noting that the doctrine of invited error precludes a party from taking advantage of an error that he or she commits, invites, or which is the natural consequence of his or her own neglect or misconduct
How later courts described this case
- noting that the doctrine of invited error precludes a party from taking advantage of an error that he or she commits, invites, or which is the natural consequence of his or her own neglect or misconduct
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 09 2019, 8:31 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots INDIANA DEPARTMENT OF
Marion County Public Defender Agency CHILD SERVICES
– Appellate Division Curtis T. Hill, Jr.
Lisa M. Johnson Attorney General of Indiana
Brownsburg, Indiana Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 9, 2019
Parent-Child Relationship of J.L. Court of Appeals Case No.
(Minor Child) and 19A-JT-764
J.R. (Mother), Appeal from the Marion Superior
Court
Appellant-Respondent,
The Honorable Marilyn A.
v. Moores, Judge
The Honorable Scott Stowers,
Indiana Department of Child Magistrate
Services, Trial Court Cause No.
49D09-1806-JT-796
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 1 of 23
Child Advocates, Inc.,1
Appellee-Guardian ad Litem.
Mathias, Judge.
[1] J.R.’s (“Mother”) parental rights to her minor child were terminated in the
Marion Superior Court. Mother appeals and raises two issues:
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; and,
II. Whether clear and convincing evidence supports the trial court’s order
terminating Mother’s parental rights.
We affirm.
Facts and Procedural History
[2] J.L. was born on December 18, 2016. Shortly after her birth, on January 17,
2017, the Indiana Department of Child Services (“DCS”) filed a petition
alleging that J.L. was a Child In Need of Services (“CHINS”). Specifically,
DCS alleged that Mother and R.L. (“Father”) had not provided J.L. with a
stable home and that Mother had untreated mental health issues.
1
DeDe K. O’Connor filed an appearance on behalf of Child Advocates, Inc., but did not file a brief.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 2 of 23
[3] At the initial hearing, J.L. was placed with Father in a temporary trial home
visit. However, on March 2, 2017, she was removed from Father’s care because
DCS learned that he was leaving J.L. with random relatives. J.L. has been in
foster care since that date.
[4] On April 28, 2017, Mother admitted that J.L. was a CHINS. After that date,
Mother’s participation in services was sporadic, and she failed to attend a
family team meeting. On August 4, 2017, the trial court noted that Mother’s
home-based case management “had been closed because of lack of
participation.” Ex. Vol., Pet’r Ex. 12 p. 81. Mother was homeless, unemployed,
and pregnant. Her relationship with Father was volatile, and Mother and
Father were physically violent with one another. During supervised visitation,
Mother’s parenting skills improved slightly, but she acted impatient and
agitated when trying to comfort J.L.
[5] Mother failed to appear for the September 8, 2017 dispositional hearing at
which the trial court ordered her to participate in home-based therapy. Mother’s
participation was sporadic, and she refused assistance from her case worker.
She failed to follow through with tasks and medical appointments on her own.
Mother’s anger made it difficult to provide services to her and she refused to
take medications to address her mental health issues. At the permanency
hearing held on June 8, 2018, Mother’s home-based therapist reported that
Mother’s ability “to reason and make decisions that are beneficial to herself and
her child” continued to be limited. Ex. Vol., Pet’r Ex. 18 p. 125.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 3 of 23
[6] For these reasons, the trial court changed J.L.’s plan to adoption at that
permanency hearing. Furthermore, the trial court noted that Mother had often
requested a reduced visitation schedule. During visitation, she struggled to
provide care for J.L. without assistance from her home-based therapist. Her
frustration with J.L. was evident, and she screamed at J.L. when the child
approached the therapist. Id. at 127. Mother also required prompts to feed J.L.
and change her diapers.
[7] On June 28, 2018, the DCS filed a petition to terminate Mother’s parental
rights to J.L.2 The termination hearing was held on January 17 and 24, 2018.
One week before the January 17 hearing, Mother filed a motion to dismiss
DCS’s petition because the hearing was not held within the time limits
established in Indiana Code section 31-35-2-6. At the termination haring,
Mother renewed her motion to dismiss. After noting that Mother had
previously waived the statutory time limits, the trial court denied her motion.
[8] Mother’s home-based therapist, Dr. Robin Kohli, and the guardian ad litem
testified at the hearing and agreed that two-year-old J.L. needed permanency
best provided by her current foster family. The trial court terminated Mother’s
parental rights after finding that
8. On February 21, 2017, [Mother] underwent a Psychological
Evaluation administered by Dr. Robin Kohli of Woodview
Psychology Group.
2
Father’s parental rights to J.L. were terminated in a separate proceeding.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 4 of 23
9. Dr. Kohli has been qualified as an expert in the area of
Clinical Psychology.
10. During the psychological evaluation, [Mother] appeared to be
experiencing hallucinations, as she demonstrated a flat and
inappropriate affect such as laughing while discussing being
raped.
11. [Mother] disclosed to Dr. Kohli that she has willingly
participated in prostitution with at least five different men,
beginning at age eighteen (18).
12. [Mother] also disclosed that she has been the victim of
domestic violence at the hand of [Father], including at times
while she was holding the child.
13. During the psychological evaluation, [Mother] made
concerning statements regarding the child, including jealousy
toward the baby as well as resentment toward [J.L.] for taking
attention away from [Mother].
14. [Mother] also expressed to Dr. Kohli that [J.L.] was
“annoying because all she do is cry, cry, cry” and that compared
to other babies, [J.L.] is “more annoying than most other
babies.”
15. At the time of the psychological evaluation in February 2017,
[Mother] insisted that she didn’t need treatment or parenting
classes.
16. Dr. Kohli diagnosed [Mother] with Unspecified
Schizophrenia and Other Psychotic Disorder; Posttraumatic
Stress Disorder, and Child Neglect.
17. Dr. Kohli concluded that [Mother] is at a high risk for
engaging in physical child abuse.
18. [Mother] also expressed to Dr. Kohli desires of revenge to
“get back at” [J.L.].
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 5 of 23
19. Dr. Kohli concluded that [Mother’s] prognosis for
meaningful improvement is poor.
20. Dr. Kohli found no evidence of attachement [sic] between
[Mother] and the child.
21. Dr. Kohli strongly recommends that [Mother] receive a
psychiatric consultation to determine appropriate psychotripic
[sic] medication to alleviate her symptoms.
22. As of the January 24, 2019 trial date, [Mother] had been
residing in a shelter for approximately one week. For much of the
duration of the CHINS case, she was homeless and other than
residing in an apartment for part of 2017 and 2018, she has not
had stable housing.
23. As recently as the January 17, 2019 trial, [Mother] still did
not have an understanding as to why DCS is involved with her
child.
24. When she did reside in the apartment, she was unable to pay
her electric bill so her power was shut off.
25. [Mother] did get medications prescribed. However, she did
not consistently take them because she didn’t like the side effects.
26. Since [J.L.] was born in December 2016, [Mother] has had
two other children.
27. Nicki Rogers of Branches of Life provided Home Based
Therapy; Home Based Case Management; and Supervised
Parenting Time for [Mother] since February 2017.
28. [Mother] initially was slow to engage with Ms. Rogers.
29. [Mother] did make progress with managing her anger.
30. [Mother] still struggles with comprehension and has difficulty
retaining information.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 6 of 23
31. [Mother] made some progress with her therapeutic goals of
improving her thought process and patterns. However, there is
still lots of work to be done. [Mother] is not receptive to help and
demonstrates lots of opposition and confrontation.
32. Ms. Rogers established goals for [Mother] in Home Based
Case Work of Housing and Prenatal care.
33. Ms. Rogers took [Mother] to several doctor’s appointments.
34. [Mother] did obtain an apartment in the summer of 2017.
The conditions deteriorated and [Mother] moved out in May
2018.
35. [Mother] struggled with maintaining a budget as well as
distinguishing between “needs and wants.”
36. After moving out of the apartment in May 2018, [Mother]
lived in several different places including the streets.
37. [Mother’s] parenting time with the child since March 2017
have been “supervised therapeutic visits.”
38. [Mother] receives one visit per week with the child. Prior to
July 2018, she received two sessions per week. After her
parenting time sessions were reduced from two per week to one,
[Mother] became more consistent.
39. During parenting time sessions, [Mother] has demonstrated
negative behaviors including yelling and cussing at [Father] on
the telephone.
40. [Mother] has also made negative comments about [J.L.]
during parenting time sessions and demonstrates a lack of
empathy.
41. Although [Mother] made progress with simple tasks such as
making a bottle for the child, she is nowhere near progressing to
unsupervised parenting time.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 7 of 23
42. In May 2018, [Mother] contacted Karina Napier of Midtown
Mental Health to set up an appointment for the following day.
43. [Mother] failed to appear and later made four other
appointments and failed to appear for all of them.
44. Following the fifth missed appointment, Ms. Napier closed
out unsuccessfully.
45. The child has been removed from her mother’s care and
custody for at least six (6) months under a dispositional decree
prior to this Termination Action being filed on June 28, 2018.
46. The child has been placed in Foster Care since March 2017.
She is doing well and her needs are being met. She is placed with
her biological siblings. This is the only home she has known.
This is a pre-adoptive placement.
47. [Mother] has expressed to the FCM a desire to receive
Mental Health Treatment on her home [sic] at Midtown.
However, she never followed through.
Appellant’s App. pp. 99–101.
[9] The trial court concluded 1) that there is a reasonable probability that the
conditions that resulted in the child’s removal and continued placement outside
of the home will not be remedied, and 2) that continuation of the parent-child
relationship poses a threat to the child’s well-being. The trial court also
concluded that termination of Mother’s parental rights was in J.L.’s best
interests because Mother “has not demonstrated the ability to appropriately
care for” J.L. Id. at 101. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 8 of 23
I. Statutory Time Limits
[10] Mother argues that the trial court erred by denying her motion to dismiss the
DCS’s petition to terminate her parental rights because the termination hearing
was not commenced within 90 days after the petition was filed and was not
completed within 180 days of the filing of the petition.
[11] 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,[3] 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).
3
Neither party contends that this subsection is applicable here.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 9 of 23
[12] Here, the termination hearing commenced 203 days after the petition was filed
and was completed 210 days after the petition was filed. 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 petition.
[13] Mother’s argument overlooks the fact that she affirmatively waived the
statutory time limits, and therefore, she also did not object to the setting of the
fact-finding hearing outside the ninety and 180-day time limits set forth in
Indiana Code section 31-35-2-6. For this reason, the State contends that Mother
waived any objection to the delay in the hearings.
[14] 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. Id. at 1267. The N.C.
court held that the father had acquiesced to the hearing date, writing:
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 10 of 23
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”
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. On June 28, 2018, DCS filed its petition to terminate
Mother’s parental rights. Importantly, approximately forty-five days later,
Mother, by counsel, waived the 180-day time requirement. Appellant’s App.
pp. 11, 54. See id. Relying on Mother’s waiver, the trial court set trial dates for
January 17 and 24, 2019, both beyond the statutory time limits. Mother did not
object to the setting of the trial outside the statutory time limits. Mother
eventually filed a motion to dismiss on January 10, 2019, after the 180-day time
limit had passed. She renewed her motion at the January 17, 2019 termination
hearing, and the trial court denied the motion.4
4
The trial court had also previously denied DCS’s motion to move up the trial date to comply with the time
limits established in Indiana Code section 31-35-2-6 because the parties waived the statutory time limits.
Appellant’s App. p. 65.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 11 of 23
[17] Mother 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.
(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 Cty. 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.’”
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 12 of 23
J.R., 98 N.E.3d at 654 (quoting Parmeter, 878 N.E.2d at 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 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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 13 of 23
[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
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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 14 of 23
previously 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
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:
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 15 of 23
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.
Id. (emphasis added).5
[24] Mother argues that we should apply the reasoning of T.T. 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. See
Appellant’s App. pp. 11, 54. Accordingly, she failed to preserve any claim of
5
Mother also relies on In re M.S., 124 N.E.3d 1234 (Ind. Ct. App. 2019), trans. granted, in which our court
held 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. Transfer was
granted in that case on September 12, 2019.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 16 of 23
error. See N.C., 83 N.E.3d at 1267. 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 any 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 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. Sufficiency of the Evidence
[27] Mother also claims that DCS failed to present sufficient evidence to support the
trial court’s decision to terminate her parental rights to J.L. 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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 17 of 23
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).6
[28] 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, 1260 (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 Cty. 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
6
Mother does not challenge the trial court’s conclusion termination was in J.L.’s best interests, 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 J.L.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 18 of 23
allegations in a petition are true, the court shall terminate the parent-child
relationship. Ind. Code § 31-35-2-8(a).
[29] 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
Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.
denied.
[30] 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.
[31] Mother contends that the trial court clearly erred by concluding that there was a
reasonable probability that the conditions that resulted J.L.’s removal from her
Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019 Page 19 of 23
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 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).
[32] Mother argues that the trial court placed too much emphasis on Dr. Kohli’s
report because she was evaluated by the doctor in February 2017. Mother also
argues that she progressed in therapy and with home-based counseling, and that
she no longer has a relationship with Father. In addition, Mother claims that
the trial court’s finding that she failed to recognize the need for mental health
treatment and did not understand why DCS was involved with her child is not
supported by the evidence. Mother admits that she has a history of cognitive
limits, ADHD, PTSD, depression, and anxiety, but contends there is nothing in
her history suggesting she suffers from psychosis other than Dr. Kohli’s finding.
Finally, Mother claims that she was unable to take her prescribed medication
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because she was pregnant for eighteen of the twenty-four months that the
CHINS and termination proceedings were pending.7
[33] Mother made marginal progress with J.L. and in home-based therapy. But her
therapist testified that Mother still struggles with comprehension during therapy
and could not apply the skills learned to her daily life. Tr. p. 100. And she could
not remember what she learned from one session to the next. For example,
Rogers testified that Mother understands “what abuse is and depending on her
mood and her status in that relationship, she will either reject or accept that that
relationship is an unhealthy one for her and for her children. It just depends on
the day.” Tr. p. 101. Rogers believes that Mother will have to continue to
“work really hard to change behaviors and change her thought process” and
there is “still a lot of work that needs to be done.” Id. Mother also generally
denied that she had “issues or problems” and insisted that she did not need
help. Id. at 102. Rogers was also concerned about Mother’s “lack of follow
through with mental treatment and following recommendations of her” doctor.
Tr. p. 118.
[34] Mother was unable to manage money and failed to maintain stable housing.
Rogers testified that Mother’s “understanding of … needs versus wants in
regards to budgeting is … a huge barrier” to her ability to maintain stable
7
Rogers testified that Mother refused to take her prescribed medication because Father told her she should
not take the medication due to the side effects. Tr. p. 116; see also Tr. p. 160.
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housing. Tr. pp. 105–06. On the date of the termination hearing, Mother had
been living at a Salvation Army shelter for approximately one week.
[35] Throughout the CHINS and termination proceedings, Mother was only able to
consistently attend one supervised visit per week with J.L. Mother also cannot
independently care for J.L. Mother does not understand “the needs of a child
and child development as far as . . . how to provide appropriate and adequate
safe care for a child[.]” Tr. p. 118. Because Mother was unable to care for J.L.’s
basic needs, visitation never progressed beyond therapeutic visitation. Tr. pp.
114–15. Although Mother eventually established a bond with J.L., during visits,
Mother would refuse to speak to or play with J.L. on a “fairly regular basis.”
Tr. pp. 112, 125.
[36] Finally, we do not agree with Mother’s claim that the trial court placed too
much emphasis on Dr. Kohli’s testimony and report. Dr. Kohli is a clinical
psychologist with eighteen years of experience. Without objection, the trial
court certified her as an expert in the area of clinical psychology. Tr. p. 13. Dr.
Kohli evaluated Mother during the CHINS proceedings, approximately two
years before the hearing was held in this case. It was within the discretion of the
fact-finder to weigh Mother’s current demeanor and mental state against Dr.
Kohli’s findings from two years prior to the termination hearing. In re D.B., 942
N.E.2d at 871. Moreover, from the evidence presented, it was reasonable for
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the trial court to conclude that Mother has done little to address her mental
health issues throughout the CHINS and termination proceedings.8
[37] For all of these reasons, we conclude that the trial court’s determination that
there was a reasonable probability that the conditions that resulted in J.L.’s
removal from her care, or the reasons for placement outside her home, would
not be remedied is supported by clear and convincing evidence.9
Conclusion
[38] Mother has not established reversible error in the trial court’s failure to hold and
complete the evidentiary hearings on the termination petitions within the
statutory timeframe. Furthermore, Mother only challenged the statutory
findings required by Indiana Code section 31-35-2-4(b)(2). Because we conclude
that clear and convincing evidence supports the trial court’s finding under
section 31-35-2-4(b)(2)(B)(i), we affirm the trial court’s order terminating
Mother’s parental rights.
[39] Affirmed.
Robb, J., and Pyle, J., concur.
8
Mother notes that Dr. Kohli was the only individual who testified that she suffers from psychosis, and there
was no evidence from her home-based therapist or any other case workers that they had observed any
evidence of psychosis. Even if the doctor’s diagnosis was in error, the remaining evidence is more than
sufficient to terminate Mother’s parental rights to J.L.
9
Mother also challenges the trial court’s finding that that continuation of the parent-child relationship poses
a threat to J.L.’s well-being. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we
need not address this argument. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015), trans. denied.
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