In the Termination of the Parent-Child Relationship of: J.S. and J.N.B. (Minor Children), and J.B.S. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2020, 10:32 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Schrontz Curtis T. Hill, Jr.
Schrontz Legal Group, LLC Attorney General of Indiana
Lafayette, Indiana Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- November 30, 2020
Child Relationship of: Court of Appeals Case No.
J.S. and J.N.B. (Minor 20A-JT-1022
Children), Appeal from the Tippecanoe
and Superior Court
The Hon. Kurtis G. Fouts, Special
J.B.S. (Mother) Judge
Appellant-Respondent, Trial Court Cause Nos.
79D03-1907-JT-111
v. 79D03-1907-JT-112
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bradford, Chief Judge.
Case Summary
[1] J.B.S. (“Mother”) is mother to thirteen-year-old J.N.B. and five-year-old J.S.
(collectively, “the Children”).1 In August of 2017, the Indiana Department of
Child Services (“DCS”) removed the Children from Mother’s care and
petitioned to have them adjudicated children in need of services (“CHINS”). In
January of 2018, following a violent incident in Mother’s home involving her
boyfriend D.L. and another man, DCS filed second CHINS petitions related to
the Children. In May of 2018, the juvenile court found the Children to be
CHINS. In June of 2018, the Children were placed in foster care, and Mother
was ordered to participate in and complete several services. In June and July of
2019, the juvenile court conducted hearings at which it heard evidence that
Mother was still with D.L. and, although aware that there were issues that
needed to be addressed, had difficulty accepting that. Mother indicated that she
believed that all of the problems in her relationship with D.L. were her fault.
[2] On July 31, 2019, DCS petitioned to terminate Mother’s parental rights to the
Children (“the TPR petitions”). On August 23, 2019, Mother pled guilty to
Level 3 felony dealing in methamphetamine, her ten-year sentence for which
was largely to be served through community corrections and on supervised
probation. Four hearings on the TPR petitions were held between October of
1
While the parental rights of J.N.B.’s and J.S.’s fathers were also terminated in this proceeding, neither
participates in this appeal.
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2019 and January of 2020. The juvenile court heard evidence that Mother,
despite being made aware that reunification with the Children was unlikely as
long as she remained with D.L., was still involved with him as of December of
2019. The juvenile court also heard evidence regarding Mother’s inconsistent
employment history, that Mother’s therapy had not progressed very far, and
that visitation with the Children had not gone well and had been suspended. In
April of 2020, the juvenile court terminated Mother’s parental rights to the
Children. Mother contends that she was denied fundamental due process
throughout the termination proceedings and the juvenile court erred in
terminating her parental rights to the Children. Because we disagree, we affirm.
Facts and Procedural History
[3] J.N.B. was born on June 20, 2007, to Mother and A.W. On October 12, 2012,
Mother entered into a program of informal adjustment (“IA”) regarding J.N.B.
and two of her other children following an investigation into inappropriate
discipline. Following a review hearing on July 16, 2013, the juvenile court
dismissed the IA at DCS’s request based on Mother’s successful completion of
services. On February 11, 2015, J.S. was born to Mother and W.S.
[4] On August 9, 2017, DCS sought to take the Children into emergency custody, a
request the juvenile court approved that day. On August 14, 2017, DCS
petitioned to have the Children adjudicated CHINS. The juvenile court found
following an initial hearing on August 15, 2017, that Mother was homeless, J.S.
had been left without a caregiver at a friend’s home, and that Mother had
refused to pick J.S. up. At that time, the Children were placed in relative care
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but were eventually returned to Mother, who had secured housing. The
juvenile court ordered that when the Children were returned to Mother’s care,
they were not to have any contact with Mother’s boyfriend, D.L.
[5] On January 18, 2018, DCS filed second CHINS petitions as to the Children and
sought to take them into emergency custody. DCS alleged that a violent
incident between D.L. and another man had occurred in the Children’s
presence (during which a firearm was pulled) and that Mother was struggling to
maintain stable housing and income and had untreated mental illness. J.N.B.
also alleged that D.L. had whipped her legs with a belt several times and that
she had been touched on the inner thigh by an acquaintance of D.L the
previous summer.
[6] On May 21, 2018, the juvenile court found the Children to be CHINS, noting
that Mother had allowed D.L. to continue living in her home despite the no-
contact order. As detailed in the juvenile court’s order, Mother had admitted to
a service provider that she had allowed D.L. to live with her but claimed that
she was afraid to ask D.L. to leave and that he had destroyed some of her
property. Mother, however, also indicated that she considered D.L. to be her
only support, did not understand why he could not be around the Children, and
did not believe him to be a threat to them. Mother also noted that J.N.B. had
been exposing herself to other children, “acting out sexually[,]” posting
photographs of herself on the internet, stealing, and lying. Ex. Vol. II p. 151.
[7] On June 12, 2018, the juvenile court ordered that the Children be placed in
foster care and participate in therapy, follow all recommendations, and take
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medications as prescribed, among other things. The juvenile court also ordered
Mother to have therapeutic visits with each of the Children separately for at
least two hours per week and participate in home-based case management,
random drug screens, a mental-health assessment, a parenting assessment, a
substance-abuse assessment, a medication evaluation, and individual therapy,
following all recommendations resulting therefrom.
[8] On August 21, 2018, the juvenile court ordered the Children to be placed with
maternal aunt and uncle and to have no contact with their parents without DCS
approval. On September 21, 2018, the juvenile court ordered J.N.B. placed in
foster care while J.S. remained with a maternal aunt and uncle. On December
12, 2018, the juvenile court ordered that the Children’s placements be
continued, with J.N.B.’s permanency plan being reunification and J.S.’s plan
being reunification with a concurrent plan of third-party custody or
guardianship.
[9] At a hearing on June 29, 2019, Mother testified that DCS was willing to offer
D.L. services but that she and D.L. had had an altercation approximately two
weeks previously. Mother testified that when she had broached the subject of
services with D.L., he said that she was lying, believed that he was being
“profiled[,]” and punched a hole in a wall. Ex. Vol. II p. 10. Mother indicated
that she felt that D.L. punching a hole in the wall was better than punching her.
[10] At a hearing on July 8, 2019, Mother’s therapist Laura Houze testified that she
had provided therapy to Mother since the beginning of May of 2018, with the
main goal being to work with Mother on skills to cope with the stress of the
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CHINS case and past trauma. Houze testified that although Mother had
learned and utilized some coping skills, there had been ongoing stressors in her
life and Mother had had difficulty regulating her emotions, dealing with the
stressors, controlling her impulses, and settling her emotions.
[11] Regarding domestic violence and Mother’s relationship with D.L., Houze
testified that Mother was aware of the dynamics but had difficulty accepting
them. “While I’m aware that things aren’t as severe with [D.L.] as they have
been in other relationships she’s engaged in, um, there’s still dynamics that are
concerning. That need to, to be addressed, between both of them and
individually.” Ex. Vol. II p. 24. Houze testified that Mother believed she
caused all of the problems with D.L. “because she was getting on [D.L.] about
doing whatever things that he was supposed to do that day[.]” Ex. Vol. II p. 28.
Mother “wasn’t concerned about her safety, um, felt like she had instigated the
[] circumstances, and that was kind of the end of that[.]” Ex. Vol. II p. 29.
Houze testified that she had not moved to the next stage of therapy with
Mother—the trauma narrative—because of “ongoing emotional stability
concerns” and because “more things kept coming up, and coming up, that
would direct [Mother] into this trauma mode of just reacting and reacting, so it
was constantly putting out fires.” Ex. Vol. II p. 30. On July 8, 2019, the
juvenile court changed the permanency plan to termination of parental rights
and adoption for the Children.
[12] On July 31, 2019, DCS filed petitions to terminate Mother’s parental rights to
the Children. A total of four evidentiary hearings on the TPR petitions were
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held on October 16, December 4, and December 11, 2019, and January 17,
2020. On August 23, 2019, Mother pled guilty to Level 3 felony dealing in
methamphetamine and was sentenced to ten years of incarceration, with five
years and 253 days to be served through Tippecanoe County Community
Corrections and four years and 112 days to be served on supervised probation.
On December 4, 2019, DCS family case manager Kelly Moore (“FCM
Moore”) testified that she had been involved with Mother’s case from May or
2018 to April of 2019. FCM Moore indicated that the Children had initially
been removed from Mother’s care in the fall of 2017 for homelessness and
removed again in January of 2018 due to the altercation involving D.L. and
another man that had occurred in the Children’s presence, during which a
weapon had been drawn.
[13] FCM Moore testified that Mother had been required to participate in parenting
visits and individual therapy in the CHINS case, with the two most important
things to focus on being her relationship with D.L. and her mental-health
needs. FCM Moore indicated that, during her time on the case, Mother
reported that she was employed but never produced any paystubs. During
FCM Moore’s time on Mother’s case, Mother was never able to progress past
supervised visitation due to concerns about D.L.’s continued presence in her life
and Mother’s lack of progress in addressing her mental-health issues and
understanding the Children’s traumas.
[14] Houze, who was still seeing Mother as of December 4, 2019, testified that
Mother was still living with D.L., with their last encounter occurring a few days
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before the hearing, during which they had engaged in a verbal argument.
Houze also indicated that, issues involving D.L. aside, Mother was “struggling
considerably right now for multiple reasons[,]” including “physical
limitations[,] financial distress, [and] lack of positive supports.” Tr. Vol. II pp.
53–54. Houze testified that she had not been able to progress to the trauma
narrative with Mother because she was not sufficiently emotionally regulated.
[15] Court-appointed special advocate Hilary Laughner (“CASA Laughner”)
testified that she had been involved with Mother’s case since October of 2018,
with anywhere from one to five interactions per month with Mother since then.
CASA Laughner testified that it was “absolutely” in J.S.’s best interests to be
adopted so that he could have a home free of domestic violence and that would
allow him to be stable. Tr. Vol. II p. 114. CASA Laughner indicated that J.S.
had been in at least four or five different foster-care placements since his
removal from Mother’s care and that he had exhibited behaviors such as
kicking, hitting, and smearing his feces on the wall.
[16] As for J.N.B., CASA Laughner testified that she had been in approximately
three foster homes since her removal from Mother’s care and was currently
placed at Damar Residential so that she could receive the help she needs.
CASA Laughner agreed that J.N.B. had been diagnosed with post-traumatic
stress disorder, reactive-attachment disorder, and borderline-personality traits.
Casa Laughner indicated that adoption was in J.N.B.’s best interests as well
because she deserved a home free of domestic violence and where her bare
minimum needs could be met. CASA Laughner indicated that adoptive
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families for J.B. and J.N.B. had been identified. CASA Laughner expressed
concern that Mother did not have the ability to parent J.N.B. the way that she
needed to be parented.
[17] On December 11, 2019, clinical psychologist Dr. Jeffrey Vanderwater-Piercy
testified regarding an evaluation he had performed on Mother on November 18,
2018. Dr. Vanderwater-Piercy opined that Mother suffered from low cognitive
function, generalized-anxiety disorder, post-traumatic-stress disorder,
depressive disorder, and attention-deficit-hyperactivity disorder and
recommended continued medication and consultation with a psychiatrist. Visit
facilitator Lana Hamel worked with Mother and the Children during the
summer of 2019, and testified that many of the scheduled visits had been
cancelled. Hamel testified that, of the visits that had occurred, some went well,
and some did not. On one occasion, Mother threated to “whoop [J.S.]’s a[**]”
because he had thrown a box containing some jewelry. Tr. Vol. II p. 163. On
another occasion, the then-four-year-old J.S. had an “accident[,]” and Mother
was unprepared with diapers for him. In the end, visitation was terminated
shortly into August of 2019 because Mother cancelled or failed to appear for
several visits and did not provide a schedule. CASA Laughlin testified again,
noting that Mother seemed to struggle with visitation when more than one child
was involved and that J.S. would cry, scream, and become very emotional
when Mother would cancel or fail to attend visitation.
[18] DCS family case manager Kaci Lawrence (“FCM Lawrence”) was assigned to
Mother’s case in April of 2019, apparently taking over from FCM Moore.
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FCM Lawrence testified that following the CHINS determination, Mother had
been required to participate in therapy, home-based case management,
parenting time, a substance-abuse assessment, a mental-health assessment, a
psychological assessment, and random drug screens. FCM Lawrence testified
that although Mother had been generally compliant with those services, there
had been housing concerns based on Mother’s statements that she would no
longer be able to pay her rent. One possible solution suggested by Mother was
that she and J.S. would move in with the father of another one of her children,
but FCM Lawrence became concerned because Mother had told her that he
had abused her. FCM Lawrence also noted that Mother had lied to them about
D.L. no longer being “in the picture[.]” Tr. Vol. II p. 204. According to FCM
Lawrence, the DCS permanency plan for J.N.B. was adoption by her
godmother in Michigan, and the permanency plan for J.S. was adoption in his
pre-adoptive foster care placement. As for Mother’s employment history, FCM
Lawrence indicated that Mother had had approximately six jobs in the previous
seven months and had provided her with no documentation for any of them,
despite being asked to several times. The TPR hearing concluded on January
17, 2020. On April 13, 2020, the juvenile court entered its order terminating
Mother’s parental rights to J.N.B. and J.S.
Discussion and Decision
I. Whether Mother Was Denied Due Process
[19] The question of whether Mother’s due process rights were violated is one of
“fundamental fairness.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Indeed,
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while due process has never been defined, the phrase embodies a requirement of
“fundamental fairness.” Id. (citations omitted). The fundamental fairness
“requirement of due process is the opportunity to be heard at a meaningful time
and in a meaningful manner.” Id. (citing Mathews v. Eldridge, 424 U.S. 319, 333
(1976)).
[20] Mathews set forth that the process due in a termination of parental rights
proceeding turns on the balancing of three factors: (1) the private interests
affected by the proceeding; (2) the risk of error created by the State’s chosen
procedure; and (3) the countervailing governmental interest supporting use of
the challenged procedure. Mathews, 424 U.S. at 335. The balancing of these
factors recognizes that although due process is not dependent on the underlying
facts of the particular case, it is nevertheless “flexible and calls for such
procedural protections as the particular situation demands.” In re C.G., 954
N.E.2d at 917 (citing Mathews, 424 U.S. at 334). Furthermore, because both
the parent and the State have substantial interests affected by the termination
proceeding, reviewing courts tend to focus on the third Mathews’ factor, i.e., the
risk of error created by the juvenile court’s and DCS’s actions. Id. at 917–18.
[21] Moreover, there must be a showing of actual harm to support Mother’s due
process argument. Jenkins v. State, 492 N.E.2d 666, 669 (Ind. 1986). Indeed,
Ind. App. Rule 66(A) provides that
[n]o error or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is ground for
granting relief or reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor.
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See also Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002); Rosales v. State, 3
N.E.3d 1014, 1019 (Ind. Ct. App. 2014). Mother identifies the following as
establishing a denial of due process: (1) the juvenile court found on January 18,
2018, that DCS had failed to follow a court order when it “stopped drop ins in
Mother’s home over a month, without Court approval[,] Ex. Vol. V p. 169; (2)
the juvenile court stated on July 12, 2019, that “DCS has failed to provide what
this family needs, specifically what [J.N.B.] needs. And we have to get this
back on track.”, Ex. Vol. V p. 174; (3) there were a total of six FCMs assigned
to the Children’s case; (4) DCS changed the Children’s placements several
times; (5) DCS never put any services into place for D.L.; and (6) DCS failed to
offer her adequate services to address the domestic-violence issue.
[22] The items identified by Mother do not rise to the level of blatant violations of
basic and elementary principles of due process. As for the juvenile court’s
finding that DCS had violated a court order in suspending visitation for a
month in late 2017 or early 2018, Mother does not explain, and we fail to see
how, that violation could have constituted a denial of due process in a TPR
case that was not initiated until July 31, 2019. Mother also does not elaborate
on exactly what DCS was failing to do for J.N.B. in July of 2019 (again, before
the TPR petition was even filed) that amounts to a denial of due process.
[23] Mother also focuses on the number of FCMs assigned to the various cases
involving her and the Children over the years, which is six, and the number of
placements for the Children since August of 2017, which is eleven for J.N.B.
and thirteen for J.S. Mother seems to be arguing that the sheer number of
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FCMs and placements, in and of itself, constitutes a due process violation.
Mother, however, does not claim, much less establish, that any of this was
improper, or indeed even unusual in a series of cases (two CHINS cases and a
TPR) dating back to August of 2017. As for Mother’s complaint that none of
the FCMs provided services to D.L., she fails to acknowledge evidence that
DCS was willing to provide services to D.L. but that he refused them. In fact,
when FCM Lawrence asked Mother to talk to D.L. about services, he accused
Mother of lying about them, claimed that he was being profiled, and punched a
hole in the wall.
[24] Finally, Mother suggests that DCS failed to provide her with proper services to
address her domestic violence issues. DCS tried to refer Mother to a
psychiatrist after Dr. Vanderwater-Piercy conducted an evaluation of Mother
on November 16, 2018, and recommended that Mother find a psychiatrist to
manage medication and to continue with individual therapy. DCS, however,
ultimately was not able to refer Mother to a psychiatrist because of her dealing-
in-methamphetamine charge. Moreover, after Mother’s conviction and when
she was on house arrest, DCS arranged for Mother to see a doctor in
Logansport, Indiana, but Mother said she preferred to work with Houze on her
medication management. In any event, to the extent that Mother wanted
different services, the onus was on her to inform the juvenile court, and there
seems to be no indication that she did so. See Prince v. Dep’t of Child Servs., 861
N.E.2d 1223, 1231 (Ind. Ct. App. 2007) (“[T]he responsibility to make positive
changes will stay where it must, on the parent. If the parent feels the services
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ordered by the court are inadequate to facilitate the changes required to
reunification, then the onus is on the parent to request additional assistance
from the court or DCS.”). Mother has failed to establish a due process
violation.
II. Whether Sufficient Evidence Supports the Juvenile
Court’s Termination of Mother’s Parental Rights
[25] The traditional right of a parent to establish a home and raise her children is
protected by the Fourteenth Amendment to the United States Constitution.
Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
We acknowledge that the parent-child relationship is “one of the most valued
relationships of our culture.” Id. (citation omitted). However, parental rights
are not absolute, and the law allows for the termination of such rights when a
parent is unable or unwilling to meet his responsibilities as a parent. In re T.F.,
743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. The purpose of
terminating parental rights is to protect the child, not to punish the parent. Id.
[26] While remaining mindful of the above, we have long had a highly deferential
standard of review in cases concerning the termination of parental rights. In re
K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). “In determining whether the
evidence is sufficient to support the judgment terminating parental rights, this
court neither reweighs the evidence nor judges the credibility of witnesses.” Id.
“We consider only the evidence that supports the judgment and the reasonable
inferences to be drawn there from.” Id. “Findings of fact are clearly erroneous
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only when the record lacks any evidence or reasonable inferences to support
them.” Id.
[27] Indiana Code section 31-35-2-4(b)(2) governs what DCS must allege and
establish to support the termination of parental rights, which, for purposes of
our disposition, was:
(A) that [t]he child has been removed from the parent for at least
six (6) months under a dispositional decree[;]
[….]
(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 [or]
(ii) There is a reasonable probability that the continuation
of the parent–child relationship poses a threat to the well-
being of the child.
[….]
(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). It is worth noting that because Indiana Code
section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS need only establish
one of the circumstances described in the subsection. Mother contends that
DCS failed to establish that (1) there is a reasonable probability that the
conditions that resulted in the Children’s removal or the reasons for placement
outside Mother’s home will not be remedied, (2) continuation of the parent–
child relationship poses a threat to the Children’s well-being, (3) termination is
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in the Children’s best interests, and (4) there is a satisfactory plan for the care
and treatment of the Children.
A. Indiana Code Section 31-35-2-4(b)(2)(B)(i)
[28] Mother argues that DCS has failed to establish that there is a reasonable
probability that the reasons for the Children’s continued removal would not be
remedied. In making such a determination, a juvenile court engages in a two-
step inquiry. First, the juvenile court must “ascertain what conditions led to
their placement and retention in foster care.” K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). After identifying these initial conditions,
the juvenile court must determine whether a reasonable probability exists that
the conditions justifying the children’s continued “placement outside the home
will not be remedied.” In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004)
(citation omitted).
[29] The juvenile court is to focus not only on the initial reasons for removal “but
also 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. In making this second
determination, the juvenile court must judge a parent’s fitness to care for her
children at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re D.D., 804 N.E.2d at 266. A parent’s
habitual patterns of conduct must also be evaluated to determine the probability
of future negative behaviors. K.T.K., 989 N.E.2d at 1234. DCS need not rule
out all possibilities of change; rather, it must establish that there is a reasonable
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probability that the parent’s behavior will not change. In re B.J., 879 N.E.2d 7,
18–19 (Ind. Ct. App. 2008), trans. denied.
[30] Here, the Children were removed from Mother following a violent incident in
January of 2018 between D.L. and another man, during which a firearm was
pulled. J.N.B. also alleged that D.L. had hit her on the legs several times with a
belt and that an acquaintance of D.L.’s had touched her inner thigh the
previous summer. Mother argues that the conditions that resulted in the
Children’s removal were essentially remedied. In its termination order,
however, the juvenile court made the following unchallenged findings of fact
relevant to the reasonable-probability element:
1. The Mother [h]as a long and extensive history of being
involved in relationships which include significant domestic
violence.
2. The Mother’s violent relationships have had a profound
negative impact on [Children].
3. The Mother continues to fail to appreciate the impact of her
relationship choices on her children.
4. The Mother’s current violent relationship is with [D.L.],
whom she has refused to disassociate herself from during the
pendency of this case.
Appellant's App. Vol. II p. 49.
[31] In addition to these unchallenged findings, the record contains ample evidence
that Mother continued to have a relationship with D.L. and that she did not
believe domestic violence was an issue. Houze testified that [w]hile I’m aware
that things aren’t as severe with [D.L.] as they have been in other relationships
she’s engaged in, um, there’s still dynamics that are concerning. That need to,
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to be addressed, between both of them and individually.” Ex. Vol. II p. 24.
Houze also testified that Mother believed she caused all of the problems with
D.L. “because she was getting on [D.L.] about doing whatever things that he
was supposed to do that day.” Ex. Vol. II p. 28. Houze said Mother “wasn’t
concerned about her safety, um, felt like she had instigated the situate [sic],
circumstances, and that was kind of the end of that.” Ex. Vol. II p. 29.
[32] When the juvenile court found the children to be CHINS on May 21, 2018, it
found, inter alia, that Mother had allowed D.L. to live in the home despite the
no-contact order. At the time, Mother told a service provider that she was
afraid to ask D.L. to leave and he had destroyed some of her property but that
she considered D.L. her only support, did not understand why D.L. could not
be around her children, and did not believe D.L. would put her children in
danger. Mother told FCM Moore that Mother did not agree with the concerns
about D.L. Over a year later in June of 2019, Mother and D.L. had an
altercation during which he punched a hole in the wall after Mother brought up
the possibility of him receiving services.
[33] Even after the TPR petitions were filed in July of 2019, Mother refused to
distance herself from D.L. On December 4, 2019, Houze testified that Mother
had had contact with D.L. the Saturday before the hearing, and she believed
that Mother and D.L. were still living together. CASA Laughner testified that
it was also her understanding was that Mother and D.L. were still together.
Mother admitted that the last time she had had contact with D.L. was the night
before the December 4, 2019, hearing.
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[34] Where a parent’s “pattern of conduct shows no overall progress, the court
might reasonably find that under the circumstances, the problematic situation
will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). Here,
the evidence showed that Mother did not make significant progress in
addressing domestic violence. See In re J.S., 906 N.E.2d 226, 234 (Ind. Ct. App.
2009) (“[S]imply going through the motions of receiving services alone is not
sufficient if the services do not result in the needed change, or only result in
temporary change[.]”).
[35] As mentioned, the juvenile court was obligated to examine Mother’s habitual
patterns of conduct, In re E.M., 4 N.E.3d 636, 643 (Ind. 2014), which in this
case included minimizing the harm from domestic violence with D.L., blaming
herself for the incidents, and maintaining a relationship with D.L. even though
she had been advised to stay away from him. DCS produced ample evidence to
support the juvenile court’s conclusion that the domestic violence conditions
that led to Children’s removal would not be remedied.
[36] Mother argues that “[t]he most compelling evidence was testimony provided by
Laura Houze, Mother’s therapist, which revealed that Mother has consistently
and actively participated in therapy, therapy was addressing domestic violence
and Mother was making progress.” Appellant’s Br. p. 26. Even if we assume
that Mother’s characterization of the evidence is accurate, she is asking us to
reweigh the evidence, which we will not do. In re N.G., 51 N.E.3d at 1170. In
any event, we do not think it is fair to say that the evidence tends to show that
Mother was making progress in therapy with regard to domestic violence or
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that the therapy was progressing in general. Houze testified in July of 2019 that
she did not move to the next stage of Mother’s therapy because of “ongoing
emotional stability concerns,” and because “more things kept coming up, and
coming up, that would direct [Mother] into this trauma mode of just reacting
and reacting, so it was constantly putting out fires.” Ex. Vol. II p. 30. Houze
also testified that Mother’s stability gradually increased during the last two-to-
three months, but that Mother would have difficulty using coping skills if a
traumatic event occurred. As for addressing Mother’s issues with domestic
violence, that does not even seem to have been the principal goal of the therapy.
Houze testified that addressing abusive relationships was not a treatment goal,
but was addressed in connection with trauma and learning coping skills and
that she and Mother addressed Mother’s relationship with D.L.
“[i]ntermittently.” Tr. Vol. II p. 52. We reject Mother’s argument, which is
essentially nothing more than an invitation to reweigh the evidence. 2
B. Indiana Code Section 31-35-2-4(b)(2)(C)
[37] Mother also argues that the juvenile court erred in concluding that termination
of her parental rights was in the Children’s best interests. We are mindful that,
in determining what is in the best interests of the Children, the juvenile court is
required to look beyond the factors identified by DCS and look to the totality of
the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,
2
Because of our disposition of this claim, we need not address Mother’s claim that the juvenile court erred in
concluding that there is reasonable probability that the continuation of the parent–child relationship poses a
threat to the well-being of the Children. See Ind. Code § 31-35-2-4(b)(2)(B)(ii).
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203 (Ind. Ct. App. 2003). In doing so, the juvenile court must subordinate the
interests of the parents to those of the children involved. Id.
[38] This court has previously determined that the testimony of a GAL regarding a
child’s need for permanency supports a finding that termination is in the child’s
best interests. In the matter of Y.E.C., 534 N.E.2d 273, 276 (Ind. Ct. App. 1992).
Although not a GAL, CASA Laughner testified at the termination hearing that
it was “absolutely” in J.S.’s best interests to be adopted so that he could have a
home free of domestic violence and that would allow him to be stable. Tr. Vol.
II p. 114. As for J.N.B., CASA Laughner indicated that adoption was in her
best interests as well because she deserved a home free of domestic violence and
where her bare minimum needs could be met. While this testimony is likely
sufficient to support a finding that termination is in the Children’s best interests,
is does not stand alone.
[39] The juvenile court found that termination of the parent–child relationship is in
the Children’s best interests because placement with Mother would place the
Children at “substantial risk for physical, mental and emotional abuse” and
“Mother fails to recognize the seriousness of domestic violence in her home and
the effect it has on her children[.]” Appellant’s App. Vol. II p. 56. These
findings are amply supported by evidence in the record, namely evidence that
Mother will not separate herself from D.L., with whom she has a long history
of domestic violence. In the end, termination of Mother’s parental rights is in
Children’s best interests because Mother will not provide them with an
environment free of domestic violence and, indeed, does not even seem to
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acknowledge that there is a problem. See e.g., Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007) (“A parent’s historical
inability to provide a suitable environment along with the parent’s current
inability to do the same supports a finding that termination of parental rights is
in the best interests of the children.”), trans. denied.
[40] Mother seeks to downplay concerns with domestic violence, arguing that she
“was actively attending and making progress in her therapy where she was
addressing domestic violence and its effects on her children.” Appellant’s Br. p.
32. As discussed above, however, Houze’s testimony indicated that domestic
violence was not even the principal treatment goal; she and Mother discussed it
only intermittently; and, in any event, there were “still dynamics that are
concerning” as of July 8, 2019. Ex. Vol. II p. 24. In the end, Mother’s
argument in this regard is an invitation to reweigh the evidence, which we will
not do. In re N.G., 51 N.E.3d at 1170.
C. Indiana Code Section 31-35-2-4(b)(2)(D)
[41] Finally, Mother contends that DCS failed to establish that it has a satisfactory
plan for the care and treatment of the Children. Indiana courts have
traditionally held that for a plan to be satisfactory for purposes of the
termination statute, it “need not be detailed, so long as it offers a general sense
of the direction in which the child will be going after the parent-child
relationship is terminated.” Lang, 861 N.E.2d at 374 (Ind. Ct. App. 2007)
(citation omitted). A DCS plan is satisfactory if it is to attempt to find suitable
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parents to adopt the children and is not rendered unsatisfactory if DCS has not
yet identified a specific family to adopt them. Id.
[42] DCS’s plan for Children’s care and treatment is adoption. Child J.S. was being
transitioned to an adoptive family, and, in fact, was already living in the pre-
adoptive home. FCM Lawrence was satisfied that DCS’s plan for J.S. was
satisfactory. As for J.N.B., CASA Laughner testified that her godmother was
willing to adopt her. At the time of the evidentiary hearing, J.N.B.’s godmother
lived in Michigan and was working towards becoming a licensed foster parent.
Pursuant to Lang and similar cases, the juvenile court did not abuse its
discretion in finding these plans for the care and treatment of the Children to be
satisfactory.
[43] Mother contends that J.N.B.’s plan is not satisfactory because it would place
her “with a Godmother she barely know[s] who is not equipped to deal with
her behaviors[.]” Appellant’s Br. p 36. The record, however, undercuts both of
these factual assertions. The record contains evidence that J.N.B. and her
godmother speak from two to four times a week, and the godmother told FCM
Lawrence that J.N.B. had been part of her life for a very long time and “her
family has not been complete without [J.N.B.]” Tr. Vol. II p. 214. As for the
godmother’s ability to cope with J.N.B.’s behaviors, the record indicates that
the godmother was aware of J.N.B.’s problems and could handle them and that
the Michigan child services agency had provided services to the godmother,
including training on trauma-informed care. The Michigan agency also
conducted a home visit for the godmother and has approved the placement.
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Finally, Mother contends that “placing JS with the maternal [aunt] for adoption
versus guardianship or third-party custody [] as a matter of law [] is simply
unacceptable[.]” Appellant’s Br. p. 36. Mother, however, cites to nothing in
the record and no law to support this argument. Again, Mother is essentially
asking us to reweigh the evidence, which we will not do. See In re N.G., 51
N.E.3d at 1170.
[44] We affirm the judgment of the juvenile court.
Najam, J., and Mathias, J., concur.
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