MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                  FILED
regarded as precedent or cited before any                                  Oct 30 2019, 8:40 am

court except for the purpose of establishing                                      CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennie Scott                                              Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Termination of the                             October 30, 2019
Parent-Child Relationship of:                             Court of Appeals Case No.
S.J. Sy.J., Sy’B.J., (minor                               19A-JT-755
children);                                                Appeal from the Delaware Circuit
L.J. (Mother),                                            Court
                                                          The Honorable Kimberly S.
Appellant-Respondent,
                                                          Dowling, Judge
        v.                                                Trial Court Cause No.
                                                          18C02-1805-JT-42
                                                          18C02-1805-JT-43
The Indiana Department of
                                                          18C02-1805-JT-44
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019                     Page 1 of 14
                                             Statement of the Case
[1]   L.J. (“Mother”) appeals the termination of the parent-child relationship with

      her children S.J. (“S.J.”), Sy.J. (“Sy.J.”), and Sy’B.J. (“Sy’B.J.”), (collectively

      “the children”).1 She contends that: (1) the trial court erred in denying her oral

      motion to dismiss the petition for untimeliness of the factfinding hearing; and

      (2) there is insufficient evidence to support the terminations. Specifically,

      Mother argues that the Department of Child Services (“DCS”) failed to prove

      by clear and convincing evidence that: (a) there is a reasonable probability that

      the conditions that resulted in the children’s removal or the reasons for

      placement outside the home will not be remedied; (b) a continuation of the

      parent-child relationship poses a threat to the children’s well-being; (c)

      termination of the parent-child relationship is in the children’s best interests;

      and (d) adoption was a satisfactory plan for the children’s care and treatment.

      Concluding that: (1) Mother has waived her right to challenge the untimeliness

      of the factfinding hearing; and (2) there is sufficient evidence to support the

      termination of the parent-child relationships, we affirm the trial court’s

      judgment.


[1]   We affirm.




      1
          The children’s father (“Father”) is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 2 of 14
                                                       Issues
                 1.      Whether Mother has waived her right to challenge the
                         untimeliness of the factfinding hearing.

                 2.      Whether there is sufficient evidence to support the
                         terminations.

                                                      Decision
[2]   Mother is the parent of S.J., who was born in September 2008; Sy.J., who was

      born in May 2007; Sy’B.J., who was born in November 2004. In October 2016,

      DCS filed petitions alleging that the children were in need of services

      (“CHINS”) because: (1) they had been absent from school on more than half of

      the scheduled school days; (2) they had been tardy to school on eleven

      occasions; (3) Mother and Father had an ongoing struggle to maintain suitable

      housing; (4) sixteen family members resided in the family’s home;2 (5) Father

      was recovering from a debilitating stroke and alcoholism; and (6) Mother and

      Father had a twenty-year history with DCS that included nine prior

      substantiations. The children were not removed from the home at that time.


[3]   The next month, in November 2016, the trial court found an emergency existed

      because of Mother’s drug use, the educational neglect of the children, and

      Father’s medical restrictions. Based upon the emergency, the trial authorized

      DCS to take the children into custody and place them in foster care. In

      December 2016, Mother admitted that her children were CHINS. After a



      2
          Mother subsequently admitted that there were twelve family members living in the family’s home.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019                 Page 3 of 14
      dispositional hearing, in February 2017, the trial court ordered Mother to: (1)

      maintain suitable housing; (2) abstain from the use of illegal controlled

      substances; (3) submit to random drug screens; (4) complete a substance abuse

      assessment, follow all assessment recommendations, and successfully complete

      all treatment programs.


[4]   Two years later, in April 2018, the trial court found that Mother had not

      complied with its dispositional order. Specifically, the court found that

      although Mother had completed a substance abuse assessment, she had not

      successfully completed the recommended treatment. The court further found

      that Mother had not maintained suitable housing or abstained from the use of

      illegal drugs.


[5]   The following month, on May 16, 2018, DCS filed a petition to terminate

      Mother’s parental rights and requested a hearing. The trial court scheduled the

      factfinding hearing for September 20, 2018, which was 127 days from the date

      that the petition had been filed. None of the parties objected to the scheduled

      date.


[6]   At the end of the September 20 hearing, the trial court scheduled the hearing to

      be completed on December 13, 2018, which was 211 days after the petition had

      been filed. None of the parties objected to the date. The December 2018

      hearing was scheduled to begin at 1:30 p.m. Mother asked whether the hearing

      would include the full half-day and whether she would be able to call any




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 4 of 14
      witnesses. The trial court responded that the hearing included the full-half day

      and that Mother would “absolutely” be able to call witnesses. (Tr. at 79).


[7]   At the beginning of the December 2018 hearing, Father’s counsel made an oral

      motion to dismiss the case pursuant to INDIANA CODE § 31-35-2-6, arguing that

      it had been more than 180 days since the termination petition had been filed.

      Mother’s counsel stated that Mother “would like to join in that motion.” (Tr.

      83). The trial court denied the motion.


[8]   Testimony at the termination hearing revealed that Mother had completed a

      substance abuse assessment in December 2016. At that time, the assessor had

      recommended that Mother participate in an inpatient detoxification program to

      be followed by an intensive outpatient drug treatment program because of her

      daily use of methamphetamine. The testimony further revealed that Mother

      had not followed the treatment recommendation.


[9]   Mother completed two additional substance abuse assessments in 2017. Both

      of those assessors had recommended that Mother attend an inpatient drug

      treatment program. Mother again failed to follow the recommendations.

      Mother completed a fourth substance abuse assessment in March 2018. At that

      time Mother’s drug use had become more severe because Mother had begun

      taking opiates, including heroin, in addition to the methamphetamine. The

      assessor again recommended an inpatient detoxification program to be followed

      by an intensive outpatient drug treatment program. Mother again failed to




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 5 of 14
       follow the treatment recommendation. In addition, during the pendency of the

       proceedings, all of Mother’s drug screens were positive.


[10]   Family Case Manager Carrie Emmons (“FCM Emmons”) testified that she had

       been assigned to the case since November 2016. According to FCM Emmons,

       five of Mother’s children had initially been involved in the case. One of the

       children had aged out and voluntarily left services and another had opted to

       enter a collaborative care program. FCM Emmons explained that the reason

       for the children’s removal was educational neglect and Mother’s substance use.

       Mother had told FCM Emmons that she was trying to stop using drugs but that

       she had been unable to do so. FCM Emmons further testified that Mother had

       not had stable housing for the previous year, and that the three children had

       been in foster care since November 2016. The permanency plan for the

       children was adoption.


[11]   In addition, the Court-Appointed Special Advocate (“CASA”) told the trial

       court that termination was in the children’s best interests so that they could be

       adopted. The CASA also told the trial court that Mother had not “engaged in

       services in any meaningful way over the course of the last couple years, and

       um, [was] not in any position to care for the children[.]” (Tr. at 132).


[12]   Following the hearing, the trial court issued orders terminating Mother’s

       parental rights to each of her three children. Mother now appeals the

       terminations.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 6 of 14
                                                    Decision
       Mother argues that: (1) the trial court erred in denying her oral motion to

       dismiss the petition for untimeliness of the factfinding hearing; and (2) there is

       insufficient evidence to support the terminations. We address each of her

       arguments in turn.


       1.      Motion to Dismiss


[13]   Mother first challenges the denial of her oral motion to dismiss the termination

       petition for untimeliness of the factfinding hearing. INDIANA CODE § 31-35-2-6

       sets forth the timeline for conducting factfinding hearings in termination of

       parental rights proceedings, where, as here, a party requests a hearing. The

       statute provides as follows:


                        (a) Except when a hearing is required after June 30, 1999,
                        under section 4.5 of this chapter, the person filing the
                        petition shall request the court to set the petition for a
                        hearing. Whenever a hearing is requested under this
                        chapter, the court shall:

                                (1) commence a hearing on the petition not more
                                than ninety (90) days after a petition is filed under
                                this chapter; and

                                (2) complete a hearing on the petition not more than
                                one hundred and eighty (180) days after a petition is
                                filed under this chapter.

                        (b) If a hearing is not held within the time set forth in
                        subsection (a), upon filing a motion with the court by a
                        party, the court shall dismiss the petition to terminate the
                        parent-child relationship without prejudice.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 7 of 14
       IND. CODE § 31-35-2-6.


[14]   Here, the factfinding hearing did not commence within 90 days of the filing of

       the filing of the petition and the hearing request was not completed within 180

       days of the filing of the petition. Rather, as Mother points out, the hearing

       began 127 days after the petition had been filed and the hearing had been

       requested and was completed 211 days after the petition had been filed. Mother

       contends that because the factfinding hearing was untimely, the trial court

       should have granted her motion to dismiss.


[15]   We addressed this issue in In the Matter of the Termination of the Parent-Child

       Relationship of N.C., 83 N.E.3d 1265 (Ind. Ct. App. 2017). There, the

       termination factfinding hearing was held in March 2017, 222 days after the

       filing of the termination petition. Referring to INDIANA CODE § 31-35-2-6 , the

       father orally moved for the dismissal of the termination petition at the outset of

       the March 2017 factfinding hearing. The trial court both denied the motion and

       terminated the father’s parental rights after a hearing. On appeal, the father

       argued that the trial court had erred in denying his motion to dismiss.


[16]   Another panel of this Court first pointed out that the plain language of the

       statute contemplates the “filing” of a motion with the court. Id. at 1267. The

       father, however, had filed no written motion. Rather, he had orally moved for

       dismissal at the outset of the factfinding hearing. Moreover, this Court pointed

       out that the father had acquiesced to the factfinding hearing date when it was

       scheduled in December 2016. Id. Specifically, when the court reporter at the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 8 of 14
       December 2016 hearing had suggested the March 2017 hearing date, the

       father’s counsel had responded: “That sounds good.” Id. The father’s counsel

       had then asked about the specific length of the factfinding hearing. He never

       objected to the date. We held that, even though the factfinding hearing date

       had fallen outside the statutory 180 days, the father had waived his right to

       challenge the setting of the date. Id.


[17]   Here, as in N.C., Mother orally moved for the petition’s dismissal at the

       beginning of the December 2018 hearing, but she filed no written motion. In

       addition, when the trial court scheduled the factfinding hearing outside the

       statutory 90 days, Mother’s counsel asked about procedural aspects of the

       hearing but never objected to the hearing date. Thus, Mother has waived her

       right to challenge the setting of the hearing date. See e.g., N.C., 83 N.E.2d at

       1267.


       2.      Sufficiency of the Evidence


[18]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 9 of 14
       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[19]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:


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

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

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

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

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

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

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[20]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 10 of 14
       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[21]   Mother first argues that DCS failed to prove by clear and convincing evidence

       that: (1) there is a reasonable probability that the conditions that resulted in the

       children’s removal or the reasons for placement outside the home will not be

       remedied; and (2) a continuation of the parent-child relationship poses a threat

       to the children’s well-being. However, we note that INDIANA CODE § 31-35-2-

       4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish

       by clear and convincing evidence only one of the three requirements of

       subsection (B). In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans.

       dismissed. We therefore discuss only whether there is a reasonable probability

       that the conditions that resulted in the children’s removal or the reasons for

       their placement outside the home will not be remedied.


[22]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 11 of 14
       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id.


[23]   Here, our review of the evidence and any reasonable inferences to be drawn

       therefrom that support the judgment reveals that the children were removed

       from the parents’ home because of educational neglect and Mother’s drug use.

       At the time of the termination hearing, Mother was still using

       methamphetamine and had begun using opiates. Mother had completed four

       substance abuse assessments during the course of the proceedings. One

       assessor had twice recommended inpatient detoxification and intensive

       outpatient substance abuse programs. Other assessors had recommended

       inpatient treatment programs. Mother failed to follow the recommendations

       and had positive drug screens throughout the proceedings. This evidence

       supports the trial court’s conclusion that there was a reasonable probability that

       the conditions that resulted in the children’s removal would not be remedied.

       We find no error.


[24]   Mother also argues that there is insufficient evidence that the termination was

       in the children’s best interests. In determining whether termination of parental

       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 12 of 14
       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[25]   Here, our review of the evidence reveals that Mother has historically been

       unable to provide housing, stability, and supervision for her children and was

       unable to provide the same at the time of the termination hearing. In addition,

       the CASA told the trial court that termination was in the children’s best

       interests. The testimony of this service provider, as well as the other evidence

       previously discussed, supports the trial court’s conclusion that termination was

       in the children’s best interests.


[26]   Last, Mother argues that DCS does not have a satisfactory plan for the

       children’s care and treatment. This Court has previously explained that the

       plan for the care and treatment of the child need not be detailed, so long as it

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 13 of 14
       offers a general sense of the direction in which the child will be going after the

       parent-child relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct.

       App. 2008). Here, the DCS caseworker testified the plan for the care and

       treatment of the children is adoption. This is a satisfactory plan. See In re

       A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).


[27]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[28]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-755 | October 30, 2019   Page 14 of 14
