre-trial hearing where the trial court set the

evidentiary hearings for dates beyond the statutory time limits, Mother not only

did not object, but she affirmatively waived the 180-day time limit. Moreover,

Mother did not move to dismiss until the third day of the hearing. Accordingly,

she cannot claim on appeal that the trial court erred by setting the hearings for

dates beyond the statutory time limit.7 See id.

[17] Mother acknowledges the holding in N.C. but argues that we should follow a

line of cases interpreting a similar statutory time limits for fact-finding hearings

in CHINS cases. The relevant CHINS statute provides in part:

(a) Except as provided in subsection (b), unless the allegations of

a petition have been admitted, the juvenile court shall complete a

factfinding hearing not more than sixty (60) days after a petition

alleging that a child is a child in need of services is filed in

accordance with IC 31-34-9.

7

To the extent that Mother argues that she did not waive the ninety-day time limit, we disagree. The trial

court noted that Mother affirmatively waived the 180-day time limit on the ninetieth day after the filing of the

petition. Thus, when she waived the 180-day time limit, she necessarily waived the ninety-day time limit by

failing to object to the setting of the hearings beyond the ninety-day limit.

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(b) The juvenile court may extend the time to complete a

factfinding hearing, as described in subsection (a), for an

additional sixty (60) days if all parties in the action consent to the

additional time.

***

(d) If the factfinding hearing is not held within the time set forth

in subsection (a) or (b), upon a motion with the court, the court

shall dismiss the case without prejudice.

Ind. Code § 31-34-11-1 (emphases added).

[18] Prior to 2012, subsection (d) was not yet part of this statute. See In re J.R., 98

N.E.3d 652, 655 (Ind. Ct. App. 2018). Before this subsection was added, we

had held that the use of the word “shall” in subsection (a) of this statute was

“directory and not mandatory.” Parmeter v. Cass Cnty. Dep’t of Child Servs., 878

N.E.2d 444, 448 (Ind. Ct. App. 2007). “Our holding [in Parmeter] was based on

the principle that ‘the term “shall” is directory when the statute fails to specify

adverse consequences, the provision does not go to the essence of the statutory

purpose, and a mandatory construction would thwart the legislative purpose.’”

J.R., 98 N.E.3d at 654 (quoting Parmeter, 878 N.E.2d 448). Prior to the addition

of subsection (d), Indiana Code section 31-34-11-1 contained no specific

consequence for failure to hold the fact-finding hearing within the statutory

time frame. See id. at 654–55, The Parmeter court therefore concluded that a

mandatory construction would thwart the legislative purposes of the CHINS

statutes to assist parents to fulfill their parental obligations and remove children

only when in their best interests “by requiring dismissal of CHINS cases where

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continuances of the fact-finding or dispositional hearings are needed for

legitimate reasons, such as the unavailability of parties or witnesses or the

congestion of the court calendar, merely because one party is being a stalwart.”

878 N.E.2d at 448.

[19] After the addition of subsection (d) in 2012, we reached a different conclusion

under similar circumstances. In J.R., a CHINS petition was filed on September

29, 2016. The trial court began a fact-finding hearing on November 22, 2016,

within the sixty-day deadline. On November 29, 2016 (the day after the sixty-

day deadline expired), the trial court ordered that the hearing be completed on

February 6, 2017—130 days after the CHINS petition was filed. The parents

subsequently objected to the trial court continuing the hearing outside the sixty-

day limit imposed by Indiana Code section 31-34-11-1, but the trial court

overruled their objection. The parents then filed a motion to dismiss the CHINS

petition. The trial court denied the motion and ultimately adjudicated the

parents’ children to be CHINS.

[20] On appeal, the parents argued that the trial court erred by denying their motion

to dismiss. We acknowledged the holding of Parmeter but noted that, since that

case, section 31-34-11-1 had been amended to add subsection (d), which

provides that upon motion, the trial court “shall dismiss the case without

prejudice” “[i]f the factfinding hearing is not held within the time set forth in

subsection (a) or (b).” The J.R. court therefore concluded:

Subsection (d) cures one of the ambiguities of the statute (as

identified by Parmeter) by spelling out the adverse consequence

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for failing to complete a factfinding hearing within the sixty-day

period. . . . [T]he 2012 revision leaves very little room for doubt

regarding legislative intent. Rather than changing “shall” to

“may” or adding provisions allowing for continuances for good

cause, the General Assembly instead added subsection (d).

Simply put, there is no longer any reason to believe that the

General Assembly intends Indiana Code section 31-34-11-1 to

mean anything other than what its clear language indicates, i.e.,

that a factfinding hearing shall be completed within sixty days of

the filing of a CHINS petition and that failure to do so is grounds

for dismissal. Parmeter is no longer good law on this point, and

we conclude that the juvenile court erred in denying [the]

[p]arents’ motion to dismiss.

98 N.E.3d at 655.

[21] We conclude that J.R. is readily distinguishable from the present case. The J.R.

court was construing a CHINS statute, not the termination statute at issue here.

Moreover, the parents in J.R. clearly objected to the trial court’s continuance of

the hearing outside the sixty-day time limit of the applicable statute. Here, as

noted, Mother not only failed to object, but specifically acquiesced to the delay

in the termination hearings.

[22] Mother also cites In re T.T., 110 N.E.3d 441 (Ind. Ct. App. 2018), in support of

her argument that the time limit is absolute and cannot be waived. In that case,

a CHINS petition had been filed on August 17, 2017. The trial court

commenced the fact-finding hearing on October 6, 2017, within the sixty-day

time limit. The parties then consented to an additional sixty days to complete

the hearing pursuant to section 31-34-11-1(b). The hearing was then continued

to November 7, 2017, a date within the new 120-day time limit. However, on

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November 7, DCS requested a continuance, and the trial court rescheduled the

hearing for January 3, 2018—139 days after the filing of the CHINS petition. At

the start of the January 3 hearing, the mother moved to dismiss the proceedings

on grounds that the hearing had not been completed within the statutorily

mandated time limit. The trial court denied the motion and adjudicated the

mother’s children to be CHINS.

[23] On appeal, the mother argued that the trial court had erred by denying her

motion to dismiss. DCS claimed that dismissal was not required because

Indiana Code section 31-34-11-1 did not create a hard and fast deadline and

because the mother waived her objection by agreeing to the continuance. The

T.T. court rejected DCS’s first argument, concluding that “the General

Assembly clearly intends for the timeframe set forth in Indiana Code section 31-

34-11-1 to be a certain deadline.” Id. at 443. With regard to the waiver

argument, the court concluded:

while subsection (a) provides that the parties may waive the

initial 60-day deadline by agreeing to a continuance, subsection

(b) does not include any such provision. This lack of allowance

for an additional extension of time indicates that the General

Assembly intends to require that a factfinding hearing must be

completed within 120 days of the filing of a CHINS petition

regardless of any act or agreements of the parties. To allow the

parties to agree to dates beyond the maximum 120-day limit

would thwart the legislative purpose of timely rehabilitation and

reunification of families that are subject to CHINS proceedings.

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Id. (emphasis added); see also In re M.S., 124 N.E.3d 1234 (Ind. Ct. App. 2019)

(following T.T. and holding that the trial court erred in denying mother’s

motion to dismiss even though it was mother who requested the continuance

that resulted in the hearing being set beyond the 120-day time limit), trans.

pending.

[24] Mother argues that we should apply the reasoning of T.T. and M.S. to the facts

of the present case and hold that the statutory time limits for termination

hearings are absolute and cannot be waived by the parties. We decline to do so.

The aforementioned cases dealt with the time limits set forth in Indiana Code

section 31-34-11-1 for CHINS fact-finding hearings. In contrast, here, we are

concerned with the time limits for termination hearings set forth in Indiana

Code section 31-35-2-6. Cases interpreting the former statute do not control in

cases, such as the present one, involving the latter statute.

[25] More importantly, Mother not only failed to object to the setting of the hearing

outside the statutory timeframe, she affirmatively waived the deadline on the

record. Accordingly, she failed to preserve any claim of error. See N.C., 83

N.E.3d at 1267. Mother even sought a continuance on the first day of the

already-delayed hearing. To permit Mother, after having affirmatively waived

the 180-day deadline, to seek dismissal based on the trial court’s failure to

complete the hearing within 180 days would effectively allow her to “sandbag”

the trial court. This would allow a parent to take advantage of invited error. See

Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 657 (Ind. Ct. App. 2008)

(noting that the doctrine of invited error precludes a party from taking

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advantage of an error that he or she commits, invites, or which is the natural

consequence of his or her own neglect or misconduct).

[26] Although we do not suggest that Mother engaged in such “sandbagging” here,

the result is the same: she waived the statutory deadline, then sought dismissal

after the court acted on her waiver. Under such circumstances, Mother cannot

complain that the hearing was held outside the statutory timeframe. Nor has

Mother identified any actual prejudice to her ability to present her case as a

result of the delay. Accordingly, we hold that the trial court’s failure to hold and

complete the evidentiary hearings on the termination petitions within the

statutory timeframe did not constitute reversible error.

II. Admission of Evidence

[27] Mother also contends that the trial court abused its discretion by admitting

evidence of Mother’s drug screens. In termination cases, as in all cases,

questions regarding the admission of evidence are entrusted to the sound

discretion of the trial court. B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 360

(Ind. Ct. App. 2013). A trial court abuses its discretion only when its decision is

against the logic and effect of the facts and circumstances before the court, or if

the court misinterprets the law. Id.; In re T.B., 895 N.E.2d 321, 333 (Ind. Ct.

App. 2008).

[28] Mother claims that the laboratory results of her drug screens constituted

inadmissible hearsay. Hearsay is defined as a statement that “is not made by the

declarant while testifying at the trial or hearing,” and that “is offered in

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evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).

“Hearsay is not admissible unless these rules or other law provides otherwise.”

Evid. R. 802. The exceptions to the hearsay rule include:

(6) Records of a Regularly Conducted Activity. A record of an

act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a business, organization, occupation, or

calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification

that complies with Rule 902(9) or (10) or with a statute

permitting certification; and

(E) neither the source of information nor the method or

circumstances of preparation indicate a lack of

trustworthiness.

Evid. R. 803(6).

[29] In In re L.S., 125 N.E.3d 628, 634 (Ind. Ct. App. 2019), this court held that the

drug test reports were not admissible under the business records exception to

the hearsay rule because, even though an affidavit of the laboratory director

stated that the reports were maintained in the normal course of business

activity, the laboratory did not depend on the reports to operate or conduct its

business. Rather, the drug test reports were documented for the benefit of DCS.

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Id. (citing In re E.T., 808 N.E.2d 639, 644–45 (Ind. 2004) (holding that reports

of home visits and supervised visitations made for the Office of Family and

Children did not qualify as business records because no organization depended

on them to operate)).

[30] Mother argues that the same holds true here, i.e., the results of her drug tests

were inadmissible hearsay. Even if we agreed with her, she would not prevail.

Not all evidentiary error is reversible error, as the improper admission of

evidence will be considered harmless when the trial court’s judgment is

supported by substantial independent evidence such that there is no substantial

likelihood that the questioned evidence contributed to the judgment. B.H., 989

N.E.2d at 360.

[31] The drug test results at issue here show that Mother tested positive for cocaine

and marijuana four times. But, at the termination hearing, Mother admitted

that she had a substance abuse problem and had abused drugs since she was a

teenager. Moreover, Mother should have submitted over 200 drug screens but

submitted less than half this amount. From this, the trial court could reasonably

infer that Mother would have tested positive for these missed screens. See In re

A.B., 924 N.E.2d 666, 671 (Ind. Ct. App. 2010). Mother was also convicted for

possession of cocaine. In other words, the evidence establishing Mother’s

repeated substance abuse was overwhelming, and the admission of the four

positive drug screens did not impair Mother’s substantial rights. See D.B.M. v.

Ind. Dep’t of Child Servs., 20 N.E.3d 174, 179 (Ind. Ct. App. 2014) (noting that

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admission of improper evidence is harmless if such does not affect a party’s

substantial rights), trans. denied.

III. Sufficiency of the Evidence

[32] Mother also claims that DCS failed to present sufficient evidence to support the

trial court’s decision to terminate her parental rights to the Children. The

controlling statute provides that a petition to terminate parental rights must

allege:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions

that resulted in the child’s removal or the reasons for

placement outside the home of the parents will not be

remedied.

(ii) There is a reasonable probability that the

continuation of the parent-child relationship poses a

threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been

adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment

of the child.

Ind. Code § 31-35-2-4(b)(2).8

8

Mother does not challenge the trial court’s conclusion that DCS met its burden under subsection 4(b)(2)(A),

regarding the time the Children have been removed from her care, nor does she challenge the trial court’s

conclusion that DCS met its burden under subsection (D), regarding the plan for the care and treatment of

the Children.

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[33] DCS must prove each element by clear and convincing evidence. Ind. Code §

31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Because Indiana

Code section 4(b)(2)(B) is written in the disjunctive, the trial court is required to

find that only one prong has been established by clear and convincing evidence.

In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). Clear and convincing

evidence need not establish that the continued custody of the parent is wholly

inadequate for the child’s very survival. Bester v. Lake Cnty. Office of Family &

Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show by

clear and convincing evidence that the child’s emotional and physical

development are put at risk by the parent’s custody. Id. If the court finds the

allegations in a petition are true, the court shall terminate the parent-child

relationship. Ind. Code § 31-35-2-8(a).

[34] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). We neither reweigh the evidence nor assess witness credibility, and we

consider only the evidence and reasonable inferences favorable to the trial

court’s judgment. Id. In deference to the trial court’s unique position to assess

the evidence, we will set aside a judgment terminating a parent-child

relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

with a definite and firm conviction that a mistake has been made. J.M. v. Marion

Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

denied.

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[35] We have also often noted that the purpose of terminating parental rights is not

to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880

(Ind. Ct. App. 2004). Although parental rights have a constitutional dimension,

the law allows for their termination when clear and convincing evidence

establishes that they are unable or unwilling to meet their responsibilities as

parents. Id. Thus, parental interests must be subordinated to the children’s

interests in determining the proper disposition of a petition to terminate

parental rights. G.Y., 904 N.E.2d at 1259.

[36] In the present case, Mother does not challenge any of the trial court’s factual

findings as being clearly erroneous. We therefore accept the trial court’s

findings as true, McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App.

1997), and determine only whether these unchallenged findings are sufficient to

support the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019),

trans. denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind.

Ct. App. 2012) (when unchallenged findings support termination, there is no

error), trans. denied.

A. Remedy of Conditions that Led to Removal

[37] Mother contends that the trial court clearly erred by concluding that there was a

reasonable probability that the conditions that resulted in the Children’s

removal from her care, or the reasons for placement outside her home, would

not be remedied. When deciding whether there is a reasonable probability that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must determine a parent’s

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fitness to care for the child at the time of the termination hearing while also

taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

denied. The trial court may disregard efforts made only shortly before

termination and give more weight to a parent’s history of conduct prior to those

efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).

[38] In the present case, the trial court concluded:

There is a reasonable probability that the conditions which

resulted in the children’s removal and continued placement

outside of the home will not be remedied by their mother.

[Mother] has had over two and a half years to put forth an effort

and has been unable to do so. She has struggled with drug

addiction for several years and has made little progress despite

multiple referrals designed to address her sobriety and stability.

Appellant’s App. pp. 153–54.

[39] The trial court’s unchallenged findings of fact are sufficient to support this

conclusion. Specifically, the trial court found:

18. Amanda Rinehart of Capital City provided Home Based

Therapy to [Mother] from November 2017 to January 2018.

19. Ms. Rinehart only met with [Mother] for a couple of sessions

and more often than not, [Mother] failed to appear.

20. During the intake session with Ms. Rinehart, [Mother] did

express a desire to get clean and sober. Her drugs of choice were

marijuana and cocaine.

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21. However, on the sessions that [Mother] did appear, she was

habitually late and made no progress and this referral was closed

unsuccessfully.

22. Ms. Rinehart believed that [Mother] needed inpatient

substance abuse treatment.

23. Between January 8, 2018 and February 5, 2018, [Mother]

submitted to four drug screens; all of which were positive for

marijuana or marijuana and cocaine. She has not submitted a

screen since February 2018.[9]

24. [Mother] had a prior CHINS case involving her other

children which culminated in her parental rights being

voluntarily terminated; as well as a previous “Informal

Adjustment.” The Informal Adjustment was also drug related.

25. [Mother] has struggled with addiction since her teenage

years.

26. On or about March 22, 2018, while the CHINS case was

open and after this Termination Action was filed, [Mother] was

arrested within a few blocks of this Court building on narcotics

charges.

27. [Mother] later pled guilty and was convicted of charges

arising from the March 22, 2018 arrest. Specifically, she pled

guilty to Possession of Cocaine (L-4 Felony); and Carrying a

Handgun Without a License (L-5 Felony). She was sentenced to

three (3) years on home detention and GPS monitoring through

Marion County Community Corrections.

28. [Mother]’s parenting time was again suspended by the

CHINS Court in April 2018 and she hasn’t seen the children

since February or March 2018.

9

As noted above, even if the evidence regarding Mother’s drug test results was improperly admitted, this

error was harmless given the other evidence clearly establishing Mother’s use of illicit drugs.

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019 Page 23 of 31

29. [Mother] has received numerous drug addiction services.

None were successfully completed.

***

31. Mark Pardue of NYAP provided Home Based Therapy for

[Mother] from October 2017 to February 2018.

32. Mr. Pardue established the goal for [Mother] of refraining

from drug and alcohol use.

33. Mr. Pardue intended to meet with [Mother] once a week.

However, [Mother] missed approximately half of the sessions.

34. Ultimately, [Mother]’s attendance took a “nosedive” and she

was unsuccessfully discharged in February 2018.

35. Mr. Pardue recommends that [Mother] participate in

inpatient treatment.

36. Throughout the duration of the CHINS case, [Mother]

should have submitted approximately 220 drug screens. She has

only submitted to approximately 70 and only four in the past

year and none since February 2018.

Appellant’s App. pp. 152–53.

[40] These unchallenged findings of fact clearly show that Mother has failed to

adequately address her substance abuse problems. She repeatedly missed

scheduled drug screens, which raises a reasonable inference that she would have

tested positive had she submitted to the scheduled screens. See In re A.B., 924

N.E.2d at 671 (noting that a parent cannot be permitted to refuse to submit to

drug testing and later claim that there was no proof that the parent continued to

use drugs). Mother admitted to having a substance abuse problem yet failed to

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complete any of the services offered to help her with this problem. She was also

arrested and convicted for possession of cocaine during the CHINS case.

Mother’s inability to successfully address her substance abuse problem supports

the trial court’s conclusion that there is a reasonable probability that the

conditions that resulted in the Children’s removal will not be remedied.10

B. Best Interests of the Children

[41] Mother also argues that the trial court clearly erred in concluding that

termination of her parental rights was in the best interests of the Children. In

this regard, the trial court concluded: “Termination of the parent-child

relationship is in the children’s best interests. Termination would allow them to

be adopted into a stable and permanent home where their needs will be safely

met.” Appellant’s App. p. 154.

[42] When determining what is in the best interests of a child, the trial court must go

beyond the factors identified by DCS and look to the totality of the evidence.

A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the

parent to those of a child, and the court need not wait until a child is

irreversibly harmed before terminating the parent-child relationship. Id.

Moreover, a recommendation by the case manager or child advocate to

10

Mother also argues that the trial court erred in determining that there was a reasonable probability that the

continuation of the parent-child relationship poses a threat to her Children’s well-being. Because we conclude

that DCS proved that there was a reasonable probability that the conditions which resulted in the Children’s

removal from Mother’s care would not be remedied, we need not address her arguments directed at the

second “threat” prong of Indiana Code section 31-35-2-4(b)(2)(B). See In re A.K., 924 N.E.2d at 220 (noting

that section 4(b)(2)(B) is written in the disjunctive and that the trial court is required to find that only one

prong of subsection (b)(2)(B) has been established).

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terminate parental rights, in addition to evidence that the conditions resulting in

removal will not be remedied, is sufficient to show by clear and convincing

evidence that termination is in the child’s best interests. Id.

[43] Here, the Children’s case manager and the guardian ad litem both testified that

termination of Mother’s parental rights was in the best interests of the Children.

The case manager testified that despite the CHINS case having dragged on for

over two years, Mother had yet to complete the court-ordered home-based

therapy, home-based case management, or drug treatment. Nor had Mother

been able to demonstrate an ability to provide a safe and stable environment in

which to raise the Children. The case manager therefore believed termination of

Mother’s parental rights was in the Children’s best interests. The guardian ad

litem testified that Mother had not completed the services offered to her to

address her substance abuse, which was what prompted DCS’s involvement.

The guardian ad litem testified that termination of Mother’s parental rights was

in the Children’s best interests because this would give them permanency after

two years of foster care. This testimony, combined with evidence that the

conditions that caused the removal of the Children from Mother’s care would

not be remedied, was sufficient to show by clear and convincing evidence that

termination of Mother’s parental rights was in the best interests of the Children.

See A.D.S., 987 N.E.2d at 1158.

Conclusion

[44] Mother waived the statutory time limits within which the trial court was

required to commence and complete the hearings on DCS’s petitions to

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terminate her parental rights. Thus, the trial court properly denied Mother’s

subsequent motion to dismiss based on the failure to complete the hearings

within the statutory time limits. Any error in the admission of the results of

Mother’s drug screens was harmless given the other substantial evidence of

Mother’s substance abuse. And there was sufficient evidence to support the trial

court’s termination order. We therefore affirm the judgment of the trial court.

[45] Affirmed.

Robb, J., concurs.

Pyle, J., concurs in result with opinion.

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019 Page 27 of 31

IN THE

COURT OF APPEALS OF INDIANA

In re the Termination of the Court of Appeals Case No.

Parent-Child Relationship of J.C. 19A-JT-350

and R.C. (Minor Children) and

B.C. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child

Services,

Appellee-Petitioner,

and

Child Advocates, Inc.,

Appellee-Guardian ad Litem.

Pyle, Judge concurring in result with opinion.

[46] I concur in the result reached by my colleagues, but I write separately to state

that I believe that the admission of Mother’s drug test results (Exhibits 17-20)

was not erroneous; they were properly admitted under the business records

exception to the hearsay rule. Evid. R. 803(6).

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019 Page 28 of 31

[47] I respectfully disagree with the holding reached in In re L.S., 125 N.E.3d 628

(Ind. Ct. App. 2019). See In re F.S., 53 N.E.3d 582, 596 (Ind. Ct. App. 2016)

(noting that each panel of this Court has coequal authority to address an issue

and is not bound by another panel’s prior decision). In that case, another panel

held that reports of drug test results were not admissible under the business

records exception. That panel relied on the reasoning provided by our Indiana

Supreme Court in In re E.T., 808 N.E.2d 639 (Ind. 2004).

[48] In E.T., Justice Rucker noted that the reliability of business records collected in

the ordinary course of business is what gives courts the assurance to admit into

evidence items otherwise considered hearsay. In re E.T., 639 N.E.2d at 643. In

other words, “business records are made reliable by ‘systematic checking, by

regularity and continuity which produce habits of precision, by actual

experience of business in relying upon them, or by a duty to make an accurate

record as part of a continuing job or occupation.’” Id. (quoting Advisory

Committee’s Note to Fed. R. Evid. 803(6); see also Stahl v. State, 686 N.E.2d 89,

92 (Ind. 1997)). “It is not enough to qualify under the business records

exception to show that the records are made regularly; rather, the court must

also look to ‘the character of the records and their earmarks of reliability acquired

from their source and origin and the nature of their compilation.’” E.T., 639

N.E.2d at 643 (quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (emphasis

added)).

[49] In E.T., our supreme court found that reports describing home visits and

supervised visitations produced by a non-profit agency were not business

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records for several reasons: (1) the reports contained unsubstantiated third-party

observations; (2) the reports contained conclusory lay opinions; (3) the reports

were nothing like the traditional financial statements, inventory records, or

administrative and operational documents admitted as business records in

Indiana; and (4) the non-profit agency worked solely for a governmental

agency, the Office of Family and Children. Id. at 643-645.

[50] None of these reasons apply to the drug test results admitted in this case. In

this case, the evidence showed that the urine samples for Mother’s drug tests

were collected here in Indiana and submitted to Redwood Toxicology

Laboratory (“Redwood”) in California. John Martin (“Martin”), a supervising

toxicologist, testified that Redwood receives samples, employs scientific

methods to analyze urine samples for the presence of illicit substances, and

produces reports to multiple clients. (Tr. 58-86). None of the reports produced

by Redwood and admitted into evidence by the trial court contained

unsubstantiated third-party observations or conclusory lay opinions.

(Petitioner’s Ex. 17-20). Using scientific principles widely accepted in the

scientific community, the reports merely noted whether illicit substances were

present and in what concentrations. Further, the reports fit within the type of

administrative or operational business documents Indiana judges see and admit

into evidence on a regular basis. Finally, there was testimony that Redwood

has multiple clients to whom it releases reports as a part of its business; they do

not work solely for the Department of Child Services. As a result, if an

adequate foundation is laid, it is precisely these characteristics and earmarks of

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019 Page 30 of 31

reliability that make the drug testing reports at issue admissible under the

business records exception.

[51] As a result, I would find that the trial court did not err in admitting Exhibits 17-

20 into evidence under the business records exception. In all other respects, I

concur with my colleagues.

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