                                                                FILED
                                                           Dec 21 2016, 7:58 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT –                                  ATTORNEYS FOR APPELLEE
MOTHER                                                    Gregory F. Zoeller
Steven J. Halbert                                         Attorney General of Indiana
Carmel, Indiana                                           Robert J. Henke
ATTORNEY FOR APPELLANT –                                  David E. Corey
FATHER                                                    Deputy Attorneys General
                                                          Indianapolis, Indiana
Patricia Caress McMath
Marion County Public Defender Agency
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              December 21, 2016
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          49A02-1605-JT-1072
O.G., II (Minor Child)
 and                                                      Appeal from the Marion Superior
K.T. (Mother) & O.G. (Father),                            Court
                                                          The Honorable Marilyn A.
Appellants-Respondents,
                                                          Moores, Judge
        v.                                                The Honorable Larry E. Bradley,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           49D09-1505-JT-325
Appellee-Petitioner


Baker, Judge.

Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016            Page 1 of 33
[1]   O.G. (Father) and K.T. (Mother) appeal the juvenile court’s order terminating

      their parent-child relationship with O.G., II (Child). Father argues that the

      juvenile court erred by admitting certain evidence and both parents argue that

      there is insufficient evidence supporting the termination order. We find that the

      juvenile court erroneously admitted certain hearsay evidence. We also find that

      the evidence does not support the order terminating the parent-child

      relationship with either parent and reverse and remand for further proceedings.


                                                      Facts
[2]   On May 28, 2011, the Department of Child Services (DCS) removed Child after

      receiving a report that Child had been left with a family friend who could not

      contact Mother. At that time, Father indicated to DCS that both parents would

      test positive for marijuana. On June 1, 2011, DCS filed a petition alleging that

      Child was a child in need of services (CHINS). On June 21, 2011, the juvenile

      court adjudicated Child to be a CHINS after Mother admitted to the following:

              “[Mother] and [Father] have a history of domestic violence in
              their relationship, and there was a recent altercation where
              [Father] punched [Mother] in the face and choked her, causing
              her to lose consciousness. In addition, [Mother] admitted to and
              tested positive for recent marijuana use, and [Father] has pending
              charges for possession of cocaine.”


      DCS Ex. 12. The juvenile court later entered a dispositional decree ordering

      the parents to, among other things, refrain from use of illegal drugs or alcohol;

      complete substance abuse, parenting, and domestic violence assessments and



      Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 2 of 33
      comply with all recommendations stemming from those assessments; submit to

      random drug screens; and refrain from acts of domestic violence.


[3]   Mother and Father have a significant history of domestic violence. Mother’s

      first domestic violence assessment led to a recommendation that she complete a

      26-week domestic violence class; she failed to complete the classes. She then

      completed a second assessment, recanting the statements she made regarding

      Father in the first assessment. The assessor recommended a 26-week class, and

      this time, Mother completed the classes. In October 2011, Father was charged

      with felony battery and domestic battery, but Mother eventually recanted and

      the charges were dismissed.


[4]   In August 2012, Child was returned to Mother’s care and custody on a trial

      basis. DCS removed Child after it learned that Father had been in the home,

      apparently mistakenly believing that there was a no-contact order in place. The

      juvenile court, however, ordered Child returned to Mother’s care because no

      such order had been entered. In February 2013, the juvenile court entered an

      order preventing Father from having contact with Child. Child remained in

      Mother’s care and custody until May 31, 2013. Child was once again removed

      after Father went to Mother’s home, kicked down her door, and attacked her.

      Mother called the police, as the safety plan in place required her to do, and

      Father was arrested.


[5]   Mother testified that her romantic relationship with Father ended in late 2012.

      The only evidence in the record tending to dispute that testimony was the


      Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 3 of 33
testimony of the police officer who responded when Father broke down

Mother’s door. The officer testified that Mother told him that she and Father

had been together for three years. The following discussion occurred on cross-

examination:


        Attorney:         Is it possible that she told you that they had been
                          together for three years and not that they [were]
                          currently together?


        Officer:          It could be.


        Attorney:         Is it fair to say that sitting here today, you can’t
                          specifically recall that [Mother] told you that she
                          was in a current relationship with [Father]?


        Officer:          That’s correct ma’am.


        Attorney:         And the call that you responded to was that he had
                          kicked in a door. Right?


        Officer:          Yes.


        Attorney:         And so, would you agree with me that that’s
                          inconsistent with certainly having access to her
                          home with a key. Right?


        Officer:          One would say, think that, yes.


Tr. p. 288. On re-direct, the DCS attorney showed the officer his police report

to refresh his recollection. He then testified as follows:


Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016     Page 4 of 33
              Attorney:         Ok, and what about the relationship that [Mother]
                                described?


                                                        ***


              Officer:          Live in boyfriend of three years.


      Id. at 290-91.


[6]   In November 2012, DCS had asked the juvenile court to order Mother to

      complete another domestic violence assessment; the court declined to do so. In

      June 2013, DCS referred Mother for a new assessment anyway, evidently based

      on the incident when Father invaded Mother’s home. Mother participated in

      the assessment voluntarily. The professional who completed the evaluation

      testified that there was no evidence of a current violent relationship at that time.

      Id. at 19; see also id. at 30 (domestic violence assessor testified that there was no

      evidence of an ongoing violent relationship following April 2014 assessment).

      The Family Case Manager for DCS testified that she had no reason to think

      that Mother and Father were in a relationship prior to or during April 2014.

      Because Mother had already completed the 26-week program with that

      provider, the provider declined to accept her for another round. DCS failed to

      refer her to a different provider. At various times during the CHINS case, DCS

      referred Mother to domestic violence services. She completed the 26-week

      program once and did not complete it for any of the other referrals.


[7]   In August 2012, Mother participated in a mental health evaluation. The social

      worker who evaluated her diagnosed Mother with bipolar disorder and
      Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 5 of 33
      recommended that she continue with homebased therapy and participate in a

      medication evaluation. In June 2013, Mother participated in a psychiatric

      evaluation. The psychiatrist diagnosed Mother with depression and anxiety,

      recommending that Mother continue with therapy. Additionally, the

      psychiatrist prescribed Mother thirty days of a mental health medication and

      asked that she return in thirty days to be re-checked. Mother did not return in

      thirty days. In 2014, after all DCS services had ceased, Mother went on her

      own to a mental health provider, at her own cost, for a medication evaluation.

      That provider recommended anger management classes, which Mother

      completed, again at her own cost. That provider also helped Mother to find the

      right mental health medication.


[8]   Mother successfully completed homebased case management, as the case

      manager concluded that she did not need that service. Id. at 309-10. Mother

      participated inconsistently with homebased therapy, though some of it was not

      her fault, as multiple therapists left their employment while she was a client.

      She worked most successfully with Shimura Akins, between March 2014 and

      February 2015. Akins reported that Mother participated consistently aside from

      brief periods of incarceration. Mother made progress on all of her goals, visits

      with Child always went well, and the home she was living in—the same home

      she was living in at the time of the termination hearing—was safe and

      appropriate. Akins also stated that Mother was not in a relationship with

      Father at that time and had made significant progress by admitting to the

      history of domestic violence. With respect to Mother’s mental health, Akins


      Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 6 of 33
       testified that she had sought out a psychologist on her own, had changed her

       medication with the help of that provider, and was managing her emotions

       better as a result. Id. at 306. Akins recommended that Mother’s parenting time

       be increased in the summer of 2014 and DCS refused to do so. Mother became

       incarcerated in 2015; Akins had to close the referral as a result of the

       incarceration but otherwise reported that Mother had been participating well

       with that service.


[9]    Mother completed a substance abuse evaluation and no substance abuse

       treatment was recommended. Mother participated in random drug screens and

       there was no evidence presented at the hearing that she ever provided a dirty

       screen.


[10]   Mother was incarcerated for relatively brief periods of time during the CHINS

       case. Specifically, she was incarcerated for approximately two weeks in June

       2014, approximately one month in April 2015, and approximately one month

       in October 2015. Id. at 229-32.


[11]   DCS had no concerns about Mother’s parenting abilities, which is why Mother

       was never asked to complete a parenting assessment. The Family Case

       Manager (FCM) testified as follows:


               Attorney:         . . . [I]sn’t it fair to say that . . . [Mother] and [Child]
                                 have had a strong bond that you’ve been able to
                                 observe?


               FCM:              Yes.

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016        Page 7 of 33
        Attorney:         She’s a loving mother to him?


        FCM:              Yes.


        Attorney:         Ok, and in those observations that you’ve had with
                          [Mother] interacting with [Child], he had a strong
                          relationship with her as well? He was bonded with
                          her.


        FCM:              Yes he was.


Id. at 234. The FCM also testified that Mother never stopped asking DCS or

the juvenile court for reinstatement of her visits and services once they had been

suspended. Id. at 234-35. Specifically:


        Attorney:         . . . [W]ouldn’t you agree with me that she’s never
                          stopped trying to demonstrate that she can safely
                          parent [Child]?


        FCM:              She’s made a requests [sic]. So, she’s attempted.


        Attorney:         Ok, and she’s never stopped trying to get him placed
                          back in her care or work towards that?


        FCM:              Correct.


Id. Mother had generally been consistent with visiting Child, and there were no

indications at trial that any provider supervising those visits had any concerns.

Mother’s visits were suspended on March 31, 2015, and the last time she visited

with Child was March 29, 2015.

Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016    Page 8 of 33
[12]   In April 2015, all of Mother’s service referrals had been closed. She asked for a

       new referral for all services, and DCS refused. In July and October 2015,

       Mother asked the court to order all services and visits to be reinstated, and the

       juvenile court refused.


[13]   At the time of the termination hearing, Mother was employed in a stable job

       and had just received a promotion. She was living with her mother, who had

       been an approved DCS placement during the CHINS case, and had been living

       there for approximately sixteen months. The FCM reported that Mother was

       employed more often than not during the CHINS case.


[14]   Father was incarcerated throughout much of the CHINS case. The timeline of

       his incarcerations is not entirely clear from the evidence presented at trial, but

       Father testified as follows regarding the timeline:


            Father was incarcerated at the beginning of the CHINS case until the end
             of 2011.
            He became incarcerated again at the end of 2012 and was released in
             July 2013 with GPS monitoring. He cut off the GPS device and
             absconded from law enforcement for the next six to seven months.
            In December 2013, he began a work release program.
            In March 2014, he became incarcerated in a Department of Correction
             facility. He was released June 29, 2015.
            He was arrested in August 2015 for a parole violation and was
             incarcerated until January 2016.

       Between January and summer of 2012, Father participated with homebased

       therapy, parenting time, and random drug screens, as well as completing a

       domestic violence assessment, before his incarceration in the summer of 2012,

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 9 of 33
       but all services (including visits) were suspended following his 2012

       incarceration. During one of his incarcerations, Father completed an anger

       management program and a parenting class. The FCM never contacted Father

       once, in any way, during any of his periods of incarceration. In November

       2012, the juvenile court ordered that new service referrals be made for Father;

       the FCM failed to comply. In 2013, when Father was on work release, the

       FCM did not contact him or refer services for him. In 2015, when Father was

       released, he contacted the FCM and gave her his contact information and

       address—at that time, he was living with his grandfather. She did not contact

       him or go to his residence. He also requested that the juvenile court order that

       services and parenting time be reinstated, but the court refused.


[15]   On May 14, 2015, DCS filed a petition to terminate the parent-child

       relationship between Mother, Father, and Child. The termination hearing was

       held during three days in January and February 2016. On April 28, 2016, the

       juvenile court entered an order terminating the parental rights of both parents,

       and both parents now appeal.


                                     Discussion and Decision

                                    I. Admission of Evidence
[16]   First, Father argues that the juvenile court erroneously admitted certain

       evidence. The admission of evidence is entrusted to the discretion of the trial

       court, and we will reverse only where the trial court’s decision is against the




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 10 of 33
       logic and effect of the facts and circumstances before it. D.B.M. v. Ind. Dep’t of

       Child Servs., 20 N.E.3d 174, 178-79 (Ind. Ct. App. 2014), trans. denied.


[17]   Father argues that certain evidence that was admitted by the trial court was

       inadmissible hearsay. Hearsay is a statement that is not made by the declarant

       while testifying at the trial or hearing and is offered into evidence to prove the

       truth of the matter asserted. Ind. Evid. R. 801(c). Hearsay evidence is

       generally not admissible. Ind. Evid. R. 802.


                                   A. Father’s DOC Records
[18]   First, Father contends that the juvenile court should not have admitted DCS

       exhibits 39, which is his DOC Record, and 40, which is his record from

       Putnamville Correctional Facility. DCS argues that Father waived this

       objection because, during the termination hearing, he objected to these exhibits

       only on the basis of hearsay and relevance, and did not specifically identify the

       business records exception to the hearsay rule. We find that the general hearsay

       objection was sufficient to preserve this argument for appeal. See Ward v. State,

       50 N.E.3d 752, 756 (Ind. 2016) (cautioning appellate courts not to

       unrealistically “insist on detailed doctrinal arguments during the exigencies of

       trial,” observing that an objection need simply be sufficient “to let the trial

       judge make an informed decision and prevent the objecting party from

       switching theories on appeal”).


[19]   Exhibits 39 and 40 are clearly hearsay, but were admitted under the exception

       for business records. Business records are admissible if:

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 11 of 33
         (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.


Ind. Evid. R. 803(6). DCS did not offer the testimony of a custodian or other

qualified witness for either of these exhibits; therefore, to be admissible, they

must have been accompanied by a certification that complies with Rule 902.1

Rule 902(11) provides that, “[u]nless the source of information or the

circumstances of preparation indicate a lack of trustworthiness, the original or a

copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as

shown by a certification under oath of the custodian or another qualified




1
 Evidence Rule 902 was rewritten effective July 1, 2014, and the subsection relevant to self-authentication of
business records is now Rule 902(11).

Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016                     Page 12 of 33
       person,” is self-authenticating and requires no extrinsic evidence of authenticity

       to be admissible.


[20]   For both exhibits, the affiant of the certification is the keeper of the records for

       DOC, but nowhere is it certified that the record was made from information by

       someone with knowledge, that the record was kept in the course of regular

       activity of the DOC, or that making the record was a regular practice of that

       activity. Additionally, the affidavit attached to exhibit 40 states that sixty-four

       pages are attached, but the exhibit contains only fifty pages. Exhibit 40 also

       contains many documents not readily identifiable as documents prepared by

       someone at Putnamville with personal knowledge; for example, Father’s

       presentence investigation report, which was prepared by a probation officer,

       and abstracts of judgment, which are prepared by the trial court. As the

       certifications accompanying exhibits 39 and 40 do not qualify with Indiana

       Rules of Evidence 803(6) or 902(11), the juvenile court erred by admitting these

       documents into evidence.


            B. Testimony Regarding Father’s Criminal History
[21]   On direct examination, the Tippecanoe County FCM testified that she had

       concerns about substance abuse and domestic violence between the parties.

       Mother objected to further testimony regarding “a violent history with Father,”

       and the trial court sustained the objection. Tr. p. 43. On cross-examination,

       Father elicited testimony that the FCM had learned that Father did not have a

       prior Child Protective Services (CPS) history. On redirect, over objection, DCS


       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 13 of 33
       elicited testimony that Father had a criminal history involving drugs and

       violence. Father objected on hearsay grounds, but the trial court overruled,

       finding that Father had opened the door to his criminal history by asking the

       witness about his CPS history.


[22]   During the discussion regarding whether Father had opened the door, Father’s

       attorney acquiesced to the fact that the door had been opened, simply arguing

       that “any criminal history is limited to whether or not there would be a felony

       conviction . . . .” Id. at 49. The FCM then testified that there was a “history of

       drug offenses and violent offenses,” and Father did not object. Id. By agreeing

       to the admission of evidence of his felonious criminal history, Father invited

       any alleged error. See Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App. 2016)

       (noting that the invited error doctrine forbids a party to take advantage of any

       error that he commits or invites). As a result, we decline to address this issue.


                             C. Guardian ad Litem Testimony
[23]   Next, Father argues that the juvenile court erroneously permitted the Guardian

       ad Litem (GAL) to testify regarding what Child had told her he wanted. The

       juvenile court permitted the GAL to testify because of her responsibility to “be

       the voice of children” in court proceedings. Tr. p. 377. DCS does not direct

       our attention to any authority in rule, statute, or caselaw, that creates an

       exception to the hearsay rule for GALs, and we can find none. 2 As a result, this



       2
        DCS seems to argue that because the juvenile court asked the GAL to “paraphrase,” tr. p. 385, Child’s
       words rather than relating his specific words. It is well established, however, that a summary of an out-of-

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016                     Page 14 of 33
       testimony was inadmissible hearsay and the juvenile court erred by permitting

       it.3


                                    II. Sufficiency of Evidence
[24]   Next, both Mother and Father argue that there is insufficient evidence

       supporting the termination of their parental rights.


                                        A. Standard of Review
[25]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

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

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

       consider only the evidence and reasonable inferences that may be drawn

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

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

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

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

       determination, we must consider whether the evidence clearly and convincingly

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




       court statement is no less hearsay than repeating verbatim an out-of-court statement. Blount v. State, 22
       N.E.3d 559, 563-65 (Ind. 2014). Consequently, this argument is unavailing.
       3
        DCS argues that Father has waived this argument because he did not object to the testimony at trial.
       Mother, however, raised a hearsay objection, so the juvenile court addressed this precise issue before
       admitting the evidence. We decline to find waiver under these circumstances.

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016                      Page 15 of 33
       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

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


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

       parental rights for a CHINS must make the following allegations:


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


                        (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

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 16 of 33
                                 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.


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

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


                                                  B. Mother
[27]   With respect to Mother, the juvenile court found that termination was in

       Child’s best interests and that

               There is a reasonable probability that the conditions that resulted
               in [Child’s] removal and continued placement outside the home
               will not be remedied by his mother. Close to five years have
               elapsed since [Child’s] CHINS case was filed and [Mother’s]
               mental health and therapeutic needs, as well as the issue of
               domestic violence still need to be addressed when she does not
               feel she needs to and has “self-sabotaging” behaviors. [Mother]
               has also not demonstrated that she can maintain stability with
               independent housing, income and the ability to remain out of
               incarceration.

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016    Page 17 of 33
       Father’s App. p. 26-27. The juvenile court also found, with respect to both

       parents, that


               Continuation of the parent-child relationship poses a threat to the
               well-being of [Child]. Without adequately addressing domestic
               violence, instability and untreated mental health issues, the
               parents cannot provide a safe and secure environment and raise
               [Child] in a healthy manner. [Child] has been in the dependency
               system for almost all of his five years of life. Continuation of the
               parent-child relationship only poses a barrier to obtaining
               permanency for [Child] through an adoption.


       Id. at 27.


                       1. Probability of Remedy of Conditions
[28]   As noted above, one of the ways to support a termination petition is for DCS to

       prove by clear and convincing evidence 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. In this case, there are two general reasons Child was

       initially removed from Mother’s care and custody: ongoing domestic violence

       between Mother and Father, and drug use by Mother. In addition to those

       concerns, reasons for Child’s continued placement outside of Mother’s care

       included concerns regarding Mother’s mental health and, possibly, concerns

       regarding the stability of Mother’s living situation and employment. We will

       address each of these in turn.




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 18 of 33
                                             a. Domestic Violence

[29]   By far, the most significant issue in the CHINS case was the domestic violence

       perpetrated on Mother by Father. And it is undeniable—indeed, Mother herself

       does not deny it—that violence in their relationship was a real and serious issue

       during the first eighteen months of the CHINS case. At certain points during

       that period of time, Mother even recanted her prior accusations of domestic

       violence in the context of Father’s criminal proceedings and in the context of

       her own services.


[30]   Mother did, however, complete a domestic violence assessment, followed by a

       26-week domestic violence program. In November 2012, DCS asked the

       juvenile court to order Mother to complete yet another domestic violence

       assessment. Because Mother’s homebased therapist did not believe that Mother

       needed to go through the classes again, the juvenile court denied the request.

       Notwithstanding the lack of a court order, Mother later voluntarily completed

       another domestic violence assessment. Over the life of the CHINS case, DCS

       demanded that Mother complete multiple assessments and take the same 26-

       week course no less than five times. At one point, the agency refused to accept

       Mother as a client because she had already completed its program. Mother

       informed the FCM, who neglected to refer the service to another agency. It is

       undisputed that Mother did, in fact, complete the assessment (more than once)

       and the 26-week program (once) during the CHINS case.


[31]   Mother testified that she ended her romantic relationship with Father at the end

       of 2012. The FCM testified that she had no reason to believe that Mother and
       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 19 of 33
       Father were in a romantic relationship after the end of 2012. The provider who

       completed a domestic violence assessment with her in June 2013 said there was

       no indication of ongoing domestic violence at that time. Mother’s homebased

       therapist testified that in March 2014 Mother and Father were not in a

       relationship. The provider who completed yet another domestic violence

       assessment in April 2014 said that there were no indications at that time of an

       ongoing violent relationship. The GAL testified that she had no reason to

       believe Mother and Father were in a relationship or had even seen each other

       since mid-2013. Tr. p. 399.


[32]   Indeed, the only evidence of any violence between Mother and Father after the

       end of 2012 was the incident in the spring of 2013 when Father went to

       Mother’s residence, broke down her door, and assaulted her. Mother did

       precisely what she was supposed to do pursuant to DCS’s safety plan—she

       called the police. The responding officer had no recollection of whether Mother

       told him that she was in an ongoing relationship with Father at that time, and

       agreed that the fact that Father broke down the door indicated that he did not

       have keys to the residence. After reviewing his police report, the officer stated

       that Mother had described Father as a live-in boyfriend of three years.4 Mother

       described the scene following the assault and her conversation with the officer

       as a “hectic situation” where “the officer doesn’t necessarily care about the




       4
         In fact, it is true that Father had been Mother’s live-in boyfriend for multiple years in the past, long before
       the spring of 2013. That Mother labeled him as such in the midst of a stressful situation is unsurprising.

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016                         Page 20 of 33
       rundown of your, you know, your relationship. He doesn’t care about the

       details. He just wants to know about the situation at hand.” Id. at 440. So,

       essentially, Mother may have used shorthand to explain her relationship with

       Father to the officer. Regardless, this slim testimony from the officer does not

       constitute clear and convincing evidence of ongoing domestic violence in the

       spring of 2013.


[33]   Moreover, even if we give DCS the benefit of the doubt and assume solely for

       argument’s sake that Father and Mother were still in a relationship in the spring

       of 2013, there is zero evidence in the record of an ongoing relationship after that

       time. Specifically, in the two and one-half years between spring of 2013 and the

       termination trial in January 2016, there is not a scintilla of evidence suggesting

       that the parents were in a relationship of any kind.


[34]   Mother’s most successful therapeutic relationship during the CHINS case was

       with homebased therapist Shimura Akins, who worked with Mother between

       March 2014 and February 2015. During that period of time, Akins observed

       significant progress in Mother’s ability to acknowledge the violence in her

       relationship with Father and its effects on Child:


               Attorney:         You testified that in her work with you, [Mother]
                                 was able to articulate an understanding of the risks
                                 of domestic violence on her relationship with
                                 [Child] and for him. Right?


               Akins:            Yes.



       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016     Page 21 of 33
               Attorney:         Did she ever tell you when or how she came to that
                                 understanding?


               Akins:            It was months after working with her. It wasn’t
                                 immediate. I think just the toll of having to do all
                                 the services and just going through everything and
                                 having to prove yourself all the time. She got to
                                 that point where she was like, you know, I messed
                                 up, because when I first got her, she was so angry
                                 with DCS that it was just all about fighting DCS.
                                 So, after awhile, after we got a chance to get some
                                 of that off of her, then we could take a look at
                                 what’s really going on and so, yeah. I would say by
                                 November [2014] that she kind of came to that
                                 conclusion.


       Id. at 325-26. Akins elaborated, explaining that Mother


               [g]ot to the point where she was able to say, I realize that I was in
               an abusive relationship and I stayed in it too long and my son has
               been involved in this for a very long time and she had a lot of
               regret and remorse about that and a lot of guilt for her son being
               in foster care.


       Id. at 318. In other words, Mother did precisely what DCS had hoped for—she

       learned and benefitted from the services they provided her. She evolved and

       made progress on a number of issues, including domestic violence and its

       effects on her child.


[35]   DCS and the juvenile court both focus heavily on the incident in the spring of

       2013 when Father broke down Mother’s door and assaulted her. We find it

       extraordinarily troubling to say that a parent who is a victim of domestic

       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 22 of 33
       violence, and has taken steps to end that relationship, deserves to have her

       parental rights terminated because the child’s other parent assaulted her. The

       evidence in the record establishes that Mother struggled with breaking free of

       the domestic violence at the outset of the CHINS case, but completed a 26-

       week domestic violence program, ended her relationship with Father, and made

       significant progress in therapy with respect to the goal of processing the

       domestic violence in her life. There is no evidence in the record of any

       relationship of any kind between Mother and Father in the two and one-half

       years leading up to the termination hearing. We do not find that this evidence

       clearly and convincingly supports the juvenile court’s conclusion that this

       reason—domestic violence—for Child’s initial and continued removal from

       Mother will not be remedied.


                                              b. Substance Abuse

[36]   A second reason for Child’s initial removal from Mother was Mother’s

       admitted marijuana use at that time. During the CHINS case, Mother

       completed a substance abuse assessment, which recommended no further

       substance abuse services. Mother completed a number of random drug screens,

       and there is no evidence in the record that she provided any problematic

       screens. In short, there is no evidence in the record supporting a conclusion

       that this reason—substance abuse—for Child’s initial removal from Mother will

       not be remedied.




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 23 of 33
                                         c. Mother’s Mental Health

[37]   Although it was not among the reasons for Child’s initial removal, concerns

       about Mother’s mental health arose during the CHINS case and likely

       contributed to Child’s continued removal from her care and custody. In April

       2012, Mother participated in a mental health assessment with a social worker,

       who diagnosed her with bipolar disorder and recommended a medication

       evaluation and continued participation in therapy. Pursuant to that

       recommendation, in August 2012, Mother participated in a psychiatric

       evaluation with a psychiatrist, who disagreed with the social worker’s diagnosis

       and instead diagnosed Mother with depression and anxiety. The psychiatrist

       prescribed thirty days of medication for Mother with instructions to return in

       thirty days for a re-check; Mother did not return. Mother met with the same

       psychiatrist in 2013 with the same result—medication and instructions to return

       in thirty days, which Mother did not do.


[38]   Mother participated with homebased therapy during the CHINS case, albeit

       inconsistently. Her most successful homebased therapy relationship was with

       Akins, for a period of nearly a year leading up to February 2015. Akins

       reported that Mother participated well and made progress in all of her goals.


[39]   Akins also confirmed an important portion of Mother’s testimony. Mother

       testified that after her services were suspended by the juvenile court in the

       CHINS case, and she asked for services to be reinstated and was denied

       (repeatedly), she went to a mental health provider on her own, participated in

       an assessment, and complied with the recommendations, including an anger
       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 24 of 33
       management class. According to Akins, “[Mother] did take it upon herself to

       seek out [a] psychologist and they changed her medication. She did that on her

       own towards the end of me working with her.” Tr. p. 306. Akins confirmed

       that as a result, Mother began to better manage her emotions. Id.


[40]   Because DCS ceased to provide Mother with services at some point during

       2014 or 2015, there is no evidence in the record contradicting the testimony of

       Mother and Akins that, as of (approximately) the end of 2014, Mother was

       complying with mental health recommendations, taking prescribed medication,

       and showing improvement as a result. Here, again, DCS refused Mother’s

       repeated pleas to re-refer services. Appallingly, the last time the FCM had even

       spoken with Mother was in July 2015—six months before the termination

       hearing took place. Id. at 204. Mother took the initiative and began

       participating in mental health treatment on her own. Therefore, the record

       reveals that in the year leading up to the termination trial, Mother had made

       significant progress with respect to her mental health. We cannot say that this

       is clear and convincing evidence that this condition—her mental health—

       contributing to Child’s continued removal was unlikely to be remedied.


                                             d. Mother’s Stability

[41]   The final condition that likely contributed to Child’s continued removal from

       Mother’s care and custody was her stability, including housing, employment,

       and incarceration. With respect to housing, Mother had been living with her

       mother for over a year—sixteen months—leading up to the termination

       hearing. Her mother had been approved as a placement for Child during the
       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 25 of 33
       CHINS case, so the people who live in that home, and the home itself, met with

       DCS’s approval. This certainly constitutes stable housing. With respect to her

       employment, it is undisputed that at the time of the termination hearing,

       Mother had stable employment. In fact, she had just received a promotion and

       a raise. Id. at 436. In general, Akins testified that Mother did not need

       homebased case management services because she was “resourceful” and had

       employment, a place to live, transportation, and insurance. Id. at 310. The

       FCM testified that for the most part, Mother maintained employment

       throughout the CHINS case. Id. at 203-04.


[42]   It is undeniable that Mother had multiple, relatively brief, periods of

       incarceration during the CHINS case. Specifically, she was incarcerated for

       two weeks in June 2014, approximately one month in April 2015, and

       approximately one month in October 2015. Id. at 229-32. At the time of the

       termination trial, Mother had no pending criminal matters aside from a

       suspended driver’s license, which she was working to have reinstated. While

       that is far from an illustrious record, the mere fact that Mother was incarcerated

       for an aggregate period of approximately four months during a five-year-long

       CHINS case, all while Child was not in her care, is far from sufficient to

       support a termination of her parental rights. See In re K.E., 39 N.E.3d 641, 643

       (Ind. 2015) (emphasizing that “incarceration is an insufficient basis for

       terminating parental rights”). We find that the evidence in the record does not

       clearly and convincingly support a conclusion that this reason—Mother’s

       stability—contributing to Child’s continued removal is unlikely to be remedied.


       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 26 of 33
[43]   In sum, Mother struggled during the outset of this case. She was a nineteen-

       year-old first-time mother in a violent relationship with her child’s father. She

       resented DCS’s presence in her life and had untreated mental health needs. But

       slowly over the course of the CHINS case, she made progress. She ended the

       relationship with her batterer. She achieved stable employment and housing.

       She managed to get mental health treatment on her own. For a period of time,

       Child was even back in her care. But after Mother was again a victim of

       violence, DCS removed Child from her care, never to be returned. DCS

       stopped providing her with services and visits. Notwithstanding her pleas for

       over a year, she was never given another chance. Her arc over the course of the

       CHINS case, in all areas, shows self-awareness, improvement, and

       determination to do what needed to be done. We cannot say that this evidence

       remotely establishes that the conditions leading to Child’s removal were

       unlikely to be remedied.


                                      2. Well-Being of Child
[44]   Notwithstanding our conclusion above, as DCS needs to prove only one of the

       two relevant elements, we also need to address whether DCS established by

       clear and convincing evidence that continuation of the parent-child relationship

       posed a threat to Child’s well-being. Without reiterating what has already been

       said herein, we note again that Mother had made progress on all of the issues

       leading to the initiation of the CHINS case and Child’s removal.




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 27 of 33
[45]   As for the bond between Mother and Child and Mother’s parenting skills, the

       evidence in the record is unanimous.


            The FCM testified that Mother’s parenting of Child was not a concern
             for DCS. Tr. p. 209. The FCM agreed that Mother and Child had a
             “strong bond” and that she is a “loving mother to him[.]” Id. at 209, 234.
             Additionally, the FCM agreed that Mother has “never stopped trying to
             demonstrate that she can safely parent [Child]” and has “never stopped
             trying to get him placed back in her care or work towards that[.]” Id. at
             234-35.
            Akins testified that she asked that Mother have more parenting time with
             Child (a request that was denied) because “it was obvious that they had a
             bond and he enjoyed the time that he had with his mom and he looked
             forward to it and . . . he would ask me, when are we, when am I coming
             back to visit[.]” Id. at 301. Visits between Mother and Child went well,
             and she met all of his needs during those times. Id. at 323.
            Akins stated that Mother and Child were bonded and that if increased
             parenting time had been granted, that bond would have been
             strengthened. She also testified that if she had been able to continue
             working with Mother, Child “could have safely been returned to her care
             at some point[.]” Id. at 330.
            The GAL testified that Mother and Child had a “strong relationship”
             and that Mother was “very in tune to [Child’s] needs during visits.” Id.
             at 393. Mother “was very comfortable with him and he was very
             comfortable with her.” Id.

       In other words, notwithstanding her own struggles, Mother loved Child, they

       had a strong bond, and no one had any concerns with respect to her parenting

       skills. At the time of the termination hearing in January 2016, she had not seen

       him since March 2015—because her visits were suspended. Despite Mother’s

       repeated requests for visits to be reinstated, she had not seen her son for nearly a




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 28 of 33
       year. If this is anything other than DCS setting her up for failure, we cannot see

       what it would be.


[46]   We acknowledge the very real concerns about the need for stability in Child’s

       life. He has been in foster care for most of his life. The need for permanency

       and stability in a child’s life cannot be overstated. However, that need cannot

       trump a parent’s fundamental constitutional right to parent her child; nor can it

       trump the substantial bond that still existed between Mother and Child. On this

       record, we do not find clear and convincing evidence that a continuation of the

       parent-child relationship posed a risk to Child’s well-being. Because DCS has

       not proved either of the required statutory elements by clear and convincing

       evidence, the juvenile court erred by terminating the parent-child relationship

       between Mother and Child. We reverse and remand for further proceedings.


                                                  C. Father
[47]   Next, Father also argues that the evidence is insufficient to support the

       termination order. The juvenile court found that there is a reasonable

       probability that the conditions that resulted in Child’s removal from Father’s

       care and custody will not be remedied: “[Father] has demonstrated by his

       minimal effort at participating in services and court proceedings that he is

       unwilling to be a parent to [Child]. He has not addressed issues of instability

       and domestic violence, and has not demonstrated he can remain out of jail and

       available to parent.” Father’s App. p. 27. The juvenile court also found that




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 29 of 33
       continuation of the parent-child relationship poses a threat to Child and that

       termination is in his best interests.


[48]   The timeline of Father’s actions and incarcerations throughout the CHINS case

       is somewhat muddled, but we have reconstructed it here to the best of our

       ability.


            In June 2011, the CHINS case was filed. The FCM made no attempt to
             contact Father even though he was present at the initial CHINS hearing.
             DCS Ex. 11. In fact, the FCM did not contact Father until October
             2011. Tr. p. 181.
            Father was incarcerated from June to November 2011.
            In February 2012, Father contacted the FCM, got involved with the
             CHINS case, and began participating in services, including homebased
             case management, homebased therapy, and random drug screens. Id. at
             182-83. Father was not listed on the parenting time referral completed by
             the FCM. Id. at 185-86. Father also completed a domestic violence
             assessment and began participating with supervised parenting time. Id. at
             186, 192. The FCM never dropped in on a visit involving Father so she
             had no way to evaluate his parenting skills or the bond with Child. Id. at
             193.
            In February 2012, DCS made its first request of many to change Child’s
             permanency plan to adoption. The juvenile court denied the request.
            In May 2012, Father attended a Child and Family Team Meeting. The
             FCM’s notes indicated that Father was determined, competent,
             organized, and passionate. Id. at 191.
            Sometime after that meeting, the parents broke up. At that time, DCS
             changed its own internal case plan to reunification with Mother. Id.
             Around that time, Father told the FCM that he no longer wished to
             participate with services, as he believed his participation was futile. At
             that point, as DCS had decided that the plan was to reunify with Mother,
             the FCM stopped making any effort to contact Father, keep him apprised
             about the CHINS case, or notify him of team meetings. Id. at 192.


       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 30 of 33
            In November 2012, the juvenile court ordered DCS to re-refer services
             for Father. The FCM failed to do so. Id. at 196, 242.
            Father was incarcerated from the end of 2012 through July 2013.
            In 2013, Father was placed on work release. He contacted the FCM,
             leaving her a voicemail telling her he had been released and notifying her
             of his location. She did not contact him or refer services. Father
             attempted to start domestic violence classes but was unable to because
             there was no open referral for him at that time. Id. at 410-11.
            In September 2013, the FCM reported to the juvenile court that Father
             no longer wished to participate in services. The last time she had spoken
             with him was nearly a year and a half earlier, in May 2012. Id. at 196-97.
            Father was incarcerated from March 2014 through June 2015 and from
             August 2015 through January 2016.
            At some point during 2015, Father asked the juvenile court to order DCS
             to make new service referrals for him. The court declined and DCS did
             not make any referrals. Id. at 243-44.
            In January 2016, Father was released from incarceration. He called the
             FCM and left her a voicemail telling her where he was located. She
             called the facility but did not go to see him, and never made contact with
             him after his release. Id. at 248-49.

[49]   Never once during Father’s multiple incarcerations did the FCM attempt to

       visit with or contact him in any way. She did not send him the CHINS court’s

       orders, and did not inform him that there may have been services he could have

       completed while incarcerated. Id. at 187-88, 413-14. Notwithstanding the

       FCM’s lack of direction, Father completed a parenting class while on work

       release and an anger management class while incarcerated. Id. at 409, 412.

       Father had gotten a job the day before the termination hearing and was living

       with his grandfather. Id. at 415.




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 31 of 33
[50]   There is an extraordinarily troubling pattern of behavior in this case. The FCM

       made little to no effort to contact Father at the initiation of the CHINS case.

       And then, after DCS made its own internal decision that the case plan was to

       reunify Child with Mother, the FCM’s minimal efforts to engage Father ceased

       altogether. While Father’s own record is far from sterling, the evidence in the

       case establishes that, when he was not incarcerated, he made multiple attempts

       to contact the FCM and engage in services; furthermore, when he was

       incarcerated or on work release, he participated with services available to him.


[51]   Our Supreme Court has recently reemphasized that “‘[t]ermination is intended

       as a last resort, available only when all other reasonable efforts have failed.’” In

       re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (quoting In re V.A., 51 N.E.3d 1140,

       1151-52 (Ind. 2016)). In this case, it cannot be said that all other reasonable

       efforts have failed, given that DCS made an explicit internal decision that it

       would exercise no effort whatsoever to reunify Father with Child, and

       proceeded to follow through with that plan. Father has made multiple attempts

       to contact DCS and reengage with services, notwithstanding complete radio

       silence from the FCM during his periods of incarceration, and has been

       rebuffed at every turn. He deserves a genuine chance to prove that he can

       parent his child. It may be that he cannot meet that bar, but he has a

       constitutional right to try. Under these circumstances, we find that the evidence

       does not support the juvenile court’s conclusion that Father is unwilling to be a

       parent to Child; nor does it support the conclusion that termination is in Child’s

       best interests. Therefore, we reverse and remand for further proceedings.


       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 32 of 33
[52]   The judgment of the juvenile court is reversed and remanded for further

       proceedings.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1605-JT-1072 | December 21, 2016   Page 33 of 33
