In the Matter of the Involuntary Termination of the Parent-Child Relationship of: D.S. (Minor Child) and K.W. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 08 2019, 10:03 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary July 8, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 19A-JT-19
D.S. (Minor Child) and K.W. Appeal from the Marion Superior
(Mother), Court Juvenile Division
The Honorable Marilyn Moores,
Appellant-Respondent,
Judge
v. The Honorable Larry Bradley,
Magistrate
Indiana Department of Child Trial Court Cause No.
Services, 49D09-1806-JT-731
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 1 of 21
Child Advocates, Inc.,
Guardian Ad Litem.
Altice, Judge.
Case Summary
[1] K.W. (Mother) appeals the involuntary termination of her parental rights to her
son, D.S. (Child). Mother presents two issues for our review, which we restate
as:
1. Did the trial court abuse its discretion in not allowing the
admission of Mother’s proffered exhibits?
2. Is the evidence sufficient to support the termination of
Mother’s parental rights?
[2] We affirm.
Facts & Procedural History
[3] Mother has three children, Child (born June 10, 2016) and his two half-sisters,
B.W. (born September 4, 2013) and A.W. (born November 11, 2014)
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 2 of 21
(collectively, the Children). 1 On August 4, 2016, the Children were removed
from Mother’s care 2 due to allegations of neglect and substance abuse. 3 On
August 8, 2016, DCS filed a Child in Need of Services (CHINS) petition
alleging that Mother failed to provide a home that was free from substance
abuse and that when the Children were observed they “had on dirty clothing,
had soiled diapers, had unkempt hair, and appeared to be hungry.” 4 Exhibits at
22. Mother subsequently admitted to the allegations in the CHINS petition.
The court took Mother’s admission under advisement until paternity could be
established.
[4] Initially, the Children were placed with their maternal aunt and uncle.
Approximately a month later, the Children were removed due to safety
concerns and placed with another maternal aunt. In October 2016, placement
changed again because the aunt’s boyfriend no longer wanted the Children in
the home. Thereafter, B.W. and A.W. were placed together in a foster home.
Child, who was then four months old, was placed in a separate, pre-adoptive
foster home where he has remained. When first placed in the foster home,
Child was “withdrawn” and “[s]lept non-stop.” Transcript Vol. II at 13. He did
1
B.W. and A.W. share the same father. They are not part of this appeal.
2
The events that led to intervention by the Department of Child Services (DCS) are not clear from the
record.
3
Mother initially denied any drug use, but she tested positive for methamphetamine, amphetamine, and
marijuana.
4
It was later revealed that Child’s father had sexually molested B.W. and A.W. and that Mother knew of the
molestation.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 3 of 21
not have an interest in eating and did not interact appropriately for his age.
Child’s behaviors improved within a week to ten days of being placed in the
foster home.
[5] On April 3, 2017, the court held a factfinding hearing and adjudicated Child a
CHINS. On May 1, 2017, the court entered its dispositional decree and
parental participation order requiring Mother to complete home-based therapy,
home-based case management, a parenting assessment and follow all
recommendations, and a psychological evaluation and follow all
recommendations.
[6] Since the commencement of the CHINS proceedings, Mother has remained
clean from drugs, and DCS no longer has concerns related to substance abuse.
Mother also completed the court-ordered services and regularly visited Child.
Despite the fact that Mother engaged in the services to reunite her with Child,
DCS remained concerned that Mother is unable to successfully parent Child
and meet his needs without the assistance of service providers. Thus, on March
5, 2018, DCS requested that the permanency plan for Child be changed to
adoption. On July 9, 2018, DCS filed its petition to terminate Mother’s
parental rights. A factfinding hearing was held on November 27, 2018.
[7] At the hearing, the court heard from several service providers. Octavia Lee,
who was assigned as Mother’s family case manager (FCM) in July 2018,
testified that she had reviewed Mother’s file. FCM Lee explained that Mother
had not remedied certain conditions giving rise to the CHINS as shown by the
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 4 of 21
fact that after numerous referrals Mother had not made any progress in terms of
her ability to parent Child. FCM Lee noted that Mother continues to struggle
with parenting Child even after the Children were separated for visitation
purposes so Mother would visit with only one child at a time. She explained
her concern for Child’s safety:
If [Child] was returned to [Mother]’s care, I would be concerned
that his needs would not be meet [sic] due to DCS not being
involved with the service providers and the reminders and the
prompts needed to meet his needs as he continues to grow and
get older. . . . [I]t’s not a safe environment for [C]hild to return
to.
Id. at 82. FCM Lee did not believe that Mother should be given additional time
considering that she had shown no progress in two years and that Child needed
permanency. She believed that termination of Mother’s parental rights was in
Child’s best interests.
[8] Tenea Robinson, a visitation supervisor with Miracle Works, supervised
Mother’s visits with the Children from May 2017 through May 2018. Initially,
Mother visited the Children two to three times a week and eventually, her visits
were increased to every day, Monday through Friday. With the increased
visitation, Child began exhibiting behaviors that were out of the norm,
including biting, hitting, kicking, and throwing things. Child’s foster mother
testified that Child “was coming home from those visits just almost . . .
inconsolable and he didn’t want to sit down for dinner. He was just a different
kid during that time.” Id. at 17. Mother’s visits were reduced, after which
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 5 of 21
Child’s foster mother noted that Child “was just back to his old sweet self” at
home and at daycare. Id.
[9] Over the course of a year, Robinson worked with Mother on setting parenting
goals, including feeding the Children appropriate meals, being able to control
unruly behaviors displayed by the Children, and giving the Children boundaries
and having them respect those boundaries. Robinson also tried to help Mother
with understanding when and how to discipline the Children. Despite her
efforts, Mother continued to struggle with parenting, controlling the Children,
and meeting their needs without repeated reminders and redirection during her
visits. Robinson was concerned about Mother’s lack of supervision of Child,
who aged from an infant to a young toddler, when she was interacting with
B.W. and A.W. during the visits when all of the Children were present.
[10] Robinson eventually created a chart as a visual aid for Mother to remind her of
the things she needed to do to parent the Children during her visits with them.
Robinson believed the chart was necessary because Mother “wasn’t fully
grasping the concept of parenting [the Children] correctly” and that it might
help Mother “do things more independently.” Id. at 41. Most of what they
worked on “came down to safety and discipline.” Id. at 48.
[11] From around October 5 through November 17, 2017, Mother was permitted to
have unsupervised visits. During one visit, Robinson stopped in and was
concerned whether the Children had eaten. Mother could not remember if she
fed them, but then said she fed them breadsticks. During another visit
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 6 of 21
Robinson noted that there was an unidentified man present. Robinson was
concerned because around this same time allegations of inappropriate touching
by B.W. and A.W. started coming up again. During a third visit, Robinson
observed people in Mother’s home as she walked to the door, but she did not
see the individuals after Mother let her inside the home because Mother “hid
them in her bedroom . . . to make it seem like no one was there.” Id. at 43.
Mother knew that no one was supposed to be present during her unsupervised
visits. When other people were present, Robinson found it necessary to stay for
the remainder of the visit.
[12] Robinson testified that at times, Mother displayed the ability to parent the
Children on her own, but that she would then regress. Overall, Robinson
characterized Mother’s progress as “back and forth” and opined that if Mother
were given additional time, it would “continue to be a back and forth process.”
Id. at 44.
[13] In August 2018, Stacy Batts, a visitation facilitator and homemaker parent aide
with Aspiring Transformations, began working with Mother a couple times a
week. Initially, they set parenting and structure goals to strengthen the
parenting bond between Mother and Child. Batts noted that Mother and Child
had bonded and that Child was always excited to see her. Of concern to Batts
was that Mother engaged in a permissive style of parenting, meaning that she
allowed the Children to manage her and manage themselves, despite their
young ages. She observed that B.W. and A.W. hit and kick Mother and that
they would put their hands down their pants. During one specific incident,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 7 of 21
A.W. sat on Mother’s lap and fondled Mother’s breast. Batts had to address the
behavior and explain to the girls the difference between a good touch and a bad
touch.
[14] Batts also noted that while being observed, Mother tended to model parenting
techniques they had worked on, but that if Mother did not think she was being
watched, she would resort to her permissive parenting style. Batts testified that
“[a] lot of times” children who are parented in this way “dominate[] the
relationship” and “struggle with trust of the parents” because they lack a sense
of stability. Id. at 27. Although Mother arrived to her visits prepared with
adequate food and appropriate toys and interacted with Child, Batts believed
that Mother had made no progress in terms of her ability to parent Child. Batts
stated, “it would concern me to have her by herself with her kids.” Id. at 35.
[15] Batts testified that she had safety concerns if Child were placed in Mother’s care
because Mother continued to struggle “in making appropriate parenting
choices.” Id. at 29-30. She opined that “without a watchful eye over [Mother],
we would see her in the system again.” Id. at 28. When questioned about
statements in her “report” that she had no safety concerns, Batts explained that
she had no safety concerns given the controlled setting of the visit. Id. at 35.
Batts never recommended that Mother’s visits with Child be unsupervised.
[16] Guardian ad Litem (GAL) Jennifer Ankney was assigned to Mother at the start
of the CHINS proceedings and has served in that capacity throughout the
termination proceedings. GAL Ankney observed visits between Mother and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 8 of 21
the Children and characterized them as “chaotic”. Id. at 61. In her opinion
Child’s well-being would be threatened if he were returned to Mother’s care
because Mother lacks “the simplest of natural instincts of … being a parent”.
Id. at 73-74. She noted that Mother “seems to lack the ability to maintain or
retain parenting education that . . . she’s been provided. It’s very difficult for
her to parent all three children at the same time.” Id. at 63. She was concerned
that Mother had made no progress in her ability to parent over the course of
two years and that as Child gets older, Mother will not know how to handle a
situation without “constant one on one prompting and redirection” provided by
service providers. Id. at 67. Given that the case has been ongoing for over two
years, GAL Ankney testified that termination of Mother’s parental rights was in
Child’s best interests so that he would not continue to “languish . . . while we’re
trying to see . . . if [Mother] can move forward.” Id. at 70.
[17] Michell Walkey-Thornburgh is a therapist for B.W. and A.W. and had the
opportunity to observe a visit between Mother and the Children in July 2018.
She characterized the visit as “chaos,” with the Children running around,
hitting each other, kicking Mother, and being disrespectful. Id. at 55. She
observed B.W. lashing out at Mother and saw Child repeatedly hitting A.W. in
the face. She noted that Mother was unable to control the situation and that it
created “a very unsafe environment.” Id. at 55. At the time of the termination
hearing, Mother was having visits with each child individually due to her
inability to control them and the situation when they were together.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 9 of 21
[18] Mother testified that she suffers from a mild intellectual disability caused by
losing oxygen when she was younger. Mother recognizes that she may be
“slow” as compared to the average person but asserts that she is able to
understand how to parent and discipline the Children. Id. at 7. Mother was
employed for a short time but was unemployed at the time of the termination
hearing. Mother resides in an apartment in Franklin and receives
approximately $750 a month in disability benefits. Prior to DCS involvement,
Mother recognized that she was struggling with stress and, on her own, sought
help from Mary Beth Mahan, a licensed mental health counselor and a licensed
clinical addiction counselor. Mahan worked with Mother on dealing with
stress and better parenting. Mahan saw Mother on and off throughout DCS’s
involvement. Mahan was of the opinion that Mother had the ability to care for
Child on her own. After having partially observed ten to twelve of Mother’s
supervised visits, Mahan testified that she has “no concerns,” safety or
otherwise, with Child being in Mother’s care. Id. at 90.
[19] At the conclusion of the evidence, the court took the matter under advisement.
On December 4, 2018, the court entered its order terminating Mother’s parental
rights with regard to Child. 5 Mother now appeals. Additional facts will be
provided as necessary.
5
The trial court terminated Father’s parental rights on November 13, 2018. Father does not participate in
this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 10 of 21
Discussion & Decision
1. Exclusion of Evidence
[20] Mother argues that the court abused its discretion by prohibiting her from
introducing evidence she claims was “highly probative of her fitness as a
parent.” Appellant’s Brief at 15. Specifically, prior to the termination hearing,
Mother sought to offer three exhibits, which were visitation reports written by
Batts, Mother’s most recent visitation supervisor. DCS objected to the reports
on grounds that they were “uncertified, hearsay.” Transcript Vol. II at 6. The
court found that the documents were hearsay and ruled that they “will not be
admitted.” Id. At that time, Mother offered no alternative basis for
admissibility of the documents. On appeal, Mother argues that her proffered
exhibits were admissible under several different theories, including statement of
a party opponent, pursuant to CHINS statutes, and out of fundamental fairness.
She contends that exclusion of such evidence impacted her substantial rights.
[21] “In order to properly preserve an issue on appeal, a party must, at a minimum,
‘show that it gave the trial court a bona fide opportunity to pass upon the merits
of the claim before seeking an opinion on appeal.’” In re B.R., 875 N.E.2d 369,
373 (Ind. Ct. App. 2007) (quoting Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind.
2006)), trans. denied. Thus, issues not raised before the trial court are waived on
appeal. Id. Mother did not present to the trial court the arguments she makes
on appeal with regard to the admissibility of her proffered exhibits. Mother has
therefore waived this issue for our review. See Baxendale v. Raich, 878 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 11 of 21
1252, 1258 (Ind. 2008) (when there is “no showing what the anticipated
evidence would have been,” an argument for admission of evidence is
precluded on appeal).
2. Sufficiency
[22] In challenging the court’s termination order, Mother first argues that the court’s
findings are insufficient because the court—in Findings 13, 17, 18, and 22—
merely recited the testimony presented at the hearing. The challenged findings
provide:
13. The major concern of the IDCS and Guardian ad Litem is
[Mother]’s ability to adequately and safely parent a child
due to her comprehension problems.
***
17. Tenea Robinson worked with [Mother] while supervising
parenting time from May of 2017 to May of 2018. Given
the length of time and help given, with a lack of success,
Ms. Robinson finds it questionable if [Mother] would be
able to parent by herself.
18. Parenting aid and visit supervisor Stacy Batts, who worked
with [Mother] into August of 2018, has not seen anything
that would lead her to believe that [Mother]’s parenting
would work with [Child] or any of the children, and they
could be placed in danger.
***
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 12 of 21
22. During the CHINS proceeding, [Mother] was given the
opportunity to have at least fifteen child and family team
meetings at which time she was observed as struggling to
understand information and being unable to summarize
information provided.
Appellant’s Appendix Vol. II at 58-59.
[23] The court is statutorily required to “enter findings of fact that support”
termination of the parent-child relationship. Ind. Code § 31-35-2-8(c). We have
held that “[a] court . . . does not find something to be a fact by merely reciting
that a witness testified to X, Y, or Z. Rather, the trier of fact must find that
what the witness testified to is the fact.” Moore v. Jasper Cty. Dep’t of Child Servs.,
894 N.E.2d 218, 224 (Ind. Ct. App. 2008) (quoting In re T.J.F., 798 N.E.2d 867,
874 (Ind. Ct. App. 2003)). The trial court’s findings, set forth above, are not a
mere recitation of testimony presented at the hearing. It can be inferred from
the court’s findings that the court adopted the testimony of the witnesses.
There is no error in this regard.
[24] Mother also argues that several of the court’s findings as not being supported by
the evidence. Mother first challenges Finding 26, which provides:
26. On March 5, 2018, the CHINS Court changed [Child]’s
plan for permanency to adoption with the Court finding,
in-part, that [Mother] still needed consistent prompting
and reminders for basic parental needs.
Appellant’s Appendix Vol. II at 59. Mother asserts that this finding cannot
support termination because it is based on a finding in the CHINS action,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 13 of 21
which has a lower burden of proof. Mother’s challenge in this respect is
unavailing. In Finding 26, the court simply stated when and why the
permanency plan was changed to adoption. Further, the permanency order
was admitted as an exhibit without any objection from Mother.
[25] Mother also claims that the evidence does not support Finding 19—in which
the trial court found: “Due to the chaos that erupted during parenting time,
[Mother] now has sessions with [Child] separately.” Id. We disagree. GAL
Ankney and Walkey-Thornburgh both testified as to the chaos that occurred
during Mother’s visits with the Children. FCM Lee also testified that because
of Mother’s inability to control the Children when they were all together,
Mother’s visits were changed so that she could visit each child separately. The
court’s Finding 19 is supported by the evidence.
[26] Finally, Mother challenges Finding 23 and Finding 25 as not supported by clear
and convincing evidence. Specifically, with regard to the former, the court
found that “[s]afety concerns extend to who [Mother] would allow around
[Child], and [Mother]’s ability to understand why certain individuals would
present as safety concerns.” Id. As set forth above, there was testimony about
safety concerns that arose when, during her unsupervised visits, Mother
permitted an unidentified man to be around Child and that Mother also had
others in her home when Child was present.
[27] In Finding 25, the court found that Mother “does not believe she needs services
but also believes she needs another year to reunify with [Child].” Id. We read
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 14 of 21
such as being consistent with Mother’s testimony, wherein she stated that she
wanted to prove to DCS that she could be a better parent. Finding 23 and
Finding 25 are supported by evidence in the record.
[28] Mother next argues that the statutory elements to terminate Mother’s parental
rights to Child were not established by clear and convincing evidence. When
reviewing the termination of parental rights, we will not reweigh the evidence
or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. In deference to the
trial court’s unique position to assess the evidence, we will set aside its
judgment terminating a parent-child relationship only if it is clearly erroneous.
In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the
evidence and inferences support the decision, we must affirm. Id.
[29] Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, 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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 15 of 21
(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[.]
Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
evidence that termination is in the best interests of the child. I.C. § 31-35-2-
4(b)(2)(C).
[30] Mother challenges the court’s findings as to subsection (b)(2)(B)(i) and (ii). We
note that DCS was required to establish only one of the three requirements of
I.C. § 31-35-2-4(b)(2)(B) by clear and convincing evidence before the court
could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.
App. 2003). We focus our inquiry on the trial court’s conclusion under
subsection (b)(2)(B)(i)—that is, whether a reasonable probability exists that the
conditions resulting in Child’s removal and continued placement outside the
home will not be remedied.
[31] In making this determination the trial court must judge a parent’s fitness to care
for her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. A.B. v. Ind. Dep’t of Child Servs., 61 N.E.3d
1182, 1189 (Ind. Ct. App. 2016). The court may also consider the parent’s
response to the services offered through DCS. Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 16 of 21
[32] Each DCS service provider testified that Mother had made no progress and that
she continues to struggle with her ability to safely parent Child. They all
expressed concern for Child’s safety if he were to be returned to Mother’s care.
According to FCM Lee, Mother has not made any progress in terms of her
ability to parent Child, despite over two years of services. FCM Lee expressed
concern that Mother would not be able to meet Child’s needs without constant
oversight of service providers and that she did not believe Mother was capable
of making the needed progress if offered additional services. Batts, who noted
some positive aspects of Mother’s relationship with Child, was concerned for
Mother to be alone with Child and that “without a watchful eye over [Mother],
we would see her in the system again.” Transcript Vol. II at 28. GAL Ankney
testified that she feared for Child’s safety because of Mother’s inability to parent
Child. GAL Ankney perhaps best described Mother’s lack of parenting skills
when she testified that Mother lacks “the simplest of natural instincts of …
being a parent.” Id. at 73-74. Service providers also expressed concerns that
Mother would not be able to provide Child with adequate supervision, that she
would allow inappropriate people to be around Child, and that she would not
be able to provide for his most basic needs. During visits, Mother needed
prompting and constant reminders to parent Child.
[33] Mother argues that the court should have considered her ability to parent only
Child, taking B.W. and A.W. out of the equation. The majority of Mother’s
visitations were with all three children. Several service providers testified that
Mother could not handle all three children at one time and that the visitations
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 17 of 21
were often chaotic. Even if Child was the sole child in Mother’s care, the
service providers’ concerns about Mother’s inability to parent Child remain.
She is incapable of making appropriate parenting decisions to provide stability
and safety for Child. In its effort to reunify Mother with Child, DCS conducted
extra team meetings and service providers came up with alternative measures to
help Mother parent Child. None of these efforts proved successful, however, as
Mother continued to need reminding and prompting in terms of parenting
Child after more than two years of services.
[34] Mother also argues that the court should have given more consideration in her
favor to the fact that she voluntarily sought and participated in counseling
services. Mother is to be commended for her efforts to seek out counseling, but
her argument in this regard is simply a request for this court to reweigh the
evidence, which we will not do.
[35] Based on the evidence presented at the termination hearing, the court found:
“[Mother] has had two years of services, but due to an unfortunate inability to
grasp and remember parenting skills, she has made little progress in being able
to safely and adequately parent. [Child]’s needs will continue to change as he
ages.” Appellant’s Appendix Vol. II at 59. This finding is supported by the
evidence and supports the trial court’s conclusion that there is a reasonable
probability Mother will not remedy the conditions resulting in Child’s
continued placement outside the home.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 18 of 21
[36] Mother also argues that the trial court’s conclusion that termination of her
parental rights was in Child’s best interests is not supported by clear and
convincing evidence. In determining whether termination of parental rights is
in the best interests of a child, the trial court is required to look beyond the
factors identified by DCS and consider the totality of the evidence. In re J.C.,
994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must
subordinate the interest of the parent to those of the child, and the court need
not wait until a child is irreversibly harmed before terminating the parent-child
relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,
199 (Ind. Ct. App. 2003). Our Supreme Court has explained that
“[p]ermanency is a central consideration in determining the best interests of a
child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).
[37] We have held that “the recommendations of the case manager and court-
appointed advocate 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.”
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). Here, FCM Lee and GAL
Ankney both recommended termination of Mother’s parental rights to Child.
Both service providers were of the opinion that Mother had made no progress
in terms of her ability to parent Child in over two years, and therefore, Child’s
need for permanency was now the central consideration. This is sufficient to
support the court’s conclusion that termination is in Child’s best interests.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 19 of 21
[38] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id. We
have no doubt that there is a bond between Mother and Child, and we
recognize that Mother has participated in the court-ordered services. However,
Mother has been unable to successfully demonstrate an ability to safely parent
Child.
[39] Contrary to Mother’s assertion, termination was not simply based on Mother’s
parenting style in a generic sense. While some service providers described
Mother as having a permissive parenting style, the service providers consistently
expressed concern that Mother is incapable of parenting Child and providing a
safe environment.
[40] The trial court listened to the testimony of all witnesses, observed their
demeanor, and judged their credibility. As a reviewing court we must give
proper deference to the trial court. In re T.F., 743 N.E.2d 766, 776 (Ind. Ct.
App. 2001), trans. denied. Based on the totality of the evidence, we conclude
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 20 of 21
that the evidence supports the trial court’s determination that termination of
Mother’s parental rights was in Child’s best interests.
Judgment affirmed.
Kirsch, J. and Vaidik C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-19 | July 8, 2019 Page 21 of 21