The opinion
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Amy Karozos Marjorie A. Millman
Indianapolis, Indiana Seymour, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Apr 24 2009, 1:50 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 49S02-0902-JV-091 tax court
IN THE MATTER OF THE
INVOLUNTARY TERMINATION OF THE
PARENT-CHILD RELATIONSHIP OF
G.Y., MINOR CHILD, AND HIS
MOTHER, R.Y., AND HIS FATHER G.Y.
R.Y. (MOTHER),
Appellant (Respondent below),
v.
INDIANA DEPARTMENT OF CHILD SERVICES,
Appellee (Petitioner below)
AND
CHILD ADVOCATES, INC.
Co-Appellee (Guardian Ad Litem)
_________________________________
Appeal from the Marion Superior Court, No. 49D09-0705-JT-020577
The Honorable Marilyn Moores, Judge
The Honorable Larry Bradley, Magistrate
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0804-JV-394
_________________________________
April 24, 2009
Sullivan, Justice.
The trial court terminated R.Y.‟s parental rights on grounds that the conditions which
resulted in her son G.Y.‟s removal will not be remedied and that termination is in G.Y.‟s best
interests. The Court of Appeals affirmed. Concluding that the evidence does not clearly and
convincingly demonstrate that R.Y.‟s parental rights should be terminated, we reverse the
judgment of the trial court.
Background
R.Y. (“Mother”) gave birth to G.Y. on April 23, 2004. Mother had been G.Y.‟s sole
caretaker during the first 20 months of his life and there are no allegations that she engaged in
any criminal behavior during this period of time or that she was an unfit parent in any way. But
in April, 2003, a year before G.Y.‟s birth, Mother had delivered cocaine to a police informant.
She was arrested and incarcerated for this offense in December, 2005, i.e., 32 months after the
offense and when G.Y. was 20 months old. On January 4, 2006, after Mother‟s multiple
attempts to place G.Y. with relatives and friends during her incarceration failed, the Marion
County Division of the Indiana Department of Child Services (“State”) filed a petition alleging
that G.Y. was a Child in Need of Services (“CHINS”) because Mother had been unable to make
the appropriate arrangements for his care. G.Y. was placed in foster care.
In March, 2006, Mother pled guilty to Dealing in Cocaine as a Class B felony. The Jay
Circuit Court entered a judgment of conviction and sentenced her to 12 years, with four years
suspended to probation, i.e., eight years of executed time. In May, 2006, with Mother‟s consent,
the Marion Superior Court, Juvenile Division, found G.Y. to be a CHINS. The court ordered
continued placement in foster care and “Reunification with parent(s)” as “The Plan for
permanency.” (Vol. of Exs. at 11.) In July, 2006, the court held a dispositional hearing and
thereafter issued a dispositional order directing that G.Y. continue in foster care and that Mother
comply with the court‟s “Participation Decree.” Id. at 13-17. The dispositional order again
provided “Reunification with parent(s)” as “The Plan for Permanency.” Id. at 14. Under the
Participation Decree, Mother was ordered, in part, to obtain a source of income and suitable
2
housing, complete home-based counseling, a parenting assessment, parenting classes, and a drug
and alcohol assessment. Id. at 16-17. She was also ordered to “[v]isit on a consistent, regular
basis as recommended by counselor or caseworker.” Id. at 17.
On May 18, 2007, the State filed a “Petition for Termination of the Parent-Child
Relationship” between Mother and G.Y. (Appellant‟s App. 16-17.) The court held fact-finding
hearings in January and February, 2008, at which time Mother‟s date of release from prison was
May 30, 2010. (Tr. 6.) On March 26, 2008, the court entered Findings of Fact and Conclusions
of Law, ordering Mother‟s parental rights involuntarily terminated. Mother appealed,
contending that there was insufficient evidence to terminate her parental rights and that the State
violated her due process rights when it failed to comply with statutory requirements during the
termination process. In an unpublished memorandum decision, the Court of Appeals affirmed.
R.Y. v. Marion County Dep‟t of Child Servs., No. 49A02-0804-JV-394, slip op., 895 N.E.2d 741
(Ind. Ct. App. Oct. 31, 2008). Mother seeks, and we grant, transfer.
Discussion
I
The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children. Bester v. Lake County Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing Pierce v. Soc‟y of Sisters, 268 U.S.
510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). A parent‟s interest in the
care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty
interests.” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Indeed the parent-child
relationship is “one of the most valued relationships in our culture.” Id. (quoting Neal v. DeKalb
County Div. of Family and Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, however,
that parental interests are not absolute and must be subordinated to the child‟s interests in
determining the proper disposition of a petition to terminate parental rights. Bester, 839 N.E.2d
at 147 (citation omitted). Thus, “[p]arental rights may be terminated when the parents are unable
3
or unwilling to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004)).
When reviewing the termination of parental rights, we do not reweigh the evidence or
judge witness credibility. Bester, 839 N.E.2d at 147 (citation omitted). We consider only the
evidence and reasonable inferences that are most favorable to the judgment. Id. (citation
omitted). Here, the trial court entered findings of fact and conclusions thereon in granting the
State‟s petition to terminate Mother‟s parental rights. When reviewing findings of fact and
conclusions of law entered in a case involving a termination of parental rights, we apply a two-
tiered standard of review. First, we determine whether the evidence supports the findings, and
second we determine whether the findings support the judgment. Id. (citation omitted). We will
set aside the trial court‟s judgment only if it is clearly erroneous. Id. (citing In re Wardship of
B.C., 441 N.E.2d 208, 211 (Ind. 1982)). A judgment is “clearly erroneous if the findings do not
support the trial court‟s conclusions or the conclusions do not support the judgment.” Id.
(quoting In re Matter of R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005)).
Indiana Code § 31-35-2-4(b)(2) requires that a petition to terminate a parent-child
relationship involving a CHINS must allege that:
(A) one (1) of the following exists:
(i) the child has been removed from the parent for at least six (6) months
under a dispositional decree;
(ii) a court has entered a finding . . . that reasonable efforts for family
preservation or reunification are not required, including a description
of the court‟s finding, the date of the finding, and the manner in which
the finding was made; or
(iii) after July 1, 1999, the child has been removed from the parent and has
been under the supervision of a county office of family and children
for at least fifteen (15) months of the most recent twenty-two (22)
months;
(B) there is a reasonable probability that:
4
(i) the conditions that resulted in the child‟s removal or the reasons for
placement outside the homes of the parents will not be remedied; or
(ii) the continuation of the parent-child relationship poses a threat to the well-
being of the child;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.
The State‟s burden of proof in termination of parental rights cases is one of “clear and
convincing evidence.”1 I.C. § 31-37-14-2; Bester, 839 N.E.2d at 148 (citation omitted). “Clear
and convincing evidence need not reveal that „the continued custody of the parents is wholly
inadequate for the child‟s very survival.‟” Bester, 839 N.E.2d at 148 (quoting Egly v. Blackford
County Dep‟t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992)). “Rather, it is sufficient to
show by clear and convincing evidence that „the child‟s emotional and physical development are
threatened‟ by the respondent parent‟s custody.” Id. (quoting Egly, 592 N.E.2d at 1234).
And the State must prove, by clear and convincing evidence, each and every element set
forth in I.C. § 31-35-2-4(b)(2), (A)-(D). In other words, if the State fails to prove any one of
these four statutory elements, then it is not entitled to a judgment terminating parental rights.
See I.C. § 31-35-2-4(b)(2); Angela B. v. Lake County Dep‟t of Child Servs., 888 N.E.2d 231,
239 (Ind. Ct. App. 2008), trans. denied (“Without clear and convincing evidence to support each
of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a
parent-child relationship.”); In re D.Q., 745 N.E.2d 904, 911 n.2 (Ind. Ct. App. 2001) (same).
1
“The „clear and convincing‟ standard is an intermediate standard of proof that: lies between a
preponderance of the evidence and beyond a reasonable doubt which is required to find guilty in criminal
prosecutions. The burden of proof by clear and convincing evidence is not a burden of convincing you
that the facts which are asserted are certainly true or that they are almost certainly true or are true beyond
a reasonable doubt. It is, however, greater than a burden of convincing you that the facts are more
probably true than not true.” J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008) (citation omitted). “The
clear and convincing standard is employed in cases „where the wisdom of experience has demonstrated
the need for greater certainty, and where this high standard is required to sustain claims which have
serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and
unlawful acts to justify an exceptional judicial remedy . . . .‟” Id. at 934-35 (quoting Estate of Reasor v.
Putnam County, 635 N.E.2d 153, 159-60 (Ind. 1994)). We believe that the Legislature has dictated this
heightened burden of proof for termination of parental rights cases in recognition of their serious social
consequences.
5
II
Mother contends that the State did not present clear and convincing evidence that
termination of her parent-child relationship with G.Y. is in the child‟s best interests.
With reference to the child‟s best interests, the trial court made the following findings:
[G.Y.] has resided in the same foster care placement since January of 2006, at which time
he less [sic] than two years old. He is doing exceptionally well and is very attached to his
foster parents and foster brothers. This home is pre-adoptive.
Mother has consistent visitation at her prison facility. Visitation is monthly for a one to
two hour period. There have been no concerns raised by the monitoring case manager,
Wendy Budwig.
Termination of the parent-child relationship is in [G.Y.]‟s best interests. Termination and
subsequent adoption will provide [G.Y.] the opportunity to be adopted within the safe,
stable home he sees as his. He has resided in the home for the last two years of his short
life.
The [State‟s] plan for [G.Y.] is adoption by his foster parents. This plan is satisfactory
for his care and treatment.
[G.Y.]‟s Guardian ad Litem, Renee Fishel, agrees with [the State‟s] plan and that
termination of the parent-child relationship is in the best interests of [G.Y.] because of the
time that has elapsed and the stability and permanency [G.Y.] would receive. Ms. Fishel
would have liked for Mother to have had continued visitation with [G.Y.] because she
observed some kind of bond between them and thought it would be nice for [G.Y.] to
know her in the future.
(Appellant‟s App. at 13-14.)
Based on these findings, the trial court concluded that “[t]ermination of the parent-child
relationship is in [G.Y.]‟s best interests so that he will be free for adoption where his needs will
be met by a consistent caretaker in a permanent environment. To provide Mother additional time
to be released from jail and try to remedy conditions would only necessitate [G.Y.] being put on
a shelf instead of providing paramount permanency.” Id. at 14.
More specifically, the court concluded that:
6
[m]other remains incarcerated and unavailable to parent. Upon her release, she
will be on probation for an additional four years. Prior to reunification, she will
have to complete a parenting assessment, parenting classes, and drug treatment
classes. These services will need to be successfully completed, as well as Mother
obtaining suitable housing and gainful employment, prior to a referral for home
based counseling. During the twenty-six months of Mother‟s incarceration, she
has taken one substance abuse education class, one parenting class and some
college courses. Given Mother‟s pattern of criminal activity, resulting in periods
of incarceration, it is unlikely that conditions will change to where Mother will
remain available to parent.
Id. at 13.
We hold that the State did not present clear and convincing evidence to support this
conclusion. We reach that result after examining the following four reasons that the trial court
gave for concluding that termination of Mother‟s parental rights is in G.Y.‟s best interests.
A
We begin with the court‟s reason that termination is in G.Y.‟s best interests because his
mother will “remain unavailable to parent” because her “pattern of criminal activity” makes it
likely that she will re-offend upon release. Our review of the record indicates that all of
Mother‟s criminal history consists of offenses that were committed before G.Y.‟s conception in
2003. After that time and for the first 20 months of his life, the record gives no indication that
Mother was anything but a fit parent.
After Mother‟s incarceration for an admittedly very serious offense (that, to repeat,
occurred before the child‟s conception), Mother agreed that her son was a CHINS. The juvenile
court ordered her to participate in treatment services and, despite the physical impossibility of
completing some of these requirements while incarcerated, the record shows that Mother took
positive steps and made a good-faith effort to better herself as a person and as a parent. At the
time of the termination hearing, she had completed an eight-week drug rehabilitation program
entitled “Fourth Dimension Recovery.” (Tr. 9-10.) Mother testified that the program focused on
7
“making amend[s] for your wrong . . . Like your children and your parents . . . people that you
just hurt emotionally because of your use.” Id. at 9. In addition to the large group classes,
Mother testified that “we have our own individual counselors here.” Id. at 10. At the time of the
termination hearing, she was on the waiting list for phase II of the program. Id. Mother also
testified at the termination hearing that even though she has a history of drug use, she has not
used cocaine since 2003. Id. at 7-8.
The record also shows that Mother had completed a 15-week parenting class that
discussed issues regarding “development of children” and “discipline.” Id. at 11-12. She was
actively participating in “an inmate to work mate program through Arrowmarks,” which results
in an apprenticeship, certification, and job placement after release from prison. Id. at 11. In
addition, she was in the midst of her second semester working towards an associate‟s degree and
had started a culinary arts certification program. Id. at 10, 25. Mother testified that “when I get
my associates degree next May [2008], it‟ll move it [her release date] back to 2009.” Id. at 24.
At oral argument, Mother‟s counsel confirmed that her projected release date is now June, 2009,
and may even be as early as May.
We do not find the likelihood of Mother reoffending to be a sufficiently strong reason,
either alone or in conjunction with the court‟s other reasons, to warrant a conclusion by clear and
convincing evidence that termination of Mother‟s parental rights is in G.Y.‟s best interests.
B
We next review the trial court‟s reason that termination is in G.Y.‟s best interests because
“[t]o provide Mother additional time to be released from jail and try to remedy conditions would
only necessitate [G.Y.] being put on a shelf instead of providing paramount permanency.”
(Appellant‟s App. 14.) The “put on the shelf” expression does not appear to us to be particularly
apt here where the placement appears to have been producing very positive results. But we
understand the court to mean that it would not be in the child‟s best interest for G.Y. to have to
wait on his mother‟s release and subsequent compliance with the requirements of its
Participation Decree. Id. The court specifically mentions its concerns over the following of such
8
requirements: a parenting assessment, parenting classes, drug treatment classes, “obtaining
suitable housing and gainful employment,” and home-based counseling. Id. at 13.
While it true that Mother will be serving four years of probation after her release and that
she has yet to complete all the services required for reunification, the record shows that she has
made a good-faith effort to complete the required services available to her in prison.2 As
discussed supra, she has completed a drug treatment class, engaged in individualized drug
counseling, and completed a parenting class. In addition, contrary to the trial court‟s findings,
Mother has obtained “suitable housing” and “gainful employment” upon her release. She
testified at the termination hearing that she has secured a full-time job through “Arrowmark” and
through “Our Vision.” (Tr. 21.) She also testified that either her family or the “Bonner
Program” would provide a house for her and G.Y. to live in. Id. at 21-22. The trial court‟s
finding that Mother had not completed either a parenting assessment or home-based counseling
is tempered by the fact that these services were not available to her while she was incarcerated.3
In addition to completing those requirements for reunification that were available to her
in prison, Mother has taken additional steps to provide permanency for G.Y. upon her release.
When asked about her intentions after release from prison, she testified at the termination
hearing that she will graduate with her associate‟s degree by the time she leaves the “Inmates
Workmate Program.” Id. at 21. She planned to start college and attain her bachelor‟s degree.
Id. at 21-22. Her future plans also include completing “a phase II substance abuse program” and
a culinary arts certification. Id. at 24-25. When confronted with her criminal history at the
termination hearing, Mother acknowledged that before her most recent incarceration she had
2
The court‟s “Participation Decree” lists requirements for reunification. (Vol. of Exs. at 16-17.) In
relevant part, these include Mother providing a source of income and suitable housing; and completing a
parenting assessment, parenting classes, a drug and alcohol assessment, and home-based counseling. Id.
When asked what Mother needed to do to be reunified with G.Y., State caseworker Sharon Bowland
responded, “She would need to complete the services through our, our agency, and that would be . . .
parenting classes. That would be a drug treatment class. That would be a parenting assessment, and then
any other services that the assessment would say that she needed to do.” (Tr. 27.) Bowland testified,
however, that since Mother was incarcerated, the State was unable to provide a parenting assessment and
other “normal services.” Id.
3
See supra n.3. The State‟s caseworker Sharon Bowland also testified that home-based counseling was
“the last piece that we put into place” and that Mother would “need to be out of prison” to receive this
service. (Tr. 27.)
9
“low self-esteem . . . and never pursued my education.” Id. at 22. However, “now that I‟m
doing it, I know . . . that I‟m better than the life that I live. And I . . . have a very good support
system. And everybody‟s obligated to change . . . and I‟m not gonna lose my son over . . . this
stupid life that I was living, no. I‟m not. I have kids that need me.” Id.4
We do not find the amount of time that it will likely take Mother to comply with the
conditions of the court‟s Participation Decree to be a sufficiently strong reason, either alone or in
conjunction with the court‟s other reasons, to warrant a conclusion by clear and convincing
evidence that termination of Mother‟s parental rights is in G.Y.‟s best interests.
C
We next review the trial court‟s reason that termination is in G.Y.‟s best interests because
G.Y. has a closer relationship with his foster parents than he does with his mother. The trial
court found that “[G.Y.] has resided in the same foster care placement since January of 2006, at
which time he less [sic] than two years old. He is doing exceptionally well and is very attached
to his foster parents and foster brothers.” (Appellant‟s App. 13.) By comparison, the court said,
“Mother has consistent visitation at her prison facility. Visitation is monthly for a one to two
hour period. There have been no concerns raised by the monitoring case manager, Wendy
Budwig.” Id.
The record shows that since her incarceration Mother has maintained a consistent,
positive relationship with G.Y. The State‟s caseworker, Sharon Bowland, testified at the
termination hearing that Mother “has been pretty consistent in maintaining that she wants to
maintain contact with [G.Y.].” (Tr. 30.) They had shared visitations with one another once a
4
See Bester, 839 N.E.2d at 152 (Father testified that he was once a member of a street gang, but that he
no longer engaged in gang activity. He also testified that he hadn‟t used any illegal drugs since his son
was born. This Court noted that “[t]he evidence of record admittedly shows a young man with a troubled
past. However by the time of the termination proceedings, and apparently for at least three years before
that date, Father has conducted himself in a manner consistent with assuring that his son would be
exposed to a healthy drug free environment.” We held that “the existence of Father‟s past criminal
history does not demonstrate that the continuation of the parent-child relationship between Father and
Child poses a threat to Child‟s well being.”).
10
month for “at least a year.” Id. at 29. The visits ranged from two to four hours. Id. at 58-59.
The State‟s case manager, Wendy Budwig, who accompanied G.Y. on five occasions to visit
Mother, testified that “[t]he visits went well.” Id. at 60. She observed “a lot of interacting . . .
mom would sit with him and do whatever he was doing, and interact with him.” Id. Guardian ad
Litem Renee Fishel observed G.Y.‟s visitation with Mother for two hours and testified that
“[t]heir interactions were appropriate. They were very playful with one another. They seemed
to have a relationship.” Id. at 54. In addition to these visitations, Mother has sent cards,
pictures, and letters to G.Y. in an attempt to connect with him. Id. at 21.
We attach significance as well to the evidence in the record of Mother‟s commitment to
reunification with G.Y. from the very point of her arrest. Within two days of her arrest, she had
made arrangements for her sister to take care of him while she was incarcerated. Id. at 15.
During the CHINS proceedings, she attempted to arrange foster care first with her sister, and
then with a friend. Those attempts failed when neither of these individuals completed the
required foster care classes. Id. at 18-19. Next, a “friend of the family” attempted to execute an
“open” adoption which would have left it open for Mother to visit G.Y. at her discretion. This
did not materialize because of the friend‟s medical condition. Id. at 19. Her sister then
unsuccessfully filed for placement. Id. At the time of the termination hearing, her mother had
requested placement. Id. at 20. Mother testified at the termination hearing that it was in the
child‟s best interest “to be with my family. To know his birth family . . . To be taken care of and
loved, and know that he‟s taken care of and loved by his family.” Id. at 8.
We do not find the fact that G.Y. currently has a closer relationship with his foster
parents than he does with Mother to be a sufficiently strong reason, either alone or in conjunction
with the court‟s other reasons, to warrant a conclusion by clear and convincing evidence that
termination of Mother‟s parental rights is in G.Y.‟s best interests.
D
Lastly, we review the trial court‟s reason that termination is in G.Y.‟s best interests
because of his general need for “permanency” and “stability.” This reason was based upon the
11
testimony of the State‟s caseworker, Sharon Bowland, and Guardian ad Litem Renee Fishel that
termination of the parent-child relationship was in G.Y.‟s best interest because he needed
“permanency” and “stability.” Id. at 28, 55. But Fishel qualified her recommendation. She
testified that “looking out for [G.Y.]‟s best interest, I‟d like to see some . . . future agreement
between the two parties that would include future visitation, contact with his biological mother,
so he knows who she is.” Id. at 55. Fishel‟s recommendation was based on her observation that
“they appear to have a type of bond, a mother/child bond. They were very appropriate . . .
Interaction was generated on both sides. From [G.Y.] to his mom, from mom to [G.Y.] . . . It
would be nice for [G.Y.] to know who his mother is in the future.” Id. at 57.
Permanency is a central consideration in determining the best interests of a child. In our
case, however, G.Y. is under the age of five and Mother‟s release from prison is imminent.
Particularly given the highly positive reports about the quality of the placement here, we are
unable to conclude that continuation of the CHINS foster care arrangement here will have much,
if any, negative impact on G.Y.‟s well-being. We agree with Mother that “there was no evidence
presented to show that permanency through adoption would be beneficial to [G.Y.] or that
remaining as a foster care ward until he could be reunited with his mother would be harmful to
[G.Y.].” (Appellant‟s Pet. to Transf. at 6.) This is especially true given the positive steps
Mother has taken while incarcerated, her demonstrated commitment and interest in maintaining a
parental relationship with G.Y., and her willingness to continue to participate in parenting and
other personal improvement programs after her release.
We do not find that G.Y.‟s need for immediate permanency through adoption to be a
sufficiently strong reason, either alone or in conjunction with the court‟s other reasons, to
warrant a conclusion by clear and convincing evidence that termination of Mother‟s parental
rights is in G.Y.‟s best interests.
Conclusion
We reverse the judgment of the trial court.
12
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion.
13
Boehm, Justice, dissenting.
I respectfully dissent and agree with the Court of Appeals that the trial court‟s judgment
terminating the mother‟s parental rights should be affirmed.
The majority reviews a number of factors cited by the trial court and finds them
insufficient to support the trial court‟s judgment that termination should be ordered. These
include the likelihood that the mother will reoffend, the effect on the child of an additional
period of instability, the mother‟s new job and living facilities when she is released, the child‟s
bonding with his foster parents in the two years he has spent with them, and the degree of the
mother‟s involvement with the child while she was incarcerated. Each of these ultimately turns
on a judgment as to the credibility of the witnesses as to both their accounts of past events and,
importantly, their evaluation of the mother‟s future ability to parent and the child‟s ability to
thrive. I believe an appellate court should be very reluctant to conduct its own assessment of the
cumulative effect of these factors on the child and the mother‟s likelihood of addressing the
problems that led to the dispositional order. Similarly, the reliability of the guardian ad litem‟s
judgment is a matter as to which we should defer to the trial court in the absence of a procedural
error or a clearly erroneous assessment of the facts.
I certainly agree that there is an unfairness in a CHINS dispositional order that includes
directives to the mother that she is incapable of fulfilling while incarcerated. But I read the trial
court‟s order as turning on the child‟s best interests and the determination that the conditions
leading to the child‟s removal will not be remedied—not the mother‟s failure to comply fully
with the dispositional order. In my judgment, the assessment of these factors by the trial court is
not clearly erroneous, and therefore should be affirmed.