In the Matter of the Termination of the Parent-Child Relationship of L.M. (Child) and G.J. (Mother) and A.M. (Father) G.J and A.M. v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 27 2018, 9:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Heard Curtis T. Hill, Jr.
Vanderburgh County Public Defender’s Attorney General of Indiana
Office
Evansville, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 27, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of L.M. (Child) and G.J. 18A-JT-619
(Mother) and A.M. (Father); Appeal from the Vanderburgh
Superior Court
The Honorable Brett J. Niemeier,
G.J (Mother) and A.M. (Father), Judge
Appellants-Respondents, Trial Court Cause No.
82D04-1708-JT-1484
v.
The Indiana Department of
Child Services,
Appellee-Plaintiff
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 1 of 20
May, Judge.
[1] G.J. (“Mother”) and A.M. (“Father”) (collectively “Parents”) appeal the
involuntary termination of their parental rights to L.M. (“Child”). Parents
argue the Department of Child Services (“DCS”) did not present sufficient
evidence the conditions resulting in Child’s removal would not be remedied, the
continuation of the parent-child relationship posed a threat to Child, and
termination was in the best interest of Child. We affirm.
Facts and Procedural History
[2] Mother and Father are the biological parents of Child born February 4, 2016.
On March 4, 2016, Parents were homeless and received housing through
Aurora’s Vision 1505 program. 1 Sierra Riordan was assigned as Parents’ case
manager at Vision 1505. Because Child’s weight was fluctuating, a
Vanderburgh County public health nurse was also assigned to monitor Child’s
situation.
[3] Throughout Parents’ relationship, Mother had alleged domestic violence but
then recanted her allegations. In 2015, Mother requested a No Contact Order
1
Aurora is an organization that assists the homeless. http://auroraevansville.org/mission/ (last visited
August 13, 2018). Vision 1505 provides one to three bedroom housing for “homeless families determined to
have severe housing barriers.” http://auroraevansville.org/services/vision-1505/ (last visited August 13,
2018).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 2 of 20
(“NCO”) but then requested it be lifted. Mother alleged Father had raped her
and obtained another NCO, but Mother again had it dismissed.
[4] On March 30, 2016, during an altercation between Parents, Father threw a
baby bottle at Mother when she was holding Child. The bottle bounced off
Mother and hit Child in the face. Parents took Child to the emergency room.
Personnel at the emergency room filed a report with DCS.
[5] DCS filed a petition to adjudicate Child as a Child In Need of Services
(CHINS) on April 4, 2016. Child was allowed to remain with Mother, but
Father’s access to Child was restricted. Parents did not agree with this
restriction. In addition, due to the domestic violence, Father was banned from
all Aurora property, including Vision 1505 where Mother and Child lived. The
court issued another NCO, but Parents violated it by spending time together.
[6] On April 13, 2016, the trial court held an initial hearing on DCS’s petition.
Parents admitted Child was CHINS and Child was adjudicated as such. Child
was allowed to stay with Mother if Parents complied with DCS. Later that day,
DCS removed Child from Mother’s care after a Child and Family Team
Meeting (“CFTM”) wherein Parents challenged DCS’s method of
implementing the court’s orders. The trial court confirmed the removal on
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 3 of 20
April 14, 2016. (Ex. Vol. IV at 202.) 2 Family Case Manager Maximilian
Lisenbee (“FCM Lisenbee”) from DCS was assigned to the family.
[7] On May 23, 2016, the trial court entered its dispositional decree ordering
Parents to participate as agreed in the Parental Participation Plan; to submit to
psychiatric and psychological testing; and to attend scheduled visitation.
Mother was also ordered to submit to an assessment with Guardianship
Services of Southwestern Indiana and to complete parenting classes. Father
was ordered to have an “intensive parent aide [to assist] with housing and
parenting one on one[,]” (id. at 209); to obtain a mental health assessment; to
participate in the Amends 3 program; to “participate in supervised and
monitored visitation services; sign all releases necessary for FCM to monitor
compliance; keep all appointments; and notify the case manager of address,
household composition, employment and telephone number; and notify the
FCM of any changes within 48 hours of said change.” (Id.)
[8] While still with Parents, Child’s weight would drop on the weekends when the
public nurse did not check in. Parents started receiving pre-mixed formula
because the public nurse was concerned Parents were not mixing the formula
properly. When first placed with the foster family, Child was so “thin and
2
As each exhibit is quite lengthy, we will reference the PDF page numbers assigned to pages in the electronic
volumes of exhibits.
3
The Amends program provides classes “specially designed to provide the most safe and accountable
intervention to end all levels of abusive behavior; not simply physical abuse.”
http://www.amendsprogram.com/ (last visited August 13, 2018).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 4 of 20
emaciated,” Foster Mother was “afraid to even hold her.” (Tr. Vol. III at 14.)
After placement, Child’s weight stabilized and Child exhibited appropriate
growth.
[9] As a child, Mother was diagnosed with Fetal Alcohol Syndrome (“FAS”).
Mother has also been diagnosed with a chromosomal translocation that could
affect development. Dr. Karen Eisenmenger completed mental health
assessments and diagnosed Mother as “Major Depressive Episode, Moderate;
and Intellectual Disability, Mild.” (Ex. Vol. I at 283.) Dr. Eisenmenger
observed and recommended the following for Mother:
1) [Mother]’s poor adaptive functioning and low working
memory are concerning; she will likely continue to need
community support and monitoring in order to live safely.
Both problems are likely related to having fetal alcohol
syndrome. Problem-solving, judgment, and reasoning skills
are also likely impaired. These factors would likely make
parenting without assistance and/or supervision problematic.
2) [Mother] should be assessed by a psychiatrist to determine
whether her medication is adequate for managing her
depression symptoms. Medication compliance should also be
monitored, since she stated her boyfriend does not want her
taking the medication and she may not have the reasoning
skills to make her own decision.
3) [Mother] may benefit from continued individual parenting
support to help her learn to assist in the care of her child
appropriately.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 5 of 20
4) If [Mother] receives disability benefits, she will likely need a
payee to handle her finances; if a family member cannot be
utilized, she may require a court-appointed payee.
(Id. at 284.)
[10] Mother received homebased therapy with Laura Lochmueller at Ireland Home
Based Services (“IHBS”). Lochmueller observed Mother was inconsistent at
maintaining the cleanliness of her apartment and left “medication and cleaning
supplies” in Child’s reach. (Tr. Vol. II at 140.) When Lochmueller pointed out
the problems, it took “continued prompting” in order for Mother to understand
the problem required resolution. (Id. at 141.) Lochmueller noted Mother is
unable to multi-task. This was worrisome as Mother could not keep track of
Child while attending to any other task.
[11] A guardian was appointed for Mother for a short period of time. The guardian,
Arin Norris, assisted Mother with her day-to-day life, such as understanding the
questions during the mental health evaluation and filling out the paperwork to
file for another protective order (“PO”). Norris thought the PO was
appropriate because Mother told Norris, amongst other people, Father had
slapped her three times resulting in a bloody nose. However, later, Mother
stated she did not want a PO and she requested it be lifted. The guardianship
was eventually terminated due to Mother’s dishonesty about her relationship
with Father. In addition, Father threatened Norris.
[12] Riordan, who was Parents’ case manager from Vision 1505, assisted Mother on
a daily basis, Monday through Friday. Riordan kept track of Mother’s
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 6 of 20
appointments, provided transportation, and helped Mother apply for disability
benefits. Riordan made posters for Mother to put around her apartment
explaining how to complete certain tasks around the apartment, such as how to
work the thermostat and how to cook certain items in the microwave. When
Mother received aid to assist with the purchase of food, Riordan would help her
shop for groceries. When Mother did not have food to take to visitation with
Child, Riordan would supply it.
[13] On June 28, 2016, Father completed a biopsychosocial evaluation 4 with Dr.
Eisenmenger. Dr. Eisenmenger’s diagnostic impressions of father were that he
reported he had been staying sober, he possibly suffered from post-traumatic
stress disorder, and he possibly suffered from a mild neurocognitive disorder.
Dr. Eisenmenger recommended Father submit random drug and alcohol
screens; complete a drug and alcohol assessment; attend parenting classes;
attend anger management classes; and submit to further psychological testing
“to determine his level of cognitive functioning, any other psychological
disorders, parenting views, and abuse potential.” (Ex. Vol. I at 270.) Father
made appointments at Southwest Behavioral Healthcare, but he did not
cooperate with services and his file was closed for lack of engagement.
4
Dr. Eisenmenger explained the “biopsychosocial clinical interview gets a lot of background information and
includes everything that’s been going on with DCS, a lot of psychiatric background, abuse background.” (Tr.
Vol. II at 166.) If she can, she will make a diagnosis on that basis. However, she stated sometimes a person
requires more testing. For Mother, both interviews—biopsychosocial and psychological—were done on the
same day. Father’s interviews occurred in two different sessions and resulted in two different reports. (See id.
at 167 (Dr. Eisenmenger’s explanation for the difference in the reports).)
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 7 of 20
[14] On November 10, 2016, Father completed a psychological evaluation with Dr.
Eisenmenger. Dr. Eisenmenger’s diagnostic impressions were:
Child Physical Abuse, Suspected (per DCS referral
information)[;] Stimulant Use Disorder, In Sustained Remission
(per self-report)[;] Cannabis Use Disorder, In Sustained
Remission (per self-report)[;] Narcissistic Personality Disorder,
With Dependent traits[;] Personal History of Physical Abuse in
Childhood[;] Personal History of Sexual Abuse in Childhood
(Id. at 274.)
[15] Dr. Eisenmenger recommended:
1) [Father] should be required to remain sober in order to parent
safely. Random alcohol and drug testing would support and
document his sobriety. Drug and alcohol assessment may be
helpful to identify any further services that may help [Father] to
remain substance free.
2) [Father] may benefit from parenting classes to increase his
parenting knowledge and help him cope with parenting stress,
especially since [Child] is so young.
3) Due to his invalid score on the CAPI-VI abuse measure, 5 as
well as the allegations of domestic violence and his own alleged
experiences of abuse, [Father] may benefit from anger
management classes and/or batter’s [sic] intervention classes.
4) [Father] should obtain and maintain gainful employment in
order to support himself and his family. No psychological
5
Dr. Eisenmenger’s report notes Father’s “[a]buse score on the CAPI-IV could not be interpreted due to
invalid responding.” (Ex. Vol. I at 274.)
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 8 of 20
dysfunction that would preclude continuous employment was
discovered.
(Id. at 275) (footnote added).
[16] Father received a parent aide and supervised visitation through IHBS. On
November 10, 2016, IHBS stopped providing those services when Father
“threaten[ed] to throw a service provider through the window.” (Tr. Vol. III at
39.) Thereafter, Raintree Consulting provided Father with a parent aide and
supervised visitation. They too stopped visits “due to [Father]’s aggressive
behavior and also being rude towards the service provider.” (Id. at 40.)
Throughout the case, Father sent FCM Lisenbee “long rants on text messages
[and] voicemails[.]” (Id. at 41.) Father was asked to stop doing so by the trial
court, but he did not comply. Father completed the Amends program in
December 2016. However, domestic violence was still present in Parents’
relationship, as Mother reported Father had slapped her and she obtained a
protective order in February 2017.
[17] On August 21, 2017, DCS filed a Petition for Termination of Parental Rights.
On October 17, 2017, Parents married. Mother was arrested for domestic
violence in December 2017 and was facing charges for domestic battery at the
time of the termination hearing. Another NCO was in place between Parents.
[18] On January 18, and February 15, 2018, the trial court held fact-finding hearings
on DCS’s termination petition. At these hearings, service providers noted
Mother completed all of the court-ordered tasks and Father completed many of
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 9 of 20
the court-ordered tasks; however, neither Parent showed any progress or
improvement. Mother was still unable to maintain a safe home environment.
Father still exhibited aggressive and hostile behaviors. Both Parents still
engaged in domestic violence. On February 15, 2018, the trial court issued its
order terminating Parents’ rights to Child.
Discussion and Decision
[19] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of 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
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[20] “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. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 10 of 20
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[21] To terminate a parent-child relationship, the State must allege and prove:
(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; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[22] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 11 of 20
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and 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.” 6 Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[23] Parents challenge the trial court’s conclusions that the conditions under which
Child was removed were not likely to be remedied and continuation of the
parent-child relationship posed a threat to Child’s well-being. As Indiana Code
section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only decide if
the trial court’s findings support one of these requirements. See In re L.S., 717
N.E.2d at 209 (because statute written in disjunctive, court needs to find only
one requirement to terminate parental rights). Parents also argue termination is
not in Child’s best interest.
Reasonable Probability Conditions Would Not Be Remedied
[24] The trial court must judge a parent’s fitness to care for the child at the time of
the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
Evidence of a parent’s pattern of unwillingness or lack of commitment to
address parenting issues and to cooperate with services “demonstrates the
6
Herein, Parents do not challenge the trial court’s findings, and thus we accept them as true. See Madlem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court,
they must be accepted as correct.”).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 12 of 20
requisite reasonable probability” that the conditions will not change. Lang v.
Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
[25] When assessing a parent’s fitness to care for a child, the trial court should view
the parents as of the time of the termination hearing and take into account the
changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,
854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also
“evaluat[e] the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d
509, 512 (Ind. Ct. App. 2001), trans. denied.
[26] Parents argue termination is not warranted because they both sufficiently
complied with the court’s order on services. 7 While we review the changes in
the conditions under which Child was removed from Parents’ care, we also
consider “those bases resulting in continued placement outside the home.” In re
A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Parents do not
challenge the trial court’s findings supporting its conclusion the conditions
under which Child was removed would not be remedied, which include:
7
Parents argue DCS “claimed the provider would no longer supervise the visits” (Br. of Appellants at 21),
when in fact the “provider sent [FCM Lisenbee] an email stating they would in fact continue supervising the
visits.” (Id.) Parents argue DCS ignored this email and “never brought it to the Court’s attention.” (Id.)
However, this additional fact does not change our decision to affirm the trial court as the facts found by the
trial court are more than adequate to support its conclusions, regardless of this information. Additionally, we
note Parents also did not bring this information to the trial court’s attention.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 13 of 20
B. FACTS RELATING TO CHILD’S CONTINUED
REMOVAL FROM PARENTS’ HOME AND CARE:
*****
4. Mother is currently facing criminal charges for
domestic battery due to a physical altercation which
occurred between her and [F]ather in December of 2017.
Despite a no contact order being issued in that matter,
both [M]other and [F]ather admit to having continued
contact since its issuance. Even after being made aware
during the pending CHINS that domestic violence is an
issue which DCS and the Court expected to have
remedied, [P]arents have continued to violate protective
orders and to engage in physical altercations, indicating
that the violent and abusive behavior seen at the outset of
the case is not likely to be remedied.
*****
10. While in the [Aurora] program, Mother has been
offered numerous services and near constant supervision
due to her limitations. Mother is only able to cook by
using a microwave, and even then the instructions must be
uncomplicated. Mother is unable to manage finances or
food stamps, and has to have someone assist her with
shopping for food. Mother struggles with proper medicine
management. Mother does not understand how to operate
things like a thermostat and has to be provided detailed
instructions and assistance. Mother has difficulty with
hygiene and is often unkempt due to not washing her
clothing. Mother gets disoriented to time and date, and
often thinks she has been away from her home for a short
time when in actuality it has been days.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 14 of 20
11. Most critically, Mother is unable to understand how
to care for [C]hild. When [C]hild was young, [M]other
and [F]ather were not providing the correct amount of
formula in [C]hild’s bottle. More recently, while shopping
with Ms. Riordan, Mother asked about buying steaks to
make for [Child] to take to visitation although [C]hild
didn’t have teeth. On multiple occasions, [M]other would
not have had food for her visits with [C]hild – and
therefore the visits would have been cancelled – had Ms.
Riordan not assisted her with shopping and transportation
or provided food. Although [M]other has obtained baby
items like clothes and bedding with the help of Father and
Visions [sic] 1505, it is clear that [M]other does not have
the capability of providing care for [C]hild if left alone.
*****
15. [Lochmueller] noted that [M]other had difficulty
multi-tasking and could only focus on one person or issue
at a time, which was a concern given that [M]other would
need to be able to watch [C]hild while doing other things if
[C]hild were in her care.
*****
17. During the pending CHINS matter, [M]other also
participated in a psychological evaluation with Dr. Karen
Eisenmenger. Dr. Eisenmenger found that [M]other’s IQ
is 74, which is in the low/borderline range, and also found
that [M]other’s working memory and processing speed are
low. Based on her scores, it appeared that [M]other is
easily manipulated. Most concerningly, Dr. Eisenmenger
believes that [Mother] will not be able to take care of
herself without help.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 15 of 20
18. Dr. Eisenmenger also conducted an evaluation of
[Father]. Father was diagnosed with narcissistic
personality disorder. People with this disorder generally
are observed to be self-involved and to exploit other
people. A concern noted by Dr. Eisenmenger was that in
explaining the family’s involvement with DCS, [F]ather
stated that while he did not mean to hit [C]hild with the
bottle during an argument with [M]other, that he did in
fact mean to hit [M]other; additionally, Dr. Eisenmenger
found that [F]ather may not understanding [sic]
developmental needs, that he has low nurturing skills, and
that he may expect [C]hild to meet his needs rather than
the other way around.
*****
22. Father is a very large man who has been very
aggressive and hostile with the professionals attempting to
assist the family, including staff at shelters, staff at Vision
1505, and the DCS family case manager. In [sic] example,
he is banned from Visions [sic] 1505 for two years,
[F]ather had to be removed from Doctor Elderbrook’s [sic]
office, the Father called the FCM a racist and over time
the FCM felt so threatened by [F]ather he asked for a
protective order against the Father. In the history of this
judge the DCS has never gone to such extreme measures.
This Court had to admonish [F]ather on 8-3-16 to stop
being inappropriate with DCS staff and finally on 3-1-17
had to order no more contact between the DCS and the
Father, unless it was by mail or through his attorney. The
father has even threatened to throw an [IHBS] worker out
the window, so those services stopped. Interestingly, the
Father has never been inappropriate while in court with
this judge, so clearly he can control himself when he wants
to even in the most anxious or emotional setting, like this
termination trial.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 16 of 20
*****
25. The Father has completed a domestic violence
program and is being mentored, but clearly has not learned
how to control his behavior around people of authority
and professionals.
*****
27. Father has repeatedly violated the Court’s orders
concerning contact with [M]other.
28. Between the first termination of parental rights
hearing and the second day of trial, [M]other and [F]ather
also were married, and indicated at trial that their
relationship will continue.
29. In the event that one of the parent’s rights were not
terminated, it is clear that the [P]arents will stay together
no matter what a court orders and this puts the [C]hild at
tremendous risk, because of their chaotic relationship.
Nothing demonstrates this more than the protective orders
and police reports. These [P]arents are their own worst
enemy and while they will always blame the DCS and this
Court, nothing is further from the truth.
*****
31. The Mother doesn’t trust the Father with the baby.
Likewise, the Father doesn’t trust [M]other with the baby,
but yet they want to parent [C]hild together.
(App. Vol. II at 18-23.)
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 17 of 20
[27] Although we recognize Parents’ substantial compliance with court-ordered
services, the service providers were unable to say either parent had actually
made any progress. Mother’s ability to maintain a safe and clean home
environment is marginal, at best. Father has had multiple service providers
because of his threatening behavior toward them, including threats to FCM
Lisenbee such that the trial court had to limit Father’s interactions with DCS.
Additionally, throughout these proceedings, regardless whether a protective
order was in place, both parents stated they would not allow the trial court’s
orders to keep them from each other or Child. Parents were repeatedly seen in
contact with one another when they should not have been. The trial court’s
unchallenged findings support its conclusion that the conditions under which
Child was removed from Parent’s care would not be remedied. 8 See Matter of
A.Q., 2018 WL 3015091, at *6 (Ind. Ct. App. June 18, 2018) (termination
appropriate when parents, although compliant with services, had made no
progress), trans. pending.
Best Interest of Child
[28] In determining what is in Child’s best interests, the juvenile court is required to
look beyond the factors identified by DCS and consider the totality of the
evidence. See In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.
8
As we conclude the findings support the trial court’s determination that the conditions that kept Child from
returning to Parents would not be remedied, we need not determine whether the findings also supported the
trial court’s determination that continuation of the parent-child relationship posed a threat to the well-being
of Child. See, e.g., In re L.S., 717 N.E.2d at 209 (court needs find only one as statute written in the
disjunctive).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 18 of 20
dismissed. A parent’s historical inability to provide a suitable environment,
along with the parent’s current inability to do so, supports finding termination
of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d
896, 990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager
and court-appointed advocate to terminate parental rights, in addition to
evidence that conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in a
child’s best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[29] Parents argue termination is not in the best interest of Child because Child has a
bond with Parents and Parents have participated in court-ordered services,
including psychiatric evaluations, counseling, parenting classes, and domestic
violence classes. Moreover, Father had obtained full-time employment and had
housing. Parents express love for Child and both visited regularly when
allowed.
[30] All service providers who interacted with Parents and Child supported
termination of Parents’ rights to Child. As noted above, Parents’ situation has
not improved and, in some instances, has declined. The issue of domestic
violence has not been remedied. DCS and CASA recommended Child be
adopted. “Permanency is a central consideration in determining the best
interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 19 of 20
Child is currently in pre-adoptive placement and is doing well there. 9 The trial
court agreed adoption would serve the best interests of the child and was a
“satisfactory plan.” (App. Vol. II at 23.) The trial court’s unchallenged
findings, as cited above, support its conclusion that termination was in Child’s
best interest. See A.D.S. v. Indiana Dept. of Child Servs., 987 N.E.2d 1150, 1159
(Ind. Ct. App. 2013) (termination in child’s best interests based on child’s
improvement in foster care), trans. denied.
Conclusion
[31] We conclude the trial court’s unchallenged findings support its conclusions that
the conditions under which Child was removed from Parents’ care would not
likely be remedied and that termination was in Child’s best interest. We
accordingly affirm the termination of Parents’ rights to Child.
[32] Affirmed.
Baker, J., and Robb, J., concur.
9
Parents do not challenge the fact the current placement is pre-adoptive. Although the record is sparse as to
the details of the proposed adoption, we have no reason to doubt the trial court’s finding that the “placement
is pre-adoptive.” (App. Vol. II at 23.)
Court of Appeals of Indiana | Memorandum Decision 18A-JT-619 | August 27, 2018 Page 20 of 20