noting the law is well established that a party on appeal may waive a constitutional claim
How later courts described this case
- noting the law is well established that a party on appeal may waive a constitutional claim
- holding drug test results inadmissible as business records
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 28 2020, 8:48 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Devon M. Sharpe Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Lisa Manning Robert J. Henke
Danville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 28, 2020
Parent-Child Relationship of: Court of Appeals Case No.
20A-JT-875
D.W. (Minor Child)
Appeal from the Jefferson Circuit
and Court
A.H. (Mother) & D.W.(Father), The Honorable Donald J. Mote,
Appellants-Respondents, Judge
The Honorable Carl H. Taul,
v. Special Judge
Trial Court Cause No.
Indiana Department of Child 39C01-1907-JT-12
Services,
Appellee-Petitioner
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 1 of 23
Case Summary
[1] A.H. (Mother) and D.W. (Father) separately appeal from the involuntary
termination of their parental rights to their minor son. On appeal, Mother and
Father both argue that the trial court erred in denying their oral motion to
dismiss the termination petition. Mother separately argues that the trial court
abused its discretion in admitting evidence of her drug test results under Ind.
Evidence Rule 803(b), the business records exception to the hearsay rule.
Father separately argues that the evidence is insufficient to support the trial
court’s termination order as to him.
[2] We affirm.
Facts & Procedural History
[3] Mother and Father are the biological parents of Do.W. (Child), born April 2,
2018. On September 12, 2018, Mother had a “mental health crisis” while she
and Child were at a local store. Transcript Vol. II at 43. Mother refused
treatment. DCS checked Mother’s home and deemed it suitable and safe, so
DCS did not intervene further. The next day, Mother was in the parking lot of
the apartment building where she was staying and was incoherent and acting
erratically, believing that someone was trying to kill her and Child. After
determining that there was no such threat to Mother and Child’s safety, officers
transported Mother to the hospital where Mother admitted to using
methamphetamine. She was later admitted to Bloomington Meadows for
psychiatric treatment. At the time, Father was incarcerated on a bestiality
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 2 of 23
conviction. Because there were no suitable, able, and willing caregivers, DCS
placed Child in foster care, where he has remained.
[4] On September 14, 2018, DCS filed a child in need of services (CHINS) petition.
Mother failed to appear for the CHINS factfinding hearing, and Child was
adjudicated a CHINS on November 15, 2018. At a subsequent factfinding
hearing on December 6, 2018, Father admitted Child was a CHINS. The court
entered a dispositional order on December 13, 2018. Mother and Father were
ordered to maintain contact with the family case manager (FCM), maintain
stable, safe, and suitable housing, secure and maintain a legal source of income,
complete a parenting assessment and follow all recommendations, complete a
psychological evaluation and follow all recommendations, participate in
recommended home-based services, and attend supervised visits with Child.
Mother was additionally ordered to submit to a substance abuse assessment and
random drug screens.
[5] After Child was removed from Mother’s care, DCS arranged for supervised
visitation. Mother visited Child one time, on October 10, 2018. At some point
thereafter, Mother was arrested. After her release from jail in January 2019,
Mother fell off DCS’s radar. DCS contacted family and friends and used an
investigator but was unable to locate Mother, who was apparently bouncing
between houses and living on the streets until July 1, 2019, when she was again
arrested. While incarcerated, DCS did not offer services to Mother.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 3 of 23
[6] During the time when Mother’s whereabouts were unknown, DCS briefly
worked with Father after he was released from incarceration in February 2019.
Father completed a psychological evaluation with Peter Davies, a therapist at
Centerstone. Davies found Father to be “responsive [and] engaged” and “open
and honest.” Id. at 56, 59. Father informed Davies about his criminal history
and violent behavior, explaining that he “head-butted a person” during an
altercation and would get into fights in jail. Id. at 59. Father also told Davies
about his conviction for bestiality, but, according to Davies, Father denied
engaging in the behavior underlying such conviction. Father also shared with
Davies that he was “pleased with his ability as a fighter and showed no remorse
for the – the damage that he caused other people.” Id. Based on the
information provided by Father, Davies found Father to suffer from
intermittent explosive disorder and adjustment disorder. Father did not
participate in follow-up services with Davies to address his anger issues.
[7] During the six weeks Father was not incarcerated, he started participating in the
Father Engagement Program (FEP). In the beginning, Father expressed
“disgruntled emotions with DCS and the system.” Id. at 72. It took several
sessions for Father to shift his focus to the purpose of the FEP. Just prior to the
TPR hearing, Father “really made some headway” by “not talking . . . so much
about the issues . . . but moving on with some of the more important aspects of
Fatherhood Engagement.” Id. Father did express concern about his ability to
parent Child.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 4 of 23
[8] Additionally, when Father was not incarcerated, DCS arranged for Father to
have supervised visits with Child. Father attended four out of six visits in
March and April 2019. According to Keri Little, the visitation supervisor,
Father was not prepared for visits and it took fifteen to twenty minutes for
Child to warm up to Father. In Little’s assessment, there was no bond between
Father and Child, and Father seemed more interested in taking pictures of
Child rather than interacting with Child. Little testified that there was “no
affection” between Child and Father. Id. at 81.
[9] After his release in February 2019, Father lived with family members and
obtained employment, although it was “off and on.” Id. at 42. He was not
always able to provide “legitimate paystubs and things of that nature for the
employment.” Id.
[10] In April 2019, Father was arrested for driving under the influence and resisting
law enforcement. Due to his incarceration, visits with Child were suspended.
Father, however, continued to participate in the FEP on a weekly basis while
incarcerated. A.J. Mistry, Father’s FEP case manager, testified that Father was
doing well in the program and making progress. Father remained incarcerated
for the duration of the proceedings.
[11] At a permanency hearing on June 6, 2019, DCS requested that the plan for
Child be changed from reunification to adoption. The court found that Father
had partially complied with the case plan and that Mother could not be located,
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 5 of 23
had not complied with the case plan, and had not participated in services. The
court approved DCS’s request.
[12] On July 10, 2019, DCS filed a petition to terminate Mother’s and Father’s
parental rights to Child (TPR Petition). The court held an initial hearing on
August 29, 2019, at which Father 1 appeared but Mother did not. A second
initial hearing was held on November 21, 2019, at which Mother, who had
been located and was in custody, appeared. The court held a factfinding
hearing on the TPR Petition on January 24, 2020.
[13] At the start of the hearing, Father moved to dismiss the TPR Petition on the
basis of “House Bill 1432.” Transcript Vol. II at 24. Father explained:
It was effective July the 1st of 2019 regarding parental
incarceration, but it provides that a [CHINS] case must include a
discussion and services and treatment to be available for the
incarcerated parent at the facility where the person is
incarcerated, and the parent or – and child must be afforded
some kind of visitation opportunities unless it’s not in the child’s
best interest and also requires that the CHINS disposition decree
provide some kind of opportunity for the – a meaningful role for
the parent in the child’s life, that there must be a plan to include
the incarcerated parent.
Id. Father asked the court to “keep that in mind and take that into
consideration during the testimony . . . in this termination trial and then
1
Father was still incarcerated.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 6 of 23
consider that [] in your deliberation.” Id. at 25. Mother joined in Father’s
motion to dismiss, explaining that it would be beneficial for Mother to wait for
the outcome of a bond reduction hearing scheduled for the following month
before moving forward with the TPR hearing. The court took the motion under
advisement before the presentation of evidence began. Father again moved to
dismiss the TPR petition during his closing argument, and Mother joined in the
motion. Father asked for the dismissal so that “the child should not be – his
father should not have his parental rights terminated from the child.” Id. at
109. In support of the motion to dismiss, Mother requested “that she be given a
chance to reunite with her child.” Id. at 110.
[14] During the hearing, FCM Lydia Stepp testified without objection that Mother
had a history of incarceration related to methamphetamine and that Mother
tested positive for methamphetamine during the CHINS proceedings. DCS
then introduced Exhibit D, copies of the results of drug tests administered to
Mother, as business records of Forensic Fluids. Mother objected to the
admission of such evidence, asserting that DCS had not laid a proper
foundation to qualify the documents as business records under Evid. R. 803(6).
Acknowledging a split in Court of Appeals decisions, 2 DCS argued that such
2
Compare In re L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019) (holding drug test results inadmissible as business
records), trans. not sought, with In re J.B., 144 N.E.3d 763 (Ind. Ct. App. 2020) (holding drug test results
qualify as business records), trans. not sought, and In re A.B., 133 N.E.3d 754 (Ind. Ct. App. 2019) (holding
drug test results admissible as business records), trans. granted.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 7 of 23
went to the weight of the evidence, not its admissibility. The court “receive[d]
the exhibit pending review” of the conflicting case law. Transcript Vol. II at 36.
[15] In addition to testifying about DCS’s involvement with Mother and Father,
FCM Stepp testified that Child had been in the same foster home throughout
the proceedings, is bonded with his foster family, and is a “happy kid.” Id. at
38. FCM Stepp did not believe that affording Mother and Father more time
would be beneficial given their repeated incarcerations and failure to participate
or complete services when not incarcerated. FCM Stepp further testified that
she spoke with Mother about participating in services upon her release from her
recent incarceration and Mother “wanted no part of it. She said she did not
want to do therapy. She did not want the home-based case work. She wanted
nothing.” Id. at 49. In fact, Mother did not contact DCS after she was
released. Father remains incarcerated with no definite date for his release.
FCM Stepp supported DCS’s plan of Child’s adoption by his foster family.
[16] At the termination factfinding hearing, Mother testified that she and Child
became homeless shortly after Father was incarcerated. Mother explained that
she thought someone was drugging Child, that there was wiring on her car that
was not there when she bought it, and that she was being followed and felt like
someone was “going to try and harm [her] son, kill him, and have [her] blamed
for it.” Id. at 92. Mother also admitted that she had tested positive for
methamphetamine when her son was not in her care.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 8 of 23
[17] On February 14, 2020, the court entered its order with the following relevant
findings:
15. Continuation of the parent/child relationship between
Father and the Child is not in the Child’s best interests. The
Child has little to no established bond or relationship with Father
due to Father’s lengthy, ongoing, and repeated absences from the
Child’s life caused by Father’s inability to obey the law and keep
himself out of jail and the underlying factors behind Father’s
actions and incarcerations are unlikely to be resolved in a
reasonable period of time. Following the Child’s removal on
September 13, 2018, Father only visited the Child four times.
These visits occurred over a span of roughly a month, beginning
upon Father’s release from incarceration as a result of his
conviction for bestiality . . . and ceased due to Father’s
subsequent re-incarceration for operating a vehicle after forfeiting
his license for life and resisting law enforcement. . . . Further,
Father’s criminal history consists of varying crimes centering [on]
rage and impulse control problems which . . . represent
significant, ongoing barriers to Father’s ability to adequately and
appropriately parent the Child that are unlikely to be resolved
within a reasonable amount of time, if ever. Taking this together
with the fact that the Child’s foster placement being ready,
willing, and able to adopt, continuation of Father’s relationship
with the Child is not in the Child’s best interest.
16. Continuation of the parent/child relationship between
Mother and the Child is not in the Child’s best interests. Mother
has little to no established bond or relationship with the Child.
Following the September 13, 2018 removal of the Child, Mother
has not visited with the Child due to not only her repeated
incarcerations for operating a vehicle while intoxicated,
disorderly conduct, residential entry, possession of
methamphetamine, and escape but also due to her extended
absences as a result of her being missing and maintaining near
zero contact with DCS throughout the life of the case while not
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 9 of 23
incarcerated. . . . Supporting documentation detailing Mother’s
positive drug screens for methamphetamine and cocaine were
provisionally entered into evidence and made a part of the record
as Petitioner’s Exhibit D. Mother subsequently testified to
having submitted to drug screens and admitted to having used
methamphetamine. The original reason the underlying CHINS
cause was initiated concerned Mother’s erratic and paranoid
behavior from having been under the influence of illegal
substances and no evidence was presented that even suggests that
Mother is willing or able to remedy those original reasons for
removal in a reasonable period of time. Taking this together with
the fact that the Child’s foster placement being ready, willing,
and able to adopt, continuation of Mother’s relationship with the
Child is not in the Child’s best interest.
17. Termination of Mother and Father’s parental rights is in the
Child’s best interests. The Child’s foster placement is ready,
willing, and able to adopt the Child. The Child is extremely well
bonded to his foster placement and taking this together with the
fact neither Mother nor Father have or appea[r] able to remedy
the issues in this matter within a reasonable period of time it is in
the Child’s best interest to terminate both Mother and Father’s
parental rights in order to allow the Child’s foster placement to
adopt the Child and achieve the necessary permanency the Child
deserves.
***
20. Based on the totality of the evidence and testimony
presented, the DCS request for termination of both Mother and
Father’s parental rights is based on numerous factors and not
solely based on one or both parents’ incidents of incarceration.
Joint Appendix of Parents Vol. 2 at 50-51. The court then concluded DCS had
proven by clear and convincing evidence that:
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 10 of 23
a) The [C]hild was removed from the parents on September 13,
2018, and has continued to remain continuously removed for
more than 6 months since the Dispositional Decree was
issued on December 13, 2018;
b) The [C]hild has been removed from the parents and has been
under the supervision of DCS for at least fifteen (15) months
of the most recent twenty-two (22) months, beginning on the
date the child was first removed as a result of being alleged to
be a CHINS on September 13, 2018.
c) There is a reasonable probability that the conditions that
resulted in the [Child’s] removal and the reasons for
placement outside the home of the parents – namely, the
inability and/or unwillingness of [F]ather to provide adequate
and necessary care and custody of the child – will not be
remedied;
d) There is a reasonable probability that, given the lack of any
involvement or bond with [M]other and the minimal
involvement or bond with [F]ather coupled with his strong
bond with pre-adoptive foster placement, the continuation of
the parent-child relationship poses a threat to the well-being of
the [C]hild;
e) Termination of the parent-child relationship is in the best
interest of the [C]hild;
f) The proposal made by DCS for the [Child] to be adopted by
the present foster placement is a satisfactory plan for the care
and treatment of the [Child.]
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 11 of 23
Id. at 53-54. The court therefore terminated Mother’s and Father’s parental
rights to Child. Mother and Father now appeal. Additional facts will be
provided as necessary.
Discussion & Decision
1. Motion to Dismiss
[18] Mother and Father argue 3 that the court erred in denying their motion to
dismiss the TPR Petition. They assert that DCS’s failure to provide them with
services while they were incarcerated “deprived [them] of [their] substantive
due process right to raise [Child] and also deprived [them] of [their] procedural
due process right to fair proceedings.” 4 Brief of Appellant Mother at 14; Brief of
Appellant Father at 12.
[19] As a preliminary matter, we note that in order to properly preserve an issue for
appeal, a party must, at a minimum, “show that it gave the trial court a bona
fide opportunity to pass upon the merits of the claim before seeking an opinion
on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). At the
start of the termination hearing, Father moved to dismiss asking the court to
“consider the House Bill 1432” and its requirement that an incarcerated parent
3
Although Mother and Father filed separate briefs, the first argument presented in both briefs is essentially
verbatim.
4
Mother and Father include in their argument that DCS’s failure to provide reasonable services to the other
also “impacted” their respective due process rights because “[e]nforcing or denying the constitutional rights
of one parent necessarily impacts the other parent.” Brief of Appellant Mother at 14; Brief of Appellant Father at
12, 13.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 12 of 23
be afforded some type of visitation and an opportunity to maintain a
meaningful role in a child’s life. Transcript Vol. II at 24. 5 Mother joined in the
motion, noting that she had a bond reduction hearing the following month and
wanted to postpone the termination proceedings pending the outcome of that
hearing. Mother and Father did not further expound upon their argument and
did not even hint that they were alleging a violation of constitutional rights. See
McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct.
App. 2003) (noting the law is well established that a party on appeal may waive
a constitutional claim). Indeed, they argue for the first time on appeal that
DCS’s failure to provide them with services and arrange for visitation with
Child while they were incarcerated violated their due process rights. Mother
and Father have therefore waived this issue for our review. See In re K.S., 750
N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (determining that mother waived her
due process claim by raising it for the first time on appeal).
[20] Waiver notwithstanding, Mother and Father have not established a violation of
their due process rights. When the State seeks to terminate parental rights, “it
must do so in a manner that meets the requirements of due process.” In re J.K.,
30 N.E.3d 695, 699 (Ind. 2015) (quoting In re G.P., 4 N.E.3d 1158, 1165 (Ind.
2014)). Procedural due process addresses the right to a fair proceeding, and
5
The trial court took the motion to dismiss “under advisement pending presentation of evidence in this
matter.” Transcript Vol. II at 25. The court officially denied the oral motion on February 19, 2020, reasoning,
“Neither parent has maintained a meaningful role in the life of the child.” Joint Appendix of Parents Vol. 2 at
56. This was five days after the court entered its ordering terminating parental rights.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 13 of 23
substantive due process involves a parent’s right to raise his or her child(ren). In
re T.W., 135 N.E.3d 607, 613 (Ind. Ct. App. 2019), trans. denied. In the context
of termination proceedings, a parent’s due process rights include that DCS
“must have made reasonable efforts to preserve and/or reunify the family unit.”
Id. at 615. “What constitutes ‘reasonable efforts’ will vary by case, and . . . it
does not necessarily always mean that services must be provided to the
parents.” Id.
[21] Procedural due process requires that a litigant be provided “the opportunity to
be heard at a meaningful time and in a meaningful manner.” In re K.D., 962
N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). In both CHINS and termination cases, “the process due . . . turns on
balancing three Mathews factors: (1) the private interests affected by the
proceeding; (2) the risk of error created by the State’s chosen procedure; and (3)
the countervailing governmental interest supporting use of the challenged
procedure.” Id. Both a parent’s interest in maintaining his or her parental
rights and the State’s countervailing interests in protecting the welfare of
children are substantial. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Thus,
when faced with a denial of due process claim in a CHINS or termination
proceeding, the focus is most often on the risk of error created by the State’s
actions. Id. at 918.
[22] Substantive due process “bars certain arbitrary, wrongful government actions
regardless of the fairness of the procedures used to implement them.” City of
Bloomington Bd. of Zoning Appeal v. UJ-Eighty Corp., 141 N.E.3d 869, 875 (Ind.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 14 of 23
Ct. App. 2020); see also G.B. v. Dearborn Cnty. Div. of Family & Children, 754
N.E.2d 1027, 1032-33 (Ind. Ct. App. 2001), trans. denied. In setting forth a
claim for a violation of substantive due process, a party must show either that
the law infringes upon a fundamental right or liberties deeply rooted in our
nation’s history or that the law does not bear a substantial relation to
permissible state objectives.” City of Bloomington, 141 N.E.3d at 875.
[23] In support of their argument, Mother and Father cite I.C. § 31-34-15-4(7),
which provides that a child’s case plan in a CHINS proceeding must include “a
description and discussion” of “the services and treatment available to the
parent at the facility at which the parent is incarcerated” and “how the parent
and the child may be afforded visitation opportunities, unless visitation with the
parent is not in the best interests of the child.” Id.
[24] We first note that this statutory provision concerns only the form and contents
of a case plan; it does not require DCS to offer services and/or visitation to
incarcerated parents. In other words, the statute does not confer a right to such
services for incarcerated parents. Indeed, a plain reading of the statute makes
clear that such is not intended to be of constitutional dimension. Further, the
specific subsection upon which Mother and Father rely, was not in effect when
the case plan for Child was developed. It became effective July 1, 2019, after
the permanency plan changed to adoption and nine days before the TPR
Petition in this case was filed. Thus, at the time the case plan for Child was
developed, there was no requirement that the case plan include a discussion of
treatments and/or services available to incarcerated parents.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 15 of 23
[25] Mother and Father also argue that they were not provided all reasonable
services to reunify them with Child and that such failure violated their due
process rights. In support of this argument, Mother and Father direct us to
several cases. In Matter of F.A., 148 N.E.3d 353 (Ind. Ct. App. 2020), one of the
cases cited by them, DCS had moved to dismiss the CHINS case in January
2019 because the children were living with the parents and were doing well and
were happy, the home was in good shape, and the date for reunification and
closing of the case was March 15, 2019. Then, after an altercation between the
mother and one of the children, DCS immediately moved to terminate parental
rights without attempting to address the issue with services. The parents’ rights
were terminated, and they appealed. This court reversed the termination order,
holding that, under the circumstances, DCS had not made all reasonable efforts
to reunify the parents with the children following the altercation. Id. at 359.
[26] In T.W., DCS made several service referrals for the father. When he showed up
for his first visit, he learned that DCS cancelled his visits without informing
him. At the TPR factfinding hearing, the FCM explained that DCS suddenly
cancelled the father’s visits when it realized that due to his extensive
incarceration, he did not have a prior relationship with the child. The father
was also referred for drug screens, but the FCM did not make a reasonable
effort to advise him of such. The father also requested help with transition to
life following his release from incarceration, but the FCM made no referral to
assist him. Two weeks before he was to begin work release after a probation
violation, DCS filed for termination of the father’s parental rights. His rights
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 16 of 23
were terminated, and he appealed. This court reversed, holding that,
considering the totality of the situation, “DCS wholly failed to make reasonable
efforts to preserve” the parent-child relationship and that “the insufficient
process employed in the CHINS case created a risk of erroneous filing of a
petition to terminate Father’s parental rights to Child, in violation of Father’s
due process rights.” T.W., 135 N.E.3d at 618.
[27] We find the cases cited by Mother and Father distinguishable from the
circumstances of this case. Here, DCS made numerous referrals for Mother.
Mother visited with Child one time shortly after he was removed and she did
not participate in any other services. Mother did not stay in touch with DCS,
and DCS attempted to locate her by contacting family and friends and through
the services of a private investigator, but to no avail. Finally, Mother indicated
to FCM Stepp that she was not interested in participating in services upon her
release from jail and indeed, did not contact DCS when she was released.
Mother’s own actions and omissions kept her from participating in services.
[28] With regard to Father, DCS made several referrals and, after his release from
incarceration, Father participated in services, visiting with Child on four
occasions and participating in an evaluation as well as the FEP program.
Father’s participation with supervised visitation and his ability to participate in
follow-up counseling services were hindered when Father was arrested on new
charges within two months of his release. After his most recent arrest, Father
did, however, continue to participate weekly in the FEP program while
incarcerated. The crux of Father’s argument is that his due process rights were
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 17 of 23
violated because DCS did not arrange for continued visitation with Child while
he was in jail, thereby hampering his ability to maintain a bond with Child. As
noted above, the visitation supervisor testified that there was no bond between
Father and Child, that Father showed no affection toward Child, and that he
was not interested in engaging with Child during his visits. Further, contrary to
Father’s claim, DCS was not required to provide him with visitation with Child
while he was incarcerated. Considering the totality of the circumstances, it was
Father’s criminal conduct, not the process employed by DCS, that interfered
with Father’s ability to participate and complete services. Mother and Father
were provided with all the procedure and process to which they were entitled.
2. Mother – Admission of Evidence
[29] Mother argues that the trial court abused its discretion in admitting her drug test
results, over her objection, as certified business records under Evid. R. 803(6). 6
As noted in footnote 2 above, there was a split of authority regarding whether
drug test results qualify as business records. On October 15, 2020, our Supreme
Court resolved the conflict, holding that drug test results were sufficiently
reliable to be admitted under Evid. R. 803(6), the business records exception to
the hearsay rule. See In re A.B., 20S-JT-63, 2020, ___ N.E.3d ___ WL 6065769
(Ind. Oct. 15, 2020). Mother’s drug test results were therefore admissible.
6
The court provisionally admitted DCS’s Exhibit D, which consisted of Mother’s drug test results, pending
its review of conflicting case law. In its ordering terminating parental rights, the court noted that such
evidence was “provisionally” admitted, but then found that Mother admitted to submitting to drug screens
and to using methamphetamine. Joint Appendix of Parents Vol. 2 at 51.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 18 of 23
3. Father – Sufficiency of the Evidence
[30] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628
(Ind. 2016). Instead, we consider only the evidence and reasonable inferences
most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. In deference to the trial court’s unique position to assess the
evidence, we will set aside its judgment terminating a parent-child relationship
only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied. In light of the applicable clear and convincing evidence
standard, we review to determine whether the evidence clearly and
convincingly supports the findings and whether the findings clearly and
convincingly support the judgment. In re R.S., 56 N.E.3d at 628.
[31] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
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[32] Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, among other
things, that one 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[.]
Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS must also prove
by clear and convincing evidence that termination is in the best interests of the
child and that there is a satisfactory plan for the care and treatment of the child.
I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2. Father challenges the court’s
conclusions as to I.C. § 31-35-2-4(b)(2)(B)(i) and (ii) and the court’s conclusion
that termination was in the best interests of Child. We begin with the former.
Conditions Not Remedied
[33] I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive and, thus, requires the trial
court to find only one of the three requirements of the subsection by clear and
convincing evidence. See In re L.S., 717 N.E.2d at 209. Here, we will focus our
review on the trial court’s determination that there is a reasonable probability
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that the conditions that resulted in the child’s removal and/or continued
placement outside Father’s home will not be remedied.
In making such a determination, the court must judge a parent’s
fitness to care for his or her child at the time of the termination
hearing, taking into consideration evidence of changed
conditions. Due to the permanent effect of termination, the trial
court also must evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of
the child. The statute does not simply focus on the initial basis
for a child’s removal for purposes of determining whether a
parent’s rights should be terminated, “but also those bases
resulting in the continued placement outside the home.” In re
A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. A
court may properly consider evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment.
Moreover, a trial court “can reasonably consider the services
offered by the [DCS] to the parent and the parent’s response to
those services.” [McBride, 798 N.E.2d at 199]. In addition,
“[w]here there are only temporary improvements and the pattern
of conduct shows no overall progress, the court might reasonably
find that under the circumstances, the problematic situation will
not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
2005).
In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (some citations omitted).
[34] In challenging the sufficiency of the evidence regarding whether he is likely to
remedy the conditions leading to removal, Father disputes only the court’s
finding that he did not have a bond with Child. As set out above, however,
Father visited with Child only four times and the supervisor testified that Father
and Child did not appear to have a bond and that “there was no affection”
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between them. Transcript Vol. II at 81. Father did not come prepared to the
visits and was not focused on engaging with Child. Father has been
incarcerated for most of the Child’s young life and there is no definitive timeline
for his release. The court’s findings regarding Father’s explosive disorder,
criminal history, and continued incarcerations further support its determination
that there is a reasonable probability that the circumstances giving rise to
Child’s removal, i.e., Father’s inability to care for Child, will not be remedied
“within a reasonable amount of time, if ever.” Joint Appendix of Appellants Vol. 2
at 50.
Best Interests
[35] Father also challenges the court’s conclusion that termination of his parental
rights is in the best interests of Child. In making this best-interests
determination, the trial court is required to look beyond the factors identified by
DCS and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290
(Ind. Ct. App. 2013). The court must subordinate the interest of the parent to
those of the child and need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. McBride, 798 N.E.2d at 199. Our
Supreme Court has explained that “[p]ermanency is a central consideration in
determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265
(Ind. 2009). “Moreover, we have previously held that the recommendations of
the case manager and court-appointed advocate to 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
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termination is in the child’s best interests.” In re. J.S., 906 N.E.2d 226, 236
(Ind. Ct. App. 2009).
[36] Child was removed when he was just five months old because Father was
incarcerated when Mother suffered a “mental health crisis” and could not care
for Child. Transcript Vol. II at 43. It has been just over two years since Child’s
removal and Father has been incarcerated for all but approximately six weeks of
that time. As found by the court, Father’s continued incarceration and lack of
accountability for his actions “represent significant, ongoing barriers to [his]
ability to adequately and appropriately parent the Child.” Joint Appendix of
Appellants Vol. 2 at 50. Child is thriving and happy in his foster placement and
DCS’s plan is for Child to be adopted by his foster family. The FCM testified
that termination was in Child’s best interests because it afforded Child
permanency. The trial court agreed. The record supports the trial court’s
determination in this regard. Father has not shown that the trial court erred in
determining that termination was in Child’s best interests.
[37] Judgment affirmed.
Riley, J. and May, J., concur.
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