                                                                            FILED
                                                                        Sep 24 2019, 9:00 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                           INDIANA DEPARTMENT OF
Matthew D. Anglemeyer                                      CHILD SERVICES
Marion County Public Defender –                            Curtis T. Hill, Jr.
Appellate Division                                         Attorney General of Indiana
Indianapolis, Indiana
                                                           Robert J. Henke
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA
In re the Termination of the                               September 24, 2019
Parent-Child Relationship of J.C.                          Court of Appeals Case No.
and R.C. (Minor Children) and                              19A-JT-350
B.C. (Mother),                                             Appeal from the Marion Superior
                                                           Court
Appellant-Respondent,
                                                           The Honorable Marilyn A.
        v.                                                 Moores, Judge
                                                           The Honorable Scott B. Stowers,
Indiana Department of Child                                Magistrate
Services,                                                  Trial Court Cause Nos.
                                                           49D09-1803-JT-347
Appellee-Petitioner,
                                                           49D09-1803-JT-348
        and




Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                           Page 1 of 31
      Child Advocates, Inc.,1
      Appellee-Guardian ad Litem.



      Mathias, Judge.


[1]   B.C. (“Mother”) appeals the order of the Marion Circuit Court terminating her

      parental rights to her children J.C. and R.C. (collectively “the Children”). On

      appeal, Mother presents three issues, which we reorder and restate as:


                 I.       Whether the trial court erred by denying Mother’s motion
                          to dismiss the petition to terminate her parental rights
                          because the evidentiary hearings were not completed
                          within the statutory 180-day time frame;

                 II.      Whether the trial court abused its discretion by admitting
                          into evidence the results of Mother’s drug screens; and

                 III.     Whether the trial court’s termination orders are supported
                          by sufficient evidence.


      Concluding that Mother waived the statutory time limit, that the admission of

      the drug screen results was harmless, and that there is sufficient evidence to

      support the trial court’s termination orders, we affirm.




      1
          DeDe K. Connor filed an appearance on behalf of Child Advocates, Inc., but did not file a brief.

      Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                              Page 2 of 31
                                    Facts and Procedural History

[2]   Mother, born in August 1986, has struggled with addiction since she was a

      teenager. Mother admitted to having used a “slew” of illicit drugs, including

      marijuana, cocaine, spice, and “probably” methamphetamine. Tr. Vol. 2, pp.

      16, 125. Mother is the biological mother to five children, including the two sons

      involved in the present case: J.C., born in July 2014, and R.C., born in

      November 2015.2


[3]   On May 28, 2016, Mother overdosed on her prescription medication and was

      found unresponsive in her home. The Department of Child Services (“DCS”)

      removed the Children from the home and, on May 31, 2016, filed a petition

      that the Children were children in need of services (“CHINS”).3 On August 2,

      2016, Mother admitted that the Children were CHINS. The trial court entered a

      dispositional decree that ordered Mother to participate in a variety of services,

      including participating in home-based therapy and home-based case

      management, undergoing a substance abuse assessment and following all

      recommendations, and submitting to random drug screens. The Children were

      placed in foster care. The permanency plan was reunification of the Children

      with Mother.




      2
        Mother’s three other children, all older, were also the subject of DCS intervention. These children were
      found to be in need of services, and Mother ultimately voluntarily terminated her parental rights to these
      children.
      3
          The CHINS petition was subsequently amended to add the alleged fathers of J.C. and R.C.

      Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                             Page 3 of 31
[4]   Mother was initially compliant with her home-based case worker, who set three

      goals for Mother: housing, employment, and sobriety. During the first month of

      her interaction with Mother, the home-based case worker met with Mother

      weekly to assist Mother in meeting these goals. After the first month, however,

      the meetings became more sporadic: once per month or less. Mother disclosed

      to her case manager that she was in an abusive relationship with her boyfriend.

      The case manager offered to provide Mother with domestic violence services,

      but Mother refused. Eventually, the case worker closed the home-based case

      management services as unsuccessful.


[5]   Mother initially attended scheduled visitations and generally interacted well

      with the Children. Mother then relapsed into drug use, and DCS requested that

      Mother’s visitations be suspended. The trial court granted this request at a

      periodic review hearing on February 28, 2017. Mother’s visitation resumed in

      June 2017. From August until December of that year, Mother visited the

      Children once per week. Between February 2018 and March 2018, Mother

      missed several scheduled visitations with the Children. On one occasion when

      Mother did attend a scheduled visitation, she appeared paranoid and did not

      engage with the Children. She told the visitation supervisor that she thought her

      boyfriend was going to kill her. On those occasions where Mother did not show

      up for her scheduled visitation, the Children became upset and disappointed.

      Mother’s last visitation was in March 2018.

[6]   In October 2017, Mother was referred to an intensive outpatient (“IOP”)

      alcohol and drug treatment program. Mother was “a little evasive” about her

      Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 4 of 31
      drug use to the IOP director. The director recommended that Mother

      participate in IOP, which included weekly one-hour home-based sessions and

      three weekly three-hour sessions. The treatment plan was for Mother to refrain

      from drug and alcohol use and attend all sessions. Mother appeared to be

      highly motivated but failed to see her marijuana use as a problem, arguing that

      marijuana should be legalized. Mother’s participation in IOP was spotty; she

      missed approximately half of the sessions due to alleged transportation issues.

      She then signed an agreement not to miss any more sessions but last attended a

      session in February 2018, after which time she was kicked out of the program.

      A few weeks before the October 11, 2018 evidentiary hearing on the petition to

      terminate Mother’s parental rights, Mother contacted the director of the IOP

      program saying she was interested in rejoining the program.


[7]   Mother’s problems with services were related to her continued use of illicit

      drugs. Mother missed several scheduled drug screens, claiming that she had

      transportation issues. Her case manager therefore gave her bus passes. But

      Mother still missed numerous drug screens.


[8]   On March 22, 2018, Mother was arrested after police found her in a truck with

      her boyfriend in possession of a handgun and illicit drugs. Mother was later

      arrested again, this time for resisting law enforcement by fleeing. Mother failed

      to appear at a hearing on the criminal matter, and the criminal court issued a

      warrant for her arrest. Mother chose not to appear for several court hearings in

      the CHINS and termination cases because she did not want to be arrested.

      Mother eventually pleaded guilty on October 2, 2018 to Level 4 felony

      Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 5 of 31
       possession of cocaine, Level 5 felony possession of a handgun without a license,

       and Class A misdemeanor resisting law enforcement. Mother was sentenced to

       six years with three years executed on home detention and three years

       suspended to probation.


[9]    On March 15 and 27, 2018, DCS filed petitions to terminate Mother’s parental

       rights to R.C. and J.C., respectively. At a pre-trial hearing held on June 25,

       2018, the trial court set the evidentiary hearing on the termination petition to be

       held on September 26 and October 10, 2018. At the beginning of the September

       26 hearing, Mother moved for a continuance that the trial court denied. At the

       end of the October 10 hearing, the trial court continued the matter to the next

       day. At the beginning of the October 11 hearing, Mother moved for dismissal,

       claiming that the trial court had failed to conclude the termination hearings

       within the statutorily mandated timeframe. The trial court denied this motion.

       At the conclusion of the October 11 hearing, the trial court continued the

       hearing to November 26. On October 18, Mother filed a motion to reconsider

       the court’s ruling on her oral motion to dismiss, which the trial court denied

       after a hearing. On January 14, 2019, the trial court entered findings of fact and

       conclusions of law terminating Mother’s parental rights to the Children. Mother

       now appeals.


                                                I. Motion to Dismiss

[10]   Mother argues that the trial court erred by denying her motion to dismiss the

       State’s petition to terminate her parental rights because the termination hearing



       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019     Page 6 of 31
       was not completed within 180 days of the filing of the petition. The statute

       governing the time limits for hearings on termination petitions provides:

                  (a) Except when a hearing is required after June 30, 1999, under
                  section 4.5 of this chapter,[4] the person filing the petition shall
                  request the court to set the petition for a hearing. Whenever a
                  hearing is requested under this chapter, the court shall:

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

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

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


       Ind. Code § 31-35-2-6 (emphases added).


[11]   Here, DCS filed the petition to terminate Mother’s parental rights to R.C. on

       March 15, 2018, and filed the petition to terminate Mother’s parental rights to

       J.C. on March 27, 2018. Thus, pursuant to Indiana Code section 31-35-2-6, the

       hearings on the petition regarding R.C. should have commenced no later than

       June 13, 2018 and completed no later than September 11, 2018. And the




       4
           Neither party contends that this subsection is applicable here.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019             Page 7 of 31
       hearings on the petition regarding J.C. should have commenced no later than

       June 25, 2018 and completed no later than September 24, 2018.5

[12]   However, the trial court did not commence a hearing on the termination

       petitions until September 26, 2018, and did not complete the hearings on the

       petition until November 26, 2018. Mother therefore argues that the trial court

       violated the plain language of subsection (a)(1) and (a)(2) of Indiana Code

       section 31-35-2-6, and that subsection (b) required the trial court to dismiss the

       petitions.

[13]   At first blush, Mother’s argument appears to have merit. But Mother’s

       argument overlooks the fact that she failed to object to any delay in the

       hearings. Specifically, the trial court held a pre-trial hearing on June 25, 2018,

       which was already past the ninety-day deadline in R.C.’s case and was the last

       day of the ninety-day deadline in J.C.’s case. Mother appeared by counsel, and

       the trial court set the termination petition for evidentiary hearings to be held on

       September 26 and October 10, 2018. Mother did not object to the setting of

       these dates, which were outside both the ninety and 180-day time limits set

       forth in Indiana Code section 31-35-2-6. Not only did Mother fail to object, the

       trial court specifically noted that Mother affirmatively waived the “180 day

       requirement.” Appellant’s App. p. 75. Additionally, when the trial court began

       the hearing on September 26, Mother’s counsel did not object to the lateness of

       the hearings but instead moved for a continuance. Mother did not indicate any


       5
           September 23, 2018 was a Sunday; thus the next business day was September 24.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019               Page 8 of 31
       issue with the delay in the hearings until the third day of the evidentiary

       hearing, when she orally moved to dismiss. When the trial court denied her oral

       motion, Mother filed a written motion to reconsider, which the trial court also

       denied.


[14]   The State contends that these facts demonstrate that Mother waived any

       objection to the delay in the hearings. We agree. This court addressed a similar

       situation in In re N.C., 83 N.E.3d 1265 (Ind. Ct. App. 2017). In that case, DCS

       filed a petition to terminate the parental rights of the father of N.C. The hearing

       on the termination petition was not commenced within ninety days of the filing

       of the petition, nor was it completed within 180 days after the filing of the

       petition. Instead, it was conducted 222 days after the filing of the petition.

[15]   On appeal, the father argued that the trial court should have dismissed the

       petition when he orally moved to dismiss at the start of the evidentiary hearing.

       The N.C. court disagreed, holding that the father had waived any argument that

       the hearings were held beyond the statutory deadlines.6 Id. at 1267. The N.C.

       court held that the father had acquiesced to the hearing date, writing:


                At a hearing conducted on December 9, 2016, [N.C.]’s Mother
                requested a continuance and a discussion ensued as to available
                court dates. The court reporter suggested March 21, 2017, and
                Father’s counsel responded: “That sounds good.” Father’s
                counsel then inquired about the specific length of the fact-finding
                hearing, whether all day or one-half day. In general, “waiver”

       6
         The N.C. court also noted that the father orally moved to dismiss and filed no written motion, despite the
       plain language of the statute contemplating the filing of such a motion. Id. In this respect, N.C. differs from
       the present case because Mother did file a written motion after she orally moved to dismiss.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                                Page 9 of 31
                connotes an “intentional relinquishment or abandonment of a
                known right.” Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49,
                53 (Ind. 2013). We agree with the DCS that Father waived his
                right to challenge the setting of that factfinding hearing date,
                although it fell outside the statutory 180 days. As such, Father
                can be afforded no relief in this appeal.


       Id. (record citations omitted).


[16]   The same is true here. At the pre-trial hearing where the trial court set the

       evidentiary hearings for dates beyond the statutory time limits, Mother not only

       did not object, but she affirmatively waived the 180-day time limit. Moreover,

       Mother did not move to dismiss until the third day of the hearing. Accordingly,

       she cannot claim on appeal that the trial court erred by setting the hearings for

       dates beyond the statutory time limit.7 See id.


[17]   Mother acknowledges the holding in N.C. but argues that we should follow a

       line of cases interpreting a similar statutory time limits for fact-finding hearings

       in CHINS cases. The relevant CHINS statute provides in part:

                (a) Except as provided in subsection (b), unless the allegations of
                a petition have been admitted, the juvenile court shall complete a
                factfinding hearing not more than sixty (60) days after a petition
                alleging that a child is a child in need of services is filed in
                accordance with IC 31-34-9.




       7
         To the extent that Mother argues that she did not waive the ninety-day time limit, we disagree. The trial
       court noted that Mother affirmatively waived the 180-day time limit on the ninetieth day after the filing of the
       petition. Thus, when she waived the 180-day time limit, she necessarily waived the ninety-day time limit by
       failing to object to the setting of the hearings beyond the ninety-day limit.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                             Page 10 of 31
               (b) The juvenile court may extend the time to complete a
               factfinding hearing, as described in subsection (a), for an
               additional sixty (60) days if all parties in the action consent to the
               additional time.

                                                         ***

               (d) If the factfinding hearing is not held within the time set forth
               in subsection (a) or (b), upon a motion with the court, the court
               shall dismiss the case without prejudice.


       Ind. Code § 31-34-11-1 (emphases added).

[18]   Prior to 2012, subsection (d) was not yet part of this statute. See In re J.R., 98

       N.E.3d 652, 655 (Ind. Ct. App. 2018). Before this subsection was added, we

       had held that the use of the word “shall” in subsection (a) of this statute was

       “directory and not mandatory.” Parmeter v. Cass Cnty. Dep’t of Child Servs., 878

       N.E.2d 444, 448 (Ind. Ct. App. 2007). “Our holding [in Parmeter] was based on

       the principle that ‘the term “shall” is directory when the statute fails to specify

       adverse consequences, the provision does not go to the essence of the statutory

       purpose, and a mandatory construction would thwart the legislative purpose.’”

       J.R., 98 N.E.3d at 654 (quoting Parmeter, 878 N.E.2d 448). Prior to the addition

       of subsection (d), Indiana Code section 31-34-11-1 contained no specific

       consequence for failure to hold the fact-finding hearing within the statutory

       time frame. See id. at 654–55, The Parmeter court therefore concluded that a

       mandatory construction would thwart the legislative purposes of the CHINS

       statutes to assist parents to fulfill their parental obligations and remove children

       only when in their best interests “by requiring dismissal of CHINS cases where


       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019       Page 11 of 31
       continuances of the fact-finding or dispositional hearings are needed for

       legitimate reasons, such as the unavailability of parties or witnesses or the

       congestion of the court calendar, merely because one party is being a stalwart.”

       878 N.E.2d at 448.


[19]   After the addition of subsection (d) in 2012, we reached a different conclusion

       under similar circumstances. In J.R., a CHINS petition was filed on September

       29, 2016. The trial court began a fact-finding hearing on November 22, 2016,

       within the sixty-day deadline. On November 29, 2016 (the day after the sixty-

       day deadline expired), the trial court ordered that the hearing be completed on

       February 6, 2017—130 days after the CHINS petition was filed. The parents

       subsequently objected to the trial court continuing the hearing outside the sixty-

       day limit imposed by Indiana Code section 31-34-11-1, but the trial court

       overruled their objection. The parents then filed a motion to dismiss the CHINS

       petition. The trial court denied the motion and ultimately adjudicated the

       parents’ children to be CHINS.


[20]   On appeal, the parents argued that the trial court erred by denying their motion

       to dismiss. We acknowledged the holding of Parmeter but noted that, since that

       case, section 31-34-11-1 had been amended to add subsection (d), which

       provides that upon motion, the trial court “shall dismiss the case without

       prejudice” “[i]f the factfinding hearing is not held within the time set forth in

       subsection (a) or (b).” The J.R. court therefore concluded:


               Subsection (d) cures one of the ambiguities of the statute (as
               identified by Parmeter) by spelling out the adverse consequence
       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019     Page 12 of 31
               for failing to complete a factfinding hearing within the sixty-day
               period. . . . [T]he 2012 revision leaves very little room for doubt
               regarding legislative intent. Rather than changing “shall” to
               “may” or adding provisions allowing for continuances for good
               cause, the General Assembly instead added subsection (d).
               Simply put, there is no longer any reason to believe that the
               General Assembly intends Indiana Code section 31-34-11-1 to
               mean anything other than what its clear language indicates, i.e.,
               that a factfinding hearing shall be completed within sixty days of
               the filing of a CHINS petition and that failure to do so is grounds
               for dismissal. Parmeter is no longer good law on this point, and
               we conclude that the juvenile court erred in denying [the]
               [p]arents’ motion to dismiss.


       98 N.E.3d at 655.

[21]   We conclude that J.R. is readily distinguishable from the present case. The J.R.

       court was construing a CHINS statute, not the termination statute at issue here.

       Moreover, the parents in J.R. clearly objected to the trial court’s continuance of

       the hearing outside the sixty-day time limit of the applicable statute. Here, as

       noted, Mother not only failed to object, but specifically acquiesced to the delay

       in the termination hearings.

[22]   Mother also cites In re T.T., 110 N.E.3d 441 (Ind. Ct. App. 2018), in support of

       her argument that the time limit is absolute and cannot be waived. In that case,

       a CHINS petition had been filed on August 17, 2017. The trial court

       commenced the fact-finding hearing on October 6, 2017, within the sixty-day

       time limit. The parties then consented to an additional sixty days to complete

       the hearing pursuant to section 31-34-11-1(b). The hearing was then continued

       to November 7, 2017, a date within the new 120-day time limit. However, on
       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 13 of 31
       November 7, DCS requested a continuance, and the trial court rescheduled the

       hearing for January 3, 2018—139 days after the filing of the CHINS petition. At

       the start of the January 3 hearing, the mother moved to dismiss the proceedings

       on grounds that the hearing had not been completed within the statutorily

       mandated time limit. The trial court denied the motion and adjudicated the

       mother’s children to be CHINS.

[23]   On appeal, the mother argued that the trial court had erred by denying her

       motion to dismiss. DCS claimed that dismissal was not required because

       Indiana Code section 31-34-11-1 did not create a hard and fast deadline and

       because the mother waived her objection by agreeing to the continuance. The

       T.T. court rejected DCS’s first argument, concluding that “the General

       Assembly clearly intends for the timeframe set forth in Indiana Code section 31-

       34-11-1 to be a certain deadline.” Id. at 443. With regard to the waiver

       argument, the court concluded:


               while subsection (a) provides that the parties may waive the
               initial 60-day deadline by agreeing to a continuance, subsection
               (b) does not include any such provision. This lack of allowance
               for an additional extension of time indicates that the General
               Assembly intends to require that a factfinding hearing must be
               completed within 120 days of the filing of a CHINS petition
               regardless of any act or agreements of the parties. To allow the
               parties to agree to dates beyond the maximum 120-day limit
               would thwart the legislative purpose of timely rehabilitation and
               reunification of families that are subject to CHINS proceedings.




       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019      Page 14 of 31
       Id. (emphasis added); see also In re M.S., 124 N.E.3d 1234 (Ind. Ct. App. 2019)

       (following T.T. and holding that the trial court erred in denying mother’s

       motion to dismiss even though it was mother who requested the continuance

       that resulted in the hearing being set beyond the 120-day time limit), trans.

       pending.


[24]   Mother argues that we should apply the reasoning of T.T. and M.S. to the facts

       of the present case and hold that the statutory time limits for termination

       hearings are absolute and cannot be waived by the parties. We decline to do so.

       The aforementioned cases dealt with the time limits set forth in Indiana Code

       section 31-34-11-1 for CHINS fact-finding hearings. In contrast, here, we are

       concerned with the time limits for termination hearings set forth in Indiana

       Code section 31-35-2-6. Cases interpreting the former statute do not control in

       cases, such as the present one, involving the latter statute.


[25]   More importantly, Mother not only failed to object to the setting of the hearing

       outside the statutory timeframe, she affirmatively waived the deadline on the

       record. Accordingly, she failed to preserve any claim of error. See N.C., 83

       N.E.3d at 1267. Mother even sought a continuance on the first day of the

       already-delayed hearing. To permit Mother, after having affirmatively waived

       the 180-day deadline, to seek dismissal based on the trial court’s failure to

       complete the hearing within 180 days would effectively allow her to “sandbag”

       the trial court. This would allow a parent to take advantage of invited error. See

       Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 657 (Ind. Ct. App. 2008)

       (noting that the doctrine of invited error precludes a party from taking

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019      Page 15 of 31
       advantage of an error that he or she commits, invites, or which is the natural

       consequence of his or her own neglect or misconduct).

[26]   Although we do not suggest that Mother engaged in such “sandbagging” here,

       the result is the same: she waived the statutory deadline, then sought dismissal

       after the court acted on her waiver. Under such circumstances, Mother cannot

       complain that the hearing was held outside the statutory timeframe. Nor has

       Mother identified any actual prejudice to her ability to present her case as a

       result of the delay. Accordingly, we hold that the trial court’s failure to hold and

       complete the evidentiary hearings on the termination petitions within the

       statutory timeframe did not constitute reversible error.


                                            II. Admission of Evidence

[27]   Mother also contends that the trial court abused its discretion by admitting

       evidence of Mother’s drug screens. In termination cases, as in all cases,

       questions regarding the admission of evidence are entrusted to the sound

       discretion of the trial court. B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 360

       (Ind. Ct. App. 2013). A trial court abuses its discretion only when its decision is

       against the logic and effect of the facts and circumstances before the court, or if

       the court misinterprets the law. Id.; In re T.B., 895 N.E.2d 321, 333 (Ind. Ct.

       App. 2008).


[28]   Mother claims that the laboratory results of her drug screens constituted

       inadmissible hearsay. Hearsay is defined as a statement that “is not made by the

       declarant while testifying at the trial or hearing,” and that “is offered in


       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019      Page 16 of 31
       evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).

       “Hearsay is not admissible unless these rules or other law provides otherwise.”

       Evid. R. 802. The exceptions to the hearsay rule include:


               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis if:

                     (A) the record was made at or near the time by—or from
                     information transmitted by—someone with knowledge;

                     (B) the record was kept in the course of a regularly
                     conducted activity of a business, organization, occupation, or
                     calling, whether or not for profit;

                     (C) making the record was a regular practice of that activity;

                     (D) all these conditions are shown by the testimony of the
                     custodian or another qualified witness, or by a certification
                     that complies with Rule 902(9) or (10) or with a statute
                     permitting certification; and

                     (E) neither the source of information nor the method or
                     circumstances of preparation indicate a lack of
                     trustworthiness.


       Evid. R. 803(6).

[29]   In In re L.S., 125 N.E.3d 628, 634 (Ind. Ct. App. 2019), this court held that the

       drug test reports were not admissible under the business records exception to

       the hearsay rule because, even though an affidavit of the laboratory director

       stated that the reports were maintained in the normal course of business

       activity, the laboratory did not depend on the reports to operate or conduct its

       business. Rather, the drug test reports were documented for the benefit of DCS.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019         Page 17 of 31
       Id. (citing In re E.T., 808 N.E.2d 639, 644–45 (Ind. 2004) (holding that reports

       of home visits and supervised visitations made for the Office of Family and

       Children did not qualify as business records because no organization depended

       on them to operate)).

[30]   Mother argues that the same holds true here, i.e., the results of her drug tests

       were inadmissible hearsay. Even if we agreed with her, she would not prevail.

       Not all evidentiary error is reversible error, as the improper admission of

       evidence will be considered harmless when the trial court’s judgment is

       supported by substantial independent evidence such that there is no substantial

       likelihood that the questioned evidence contributed to the judgment. B.H., 989

       N.E.2d at 360.

[31]   The drug test results at issue here show that Mother tested positive for cocaine

       and marijuana four times. But, at the termination hearing, Mother admitted

       that she had a substance abuse problem and had abused drugs since she was a

       teenager. Moreover, Mother should have submitted over 200 drug screens but

       submitted less than half this amount. From this, the trial court could reasonably

       infer that Mother would have tested positive for these missed screens. See In re

       A.B., 924 N.E.2d 666, 671 (Ind. Ct. App. 2010). Mother was also convicted for

       possession of cocaine. In other words, the evidence establishing Mother’s

       repeated substance abuse was overwhelming, and the admission of the four

       positive drug screens did not impair Mother’s substantial rights. See D.B.M. v.

       Ind. Dep’t of Child Servs., 20 N.E.3d 174, 179 (Ind. Ct. App. 2014) (noting that



       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 18 of 31
       admission of improper evidence is harmless if such does not affect a party’s

       substantial rights), trans. denied.


                                        III. Sufficiency of the Evidence

[32]   Mother also claims that DCS failed to present sufficient evidence to support the

       trial court’s decision to terminate her parental rights to the Children. The

       controlling statute provides that a petition to terminate parental rights must

       allege:


                     (B) that one (1) of the following is true:
                           (i) There is a reasonable probability that the conditions
                           that resulted in the child’s removal or the reasons for
                           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).8




       8
         Mother does not challenge the trial court’s conclusion that DCS met its burden under subsection 4(b)(2)(A),
       regarding the time the Children have been removed from her care, nor does she challenge the trial court’s
       conclusion that DCS met its burden under subsection (D), regarding the plan for the care and treatment of
       the Children.

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                          Page 19 of 31
[33]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Because Indiana

       Code section 4(b)(2)(B) is written in the disjunctive, the trial court is required to

       find that only one prong has been established by clear and convincing evidence.

       In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). Clear and convincing

       evidence need not establish that the continued custody of the parent is wholly

       inadequate for the child’s very survival. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show by

       clear and convincing evidence that the child’s emotional and physical

       development are put at risk by the parent’s custody. Id. If the court finds the

       allegations in a petition are true, the court shall terminate the parent-child

       relationship. Ind. Code § 31-35-2-8(a).

[34]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility, and we

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. In deference to the trial court’s unique position to assess

       the evidence, we will set aside a judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.




       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019      Page 20 of 31
[35]   We have also often noted that the purpose of terminating parental rights is not

       to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880

       (Ind. Ct. App. 2004). Although parental rights have a constitutional dimension,

       the law allows for their termination when clear and convincing evidence

       establishes that they are unable or unwilling to meet their responsibilities as

       parents. Id. Thus, parental interests must be subordinated to the children’s

       interests in determining the proper disposition of a petition to terminate

       parental rights. G.Y., 904 N.E.2d at 1259.


[36]   In the present case, Mother does not challenge any of the trial court’s factual

       findings as being clearly erroneous. We therefore accept the trial court’s

       findings as true, McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App.

       1997), and determine only whether these unchallenged findings are sufficient to

       support the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019),

       trans. denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind.

       Ct. App. 2012) (when unchallenged findings support termination, there is no

       error), trans. denied.


       A. Remedy of Conditions that Led to Removal

[37]   Mother contends that the trial court clearly erred by concluding that there was a

       reasonable probability that the conditions that resulted in the Children’s

       removal from her care, or the reasons for placement outside her home, would

       not be remedied. When deciding whether there is a reasonable probability that

       the conditions resulting in a child’s removal or continued placement outside of

       a parent’s care will not be remedied, the trial court must determine a parent’s
       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019        Page 21 of 31
       fitness to care for the child at the time of the termination hearing while also

       taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

       Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

       denied. The trial court may disregard efforts made only shortly before

       termination and give more weight to a parent’s history of conduct prior to those

       efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).


[38]   In the present case, the trial court concluded:


               There is a reasonable probability that the conditions which
               resulted in the children’s removal and continued placement
               outside of the home will not be remedied by their mother.
               [Mother] has had over two and a half years to put forth an effort
               and has been unable to do so. She has struggled with drug
               addiction for several years and has made little progress despite
               multiple referrals designed to address her sobriety and stability.


       Appellant’s App. pp. 153–54.

[39]   The trial court’s unchallenged findings of fact are sufficient to support this

       conclusion. Specifically, the trial court found:

               18. Amanda Rinehart of Capital City provided Home Based
               Therapy to [Mother] from November 2017 to January 2018.

               19. Ms. Rinehart only met with [Mother] for a couple of sessions
               and more often than not, [Mother] failed to appear.

               20. During the intake session with Ms. Rinehart, [Mother] did
               express a desire to get clean and sober. Her drugs of choice were
               marijuana and cocaine.



       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019     Page 22 of 31
        21. However, on the sessions that [Mother] did appear, she was
        habitually late and made no progress and this referral was closed
        unsuccessfully.

        22. Ms. Rinehart believed that [Mother] needed inpatient
        substance abuse treatment.

        23. Between January 8, 2018 and February 5, 2018, [Mother]
        submitted to four drug screens; all of which were positive for
        marijuana or marijuana and cocaine. She has not submitted a
        screen since February 2018.[9]

        24. [Mother] had a prior CHINS case involving her other
        children which culminated in her parental rights being
        voluntarily terminated; as well as a previous “Informal
        Adjustment.” The Informal Adjustment was also drug related.

        25. [Mother] has struggled with addiction since her teenage
        years.

        26. On or about March 22, 2018, while the CHINS case was
        open and after this Termination Action was filed, [Mother] was
        arrested within a few blocks of this Court building on narcotics
        charges.

        27. [Mother] later pled guilty and was convicted of charges
        arising from the March 22, 2018 arrest. Specifically, she pled
        guilty to Possession of Cocaine (L-4 Felony); and Carrying a
        Handgun Without a License (L-5 Felony). She was sentenced to
        three (3) years on home detention and GPS monitoring through
        Marion County Community Corrections.

        28. [Mother]’s parenting time was again suspended by the
        CHINS Court in April 2018 and she hasn’t seen the children
        since February or March 2018.


9
 As noted above, even if the evidence regarding Mother’s drug test results was improperly admitted, this
error was harmless given the other evidence clearly establishing Mother’s use of illicit drugs.

Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                          Page 23 of 31
               29. [Mother] has received numerous drug addiction services.
               None were successfully completed.

                                                         ***

               31. Mark Pardue of NYAP provided Home Based Therapy for
               [Mother] from October 2017 to February 2018.

               32. Mr. Pardue established the goal for [Mother] of refraining
               from drug and alcohol use.

               33. Mr. Pardue intended to meet with [Mother] once a week.
               However, [Mother] missed approximately half of the sessions.

               34. Ultimately, [Mother]’s attendance took a “nosedive” and she
               was unsuccessfully discharged in February 2018.

               35. Mr. Pardue recommends that [Mother] participate in
               inpatient treatment.

               36. Throughout the duration of the CHINS case, [Mother]
               should have submitted approximately 220 drug screens. She has
               only submitted to approximately 70 and only four in the past
               year and none since February 2018.


       Appellant’s App. pp. 152–53.


[40]   These unchallenged findings of fact clearly show that Mother has failed to

       adequately address her substance abuse problems. She repeatedly missed

       scheduled drug screens, which raises a reasonable inference that she would have

       tested positive had she submitted to the scheduled screens. See In re A.B., 924

       N.E.2d at 671 (noting that a parent cannot be permitted to refuse to submit to

       drug testing and later claim that there was no proof that the parent continued to

       use drugs). Mother admitted to having a substance abuse problem yet failed to


       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 24 of 31
       complete any of the services offered to help her with this problem. She was also

       arrested and convicted for possession of cocaine during the CHINS case.

       Mother’s inability to successfully address her substance abuse problem supports

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

       conditions that resulted in the Children’s removal will not be remedied.10


       B. Best Interests of the Children

[41]   Mother also argues that the trial court clearly erred in concluding that

       termination of her parental rights was in the best interests of the Children. In

       this regard, the trial court concluded: “Termination of the parent-child

       relationship is in the children’s best interests. Termination would allow them to

       be adopted into a stable and permanent home where their needs will be safely

       met.” Appellant’s App. p. 154.


[42]   When determining what is in the best interests of a child, the trial court must go

       beyond the factors identified by DCS and look to the totality of the evidence.

       A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the

       parent to those of a child, and the court need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. Id.

       Moreover, a recommendation by the case manager or child advocate to



       10
         Mother also argues that the trial court erred in determining that there was a reasonable probability that the
       continuation of the parent-child relationship poses a threat to her Children’s well-being. Because we conclude
       that DCS proved that there was a reasonable probability that the conditions which resulted in the Children’s
       removal from Mother’s care would not be remedied, we need not address her arguments directed at the
       second “threat” prong of Indiana Code section 31-35-2-4(b)(2)(B). See In re A.K., 924 N.E.2d at 220 (noting
       that section 4(b)(2)(B) is written in the disjunctive and that the trial court is required to find that only one
       prong of subsection (b)(2)(B) has been established).

       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                             Page 25 of 31
       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 termination is in the child’s best interests. Id.


[43]   Here, the Children’s case manager and the guardian ad litem both testified that

       termination of Mother’s parental rights was in the best interests of the Children.

       The case manager testified that despite the CHINS case having dragged on for

       over two years, Mother had yet to complete the court-ordered home-based

       therapy, home-based case management, or drug treatment. Nor had Mother

       been able to demonstrate an ability to provide a safe and stable environment in

       which to raise the Children. The case manager therefore believed termination of

       Mother’s parental rights was in the Children’s best interests. The guardian ad

       litem testified that Mother had not completed the services offered to her to

       address her substance abuse, which was what prompted DCS’s involvement.

       The guardian ad litem testified that termination of Mother’s parental rights was

       in the Children’s best interests because this would give them permanency after

       two years of foster care. This testimony, combined with evidence that the

       conditions that caused the removal of the Children from Mother’s care would

       not be remedied, was sufficient to show by clear and convincing evidence that

       termination of Mother’s parental rights was in the best interests of the Children.

       See A.D.S., 987 N.E.2d at 1158.


                                                   Conclusion

[44]   Mother waived the statutory time limits within which the trial court was

       required to commence and complete the hearings on DCS’s petitions to
       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019   Page 26 of 31
       terminate her parental rights. Thus, the trial court properly denied Mother’s

       subsequent motion to dismiss based on the failure to complete the hearings

       within the statutory time limits. Any error in the admission of the results of

       Mother’s drug screens was harmless given the other substantial evidence of

       Mother’s substance abuse. And there was sufficient evidence to support the trial

       court’s termination order. We therefore affirm the judgment of the trial court.

[45]   Affirmed.


       Robb, J., concurs.

       Pyle, J., concurs in result with opinion.




       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 27 of 31
                                                    IN THE
           COURT OF APPEALS OF INDIANA
       In re the Termination of the                               Court of Appeals Case No.
       Parent-Child Relationship of J.C.                          19A-JT-350
       and R.C. (Minor Children) and
       B.C. (Mother),
       Appellant-Respondent,

               v.

       Indiana Department of Child
       Services,
       Appellee-Petitioner,

               and
       Child Advocates, Inc.,
       Appellee-Guardian ad Litem.



       Pyle, Judge concurring in result with opinion.


[46]   I concur in the result reached by my colleagues, but I write separately to state

       that I believe that the admission of Mother’s drug test results (Exhibits 17-20)

       was not erroneous; they were properly admitted under the business records

       exception to the hearsay rule. Evid. R. 803(6).



       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019                  Page 28 of 31
[47]   I respectfully disagree with the holding reached in In re L.S., 125 N.E.3d 628

       (Ind. Ct. App. 2019). See In re F.S., 53 N.E.3d 582, 596 (Ind. Ct. App. 2016)

       (noting that each panel of this Court has coequal authority to address an issue

       and is not bound by another panel’s prior decision). In that case, another panel

       held that reports of drug test results were not admissible under the business

       records exception. That panel relied on the reasoning provided by our Indiana

       Supreme Court in In re E.T., 808 N.E.2d 639 (Ind. 2004).


[48]   In E.T., Justice Rucker noted that the reliability of business records collected in

       the ordinary course of business is what gives courts the assurance to admit into

       evidence items otherwise considered hearsay. In re E.T., 639 N.E.2d at 643. In

       other words, “business records are made reliable by ‘systematic checking, by

       regularity and continuity which produce habits of precision, by actual

       experience of business in relying upon them, or by a duty to make an accurate

       record as part of a continuing job or occupation.’” Id. (quoting Advisory

       Committee’s Note to Fed. R. Evid. 803(6); see also Stahl v. State, 686 N.E.2d 89,

       92 (Ind. 1997)). “It is not enough to qualify under the business records

       exception to show that the records are made regularly; rather, the court must

       also look to ‘the character of the records and their earmarks of reliability acquired

       from their source and origin and the nature of their compilation.’” E.T., 639

       N.E.2d at 643 (quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (emphasis

       added)).

[49]   In E.T., our supreme court found that reports describing home visits and

       supervised visitations produced by a non-profit agency were not business
       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019      Page 29 of 31
       records for several reasons: (1) the reports contained unsubstantiated third-party

       observations; (2) the reports contained conclusory lay opinions; (3) the reports

       were nothing like the traditional financial statements, inventory records, or

       administrative and operational documents admitted as business records in

       Indiana; and (4) the non-profit agency worked solely for a governmental

       agency, the Office of Family and Children. Id. at 643-645.


[50]   None of these reasons apply to the drug test results admitted in this case. In

       this case, the evidence showed that the urine samples for Mother’s drug tests

       were collected here in Indiana and submitted to Redwood Toxicology

       Laboratory (“Redwood”) in California. John Martin (“Martin”), a supervising

       toxicologist, testified that Redwood receives samples, employs scientific

       methods to analyze urine samples for the presence of illicit substances, and

       produces reports to multiple clients. (Tr. 58-86). None of the reports produced

       by Redwood and admitted into evidence by the trial court contained

       unsubstantiated third-party observations or conclusory lay opinions.

       (Petitioner’s Ex. 17-20). Using scientific principles widely accepted in the

       scientific community, the reports merely noted whether illicit substances were

       present and in what concentrations. Further, the reports fit within the type of

       administrative or operational business documents Indiana judges see and admit

       into evidence on a regular basis. Finally, there was testimony that Redwood

       has multiple clients to whom it releases reports as a part of its business; they do

       not work solely for the Department of Child Services. As a result, if an

       adequate foundation is laid, it is precisely these characteristics and earmarks of


       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019    Page 30 of 31
       reliability that make the drug testing reports at issue admissible under the

       business records exception.

[51]   As a result, I would find that the trial court did not err in admitting Exhibits 17-

       20 into evidence under the business records exception. In all other respects, I

       concur with my colleagues.




       Court of Appeals of Indiana | Opinion 19A-JT-350 | September 24, 2019     Page 31 of 31
