MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 04 2019, 8:48 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT S.E.                              ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
ATTORNEY FOR APPELLANT R.M.
                                                         Indianapolis, Indiana
Kimberly A. Jackson
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 4, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of B.E. and A.M.                            19A-JT-1370
(Minor Children)                                         Appeal from the Vigo Circuit
        and                                              Court
                                                         The Honorable Sarah K. Mullican,
S.E. (Mother)                                            Judge
        and                                              The Honorable Daniel W. Kelly,
R.M. (Father),                                           Magistrate

Appellants-Respondents,                                  Trial Court Cause Nos.
                                                         84C01-1811-JT-1266
        v.                                               84C01-1811-JT-1267




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                  Page 1 of 25
      The Indiana Department of
      Child Services,
      Appellee-Petitioner.




      Bailey, Judge.



                                               Case Summary
[1]   S.E. (“Mother”) and R.M. (“Father”) challenge the trial court’s order

      terminating their parental rights to their child, A.M. (“Child), born September

      20, 2012. Mother also challenges the order terminating her parental rights to

      her other child, B.E., born January 31, 2007.1


[2]   We affirm in part and reverse in part.



                                                          Issues
[3]   We consolidate and restate the dispositive issues on appeal as follows:


                 1.       Whether the order terminating Father’s parental rights
                          should be reversed as void for lack of personal jurisdiction
                          because the Indiana Department of Child Services



      1
          B.E.’s Father, R.H., does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 2 of 25
                       (“DCS”) did not file a return showing proof of service of
                       process.


              2.       Whether the trial court clearly erred when it terminated
                       Mother’s parental rights to A.M. and B.E. (collectively
                       “Children”).


                             Facts and Procedural History
[4]   On July 29, 2016, DCS filed Child in Need of Services (“CHINS”) petitions in

      which it alleged that Children, who lived with Mother, were CHINS due to

      Mother’s drug use. On December 30, 2016,2 the trial court adjudicated

      Children to be CHINS.3 On January 4, 2017, DCS removed Children from

      Mother’s home due to Mother’s refusal to submit to drug screens and her

      “violent or out of control” behavior. Ex. Vol. I at 147-48. The trial court

      issued a dispositional decree on January 20, 2017, in which it ordered Mother

      to comply with services, including drug screens.


[5]   Prior to Child’s removal, Father had called DCS three times; however, after

      removal, DCS was not able to locate Father. At some point during the

      pendency of the CHINS case, DCS made “[a]n investigator referral” to locate

      Father. Ex. Vol. II at 74, 96. Father “was located at his parents’ address where




      2
       In its May 15, 2019, Termination of Parental Rights (“TPR”) Order, the trial court stated that Children
      were adjudicated CHINS on December 16, 2016. However, that is the date the magistrate recommended a
      CHINS adjudication. The judge approved that recommendation on December 30. Ex. Vol. I at 10, 53.
      3
       Mother appealed the CHINS adjudication, which we affirmed in a memorandum decision. S.E. v. Ind.
      Dep’t of Child Serv., No. 84A01-1702-JC-358, 2017 WL 3298585 (Ind. Ct. App. Aug. 3, 2017).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019              Page 3 of 25
      he said he receives his mail but does not live.” Id. The address where Father

      lived was “unknown” to DCS. Id.


[6]   DCS filed petitions to terminate Mother’s and Father’s parental rights on

      November 1, 2018. On February 20, 2019, DCS filed a Praecipe for Summons

      by Publication, in which it sought authorization to notify Father of the TPR

      action by publication. It attached to the praecipe an “Affidavit of Diligent

      Inquiry” in which DCS Family Case Manager (“FCM”) Megan Watson

      affirmed that she had made “a diligent search” for Father, but he could not “be

      found, ha[d] concealed [his] whereabouts, or ha[d] left the state.” Appellant’s

      Supp. App. Vol. II at 4. FCM Watson further affirmed that she had attempted

      to serve Father at his last known address, but service was “returned

      undeliverable.” Id. FCM Watson affirmed that her search for Father included

      checking: the Management Gateway for Indiana Kids database; the Indiana

      Client Eligibility System database; the county jail; the Indiana Department of

      Correction Offender database; the Federal Bureau of Prisons, Federal Inmate

      Locator database; http://accurint.com; and Doxpop. Id. In an order dated

      February 21, the trial court granted the motion to serve Father with notice of

      the TPR action and TPR hearing date of May 14, 2019, by publication.


[7]   The trial court conducted hearings on the termination of Mother’s parental

      rights on February 25 and April 2, and Father did not appear at those hearings.

      On April 29, DCS filed a Notice of Publication on Father which had no

      attachments and which stated, in full: “Comes now DCS and notifies the Court

      of service by publication as to the Father.” Id. at 8. On May 14, 2019, the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 4 of 25
      court conducted a hearing on the petition to terminate Father’s parental rights

      at which Father did not appear.


[8]   On May 15, 2019, the juvenile court entered an Order of Termination of

      Parental Rights terminating the parental rights of Mother and Father as to

      Child. That same date the court entered an additional order terminating

      Mother’s parental rights as to B.E. The termination orders4 stated, in relevant

      part:


              2.       It was established by clear and convincing evidence that
                       the allegations in the petition are true in that:


                                                           ***


              e.       There is a reasonable probability that the conditions which
                       resulted in the removal of the child from his parents will
                       not be remedied or the reasons for placement outside of
                       the home of the parents will not be remedied or that the
                       continuation of the parent-child relationship poses a threat
                       to the well-being of the child as follows:


                       1.       On or about May 19, 2016, DCS received a report
                                that [A.M.]’s[5] mother, [S.E.], had been at home
                                with her son, [A.M.], and that there was a strong
                                smell of marijuana and suspected
                                methamphetamine use in the home. On May 20,



      4
        The relevant portions of the TPR orders regarding A.M. and B.E. are identical except where specifically
      noted.
      5
       The TPR order regarding B.E. states “[B.E.]’s” in place of “[A.M.]’s.” Appellants’ Amended Joint App.
      Vol. II at 69.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                Page 5 of 25
                             2016, FCM Eldred went to the home, where
                             [Mother] initially denied, but later admitted, to
                             methamphetamine use, and tested positive for
                             methamphetamine on that day. Following that
                             screen, [Mother] agreed to screen on Mondays,
                             Wednesdays and Fridays during the DCS
                             assessment to ensure her sobriety. [Mother] missed
                             some of these screens and on June 24, 2016, again
                             tested positive for methamphetamine at a high level.
                             Consequently, the Department opened an In-Home
                             CHINS case on July 29, 2016.


                    2.       [A.M.][6] had previously been adjudicated a CHINS
                             and was previously removed from his mother’s care
                             under Cause No. 84001-141 1-JC—1255, which was
                             open from November 20, 2014, to April 21, 2015.


                    3.       There have been CHINS proceedings involving
                             [A.M.][7] for all or parts of 2014, 2015, 2016, 2017,
                             2018 and 2019.


                    4.       Pursuant to the dispositional decree of January 20,
                             2017, [Mother] was ordered into home-based case
                             management, to submit to a substance use
                             assessment and to follow the recommendations
                             thereof, to attend parenting classes and to submit to
                             drug screens.


                    5.       At the beginning of the case, [Mother] refused to
                             allow the FCM to see her children, [B.E.] and




6
    The TPR order regarding B.E. states “[B.E.]” in place of “[A.M.].” Id.
7
    The TPR order regarding B.E. states “[B.E.]” in place of “[A.M.].” Id.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019     Page 6 of 25
                             [A.M.],[8] cancelled meetings related to her CHINS
                             case and services, refused drug screens and refused
                             to participate in court-ordered services, including
                             substance abuse treatment.


                    6.       DCS, CASA and [A.M.] have had no contact with
                             [A.M.]’s biological father, [R.M.], from the
                             beginning of this case to the present.[9]


                    7.       When Mother came to [the] DCS office on August
                             16, 2016, [A.M.]’s brother,[10] [B.E.], was standing
                             in the backseat with no car seat in the car and
                             [Mother] refused to discuss the matter with the
                             FCM.


                    8.       In September 2016, when [A.M.]’s brother,[11]
                             [B.E.], said he lacked clothes, DCS got him a
                             clothing voucher for the Goodwill; however, they
                             could not get Mother to talk to them. A few days
                             later, Mother informed DCS that her power was
                             going to get shut off and it was.


                    9.       In October 2016, the kids’ beds had no mattresses
                             and the boards on the bunk beds were broken.




8
     The TPR order regarding B.E. contains the words “his brother,” before “[A.M.].” Id. at 70.
9
  Provision 2(e)(6) of the TPR Order regarding B.E. states as follows: “The FCM met with [R.H.], [B.E.]’s
father, twice in mid-August, 2016. That same month, after asking DCS to pay her electric bill, Mother
refused to allow DCS to see her children.” Id.
10
     The TPR order regarding B.E. does not contain the words “[A.M.]’s brother,” before “[B.E.].” Id.
11
     The TPR order regarding B.E. does not contain the words “[A.M.]’s brother,” before “[B.E.].” Id.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                  Page 7 of 25
                 10.     In November 2016, [B.E.] was missing school. He
                         had a cracked rib and Mother refused to discuss the
                         situation with DCS.


                 11.     On December 27, 2016, DCS discovered blood
                         throughout the boyfriend’s home and bloody
                         footprints tracked throughout. The boys were in the
                         home and were able to see this as well.


                 12.     At about this time, DCS received a new report that
                         the kids were being left with various caregivers that
                         were abusing [B.E.]. DCS witnessed Mother
                         verbally abusing him and Mother threw a drug
                         screen at the FCM and tried to throw a chair. The
                         children were removed on or about January 4, 2017.


                 13.     A Substance Use Assessment completed on January
                         10, 2017, recommended that Mother undergo dual
                         diagnosis counseling. She began that counseling,
                         but never completed it.


                 14.     Redwood Toxicology closed [Mother] out of
                         services three times for failing to complete court-
                         ordered screens. She tested positive for
                         methamphetamine and amphetamine on January 6,
                         2017, August 11, 2017, and several more times
                         before FCM Abigail Tracy transferred the case in
                         December 2017. Her baby, [T.], was born in
                         November 2017, even though [Mother] was testing
                         positive for meth[amphetamine] in August and
                         September of that year.


                 15.     After some progress on the case in the spring of
                         2017, Mother’s refusal to assist in cleaning the
                         home of her grandmother resulted in her being

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 8 of 25
                         asked to leave that home. She stayed in her car for
                         a while and otherwise experienced housing
                         instability.


                 16.     [Mother] was unable to keep a job for longer than a
                         couple of weeks at a time.


                 17.     Most of [Mother]’s screens were positive for some
                         substance, typically marijuana and/or
                         methamphetamine, including at least two
                         meth[amphetamine] positive screens in 2019.


                 18.     In March of 2018, [Mother] went into the Eagle
                         Street dual diagnosis sober living environment. She
                         tested positive for meth[amphetamine] upon her
                         admission, wasn’t getting along with the other
                         women in the home, and when she tested positive
                         for meth[amphetamine] on May 1, 2018, she was
                         asked to leave the home. During her five weeks in
                         the home, she had write-ups for receiving
                         unapproved visitors, refusing drug screens, testing
                         positive and verbally abusing staff.


                 19.     [Mother]’s case manager from Hamilton Center
                         worked with her on housing, employment and
                         coping skills; however, this was unsuccessful as
                         [Mother] failed to keep her appointments with the
                         home-based case manager. When the case manager
                         supervised her visits with her children, she showed
                         some improvement in her ability to manage all three
                         kids at once but continued to talk to the children
                         about subjects that were not deemed appropriate
                         and had to be reminded about that.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 9 of 25
                 20.     [Mother] had an apartment for one month in 2018
                         which her boyfriend trashed. She wasn’t paying the
                         bills and was evicted. [Mother] had an extremely
                         toxic relationship with her boyfriend, Donnie,
                         which has continued off and on to the time of the
                         termination hearings.


                 21.     In addition to her serious and long-standing
                         substance abuse problem, [Mother] has an
                         extremely explosive temper, which also has not
                         been successfully dealt with after years of DCS
                         involvement and services. She has also been
                         diagnosed as bipolar, but the physician refused to
                         prescribe medication so long as she continued to use
                         meth[amphetamine].


                 22.     [Mother] was again recommended for a dual
                         diagnosis group in November of 2018. She failed to
                         attend her last two appointments.


                 23.     FCM Megan Watson became the permanency
                         family case manager in November 2018. She was
                         unable to get [Mother] to provide two weeks of
                         clean screens. She observed [Mother] to appear to
                         be under the influence of drugs at visits and to have
                         difficulty focusing on the children. Her current
                         boyfriend is an alcoholic with an open DCS case in
                         Clay County.


                 24.     [Mother] has been arrested six times while her
                         children have been in care during these CHINS
                         proceedings: (1) 84H01-1807-CM-1244 (Resisting
                         Law Enforcement and Criminal Trespass with a
                         Vehicle); 84DO1-1807-F6-2409 (Auto Theft,
                         Possession of Marijuana); 84H01-1810-CM-1902

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 10 of 25
                          (Driving While Suspended, Operating without
                          Proof of Financial Responsibility and violation of
                          open container law); 84HO1-1901-CM-18 (Criminal
                          Conversion); 84HO1-1901-CM-56 (Criminal
                          Mischief); and 84D01-1902-F6-661 (Forgery and
                          Fraud).


                 25.      [A.M.]’s biological father, [R.M.], has had no
                          contact with [A.M.], DCS or CASA since the
                          inception of this case nearly three years ago.[12]


        f.       Termination is in the best interests of the minor child as
                 testified to by DCS and CASA.


        g.       The Department of Child Services has a satisfactory plan
                 for the care and treatment of the child, which is adoption.


3.      Accordingly, the Court finds that the parent-child relationship
        between [A.M.] (D.O.B. 9-20-2012) and his natural father,
        [R.M.],[13] and natural mother, [S.E.], is hereby terminated and
        all rights, powers, privileges, immunities, duties and obligations,
        including the right to consent to adoption, pertaining to that
        relationship [are] permanently terminated. The child shall
        remain as a ward of the DCS pending finalization of an
        adoption.




12
  Provision 2(e)(25) of the TPR Order regarding B.E. states as follows: “[B.E.]’s biological father, [R.H.],
has had very limited contact with DCS since the CHINS case was opened nearly three years ago and has had
no contact with [B.E.]. He screened a single time for DCS and tested positive for meth[amphetamine].”
Appellants’ Amended Joint App. Vol. II at 72.
13
   Provision 3 of the TPR order regarding B.E. substitutes B.E.’s name and date of birth for that of A.M. and
“[R.H.]” for “[R.M.].” Id. at 72.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                Page 11 of 25
       Appellants’ Amended Joint App. Vol. II at 115-19.


[9]    Father and Mother now appeal the TPR orders.



                                  Discussion and Decision
                                        Personal Jurisdiction
[10]   Father contends that the TPR order as to him is void for lack of personal

       jurisdiction because DCS never properly served him as required by the Indiana

       Trial Rules and due process.


               “The existence of personal jurisdiction over a defendant is a
               question of law and a constitutional requirement to rendering a
               valid judgment[.] ... Thus, we review a trial court’s determination
               regarding personal jurisdiction de novo.” Munster v. Groce, 829
               N.E.2d 52, 57 (Ind. Ct. App. 2005). Although we do not defer to
               the trial court’s legal conclusion as to its existence, personal
               jurisdiction turns on facts; accordingly, findings of fact by the
               trial court are reviewed for clear error. Grabowski v. Waters, 901
               N.E.2d 560, 563 (Ind. Ct. App. 2009), trans. denied. Clear error
               exists where the record does not offer facts or inferences to
               support the trial court’s findings or conclusions of law. Id.


               The question as to whether process was sufficient to permit a trial
               court to exercise jurisdiction over a party involves two inquiries:
               whether there was compliance with the Indiana Trial Rules
               regarding service, and whether the attempts at service comported
               with the Due Process Clause of the Fourteenth Amendment. Id.
               It is commonly understood that procedural due process includes
               notice and an opportunity to be heard. Trigg v. Al–Khazali, 881
               N.E.2d 699, 702 (Ind. Ct. App. 2008), reh’g denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 12 of 25
       D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind. Ct. App. 2009), trans. denied; see also

       Grabowski, 901 N.E.2d at 563 (noting ineffective service of process prohibits a

       trial court from having personal jurisdiction over a defendant, and any

       judgment issued in such a case is void and a nullity).


[11]   Indiana Trial Rule 4.9 allows service to be made by publication in accordance

       with Trial Rule 4.13. Under the latter rule, the party seeking notice by

       publication “shall submit his request therefor upon the praecipe for summons

       along with supporting affidavits that diligent search has been made [and] that

       the defendant cannot be found, has concealed his whereabouts, or has left the

       state, and shall prepare the contents of the summons to be published.” T.R.

       4.13(A). If the court grants that request, the summons shall be published in

       accordance with the procedures outlined in the rule, including the requirement

       that the person making service “shall” prepare a return and supporting

       affidavits and file them with the pleadings. T.R. 4.13(C) and (E); see also T.R.

       4.15(A) (“The person making service shall promptly make his return upon or

       attach it to a copy of the summons which shall be delivered to the clerk.”); T.R.

       4.15(B) (“The return … shall be filed by the clerk with the other pleadings.”).

       The return must be signed by the person making it, and must include a

       statement:


               (1) that service was made upon the person as required by law and
               the time, place, and manner thereof;


               (2) if service was not made, the particular manner in which it was
               thwarted in terms of fact or in terms of law;

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 13 of 25
                (3) such other information as is expressly required by these rules.


       T.R. 4.15(A). After it is filed, the return becomes a part of the record and “shall

       constitute evidence of proper service.” T.R. 4.15(C).


[12]   Here, DCS filed a praecipe for service by publication and attached an affidavit

       in which it represented that DCS had made a diligent search for Father but he

       “[could] not be found, has concealed whereabouts, or has left the state.” 14

       Appellants’ Supp. App. Vol. II at 4. The trial court granted the request to serve

       Father by publication and issued a “Summons for Service by Publication &

       Notice of Termination of Parental Rights Hearing.” Id. at 7. However, DCS

       never filed a return with proof of service by publication as required by Trial

       Rules 4.13(E) and 4.15(A).15 Because there is no return demonstrating that the

       summons for service by publication was published, service upon Father was

       defective under the Trial Rules and the requirements of due process. See, e.g.,

       Matter of Adoption of M.A.S., 695 N.E.2d 1037, 1040 (Ind. Ct. App. 1998)




       14
          Contrary to Father’s assertion, the Affidavit complied with the trial rule that DCS make a “diligent
       search” for Father before seeking service by publication. DCS served Father at his last known address and
       searched for him in seven different locations and/or databases. Cf., e.g., Yoder v. Colonial Nat. Mortg., 920
       N.E.2d 798, 802-03 (Ind. Ct. App. 2010) (holding search was not diligent where plaintiff only used an
       internet “people-search tool” to do a “cursory” search for defendant).
       15
          DCS maintains that there is sufficient other evidence in the record to show Father received adequate
       service of process. We disagree. For support, DCS points only to a brief exchange between the court and
       DCS counsel at the May 2019 TPR hearing at which the court indicated that the court file contained the
       April 29, 2019, “proof of publication.” May Tr. at 5. However, the trial court did not state that there was a
       return of service in the case file and DCS admits that no such return existed. The April 29 “proof of
       publication” to which the court referred had no attachments and stated only: “Comes now DCS and notifies
       the Court of service by publication as to the Father.” Appellant’s Supp. App. Vol. II at 8. That document,
       alone, is not sufficient proof of service as required by the Trial Rules. See T.R. 4.13; T.R. 4.15.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                  Page 14 of 25
       (holding service was defective where there was no indication on the return that

       Respondent had received the summons); Munster, 829 N.E.2d at 58 (noting the

       due process “‘right to be heard has little reality or worth unless one is informed

       that the matter is pending and can choose for himself whether to appear or

       default, acquiesce or contest.’” (quoting Mullane v. Central Hanover Bank & Trust

       Co., 339 U.S. 306, 314 (1950)). Since service of process was defective, the trial

       court did not acquire personal jurisdiction over Father and the TPR order as to

       Father is void.16 Grabowski, 901 N.E.2d at 563.


[13]   DCS points to Trial Rule 4.15(F), which states that a defective summons or

       service thereof shall not be set aside or adjudged insufficient if it is reasonably

       calculated to inform the person to be served of the action and relevant

       information. However, the “savings provision” contained in Rule 4.15(F) “is

       meant to excuse minor, technical defects in the method of service where actual

       service has been accomplished.” Cotton v. Cotton, 942 N.E.2d 161,166 (Ind. Ct.

       App. 2011) (quotation and citation omitted). Trial Rule 4.15(F) “does not cure

       service of process when there has been no service on a party.” Overhauser v.

       Fowler, 549 N.E.2d 71, 73 (Ind. Ct. App. 1990) (quotation and citation

       omitted); see also LaPalme v. Romero, 621 N.E.2d 1102, 1106 (Ind. 1993) (noting

       Rule 4.15(F) only cures technical defects in service of process, “not the total

       failure to serve process”). Thus, in Cotton, for example, we held that a defect in



       16
          Given this holding, there is no need for us to address Father’s additional claim that DCS failed to comply
       with the statutory requirement that it provide notice of a TPR hearing at least ten days prior to the date of
       that hearing. Ind. Code § 31-35-2-6.5.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                Page 15 of 25
       the summons was not “minor” and therefore excusable under Rule 4.15(F)

       where it failed to inform the respondent of the possibility of default judgment if

       she failed to appear at a hearing. Cotton, 942 N.E.2d at 166.


[14]   Here, there is no return proving service upon Father, Father contends he did

       not receive service, and Father never appeared before the trial court in the

       termination action. DCS’s complete failure to provide proof of service is not a

       “minor defect” that can be cured by Trial Rule 4.15(F).17


                       Termination of Mother’s Parental Rights
                                                 Standard of Review


[15]   Mother asserts that the trial court’s order terminating her parental rights to

       Children was clearly erroneous. We begin our review of this issue by

       acknowledging that “[t]he traditional right of parents to establish a home and

       raise their children is protected by the Fourteenth Amendment of the United

       States Constitution.” Bailey v. Tippecanoe Div. of Family & Children (In re M.B.),

       666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court

       must subordinate the interests of the parents to those of the child when

       evaluating the circumstances surrounding a termination. Schultz v. Porter Cty.



       17
           Nor did DCS “amend” proof of service of process as permitted by Trial Rule 4.15(E) when, on August 29,
       2019, it attempted to file in the trial court a return allegedly showing proof of service. As we stated in our
       November 6, 2019, Order in this appeal, the trial court did not have jurisdiction to accept the return DCS
       attempted to file on August 29 because the Notice of Completion of Clerk’s Record already had been noted
       in the trial court’s Chronological Case Summary (“CCS”). See Ind. Appellate Rule 8 (stating appellate court
       acquires jurisdiction on the date the Notice of Completion of Clerk’s Record is noted in the CCS). Therefore,
       the document DCS attempted to file on August 29 is not part of the record.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                Page 16 of 25
       Office of Family & Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).

       Termination of a parent-child relationship is proper where a child’s emotional

       and physical development is threatened. Id. Although the right to raise one’s

       own child should not be terminated solely because there is a better home

       available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id. at 836.


[16]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things:


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


                                                  ***


                    (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 19A-JT-1370 | December 4, 2019   Page 17 of 25
                        (iii) The child has, on two (2) separate occasions,
                        been adjudicated a child in need of services.

                                                       ***


               (C) [and] that termination is in the best interests of the child . . . .


       I.C. § 31-35-2-4(b)(2). DCS need establish only one of the requirements of

       subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       DCS’s “burden of proof in termination of parental rights cases is one of ‘clear

       and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

       N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).


[17]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office of

       Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999). trans. denied.


[18]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 18 of 25
       review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[19]   Mother does not specifically challenge any of the trial court’s relevant findings

       of fact. Rather, she contends that the trial court erred in its conclusions of law.

       Specifically, she alleges that the trial court erred in concluding that she will not

       remedy the conditions that resulted in Children’s removal and that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Children. She also challenges the trial court’s finding that termination is in the

       best interests of Children. Because Indiana Code Section 31-35-2-4(b)(2)(B) is

       written in the disjunctive, we only address whether the trial court erred in

       concluding that Mother will not remedy the conditions that resulted in

       Children’s removal and that termination is in Children’s best interest. We also

       address Mother’s contention that DCS failed to present a satisfactory

       permanency plan for Children.


                              Conditions that Resulted in Children’s Removal


[20]   Mother maintains that the trial court erred in concluding there was a reasonable

       probability that the conditions that resulted in Children’s removal will not be


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 19 of 25
       remedied. In support, she points to evidence of her very recent compliance

       with some of the court’s requirements, such as engaging in drug treatment

       classes and attending Narcotics Anonymous meetings. However, her

       arguments on appeal are simply requests that we reweigh the evidence, which

       we will not do. See In re D.D., 804 N.E.2d at 265. Instead, we must determine

       whether the evidence most favorable to the judgment supports the trial court’s

       conclusion. Id.; Quillen, 671 N.E.2d at 102.


[21]   In determining whether the evidence supports the trial court’s conclusion that

       Mother was unlikely to remedy the reasons for removal, we engage in a two-

       step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643

       (Ind. 2014). “First, we identify the conditions that led to removal; and second,

       we determine whether there is a reasonable probability that those conditions

       will not be remedied.” Id. (quotations and citations omitted). In the second

       step, the trial court must judge a parent’s fitness to care for his or her children at

       the time of the termination hearing, taking into consideration evidence of

       changed conditions. Id. However, the court must also “evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d

       218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to

       this rule, courts have properly considered evidence of a parent’s prior criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate housing and employment. Id. Moreover, DCS is not




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 20 of 25
       required to rule out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change. Id.


[22]   Children were initially removed from Mother’s care due to her drug use and

       erratic behavior. And, although she maintained at the April 2019 hearing that

       she was “staying sober,”18 the evidence establishes that Mother tested positive

       for illegal drugs throughout the course of the CHINS and TPR proceedings and

       as recently as February 2019. April Tr. at 45. Additionally, there was evidence

       that Mother had failed throughout the proceedings to participate in or complete

       drug screens and treatment for her drug abuse and mental health issues.

       Although Mother completed participation in one women’s group for substance

       abuse, she continued to test positive for illegal drug use afterwards. At the time

       of the termination hearing, Mother was not taking some of the medications

       prescribed to treat her mental health problems because they had been stolen

       when she was in jail. She had also failed to consistently participate in court-

       ordered case management services and maintain employment and housing.

       And she continued to periodically behave violently; for example, she screamed,

       became “combative,” and “punched things” at team meetings with DCS. Feb.

       Tr. at 41. During the course of the proceedings and as recently as the April




       18
          Contrary to Mother’s assertion in her brief, Mother did not testify at the April 2019 TPR hearing that “she
       was actively engaged in intense inpatient addictions treatment.” Mother’s Br. at 12. Rather, Mother testified
       that she was unable to obtain inpatient treatment, but she was attending NA meetings and would be starting
       “MRT” and “true thoughts” classes through “Club Soda” starting the following Friday. April Tr. at 44-45.
       Mother did not define “MRT” or “true thoughts” classes, nor did she state what kind of program “Club
       Soda” is other than it is one that lasts ninety days. Id. at 47. Mother testified that she went to Club Soda on
       her own initiative in March of 2019. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019                 Page 21 of 25
       2019 termination hearing, Mother had been charged with various crimes and

       was incarcerated following numerous arrests. At the time of the termination

       hearing, Mother had pending probation violation allegations against her.

       Given Mother’s habitual and continued patterns of drug use and her failure to

       participate in and/or complete court-ordered services such as drug and mental

       health treatment, we cannot say the trial court erred in concluding that the

       conditions at the time of Children’s removal were not, and likely will not be,

       remedied.

                                                   Best Interests


[23]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind.

       Ct. App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, “in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 22 of 25
       termination is in the child’s best interests.” L.S. v. Ind. Dep’t of Child Servs. (In re

       A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.


[24]   Again, Mother’s contentions on this issue amount to requests that we reweigh

       the evidence, which we will not do. The evidence most favorable to the

       judgment shows that, throughout the CHINS and TPR proceedings, Mother

       failed to participate in and/or complete drug treatment and mental health

       treatment as required, failed to provide consistently clean drug screens, failed to

       obtain and keep employment or stable housing, failed to consistently control

       her violent behavior, and was in and out of jail due to multiple criminal charges

       against her. At the time of the termination hearing, the only drug treatment

       program Mother had completed was a women’s group program, after which she

       again tested positive for drug use, and she had pending probation violation

       allegations against her. Furthermore, both the FCM and the Court Appointed

       Special Advocate testified that they believed termination of Mother’s parental

       rights was in Children’s best interests. Given that testimony, in addition to

       evidence that the children need permanency and stability that Mother cannot

       provide and that the reasons for the children’s removal from Mother will not

       likely be remedied, we hold that the totality of the evidence supports the trial

       court’s conclusion that termination is in Children’s best interests. In re A.D.S.,

       987 N.E.2d at 1158-59. The trial court did not clearly err when it terminated

       Mother’s parental rights to Children.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 23 of 25
                                                Satisfactory Plan


[25]   Mother maintains that DCS failed to show that it had a satisfactory

       permanency plan for Children. We disagree. A permanency plan “need not be

       detailed, so long as it offers a general sense of the direction in which the child

       will be going after the parent-child relationship is terminated.” In re D.D., 804

       N.E.2d at 268 (citing Jones v. Gibson Cty. Div. of Family and Children (In re B.D.J.),

       728 N.E.2d 195, 204 (Ind. Ct. App. 2000)). DCS presented a plan for adoption

       of Children, including potential placement of Children together. Adoption is a

       satisfactory plan for permanency. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.),

       17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied. Of course, given our

       decision reversing the termination of Father’s parental rights, we express no

       opinion regarding whether the permanency plan will continue to be satisfactory

       following proper notice to Father and a decision on the merits of the petition to

       terminate his parental rights. However, as it relates to Mother’s TPR case, the

       trial court did not clearly err in holding that DCS had a satisfactory plan for

       Children’s permanent placement.



                                               Conclusion
[26]   Because there was no proof of service upon Father, the trial court lacked

       personal jurisdiction over him. Therefore, the TPR order as to Father is void

       and hereby reversed. However, the trial court did not clearly err when it

       terminated Mother’s parental rights to Children; therefore, that portion of the

       TPR order is affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 24 of 25
[27]   Affirmed in part and reversed in part.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1370 | December 4, 2019   Page 25 of 25
