In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. (Minor Child): G.B. (Mother) and C.B. (Father) v. Ind. Dept. of Child Services (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION                                                     FILED
    Mar 28 2016, 8:38 am
    Pursuant to Ind. Appellate Rule 65(D),
    CLERK
    this Memorandum Decision shall not be                               Indiana Supreme Court
    Court of Appeals
    regarded as precedent or cited before any                                and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
    Daniel J. Vanderpool                                    Gregory F. Zoeller
    Vanderpool Law Firm                                     Attorney General
    Warsaw, Indiana
    Robert J. Henke
    David E. Corey
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Involuntary                        March 28, 2016
    Termination of the Parent-Child                         Court of Appeals Case No.
    Relationship of A.B. (Minor                             85A02-1506-JT-794
    Child):                                                 Appeal from the Wabash Circuit
    G.B. (Mother) and C.B. (Father)                         Court
    The Honorable Robert R.
    Appellants-Respondents,
    McCallen, III, Judge
    v.                                              Trial Court Cause No.
    85C01-1410-JT-13
    Indiana Department of Child
    Services,
    Appellee-Petitioner
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016          Page 1 of 17
    Case Summary
    [1]   G.B. (“Mother”) and C.B. (“Father”) appeal the termination of their parent-
    child relationship with A.B. In addition 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 remedied and that termination is in A.B.’s
    best interests, Mother and Father also contend that the trial court’s findings are
    not supported by clear and convincing evidence because the court relied upon
    judicially noticed records of other cases, 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 state. There is no requirement in Rule 201
    that such records be entered into the record of the present case. However, we
    have previously addressed the need to include judicially noticed records from
    other cases in the record submitted for appeal where those records are necessary
    for appellate review. In this case, the Indiana Department of Child Services
    (“DCS”) included relevant portions of the “other” records in its appendix. That
    is sufficient to permit appellate review. Concluding that DCS has proven the
    statutory requirements by clear and convincing 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 that
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    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 against Father the next day because he
    failed to appear for any of the hearings. According to the terms of the
    dispositional order entered in March 2013, Mother and Father were required to,
    among other things, participate in substance-abuse treatment, submit to drug
    screening, and participate in home-based services. Father was also ordered to
    participate in the Father Engagement Program.
    [4]   From March 2013 until March 2015, neither Mother nor Father complied with
    the dispositional order, with one exception: Mother attended the majority of her
    supervised visitations. Otherwise, Mother estimated that her longest period of
    sobriety lasted just three weeks. In October 2013, Mother requested
    participation in Family Drug 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 because she violated
    the terms of her placement by testing positive for controlled substances 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 drug
    Court of Appeals of Indiana | Memorandum Decision 85A02-1506-JT-794|March 28, 2016   Page 3 of 17
    screens. Mother’s addictions therapist testified that Mother began treatment in
    late July 2014, continued for approximately two weeks, and then quit.
    [5]   Father was similarly noncompliant with the dispositional order. He did not
    make his first appearance in the underlying CHINS case until the July 19, 2013
    periodic-review hearing—seven months after the initial hearing. The court
    noted in its order from the July 2013 hearing that Father had not visited A.B.
    Father was on probation for a felony conviction until August 2013, when his
    probation was revoked for failing drug screening and failing to report to his
    probation officer. Father met with his social worker twice for the Father
    Engagement Program in March 2014. He missed the third appointment, and
    the social worker was unable to reach him after that. Father’s file was closed in
    April 2014 for lack of participation. He continued failing drug screens, and his
    probation was revoked again in June 2014. He has been incarcerated since.
    [6]   Finally, neither parent participated in home-based services to any meaningful
    extent in the two years after A.B. was adjudicated a CHINS. The family-
    services provider began working with Mother starting in January 2013 and
    Father starting in October 2013. Services were stopped 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 multiple times. While the fact-finding hearing was
    pending, Mother discovered that she was pregnant. She stopped using illegal
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    drugs—her last positive screen for illegal drugs was January 22, 2015—and
    began participating in the ordered services in March 2015. Father was
    convicted of one Class D felony in April and another Class D felony in May
    2015, resulting in his continued incarceration. Although 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 judicial 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 based her recommendation on a full review of the file, six
    meetings with A.B. in her current placement, the CASA’s educational
    background and experience, and the reports 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 parental 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 5 of 17
    [10]   In June 2015 the trial court entered an order with findings terminating Mother’s
    and Father’s parental rights. 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 rights 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 participation has been more consistent
    since March 9, 2015, this 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 efforts
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    neither parent benefitted to any appreciable degree, [Mother’s]
    recent engagement in services notwithstanding. 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 termination of their parental rights.
    Discussion and Decision
    [12]   The Fourteenth Amendment to the United States Constitution 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 parent’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 parental 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 parental 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 consider only the
    evidence and the reasonable inferences that are most favorable to the judgment
    of the trial court. 
    Id. When the
    trial court has entered findings and
    conclusions, we apply a two-tiered standard of review. K.E. v. Ind. Dep’t of Child
    Servs., 
    39 N.E.3d 641
    , 646 (Ind. 2015). First, we determine whether the
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    evidence supports the findings, and second, whether the findings support the
    judgment. 
    Id. The judgment
    will be set aside only if it is clearly erroneous. 
    Id. A judgment
    is clearly erroneous if the findings do not 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 rights must allege, among other things:
    (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.
    (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 consolidate and restate as:
    (1) the record does not support the trial court’s findings because judicially
    noticed records from other cases that support the findings were not entered into
    evidence; (2) there is insufficient evidence to support the trial court’s
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    conclusions that the conditions that resulted in A.B.’s removal would not be
    remedied and that continuation of the parent-child relationship poses a threat to
    A.B.’s well-being; and (3) it is not in the best interests of A.B. to terminate the
    parent-child relationship.
    I. Judicial Notice
    [16]   At the outset of the termination hearing, the trial court announced it was taking
    judicial notice of several “cases” and then listed cause numbers that included
    the related Family Drug Treatment Court cause number, the underlying
    CHINS proceeding, and five of Father’s criminal cases. Tr. p. 5. DCS also
    requested judicial notice of another criminal 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 records from the judicially noticed
    cases were entered into the record of this case. Therefore, Mother and Father
    argue that the record here does not support the trial court’s findings to the
    extent that those findings are based on judicial 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 may 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 trial court to take judicial notice of the 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 9 of 17
    [17]   Mother and Father waived this argument. Issues not raised 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 for 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 judicial notice and the nature of the fact
    to be noticed. If the court takes judicial notice before notifying a party, the
    party, on request, is still 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 trial court’s action does 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 the material in the
    record. In fact, later in the proceeding, Mother’s attorney expressly
    acknowledged that the trial court had taken judicial notice of one of Father’s
    criminal cases and stipulated that “the information contained therein is
    accurate.” Tr. p. 47. While it is not clear what the trial court meant when it
    said it was taking judicial notice of “cases,” and it is possible that Mother and
    Father did not realize the scope of the judicial notice being taken at the time,
    that scope was certainly clear when the final order was issued. Rule 201
    permitted them to request a hearing at that time to dispute what the trial court
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    noticed or to request that the trial court 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 court, Mother and Father have waived their argument.
    [19]   Waiver notwithstanding, Mother’s and Father’s argument that the trial court’s
    findings are unsupported because the record 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 include 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 records from the judicially noticed underlying
    CHINS case and the Appellee’s brief relied on facts that were, therefore,
    missing from the record on appeal. This 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 court, 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 what DCS did in this case; DCS filed an
    Appellee’s Appendix that contained the relevant 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 was 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 that continuation of the parent-child
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    relationship poses a threat to A.B.’s well-being. Indiana Code section 31-35-2-
    4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish
    by clear and convincing evidence only one of the three requirements of
    subsection (B). In this case, we conclude that there is sufficient evidence to
    support the trial court’s finding that there is a reasonable probability that the
    conditions that resulted in A.B.’s removal will not be remedied. Therefore, we
    need not address the finding that continuation of the parent-child relationship
    poses a threat to A.B.’s well-being.
    [21]   In determining whether the conditions that 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. 2014). 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 trial courts to judge a parent’s
    fitness at the time of the termination proceeding, taking into consideration
    evidence of changed conditions, and balancing any recent improvements
    against habitual patterns of conduct to determine 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 history 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 not evidence upon which a trial court can base its
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    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 parents to submit to drug screening,
    participate in substance-abuse treatment, and participate in home-based
    services. But from March 2013 until March 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 two-months pregnant in January 2015.
    According to the order terminating Mother’s participation in Family Drug
    Treatment Court, she tested positive for illegal substances, including
    methamphetamine and heroin, fifteen times and failed to report for an
    additional twenty drug screens. Father’s probation was revoked twice for illegal
    drug use and he has spent the majority of the last two years incarcerated. He
    has not participated in either substance-abuse treatment or the Father
    Engagement Program to any meaningful extent.
    [23]   Both parents point to their recent sobriety and intention to engage in services
    going forward as evidence that the condition leading to A.B.’s removal will be
    remedied. In addition, Mother 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 January 2015 as well as after March 2015.
    Father argues that he has been sober during the last year, while incarcerated,
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    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 prior 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 substance abuse is supported by the record.
    And the findings of non-compliance and continued substance abuse support the
    trial court’s conclusion that there is a reasonable 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 interests, the trial court must look to the
    totality of the evidence. In re A.D.S., 
    987 N.E.2d 1150
    , 1158 (Ind. Ct. App.
    2013), trans. denied. In so doing, the trial court must subordinate the interests of
    2
    Father asserts that he is in the 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 first 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 incarceration, Father testified that his paycheck typically
    lasted one day due to the amount he spent on illegal drugs. Tr. p. 64. The dispositional order in this case
    clearly required Father to stop using illegal drugs in order 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 the 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 14 of 17
    the parent to those of the child. 
    Id. The court
    need not wait until a child is
    irreversibly harmed before terminating the parent-child relationship. 
    Id. We have
    previously held that the recommendation by both the FCM and CASA to
    terminate parental rights, in addition to evidence that the conditions resulting in
    removal will not be remedied, is sufficient to show by clear 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 resulting 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 statute 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 plan 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 reason, 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 best 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)).
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    I.C. § 31-35-2-4.5(d)(1). Mother and Father further argue that the language of
    the statute indicates that A.B.’s placement with Father’s aunt and uncle is a
    “compelling reason” to conclude that termination of their parental rights is not
    in A.B.’s best interests and that the “effect 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 relationship. 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 parental rights when the child 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. 2001). 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 trial court to find that it is in the best interests of
    the child to retain the parent-child relationship.
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    [29]   The balance of Mother and Father’s argument 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 the 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.
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