MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jun 15 2018, 9:29 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          June 15, 2018
Termination of the Parental                               Court of Appeals Case No.
Rights of:                                                18A-JT-77
Ch.S. & Co.S. (Minor Children)                            Appeal from the Fayette Circuit
                                                          Court
       and
                                                          The Honorable Hubert Branstetter,
A.R. (Mother),                                            Jr., Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          21C01-1707-JT-267
        v.                                                21C01-1707-JT-268

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018                           Page 1 of 10
      Bailey, Judge.



                                              Case Summary
[1]   A.R. (“Mother”) appeals the termination of her parental rights to Ch.S. and

      Co.S. (“Children”) upon the petition of the Indiana Department of Child

      Services, Fayette County (“the DCS”). She presents a single, consolidated

      issue: whether the DCS established, by clear and convincing evidence, the

      requisite statutory elements to support the termination decision. 1 We affirm.




      1
       Mother asks that, in our review of the evidence, we disregard factual findings derived from the Child in
      Need of Services (“CHINS”) records. The termination order states that certain facts – relative to parental
      drug screens and housing – were “adopted as facts found for purposes of [the] termination proceeding.”
      (Appealed Order at 2.)
      The DCS asked that the trial court take judicial notice of CHINS records, pursuant to Evidence Rule 201(a),
      which provides that some kinds of facts may be judicially noticed, as follows:
               The court may judicially notice:
               (1) a fact that:
               (A) is not subject to reasonable dispute because it is generally known within the trial court’s
                   territorial jurisdiction, or
               (B) can be accurately and readily determined from sources whose accuracy cannot reasonably be
                   questioned.
               (2) the existence of:
               (A) published regulations of governmental agencies;
               (B) ordinances of municipalities; or
               (C) records of a court of this state.
      The rule permits the trial court to judicially notice “the existence of” records of a court of this state – the
      language does not extend to judicial recognition of facts within the records. See In re D.P., 72 N.E.3d 976,
      983 (Ind. Ct. App. 2017).
      However, termination cases “often must refer to and rely heavily upon records in different, but related,
      proceedings.” In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012). If a trial court takes judicial notice of
      the existence of records of other court proceedings, as occurred in this case, “there must be some effort made
      to include such ‘other’ records in the record of the current proceeding.” Id. The taking of judicial notice of

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018                           Page 2 of 10
                              Facts and Procedural History
[2]   Mother and her husband, (“Father”), who is now deceased, had two children,

      Co.S., born February 27, 2008, and Ch.S., born July 19, 2010. On April 18,

      2016, the DCS filed a petition alleging that Children were Children in Need of

      Services (“CHINS”) due to Mother’s drug use and parental inability to provide

      adequate food, shelter, and medical care. On November 22, 2016, Children

      were adjudicated CHINS.


[3]   Mother was ordered to participate in reunification services. She and Father

      engaged in supervised visitation with Children; Father was the more interactive

      parent. After Father’s death from a heart attack, Mother and Children engaged

      in therapeutic visitation sessions; the visitation supervisor considered a portion

      of these visits to be positive parent-child interactions. As to the remainder of

      the services offered to Mother, she was non-compliant. The DCS plan changed

      from reunification to termination of parental rights and adoption of Children by

      their paternal grandmother.




      records of a court of this state “does not mean that the facts within them were conclusive.” Withers v. State,
      15 N.E.3d 660, 664 (Ind. Ct. App. 2014). Rather, the parties are “free to contest the facts.” Id.
      To the extent that the language of the order on appeal suggests that the trial court merely “adopted” CHINS
      facts and gave them conclusive effect, this is incorrect. The trial court took judicial notice of the existence of
      CHINS records, the CHINS records were admitted into evidence, and the DCS elicited testimony consistent
      with the factual determinations made in the CHINS orders. Thus, despite the trial court’s reference to
      “adoption” of facts, the termination decision did not rest solely upon a paper record. See In re D.P,, 72
      N.E.3d at 983 (recognizing the need for independent, admissible evidence of a father’s drug use as opposed to
      taking “notice of all facts contained within a court record.”) Here, the DCS presented admissible evidence of
      Mother’s conduct and she was not deprived of the opportunity to contest facts underlying the CHINS orders.
      At bottom, much of Mother’s own testimony supports the trial court’s findings and conclusions.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018                          Page 3 of 10
[4]   On July 25, 2017, the DCS petitioned to terminate Mother’s parental rights.

      An evidentiary hearing was conducted on November 14, 2017, at which

      Mother, her most recent caseworker, and the visitation supervisor testified. The

      DCS proffered as evidentiary exhibits 2013 CHINS records and 2016 CHINS

      records. Upon relevance and hearsay objections from Mother, the trial court

      admitted into evidence only the more recent CHINS records.


[5]   Mother testified regarding her desire to be reunited with Children, her current

      living arrangements, and her admitted non-compliance with DCS referrals.

      Mother opined that she needed a “one on one recovery coach” to address any

      potential for relapse and that the DCS referrals, such as for group therapy, were

      not appropriate. (Tr. at 72.) Visitation supervisor Myra Hisel (“Hisel”) testified

      that Mother had “lots of missed visits,” some attributable to transportation

      issues, but had enjoyed “good interactions” with Children over the last two

      months. (Tr. at 40-41.) Hisel estimated that, overall, one in four visits had

      been positive. Family case manager Molly Parkhurst (“Parkhurst”) testified

      that Mother had been offered various services in addition to visitation but had

      completed none. Mother had refused multiple drug screens and had tested

      positive for illegal substances on several screens that were administered.


[6]   After the DCS presented its witnesses, DCS counsel asked that the trial court

      take judicial notice of the CHINS “causes” and the trial court responded that

      judicial notice would be taken “of those cases.” (Tr. at 65.) Mother did not

      object.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018   Page 4 of 10
[7]   On December 11, 2017, the trial court issued its termination order.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[8]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Id. In so doing, we give

      “due regard” to the trial court’s unique opportunity to judge the credibility of

      the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We will set aside

      the trial court’s judgment only if it is clearly erroneous. K.T.K. v. Ind. Dep’t of

      Child Servs, 989 N.E.2d 1225, 1229 (Ind. 2013). In order to determine whether

      a judgment terminating parental rights is clearly erroneous, we review the trial

      court’s judgment to determine whether the evidence clearly and convincingly

      supports the findings and the findings clearly and convincingly support the

      judgment. I.A., 934 N.E.2d at 1132.


        Requirements for Involuntary Termination of Parental Rights
[9]   “The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children.” In re

      Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

      of a constitutional dimension, the law provides for the termination of those

      rights when the parents are unable or unwilling to meet their parental


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018   Page 5 of 10
       responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143,

       147 (Ind. 2005). The State is required to prove that termination is appropriate

       by a showing of clear and convincing evidence, a higher burden than

       establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[10]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence in order to terminate a

       parent-child relationship:


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

               (i)     The child has been removed from the parent for at least six
               (6) months under a dispositional decree.
               (ii)    A court has entered a finding under IC 31-34-21-5.6 that
               reasonable efforts for family preservation or reunification are not
               required, including a description of the court’s finding, the date
               of the finding, and the manner in which the finding was made.
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office or probation department
               for at least fifteen (15) months of the most recent twenty-two (22)
               months, beginning with the date the child is removed from the
               home as a result of the child being alleged to be a child in need of
               services or a delinquent child;


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


               (i)    There is a reasonable probability that the conditions that
               resulted in the child’s removal or the reasons for placement
               outside the home of the parents will not be remedied.
               (ii)   There is a reasonable probability that the continuation of
               the parent-child relationship poses a threat to the well-being of
               the child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018   Page 6 of 10
               (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.


[11]   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore the court need only to find that one of the three requirements of

       subsection (b)(2)(B) was established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).


                                                    Analysis
[12]   Mother contends that insufficient evidence supports the termination decision.

       She first focuses upon whether there is clear and convincing evidence of a

       reasonable probability that she would fail to remedy the conditions that led to

       Children’s removal.


[13]   This invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).

       First, we identify the conditions that led to removal; and second, we must

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. In the second step, the trial court must judge parental

       fitness as of the time of the termination hearing, taking into consideration the

       evidence of changed conditions. Id. (citing Bester, 839 N.E.2d at 152). The trial

       court is entrusted with balancing a parent’s recent improvements against

       habitual patterns of conduct. Id. The trial court has discretion to weigh a

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018   Page 7 of 10
       parent’s prior history more heavily than efforts made only shortly before

       termination. Id. “Requiring trial courts to give due regard to changed

       conditions does not preclude them from finding that parents’ past behavior is

       the best predictor of their future behavior.” Id.


[14]   Children were removed due to allegations that their parents were unable to

       provide them with a drug-free home and other necessities. According to

       Mother’s testimony, the DCS removed Children based upon an allegation that

       she had maintained “a heroin house.” (Tr. at 29.) Mother insisted that she had

       neither used heroin nor admitted as much to a caseworker, as alleged at the

       time of removal. Mother had refused several drug screens and had most

       recently tested positive for amphetamines and methamphetamine. Mother also

       denied methamphetamine use but proffered an explanation that marijuana she

       had used might have been adulterated with other substances.


[15]   Mother testified regarding her opposition to some of the offered reunification

       services, as to location, type, and service provider. Mother expressed a

       preference for continuing to use marijuana; she felt that it helped her avoid

       more addictive substances. She wanted individual, as opposed to group,

       therapy, and she wanted to receive services at Centerstone rather than

       Meridian. According to Mother, she had “already been” to inpatient treatment,

       she knew herself and her needs, and she did not feel that additional group

       therapy would be beneficial. (Tr. at 8, 67.) She admitted having refused some

       drug screens because she “didn’t click with” the most recent family case

       manager and sometimes wanted “just to piss Molly off.” (Tr. at 20, 23.)

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018   Page 8 of 10
       Mother acknowledged that she was unwilling to sign a release to permit the

       DCS to obtain her medical records. She had been unemployed for twelve

       years, but had applied for disability benefits.


[16]   Parkhurst testified that Mother had been offered substance abuse treatment,

       drug screens, home-based case management services, therapy, and child visits.

       She further testified that Mother: refused multiple drug screens, submitted a

       recent screen that was positive for methamphetamine and amphetamine, stated

       in a team meeting that she would not participate in substance abuse services

       because they were not needed, repeatedly tested positive for marijuana, did not

       complete individual counseling, did not maintain stable housing, and did not

       complete the intake process to receive home-based case management services

       related to parenting skills, housing, or employment.


[17]   In sum, Mother was non-compliant with each of the reunification services

       offered to her and she opposed future services that were not tailored to her

       terms. The evidence clearly and convincingly supports the trial court’s findings

       of fact regarding Mother’s conduct; the findings clearly and convincingly

       support the conclusion that the conditions leading to Children’s removal would

       not likely be remedied.2




       2
        We need not address Mother’s challenge to the trial court’s conclusion that there was a reasonable
       probability that the continuation of the parent-child relationship posed a threat to Children’s well-being
       because Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of
       parental rights, the trial court need only find that one of the three requirements of subsection (b)(2)(B) has

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018                        Page 9 of 10
[18]   Mother also contends that the DCS did not present clear and convincing

       evidence that termination of parental rights is in Children’s best interests. In

       determining what is in a child’s best interests, the court must look to the totality

       of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

       denied. Children have been removed from Mother’s care since April of 2016

       and Mother has not progressed beyond having supervised visits with Children.

       As of the termination hearing, she had no independent source of income. She

       had lived for a month or two in an apartment furnished by a boyfriend. Mother

       had not been employed in the last twelve years. She did not release her medical

       records or comply with services including drug screens. As such, the totality of

       the evidence suggests that Mother was unable to care for Children. We find no

       clear error in the trial court’s findings and judgment.



                                                  Conclusion
[19]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[20]   Affirmed.


       Crone, J., and Brown, J., concur.




       been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1156
       (Ind. Ct. App. 2013), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018                     Page 10 of 10
