Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 1 of 17 

### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANTS Daniel J. Vanderpool Vanderpool Law Firm Warsaw, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General
Robert J. Henke David E. Corey Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.B. (Minor Child): G.B. (Mother) and C.B. (Father) A

ppellan t s-Respondents,

v. 

### Indiana Department of Child Services, A

ppelle e -Petitioner March 28, 2016 Court of Appeals Case No. 85A02-1506-JT-794 Appeal from the Wabash Circuit Court The Honorable Robert R. McCallen, III, Judge Trial Court Cause No. 85C01-1410-JT-13

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 2 of 17 

# Case Summary

[1] G.B. (“Mother”) and C.B. (“Father”) a ppeal the termination of their parentchild relationship with A.B. In addi tion to arguing that the evidence is insufficient to prove there is a reasonable probability that the circumstances leading to A.B.’s removal will not be reme died and that termination is in A.B.’s best interests, Mother and Father also co ntend that the trial court’s findings are not supported by clear and convincing ev idence because the court relied upon judicially noticed records of other case s, and those records were not entered into evidence. Indiana Rule of Evidence 201 permits courts to take judicial notice of records of a court of this stat e. There is no requirement in Rule 201 that such records be entered into the re cord of the present case. However, we have previously addressed the need to include judici ally noticed records from other cases in the record submitted for appeal where those records are necessary for appellate review. In this case, th e Indiana Department of Child Services (“DCS”) included relevant portions of th e “other” records in its appendix. That is sufficient to permit appellate review . Concluding that DCS has proven the statutory requirements by clear and conv incing evidence and that the trial court’s judgment terminating parental rights to A.B. is not clearly erroneous, we affirm. 

# Facts and Procedural History

[2] A.B. was born November 1, 2012, to Mother and Father. In January 2013, Father overdosed on heroin and Mother drove him to the hospital. At thatCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 3 of 17 time, both Father and Mother admitted using illegal drugs, and DCS removed A.B., then two months old, from them. A.B. was placed in foster care for nineteen days before ultimately being placed with Father’s aunt and uncle.

[3] DCS filed a petition alleging A.B. was a child in need of services (“CHINS”). Mother agreed and the court adjudicated A.B. a CHINS on February 12, 2013. The court entered default judgment agai nst Father the next day because he failed to appear for any of the hear ings. According to the terms of the dispositional order entered in March 2013 , Mother and Father were required to, among other things, participate in subs tance-abuse treatment, submit to drug screening, and participate in home-based services. Fa ther was also ordered to participate in the Father Engagement Program.

[4] From March 2013 until Marc h 2015, neither Mother nor Father complied with the dispositional order, with one exceptio n: Mother attended the majority of her supervised visitations. Otherwise, Moth er estimated that her longest period of sobriety lasted just three weeks. In October 2013, Mother requested participation in Family Dr ug Treatment Court, and a modified dispositional order was entered to transfer her case . The Family Drug Treatment Court terminated Mother’s participation after only eight months be cause she violated the terms of her placement by testing posi tive for controlled su bstances at least fifteen times, including multiple positive tests for methamphetamine and at least one positive test for heroin, and failed to appear in court on multiple occasions. Mother also estimated that she failed to report for approximately twenty drugCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 4 of 17 screens. Mother’s addictio ns therapist testified that Mother began treatment in late July 2014, continued for approx imately two weeks, and then quit.

[5] Father was similarly noncompliant with the dispositional order. He did not make his first appearance in the underly ing CHINS case until the July 19, 2013 periodic-review hearing—seven months a fter the initial hearing. The court noted in its order from the July 2013 hear ing that Father had not visited A.B. Father was on probation for a felony co nviction until August 2013, when his probation was revoked for failing drug sc reening and failing to report to his probation officer. Father met with hi s social worker tw ice for the Father Engagement Program in March 2014. He missed the third appointment, and the social worker was unable to reach him after that. Fa ther’s file was closed in April 2014 for lack of participation. He continued failing drug screens, and his probation was revoke d again in June 2014. He ha s been incarcerated since.

[6] Finally, neither parent participated in home-based services to any meaningfulextent in the two years after A.B. was adjudicated a CHINS. The familyservices provider began working with Mother starting in January 2013 and Father starting in Octobe r 2013. Services were st opped in April 2014 because of inconsistent attendance.

[7] DCS filed a petition to terminate Mother ’s and Father’s parental rights in October 2014. The fact-finding hearing was originally scheduled for December, but it was continued mult iple times. While the fact-finding hearing was pending, Mother discovered that she was pregnant. She stopped using illegalCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 5 of 17 drugs—her last positive screen for illegal drugs was Ja nuary 22, 2015—and began participating in the ordered se rvices in March 2015. Father was convicted of one Class D felony in Ap ril and another Class D felony in May 2015, resulting in his cont inued incarceration. Alth ough unable to participate in services, Father has remained drug-free while incarcerated.

[8] The fact-finding hearing occurred in May 2015. At the outset of the hearing, the court announced that it was taking judi cial notice of several related “cases,” including the original CHINS case, the Family Drug Treatment Court case, and criminal cases against Father. Tr. p. 5-6. No objections were raised, and there was no request for a hearing on the matter.

[9] The Court Appointed Special Advocate (CASA) recommended termination of parental rights. She base d her recommendation on a fu ll review of the file, six meetings with A.B. in her current placement, the CASA’s educational background and experience, and the report s of other service providers. She did not meet with either Mother or Father after being assigned this case—the original CASA died before the petition to terminate pa rental rights was filed. She testified that she did not meet with Father because he was in jail from the time she was appointed until the hearing, and she attempted to contact Mother four times, but was unable to reach her. The Family Case Manager (FCM) also testified that it was in A.B.’s best interests to terminate the parent-child relationship.Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 6 of 17 [10] In June 2015 the trial court entered an or der with findings te rminating Mother’s and Father’s parental righ ts. Among the findings:
[Father] never really engaged for any length of time in services. [He] was in and out of jail and has been for the better part of [A.B.]’s life. When he was not incarcerated, he participated minimally in services. [Mother’s] participation in services when she did so was limited, at least until very recently.
* * * * * From the time of [A.B.’s] removal until early January, 2015, neither [Mother] or [Father] had participated in services in any meaningful way. In January 2015, some four months after the petition to terminate parental ri ghts was filed, [Mother] began engaging in random drug screens. By then, [Mother] was aware she was pregnant. . . . On or about March 9, 2015, [Mother] began substance abuse counseling , individual counseling, moral recognition therapy and was passing all of her drug screens. However, though her participat ion has been more consistent since March 9, 2015, th is is not [Mother]’s first time at engaging in services and all prior efforts fell far short.
* * * * * [Father’s aunt] testified and the Court believes that she fully hoped to be a temporary caregiver for [A.B.] while [Mother] and [Father] got their act together. However, she is aware of [Mother’s] actions over the last two years or so and recognizes the significant likelihood that [Mother’s] current engagement is temporary and she will not ever be able to parent [A.B.]. [Father’s aunt] wants what is best for [A.B.] despite the awkward position that puts her in.
* * * * * The DCS made significant efforts to facilitate reunification. Services were offered, time and again. Despite those effortsCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 7 of 17 neither parent benefitted to any appreciable degree, [Mother’s] recent engagement in services notw ithstanding. Her efforts were too little, too late. Reunification was the goal, and it was pursued, to no avail.
Appellants’ App. 14-19.

[11] Mother and Father appeal the term ination of their parental rights.



# Discussion and Decision

[12] The Fourteenth Amendment to the United States Consti tution protects the right of parents to establish a home and raise their children. In re K.T.K. , 989 N.E.2d 1225, 1230 (Ind. 2013). However, a pare nt’s rights may be terminated if the parent is unable or unwilling to meet his or her parental responsibilities by failing to provide for the child’s immediate and long-term needs. Id. The purpose of terminating parent al rights is not to punish parents, but to protect their children. In re L.S. , 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied

.

[13] When reviewing the termination of pa rental rights, we do not reweigh the evidence or judge witness credibility. Bester v. Lake Cnty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005). Rather, we cons ider only the evidence and the reasonable inferences th at are most favorable to the judgment of the trial court. Id. When the trial court has entered findings and conclusions, we apply a two-ti ered standard of review. K.E. v. Ind. Dep’t of Child
Servs. , 39 N.E.3d 641, 646 (Ind. 2015). First, we determine whether theCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 8 of 17 evidence supports the findings, and seco nd, whether the find ings support the judgment. Id. The judgment will be set aside on ly if it is clearly erroneous. Id. A judgment is clearly errone ous if the findings do no t support the trial court’s conclusions or the conclusions do not support the judgment. In re R.J. , 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

[14] A petition to terminate parental righ ts must allege, among other things:
(B) that one (1) of the following is true:

(i) There is a reasonable probabi lity 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 probabi lity 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[.] Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[15] Mother and Father raise five arguments, which we consolid ate and restate as: (1) the record does not supp ort the trial court’s find ings because judicially noticed records from other cases that suppo rt the findings were not entered into evidence; (2) there is in sufficient evidence to su pport the trial court’sCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 9 of 17 conclusions that the conditions that re sulted in A.B.’s removal would not be remedied and that continuation of the pare nt-child relationship poses a threat to A.B.’s well-being; and (3) it is not in th e best interests of A.B. to terminate the parent-child relationship.


## I. Judicial Notice

[16] At the outset of the termin ation hearing, the trial court announced it was taking judicial notice of several “cases” and th en listed cause numbers that included the related Family Drug Treatment Court cause number, the underlying CHINS proceeding, and five of Father’s cr iminal cases. Tr. p. 5. DCS also requested judicial notice of another crimin al case related to Father in a different county, submitting “paperwork from that case[,]” and the court took judicial notice of it as well. Id. at 5-6. However, no record s from the judicially noticed cases were entered into the record of th is case. Therefore, Mother and Father argue that the record here does not suppo rt the trial court’s findings to the extent that those findings are based on ju dicial notice of records from the other

cases. 1

1 Mother and Father question “whether [Indiana Rule of Evidence 201] allows the Court to note only that the records exist ; or, to note the contents of those records...” Appellants’ Br. p. 14. Because Mother and Father do not state an objection to a specific document or fact that the trial court noticed, we are unable to fully address this question. However, we have previously held that a trial court ma y take judicial notice of certain contents within the records of related proceedings. See In re D.K. , 968 N.E.2d 792, 796 (Ind. Ct. App. 2012) (stating that judicial notice of documents filed in a CHINS action was proper in the subsequent termination of parental rights case); see also In re Paternity of P.R. , 940 N.E.2d 346, 350 (Ind. Ct. App. 2010) (stating that it was not error for a tria l court to take judicial notice of th e substance of a protective order even though the protective order file was not entered into evidence).Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 10 of 17 [17] Mother and Father waived th is argument. Issues not ra ised at the trial court are waived on appeal. In re Involuntary Termination of Parent-Child Relationship of
B.R. , 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied . Where a party objects to a court taking judicial notice, Indiana Rule of Evidence 201 specifically provides an opportunity fo r a hearing—even after the notice has been taken. Ind. Evidence Rule 201(e) (“ On timely request, a party is entitled to be heard on the propriety of taking ju dicial notice and the nature of the fact to be noticed. If the co urt takes judicial notice be fore notifying a party, the party, on request, is sti ll entitled to be heard.”); see also In re Paternity of P.R. , 940 N.E.2d 346, 350 (Ind. Ct. App. 2010). However, the timely request must be made to the trial court; “appealing the tr ial court’s action doe s not constitute a timely request for an opportunity to be heard pursuant to Rule 201(e).” In re Paternity of P.R. , 940 N.E.2d at 350.

[18] Neither Mother nor Father objected to the trial court taking judicial notice of the “cases” or requested that the trial court incorporate th e material in the record. In fact, later in the proc eeding, Mother’s a ttorney expressly acknowledged that the trial court had take n judicial notice of one of Father’s criminal cases and stipulated that “t he information contained therein is accurate.” Tr. p. 47. Wh ile it is not clear what th e trial court meant when it said it was taking judicial notice of “cas es,” and it is possib le that Mother and Father did not realize the scope of the ju dicial notice being taken at the time, that scope was certainly clear when th e final order was issued. Rule 201 permitted them to request a hearing at th at time to dispute what the trial courtCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 11 of 17 noticed or to request that the trial cour t include certain documents in the record of this case. No such request was made to the trial court. By failing to raise the question with the trial co urt, Mother and Father ha ve waived their argument.

[19] Waiver notwithstanding, Mother’s and Fa ther’s argument that the trial court’s findings are unsupported because the reco rd is incomplete still fails. They contend that In re D.K. “essentially requires” that “where a court takes judicial notice, some effort must be made to in clude those records in the record of the current proceeding.” Appellants’ Br. p. 15. The issue in D.K . was that neither party nor the trial court included record s from the judicially noticed underlying CHINS case and the Appellee’s brief reli ed on facts that were, therefore, missing from the record on appeal. Th is Court concluded that “if a party on appeal wishes to rely on parts of the ‘other’ record or records in making an argument before this cour t, it should include those parts in an appendix submitted to this court under Indiana Appellate Rule 50.” In re D.K. , 968 N.E.2d at 797. That is precisely wh at DCS did in this case; DCS filed an Appellee’s Appendix that contained the re levant portions from the judicially noticed cases. That is sufficient to allow appellate review and meets the standard expressed in D.K

. 

## II. Reasonable Probability That the Conditions Resulting in Removal Will Not Be Remedied

[20] Mother and Father contend that there wa s insufficient evidence to support the trial court’s conclusions that they were unlikely to remedy the conditions that resulted in the removal of A.B., and th at continuation of the parent-childCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 12 of 17 relationship poses a threat to A.B.’s we ll-being. Indiana Code section 31-35-2- 4(b)(2)(B) is written in the disjunctive. Therefore, DCS is re quired to establish by clear and convincing evidence only one of the three requirements of subsection (B). In this case, we conclu de that there is su fficient evidence to support the trial court’s finding that ther e is a reasonable pr obability that the conditions that resulted in A.B.’s remo val will not be remedied. Therefore, we need not address the finding that continua tion of the parent-child relationship poses a threat to A.B.’s well-being.

[21] In determining whether the conditions th at resulted in a child’s removal or placement outside the home will not be remedied, we engage in a two-step analysis. In re E.M. , 4 N.E.3d 636, 642-643 (Ind. 2 014). We first identify the conditions that led to removal or placement outside the home and then determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step requires tr ial courts to judge a parent’s fitness at the time of the termination proceeding, taking into consideration evidence of changed cond itions, and balancing any recent improvements against habitual patterns of conduct to de termine whether there is a substantial probability of future neglect or deprivation. Id. In so doing, trial courts have discretion to weigh a parent’s prior hist ory more heavily than efforts made only shortly before termination, and courts may find that a parent’s past behavior is the best predictor of his or her future behavior. Id. Finally, a parent’s testimony about future plans is no t evidence upon which a trial court can base itsCourt of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 13 of 17 termination decision. In re B.D.J. , 728 N.E.2d 195, 202 n.1 (Ind. Ct. App. 2000).

[22] Here, A.B. was removed from Mother and Father because of their drug use. The dispositional order required both pa rents to submit to drug screening, participate in substance-abuse treatme nt, and participate in home-based services. But from March 2013 until Ma rch 2015, neither Mother nor Father complied with that order. Mother testified that her longest period of sobriety was three weeks during the two years from A.B.’s removal in January 2013 until she discovered that she was tw o-months pregnant in January 2015. According to the order terminating Moth er’s participation in Family Drug Treatment Court, she tested positive for illegal substances, including methamphetamine and heroin, fifteen ti mes and failed to report for an additional twenty drug scr eens. Father’s probation wa s revoked twice for illegal drug use and he has spent the majority of the last two years incarcerated. He has not participated in either subs tance-abuse treatment or the Father Engagement Program to any meaningful extent.

[23] Both parents point to their recent sobr iety and intention to engage in services going forward as evidence th at the condition leading to A.B.’s removal will be remedied. In addition, Moth er raises the fact that she substantially complied with supervised visitation at all times, and with her other services during her brief periods of sobriety before Janua ry 2015 as well as after March 2015. Father argues that he has been sober du ring the last year, while incarcerated,Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 14 of 17 and that services were unavailable to him during his incarceration, but he intends to engage with them when he is released. 2

[24] These arguments invite us to reweigh the evidence—to put more emphasis on the recent improvement than the prio r two years of non-compliance and substance abuse. We will not reweigh evidence on appeal. Bester , 839 N.E.2d at 147. Mother’s and Father’s two-year history of non-compliance with the dispositional order and continued substanc e abuse is supported by the record. And the findings of non-compliance an d continued substance abuse support the trial court’s conclusion that there is a r easonable probability that the conditions that resulted in A.B.’s removal will not be remedied.


## III. Best Interests of the Child

[25] In determining what is in a child’s best in terests, the trial cour t must look to the totality of the evidence. In re A.D.S. , 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In so doing, the trial court must subordinate the interests of

2 Father asserts that he is in th e same position as the father in K.E. v. Indiana Department of Child Services , 39 N.E.3d 641 (Ind. 2015). We find the facts of this case distinguishable from the facts in K.E . The father in K.E. saw his children every two weeks and called them daily to talk and to tell them goodnight. Id. at 649. Father in this case did not even see A.B. for the firs t seven months after her removal—and then his probation was revoked due to his continued drug use. In K.E. , the father voluntarily completed twelve programs to improve his life and parenting skills while he was incarcerated. Id. Here, the trial court saw no evidence of meaningful engagement in any programs or services, including during the periods when Father was not incarcerated. Moreover, during periods between incarcer ation, Father testified that his paycheck typically lasted one day due to the amount he spent on illegal drug s. Tr. p. 64. The dispositional order in this case clearly required Father to stop using illegal drugs in or der to regain custody of A.B., and he agrees that he spent his money on “pills, heroin, amphetamines, whatever [he] could get[.]” Id. Incarceration is only one factor in determining whether the condition that led to the removal of a child will be remedied. Id. at 648. It is the other factors, like th e relationship with the child and the effort made to participate in programs that develop parenting skills, which distinguish K.E. from this case.Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 15 of 17 the parent to those of the child. Id. The court need not wait until a child is irreversibly harmed before terminat ing the parent-child relationship. Id. We have previously held that the recommendation by bo th the FCM and CASA to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is suffici ent to show by cl ear and convincing evidence that termination is in the child’s best interests. Id. at 1158-59.

[26] Here, both the CASA and the FCM recommended termination of parental rights, and there is evidence that the conditions result ing in removal will not be remedied. However, Mother and Father contend that Indiana Code section 31- 35-2-4.5(d)(1) “provides a mechanism that allows parents to request that a termination proceeding be dismissed if certain circumstances apply.” Appellants’ Br. p. 20. The stat ute provides in pertinent part:
A person described in section 4( a) of this chapter may file a motion to dismiss the petition to terminate the parent-child relationship if any of the following circumstances apply:
(1) That the current case pl an prepared by or under the supervision of the department or the probation department under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4.5 has documented a compelling r eason, based on facts and circumstances stated in the petition or motion, for concluding that filing, or proceeding to a final determination of, a petition to terminate the parent-child relationship is not in the be st interests of the child. A compelling reason may include the fact that the child is being cared for by a custodian who is a relative (as defined in IC 31-9-2-107(c)).Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 16 of 17 I.C. § 31-35-2-4.5(d)(1). Mother and Fa ther further argue that the language of the statute indicates that A.B.’s placem ent with Father’s au nt and uncle is a “compelling reason” to conclude that term ination of their parental rights is not in A.B.’s best interests and that the “effe ct on A.B. of giving the parents more time will be minimal.” Appellants’ Br. p. 21.

[27] First, to clarify, Section 31-35-2-4.5( d)(1) provides a mechanism for a “person described in section 4(a) of this chapter” to file a motion to dismiss the petition to terminate the parent-child relationsh ip. Indiana Code section 31-35-2-4(a) describes three people: “(1) The attorney for the department. (2) The child’s court appointed special advocate. (3) The child’s guardian ad litem.” It does not include parents. Section 31-35-2-4.5(d)(1) does not provide a special statutory mechanism for parents to request dismissal of a termination proceeding.

[28] Additionally, Section 31-35-2-4.5(d)(1) permits, but does not require, the dismissal of a petition to terminate parent al rights when the ch ild is in the care of a relative. See, e.g. , In re G.H. , 906 N.E.2d 248, 252 (Ind. Ct. App. 2009); James v. Pike Cnty. , 759 N.E.2d 1140, 1144 (Ind. Ct. App. 2001); M.H.C. v. Hill , 750 N.E.2d 872, 878 (Ind. Ct. App. 20 01). Placement with a relative may provide a “compelling reason” for DCS to request dismissal of its petition for termination of parental rights under the terms of the statute. But such placement does not compel the tr ial court to find that it is in the best interests of the child to retain the parent-child relationship.Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016 Page 17 of 17 [29] The balance of Mother and Father’s ar gument is, again, a request that we reweigh the evidence, which we will not do. Bester , 839 N.E.2d at 147. The trial court’s determination that termination of the parent-child relationship is in A.B.’s best interests is supported by th e testimony of the CASA and the FCM as well as the two-year history of noncompliance with the dispositional order.

[30] Affirmed.
Bailey, J., and Crone, J., concur.