                                                                               FILED
                                                                           Jun 21 2019, 8:50 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Amanda McIlwain                                            Curtis T. Hill, Jr.
Legal Aid Corporation of                                   Attorney General of Indiana
Tippecanoe County                                          Abigail R. Recker
Lafayette, Indiana                                         Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           June 21, 2019
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        18A-JT-3110
A.B. (Minor Child),                                        Appeal from the Tippecanoe
                                                           Superior Court
and
                                                           The Honorable Faith A. Graham,
C.B. (Mother),                                             Judge
                                                           The Honorable Tricia L.
Appellant-Respondent,
                                                           Thompson, Magistrate
        v.                                                 Trial Court Cause No.
                                                           79D03-1804-JT-48
Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.


Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019                              Page 1 of 17
[1]   C.B. (Mother) appeals the trial court’s order terminating her parent-child

      relationship with her child, A.B. (Child). Mother argues that there is

      insufficient evidence supporting the trial court’s conclusion that the conditions

      resulting in the placement of Child outside Mother’s custody will not be

      remedied, that the continuation of the parent-child relationship poses a threat to

      Child’s well-being, and that the termination of the parent-child relationship is in

      the child’s best interest. Finding the evidence insufficient, we reverse and

      remand for further proceedings.


                                                       Facts
[2]   Child was born in January 2011 to Mother and B.B. (Father).1 On April 18,

      2017, the Department of Child Services (DCS) and law enforcement officers

      went to Mother’s home after receiving a report that Child’s half-brother

      (Sibling), who was then three years old, had been neglected due to lack of

      supervision by Mother. When they arrived, Sibling was walking down the

      street unsupervised; Mother was inside, passed out on the couch with burnt

      spice cigarettes near her and within a child’s reach. The officers tried several

      times to wake Mother. Once they did, they arrested her, and DCS placed Child

      and Sibling in relative care. The State charged Mother with Level 6 felony




      1
          Father is not a party to this appeal.



      Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019         Page 2 of 17
      neglect of a dependent and Class A misdemeanor possession of a synthetic drug

      or lookalike substance. Mother remained incarcerated until April 22, 2017.


[3]   On April 19, 2017, DCS filed a petition alleging both children to be children in

      need of services (CHINS) based on the above facts.2 On May 15, 2017, a

      factfinding hearing took place, after which the juvenile court adjudicated Child

      to be a CHINS. On May 25, 2017, the juvenile court entered its dispositional

      and parental participation decrees, ordering Mother to participate in parenting

      time, a substance abuse assessment and all recommendations, case

      management, a parenting assessment and all recommendations, random drug

      screens, a mental health evaluation and all recommendations, individual

      counseling and all recommendations, and family therapy and all

      recommendations.


                                 Mother’s Participation with Services and Visits


[4]   In May 2017, DCS referred Mother to Bauer Family Resources for parenting

      time and case management. In May and June 2017, Mother participated in

      case management and her parenting visits were positive, with Mother providing

      appropriate care for the children and no safety concerns reported. Mother then

      missed multiple visits in July and August 2017. Mother reported that she was




      2
          Sibling’s father ultimately took custody of him. Sibling is not part of this appeal.


      Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019                          Page 3 of 17
      depressed and that her depression was why she disengaged with visitation.

      Because Mother missed visits, in August 2017, Bauer closed its services to her.


[5]   In May 2017, DCS referred Mother to Wabash Valley Alliance (WVA) for a

      mental health evaluation, which Mother completed. WVA also recommended

      that Mother participate in individual therapy and family therapy.


[6]   On June 13, 2017, Mother completed an intake assessment with an addictions

      counselor at WVA. Mother told the counselor that she had used alcohol in the

      past but that she had never used illegal drugs. Following the assessment, the

      counselor recommended that Mother complete a substance abuse assessment

      and participate in individual counseling for her symptoms of depression.


[7]   On July 31, 2017, Mother completed her substance abuse assessment at WVA.

      During the assessment, Mother indicated that she was using alcohol,

      methamphetamine, and opiates, and that she had used methamphetamine three

      days before the assessment. The treatment provider recommended that Mother

      attend an intensive outpatient program (IOP). On September 5, 2017, Mother

      attended one IOP session at WVA; she was later discharged for noncompliance.

      In October 2017, DCS referred Mother to Bauer for another IOP, which

      Mother did not complete. On August 22, 2017, Mother requested a medication

      evaluation; it is unclear from the record whether she received a referral for it.


[8]   On August 30, 2017, the juvenile court stated that Mother’s parenting time may

      continue so long as she submitted to all requested drug screens and refrained

      from using or testing positive for methamphetamine, but that if she tested

      Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019          Page 4 of 17
       positive, her parenting time would be immediately suspended and would not

       resume until further order of the juvenile court. After Mother tested positive for

       methamphetamine on September 28, 2017, the juvenile court suspended her

       parenting time. Family Case Manager (FCM) Samantha Goltz testified that

       Mother “was given the opportunity to participate in I believe 30 days of clean

       screens and not be missing any screens” but that Mother did not comply with

       those terms and has not been allowed to visit Child since then. Tr. Vol. II p. 77.


[9]    Mother requested that visitation be reinstated. Mother testified that in October

       2017, she requested a Skype or telephone visit if she could not have an in-

       person visit due to her failing the drug screen. DCS denied her request,

       believing it would be detrimental to Child. In February 2018, DCS denied

       Mother’s request because Mother did not participate in drug screens and had

       not seen Child in a long time. In June 2018, DCS denied Mother visitation

       because of the length of time that had passed since Mother’s last visit with

       Child. DCS never reinstated visits during these proceedings.


[10]   In November 2017, DCS referred Mother to case management at Lifeline

       Youth and Family Services; Lifeline later discharged her due to lack of contact.

       However, Mother was incarcerated from November 6 through December 16,

       2017, for contempt of court because she failed to pay child support for another

       child. She was then on work release until January 5, 2018.


[11]   FCM Goltz made a referral for a psychological evaluation on March 5, 2018,

       and although Mother was incarcerated again on March 26, 2018, FCM Goltz


       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019        Page 5 of 17
       did not renew the referral because she did not know when Mother would be

       released. Mother’s incarceration, which was for the neglect of a dependent

       charge (to which Mother had pleaded guilty) that led to this case, lasted through

       May 23, 2018. Following her arrest, she was on house arrest through August 1,

       2018. Mother was on probation at the time of the termination hearing.


[12]   At the start of these proceedings, Mother was seeking housing because her

       residence at the time was being investigated for mold. She testified that she had

       been living in the same place since November 2017, and at the time of the

       termination hearing, she was facing eviction because the property owners sold

       the building. She testified that she was actively looking for housing, and that if

       she needed to, she could stay with her father or her boyfriend’s mother. As for

       employment, at the time of the termination hearing, Mother was in her second

       month of employment at Steak ‘n’ Shake; she had previously worked for a

       cleaning company. Mother was also taking prescribed medication to treat her

       depression and was working to obtain health insurance.


                                         Mother’s Drug Use and Screens


[13]   DCS referred Mother for drug screens. Mother missed twenty-two screens

       between August 22, 2017, and October 10, 2017. Mother completed eleven

       screens from September 27, 2017, to November 1, 2017, that were negative of

       all substances. On October 13 and 26, 2017, she tested positive for alcohol. On

       September 28, 2017, Mother tested positive for methamphetamine.




       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019        Page 6 of 17
[14]   In the three months leading up to the termination hearing, Mother consistently

       participated in drug screens, all of which were clean, and she was still

       participating at the time of the hearing.3 FCM Goltz testified that because

       Mother had been incarcerated before the three months in which she consistently

       tested clean, Mother could have been clean for approximately five months.

       Mother testified that, at the termination hearing, she was five days shy of five

       months of sobriety.


                                                         Child


[15]   When this case began, Mother and Child had a bond. Court Appointed Special

       Advocate (CASA) Suzanne Wetzel testified that in June 2017, Mother was

       “loving” and “attentive” toward Child. Tr. Vol. II p. 46. Child has some

       developmental delays that involve irregular social behaviors, including toilet

       training delays. She has been diagnosed with Attention-Deficit Hyperactivity

       Disorder and impulse-control disorder. On May 26, 2017, Child completed an

       intake appointment with a therapist who recommended that Child participate in

       case management and medication management to address Child’s behaviors

       and in individual therapy to work on coping skills and establishing boundaries.


[16]   Between September 11 and 22, 2017, Child participated in case management.

       Child struggled to comply with directions, had difficulty transitioning between




       3
         From May 23 through August 1, 2018, Mother submitted to approximately seven drug screens for her
       criminal case. It is unclear whether she was also screening through DCS.

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019                           Page 7 of 17
       activities, and became fearful when it was time to use the restroom. The

       treatment provider was concerned that Child may have suffered from trauma

       that resulted in her fear of using the restroom. CASA Wetzel testified that

       Child has made significant progress both at home and at school and is now able

       to be attentive and stay focused. Her toilet training has improved. Child was

       taking medication for her ADHD and aggression.


[17]   Since being removed from Mother’s care, Child has been placed in four foster

       homes and with two relative caregivers. At the time of the termination hearing,

       Child was in relative placement in Florida; she was doing well in that

       placement, and her caregivers were willing to adopt her.


                                             Termination Proceedings


[18]   On April 4, 2018, DCS filed a petition to terminate the parent-child relationship

       between Mother and Child. DCS stopped funding services for Mother in June

       2018 because Mother was not participating in services. A factfinding hearing

       took place on June 27 and August 22, 2018. During the hearing, FCM Goltz

       testified that termination was in Child’s best interest because Child is in a stable

       and loving environment and is doing well. CASA Wetzel also recommended

       termination based on Mother’s failure to comply with services and her lack of

       participation in Child’s life; she also testified that termination was in Child’s

       best interest because Child is thriving in her current placement and that

       disruption would be detrimental to her.




       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019           Page 8 of 17
[19]   On November 21, 2018, the juvenile court entered an order terminating the

       relationship. Mother now appeals.


                                     Discussion and Decision
                                        I. Standard of Review
[20]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. 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.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[21]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (A) that one (1) of the following is true:
       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019         Page 9 of 17
                 (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 under IC 31–34–21–5.6
                 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.


                 (iii) The child has been removed from the parent and has
                 been under the supervision of a local office or probation
                 department for at least fifteen (15) months of the most
                 recent twenty-two (22) months, beginning with the date
                 the child is removed from the home as a result of the child
                 being alleged to be a child in need of services or a
                 delinquent child;


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


                 (i) There is a reasonable probability that the conditions
                 that resulted in the child’s removal or the reasons for
                 placement outside the home of the parents will not be
                 remedied.


                 (ii) There is a reasonable probability that the continuation
                 of the parent-child relationship poses a threat to the well-
                 being of the child.


                 (iii) The child has, on two (2) separate occasions, been
                 adjudicated a child in need of services;


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




Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019            Page 10 of 17
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                             II. Drug Screens
[22]   Initially, we address an issue raised by neither of the parties. The trial court’s

       order included this finding of fact:


               15. Mother tested positive for methamphetamine on July 17,
               2017, July 31, 2017, and September 28, 2017. Mother tested
               positive for alcohol on two (2) drug screens in October 2017.
               Mother failed to submit to numerous drug screens as requested.


       Appealed Order p. 3. DCS submitted evidence regarding Mother’s drug screens

       through an exhibit, which included affidavits from a “Certifying Scientist and

       Custodian of Records” for a toxicology laboratory and a “custodian of the

       records” for another laboratory and Mother’s drug screen results. Appellee’s

       Ex. Vol. III p. 4-49. DCS did not elicit expert testimony regarding these drug

       screens during the termination hearing.


[23]   As we have recently stated, exhibits containing drug test results do not fall

       under the business records exception to the rule against hearsay and, although




       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019             Page 11 of 17
       Mother did not make a hearsay objection,4 the exhibit should have been

       inadmissible as hearsay. See Matter of L.S., — N.E.3d — at *4 (Ind. Ct. App.

       May 21, 2019). Admission of this evidence requires expert testimony and the

       opportunity for cross-examination. Accordingly, the trial court erred by

       admitting the exhibit into evidence and by relying on them in its order.


                                    III. Remedy of Conditions
[24]   Mother first argues that DCS did not prove by clear and convincing evidence

       that there is a reasonable probability that the conditions resulting in Child’s

       removal will not be remedied. Child was initially removed from Mother

       because of concerns of neglect and substance abuse.


[25]   When this case began, Mother “was wanting to work on getting her

       relationship back with [Child] and being – and getting life back.” Tr. Vol. II p.

       42. Child’s therapist testified that “for all intents and purposes at that time

       [Mother] had good intentions.” Id. CASA Wetzel testified that in June 2017,

       Mother was “loving” and “attentive” toward Child. Id. at 46.


[26]   Although Mother suffered a relapse with her drug use and was twice

       incarcerated during these proceedings, by the time of the termination hearing,

       Mother had completed a mental health assessment, a substance use assessment,




       4
         Mother objected to the admission of this exhibit because the exhibit did not include all of Mother’s screens
       throughout the proceedings, but instead included screens only through June 2018. We admonish DCS to be
       thorough in its submission of evidence.

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019                                Page 12 of 17
       and, during her incarceration, a psychological evaluation. She also had

       complied with her criminal case. By the time of the termination hearing,

       Mother had maintained sobriety for at least three months, if not longer. She

       also had stable employment for two months, had applied for health insurance,

       and had addressed her mental health needs by visiting her doctor and starting

       medication. Although the State argues that Mother likely will be unable to

       maintain her sobriety long-term without treatment, Mother has maintained her

       sobriety even after DCS stopped funding services in June 2018.


[27]   Moreover, Mother missed some of her services because she was incarcerated.

       Specifically, in November 2017, DCS referred Mother to case management at

       Lifeline; Lifeline later discharged her due to lack of contact. However, Mother

       was incarcerated from November 6 through December 16, 2017, for contempt

       of court because she failed to pay child support for another child. Similarly,

       when Mother did not complete the psychological evaluation that FCM Goltz

       referred for her because of her incarceration, FCM Goltz did not renew the

       referral because she did not know when Mother would be released. It is well

       established that incarceration is an insufficient basis for terminating parental

       rights, K.E. v. Indiana Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), and

       we decline to hold against Mother her inability to participate in referred services

       because she was incarcerated.


[28]   As for Mother’s living environment, Mother testified that she has been living in

       the same place since November 2017, her incarcerations notwithstanding. At

       the time of the termination hearing, she was facing eviction because the

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019         Page 13 of 17
       property owners sold the building. She testified that she was actively looking

       for housing, and that if she needed to, she could stay with her father or her

       boyfriend’s mother. We find no evidence in the record to contravene Mother’s

       testimony that she has had or will have appropriate housing. Indeed, neither

       FCM Goltz nor CASA Wetzel had visited Mother’s residence.


[29]   Under these circumstances, there is not clear and convincing evidence

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

       the reasons for Child’s placement outside of Mother’s care and custody will not

       be remedied.


                                       IV. Child’s Well-Being
[30]   Because the statute is phrased in the disjunctive, we must also consider whether

       DCS established by clear and convincing evidence that there is a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to Child’s well-being.


[31]   The trial court did not cite any specific facts to support its conclusion that the

       continuation of the parent-child relationship posed a threat to Child’s well-

       being. The trial court simply stated that the “child needs stability in life. The

       child needs parents with whom the child can form a permanent and lasting

       bond and who will provide for the child’s emotional, psychological, and

       physical well-being. The child’s well-being would be threatened by keeping the

       child in parent-child relationships with Mother . . . .” Appealed Order p. 4.



       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019         Page 14 of 17
[32]   At the start of this case, Mother and Child were bonded. A Bauer report from

       July 2017 noted that Mother “has a bond with [Child] and [Sibling]; as

       evidence by her interactions with [Sibling] and [Child] during parenting time

       and how [Sibling] and [Child] run and hug [Mother] upon seeing her during

       parenting time.” Appellee’s Ex. Vol. II p. 68. That same report indicated that

       Mother appropriately engaged with and took care of the children.


[33]   The State contends that Mother failed to complete the actions necessary to

       resume visitation with Child. It is accurate that Mother was advised that if she

       continued to test positive for methamphetamine, her visits with Child would be

       suspended; after Mother tested positive and the juvenile court suspended her

       visits, the juvenile court provided that Mother would be able to resume visits if

       she submitted clean drug screens for thirty days, but Mother failed to do so.


[34]   Yet the record is clear that Mother wanted another chance so she could

       maintain her bond with Child—and DCS refused to give Mother this chance.

       DCS justified its decision in part by arguing that the visits would be traumatic

       to Child based on the length of time that had passed since Child had last seen

       Mother. Yet Mother was unable to rectify that potential issue because DCS

       denied her any additional visitation. Moreover, DCS did not explain why the

       passage of time between visits would make another visit traumatic for Child.

       Considering that Child was placed in six different homes throughout these

       proceedings, we find DCS’s reasoning puzzling. Indeed, it is hard to

       understand how seeing a parent with whom she has a bond could be more

       traumatic than bouncing from placement to placement. To terminate a parent-

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019       Page 15 of 17
       child relationship based on the circular logic that DCS employed in this case

       regarding visitation is not a result that we can sanction.


[35]   In short, the record does not hold clear and convincing evidence of a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to Child’s well-being.


                                      V. Child’s Best Interests
[36]   Finally, we consider the general question of what is in Child’s best interests.

       Stability and consistency are important for every child. Throughout these

       proceedings, Mother has made noteworthy improvements with her sobriety and

       personal stability. Mother and Child had a bond when this case began. Mother

       has exerted herself to remedy her situation and become a better caregiver.

       Mother wants to have a relationship with Child and wants to parent Child.


[37]   CASA Wetzel testified that she believed that termination was in Child’s best

       interest because Child was thriving in her current placement and the disruption

       would be “extremely detrimental to her.” Tr. Vol. II p. 48. It seems, then, that

       DCS recommended termination based on the grounds that Child needs stability

       and would be harmed by yet another placement. Yet the record is devoid of

       evidence that Child would be affected if termination were delayed to give

       Mother an opportunity to maintain her sobriety, participate in services, and

       resume visitation with Child, nor is there evidence that Child’s current

       caregivers’ willingness to adopt her would be affected by putting off

       termination.

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019        Page 16 of 17
[38]   We acknowledge that Mother must continue to build a stable, sober life,

       participate in services, and preserve her bond with Child. Yet, based on the

       record, we simply cannot say that clear and convincing evidence exists that, at

       this point, the termination of this relationship is in Child’s best interests.5


[39]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Najam, J., and Robb, J., concur.




       5
         Mother also argues that DCS violated her due process rights by filing a petition to terminate her parental
       rights despite not providing appropriate services. Because we addressed her concerns regarding those services
       in our discussion of the substantive issues, we need not also address them as procedural errors.

       Court of Appeals of Indiana | Opinion 18A-JT-3110 | June 21, 2019                              Page 17 of 17
