MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                            Oct 09 2019, 8:31 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.


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


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 9, 2019
Parent-Child Relationship of J.L.                         Court of Appeals Case No.
(Minor Child) and                                         19A-JT-764
J.R. (Mother),                                            Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn A.
        v.                                                Moores, Judge
                                                          The Honorable Scott Stowers,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          49D09-1806-JT-796
Appellee-Petitioner,

        and




Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019               Page 1 of 23
            Child Advocates, Inc.,1
            Appellee-Guardian ad Litem.




            Mathias, Judge.


[1]         J.R.’s (“Mother”) parental rights to her minor child were terminated in the

            Marion Superior Court. Mother appeals and raises two issues:

       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; and,

      II.         Whether clear and convincing evidence supports the trial court’s order
                  terminating Mother’s parental rights.

            We affirm.


                                           Facts and Procedural History

[2]         J.L. was born on December 18, 2016. Shortly after her birth, on January 17,

            2017, the Indiana Department of Child Services (“DCS”) filed a petition

            alleging that J.L. was a Child In Need of Services (“CHINS”). Specifically,

            DCS alleged that Mother and R.L. (“Father”) had not provided J.L. with a

            stable home and that Mother had untreated mental health issues.




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

            Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                     Page 2 of 23
[3]   At the initial hearing, J.L. was placed with Father in a temporary trial home

      visit. However, on March 2, 2017, she was removed from Father’s care because

      DCS learned that he was leaving J.L. with random relatives. J.L. has been in

      foster care since that date.


[4]   On April 28, 2017, Mother admitted that J.L. was a CHINS. After that date,

      Mother’s participation in services was sporadic, and she failed to attend a

      family team meeting. On August 4, 2017, the trial court noted that Mother’s

      home-based case management “had been closed because of lack of

      participation.” Ex. Vol., Pet’r Ex. 12 p. 81. Mother was homeless, unemployed,

      and pregnant. Her relationship with Father was volatile, and Mother and

      Father were physically violent with one another. During supervised visitation,

      Mother’s parenting skills improved slightly, but she acted impatient and

      agitated when trying to comfort J.L.

[5]   Mother failed to appear for the September 8, 2017 dispositional hearing at

      which the trial court ordered her to participate in home-based therapy. Mother’s

      participation was sporadic, and she refused assistance from her case worker.

      She failed to follow through with tasks and medical appointments on her own.

      Mother’s anger made it difficult to provide services to her and she refused to

      take medications to address her mental health issues. At the permanency

      hearing held on June 8, 2018, Mother’s home-based therapist reported that

      Mother’s ability “to reason and make decisions that are beneficial to herself and

      her child” continued to be limited. Ex. Vol., Pet’r Ex. 18 p. 125.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 3 of 23
[6]   For these reasons, the trial court changed J.L.’s plan to adoption at that

      permanency hearing. Furthermore, the trial court noted that Mother had often

      requested a reduced visitation schedule. During visitation, she struggled to

      provide care for J.L. without assistance from her home-based therapist. Her

      frustration with J.L. was evident, and she screamed at J.L. when the child

      approached the therapist. Id. at 127. Mother also required prompts to feed J.L.

      and change her diapers.


[7]   On June 28, 2018, the DCS filed a petition to terminate Mother’s parental

      rights to J.L.2 The termination hearing was held on January 17 and 24, 2018.

      One week before the January 17 hearing, Mother filed a motion to dismiss

      DCS’s petition because the hearing was not held within the time limits

      established in Indiana Code section 31-35-2-6. At the termination haring,

      Mother renewed her motion to dismiss. After noting that Mother had

      previously waived the statutory time limits, the trial court denied her motion.


[8]   Mother’s home-based therapist, Dr. Robin Kohli, and the guardian ad litem

      testified at the hearing and agreed that two-year-old J.L. needed permanency

      best provided by her current foster family. The trial court terminated Mother’s

      parental rights after finding that


                 8. On February 21, 2017, [Mother] underwent a Psychological
                 Evaluation administered by Dr. Robin Kohli of Woodview
                 Psychology Group.



      2
          Father’s parental rights to J.L. were terminated in a separate proceeding.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 4 of 23
        9. Dr. Kohli has been qualified as an expert in the area of
        Clinical Psychology.

        10. During the psychological evaluation, [Mother] appeared to be
        experiencing hallucinations, as she demonstrated a flat and
        inappropriate affect such as laughing while discussing being
        raped.

        11. [Mother] disclosed to Dr. Kohli that she has willingly
        participated in prostitution with at least five different men,
        beginning at age eighteen (18).

        12. [Mother] also disclosed that she has been the victim of
        domestic violence at the hand of [Father], including at times
        while she was holding the child.

        13. During the psychological evaluation, [Mother] made
        concerning statements regarding the child, including jealousy
        toward the baby as well as resentment toward [J.L.] for taking
        attention away from [Mother].

        14. [Mother] also expressed to Dr. Kohli that [J.L.] was
        “annoying because all she do is cry, cry, cry” and that compared
        to other babies, [J.L.] is “more annoying than most other
        babies.”

        15. At the time of the psychological evaluation in February 2017,
        [Mother] insisted that she didn’t need treatment or parenting
        classes.

        16. Dr. Kohli diagnosed [Mother] with Unspecified
        Schizophrenia and Other Psychotic Disorder; Posttraumatic
        Stress Disorder, and Child Neglect.

        17. Dr. Kohli concluded that [Mother] is at a high risk for
        engaging in physical child abuse.

        18. [Mother] also expressed to Dr. Kohli desires of revenge to
        “get back at” [J.L.].

Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 5 of 23
        19. Dr. Kohli concluded that [Mother’s] prognosis for
        meaningful improvement is poor.

        20. Dr. Kohli found no evidence of attachement [sic] between
        [Mother] and the child.

        21. Dr. Kohli strongly recommends that [Mother] receive a
        psychiatric consultation to determine appropriate psychotripic
        [sic] medication to alleviate her symptoms.

        22. As of the January 24, 2019 trial date, [Mother] had been
        residing in a shelter for approximately one week. For much of the
        duration of the CHINS case, she was homeless and other than
        residing in an apartment for part of 2017 and 2018, she has not
        had stable housing.

        23. As recently as the January 17, 2019 trial, [Mother] still did
        not have an understanding as to why DCS is involved with her
        child.

        24. When she did reside in the apartment, she was unable to pay
        her electric bill so her power was shut off.

        25. [Mother] did get medications prescribed. However, she did
        not consistently take them because she didn’t like the side effects.

        26. Since [J.L.] was born in December 2016, [Mother] has had
        two other children.

        27. Nicki Rogers of Branches of Life provided Home Based
        Therapy; Home Based Case Management; and Supervised
        Parenting Time for [Mother] since February 2017.

        28. [Mother] initially was slow to engage with Ms. Rogers.

        29. [Mother] did make progress with managing her anger.

        30. [Mother] still struggles with comprehension and has difficulty
        retaining information.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 6 of 23
        31. [Mother] made some progress with her therapeutic goals of
        improving her thought process and patterns. However, there is
        still lots of work to be done. [Mother] is not receptive to help and
        demonstrates lots of opposition and confrontation.

        32. Ms. Rogers established goals for [Mother] in Home Based
        Case Work of Housing and Prenatal care.

        33. Ms. Rogers took [Mother] to several doctor’s appointments.

        34. [Mother] did obtain an apartment in the summer of 2017.
        The conditions deteriorated and [Mother] moved out in May
        2018.

        35. [Mother] struggled with maintaining a budget as well as
        distinguishing between “needs and wants.”

        36. After moving out of the apartment in May 2018, [Mother]
        lived in several different places including the streets.

        37. [Mother’s] parenting time with the child since March 2017
        have been “supervised therapeutic visits.”

        38. [Mother] receives one visit per week with the child. Prior to
        July 2018, she received two sessions per week. After her
        parenting time sessions were reduced from two per week to one,
        [Mother] became more consistent.

        39. During parenting time sessions, [Mother] has demonstrated
        negative behaviors including yelling and cussing at [Father] on
        the telephone.

        40. [Mother] has also made negative comments about [J.L.]
        during parenting time sessions and demonstrates a lack of
        empathy.

        41. Although [Mother] made progress with simple tasks such as
        making a bottle for the child, she is nowhere near progressing to
        unsupervised parenting time.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 7 of 23
              42. In May 2018, [Mother] contacted Karina Napier of Midtown
              Mental Health to set up an appointment for the following day.

              43. [Mother] failed to appear and later made four other
              appointments and failed to appear for all of them.

              44. Following the fifth missed appointment, Ms. Napier closed
              out unsuccessfully.

              45. The child has been removed from her mother’s care and
              custody for at least six (6) months under a dispositional decree
              prior to this Termination Action being filed on June 28, 2018.

              46. The child has been placed in Foster Care since March 2017.
              She is doing well and her needs are being met. She is placed with
              her biological siblings. This is the only home she has known.
              This is a pre-adoptive placement.

              47. [Mother] has expressed to the FCM a desire to receive
              Mental Health Treatment on her home [sic] at Midtown.
              However, she never followed through.

      Appellant’s App. pp. 99–101.


[9]   The trial court concluded 1) that there is a reasonable probability that the

      conditions that resulted in the child’s removal and continued placement outside

      of the home will not be remedied, and 2) that continuation of the parent-child

      relationship poses a threat to the child’s well-being. The trial court also

      concluded that termination of Mother’s parental rights was in J.L.’s best

      interests because Mother “has not demonstrated the ability to appropriately

      care for” J.L. Id. at 101. Mother now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 8 of 23
                                               I.     Statutory Time Limits

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

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

       was not commenced within 90 days after the petition was filed and was not

       completed within 180 days of the filing of the petition.


[11]   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,[3] 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).




       3
           Neither party contends that this subsection is applicable here.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019    Page 9 of 23
[12]   Here, the termination hearing commenced 203 days after the petition was filed

       and was completed 210 days after the petition was filed. 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 petition.


[13]   Mother’s argument overlooks the fact that she affirmatively waived the

       statutory time limits, and therefore, she also did not object to the setting of the

       fact-finding hearing outside the ninety and 180-day time limits set forth in

       Indiana Code section 31-35-2-6. For this reason, the State contends that Mother

       waived any objection to the delay in the hearings.

[14]   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. Id. at 1267. The N.C.

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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 10 of 23
               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”
               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. On June 28, 2018, DCS filed its petition to terminate

       Mother’s parental rights. Importantly, approximately forty-five days later,

       Mother, by counsel, waived the 180-day time requirement. Appellant’s App.

       pp. 11, 54. See id. Relying on Mother’s waiver, the trial court set trial dates for

       January 17 and 24, 2019, both beyond the statutory time limits. Mother did not

       object to the setting of the trial outside the statutory time limits. Mother

       eventually filed a motion to dismiss on January 10, 2019, after the 180-day time

       limit had passed. She renewed her motion at the January 17, 2019 termination

       hearing, and the trial court denied the motion.4




       4
         The trial court had also previously denied DCS’s motion to move up the trial date to comply with the time
       limits established in Indiana Code section 31-35-2-6 because the parties waived the statutory time limits.
       Appellant’s App. p. 65.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                 Page 11 of 23
[17]   Mother 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.

               (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 Cty. 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.’”

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 12 of 23
       J.R., 98 N.E.3d at 654 (quoting Parmeter, 878 N.E.2d at 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 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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 13 of 23
[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
               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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 14 of 23
       previously 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

       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:

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 15 of 23
                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.


       Id. (emphasis added).5


[24]   Mother argues that we should apply the reasoning of T.T. 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. See

       Appellant’s App. pp. 11, 54. Accordingly, she failed to preserve any claim of



       5
        Mother also relies on In re M.S., 124 N.E.3d 1234 (Ind. Ct. App. 2019), trans. granted, in which our court
       held 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. Transfer was
       granted in that case on September 12, 2019.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                  Page 16 of 23
       error. See N.C., 83 N.E.3d at 1267. 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 any 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 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.     Sufficiency of the Evidence

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

       trial court’s decision to terminate her parental rights to J.L. 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
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 17 of 23
                           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).6


[28]   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, 1260 (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 Cty. 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




       6
         Mother does not challenge the trial court’s conclusion termination was in J.L.’s best interests, 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 J.L.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                    Page 18 of 23
       allegations in a petition are true, the court shall terminate the parent-child

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

[29]   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

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

       denied.


[30]   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.


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

       reasonable probability that the conditions that resulted J.L.’s removal from her


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 19 of 23
       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 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).


[32]   Mother argues that the trial court placed too much emphasis on Dr. Kohli’s

       report because she was evaluated by the doctor in February 2017. Mother also

       argues that she progressed in therapy and with home-based counseling, and that

       she no longer has a relationship with Father. In addition, Mother claims that

       the trial court’s finding that she failed to recognize the need for mental health

       treatment and did not understand why DCS was involved with her child is not

       supported by the evidence. Mother admits that she has a history of cognitive

       limits, ADHD, PTSD, depression, and anxiety, but contends there is nothing in

       her history suggesting she suffers from psychosis other than Dr. Kohli’s finding.

       Finally, Mother claims that she was unable to take her prescribed medication




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 20 of 23
       because she was pregnant for eighteen of the twenty-four months that the

       CHINS and termination proceedings were pending.7

[33]   Mother made marginal progress with J.L. and in home-based therapy. But her

       therapist testified that Mother still struggles with comprehension during therapy

       and could not apply the skills learned to her daily life. Tr. p. 100. And she could

       not remember what she learned from one session to the next. For example,

       Rogers testified that Mother understands “what abuse is and depending on her

       mood and her status in that relationship, she will either reject or accept that that

       relationship is an unhealthy one for her and for her children. It just depends on

       the day.” Tr. p. 101. Rogers believes that Mother will have to continue to

       “work really hard to change behaviors and change her thought process” and

       there is “still a lot of work that needs to be done.” Id. Mother also generally

       denied that she had “issues or problems” and insisted that she did not need

       help. Id. at 102. Rogers was also concerned about Mother’s “lack of follow

       through with mental treatment and following recommendations of her” doctor.

       Tr. p. 118.


[34]   Mother was unable to manage money and failed to maintain stable housing.

       Rogers testified that Mother’s “understanding of … needs versus wants in

       regards to budgeting is … a huge barrier” to her ability to maintain stable




       7
        Rogers testified that Mother refused to take her prescribed medication because Father told her she should
       not take the medication due to the side effects. Tr. p. 116; see also Tr. p. 160.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                 Page 21 of 23
       housing. Tr. pp. 105–06. On the date of the termination hearing, Mother had

       been living at a Salvation Army shelter for approximately one week.

[35]   Throughout the CHINS and termination proceedings, Mother was only able to

       consistently attend one supervised visit per week with J.L. Mother also cannot

       independently care for J.L. Mother does not understand “the needs of a child

       and child development as far as . . . how to provide appropriate and adequate

       safe care for a child[.]” Tr. p. 118. Because Mother was unable to care for J.L.’s

       basic needs, visitation never progressed beyond therapeutic visitation. Tr. pp.

       114–15. Although Mother eventually established a bond with J.L., during visits,

       Mother would refuse to speak to or play with J.L. on a “fairly regular basis.”

       Tr. pp. 112, 125.


[36]   Finally, we do not agree with Mother’s claim that the trial court placed too

       much emphasis on Dr. Kohli’s testimony and report. Dr. Kohli is a clinical

       psychologist with eighteen years of experience. Without objection, the trial

       court certified her as an expert in the area of clinical psychology. Tr. p. 13. Dr.

       Kohli evaluated Mother during the CHINS proceedings, approximately two

       years before the hearing was held in this case. It was within the discretion of the

       fact-finder to weigh Mother’s current demeanor and mental state against Dr.

       Kohli’s findings from two years prior to the termination hearing. In re D.B., 942

       N.E.2d at 871. Moreover, from the evidence presented, it was reasonable for




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019   Page 22 of 23
       the trial court to conclude that Mother has done little to address her mental

       health issues throughout the CHINS and termination proceedings.8

[37]   For all of these reasons, we conclude that the trial court’s determination that

       there was a reasonable probability that the conditions that resulted in J.L.’s

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

       not be remedied is supported by clear and convincing evidence.9


                                                     Conclusion

[38]   Mother has not established reversible error in the trial court’s failure to hold and

       complete the evidentiary hearings on the termination petitions within the

       statutory timeframe. Furthermore, Mother only challenged the statutory

       findings required by Indiana Code section 31-35-2-4(b)(2). Because we conclude

       that clear and convincing evidence supports the trial court’s finding under

       section 31-35-2-4(b)(2)(B)(i), we affirm the trial court’s order terminating

       Mother’s parental rights.


[39]   Affirmed.


       Robb, J., and Pyle, J., concur.



       8
        Mother notes that Dr. Kohli was the only individual who testified that she suffers from psychosis, and there
       was no evidence from her home-based therapist or any other case workers that they had observed any
       evidence of psychosis. Even if the doctor’s diagnosis was in error, the remaining evidence is more than
       sufficient to terminate Mother’s parental rights to J.L.
       9
         Mother also challenges the trial court’s finding that that continuation of the parent-child relationship poses
       a threat to J.L.’s well-being. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we
       need not address this argument. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-764 | October 9, 2019                    Page 23 of 23
