MEMORANDUM DECISION FILED Apr 10 2017, 9:24 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 10, 2017 of the Parent-Child Relationship Court of Appeals Case No. of: J.H., Minor Child, 02A05-1609-JT-2159 and Appeal from the Allen Superior Court B.H., Mother, The Honorable Lori K. Morgan, Appellant-Respondent, Magistrate The Honorable Charles F. Pratt, v. Judge Trial Court Cause No. The Indiana Department of 02D08-1601-JT-10 Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 1 of 19 Brown, Judge.
[1] B.H. (“Mother”) appeals the involuntary termination of her parental rights with
respect to her daughter J.H. Mother raises one issue which we revise and
restate as whether the evidence is sufficient to support the termination of her
parental rights. We affirm.
Facts and Procedural History
[2] J.H. was born on March 4, 2003. Mother was convicted of second degree
domestic assault in Cape Girardeau, Missouri, in 2007. Mother’s probation in
that case was revoked in March 2008, she was ordered incarcerated for seven
years, and she was released from incarceration on February 19, 2015. In March
2007, a circuit court in Missouri appointed Mother’s sister Diana, who lived in
Fort Wayne, Indiana, as J.H.’s guardian. J.H. was removed from Diana’s care
in October 2012 due to concerns of abuse and neglect by Diana and her
boyfriend which were later substantiated, 1 J.H. was adjudicated a CHINS in
February 2013, and Diana’s guardianship was terminated. J.H. was placed in
licensed foster care, at YSC for a short time, at Columbus Behavioral Health
from October 2013 to August 2014, and at Damar, a residential facility in
Indianapolis, in August 2014. Following her release from prison in February
2015, Mother was incarcerated for thirty days from mid-January to mid-
February 2016 for stealing and was sentenced to two years of unsupervised
1 Diana and her boyfriend were later convicted on felony neglect charges.
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 2 of 19 probation. She has not seen J.H. since 2007.
[3] On January 15, 2016, the Indiana Department of Child Services (“DCS”) filed
a petition for termination of Mother’s parental rights as to J.H. On March 22
and May 17, 2016, the court held an evidentiary hearing. Mother testified she
was on disability but looking for a job, she receives “SSI and Social Security,”
“I get 130 on the SSI and then on the big check I get 486 they taking it out for
child support,” “I draws off of my dad,” and, when asked if she had any
diagnoses of any health issues, stated “I take psych meds.” Transcript at 18-19.
She testified that she had lived in her sister’s basement following her release
from prison in February of 2015 and that she now lives in a two-bedroom house
in Cape Girardeau and had been living there since March 4, 2016.
[4] Mother testified that, in addition to her conviction for domestic assault in 2007
and subsequent probation revocation in that case, she had convictions for
trespass and theft in 2007 and escape or attempted escape from custody in
March 2008. When asked why she was incarcerated in January 2016, Mother
answered “[s]omething that I didn’t do and my ex-boyfriend did.” Id. at 22.
She indicated the conviction was for stealing, she now has two years of
unsupervised probation, and she is currently on probation. She further testified
that her sister Diana lives in Fort Wayne, Indiana, Diana obtained
guardianship of J.H. in March 2007 because Mother was incarcerated, and the
guardianship was later terminated. When asked “since you been out of
incarceration since February of 2015 you have not physically seen [J.H.] is that
correct,” Mother replied “Yes is because I don’t have a ride and I just moved in
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 3 of 19 this place, the new place and I’m just fixing up his room and I’m just trying to
get stuff around worked around in this house fixing up stuff” and “so I don’t
have no way and I’ve been paying bills so I don’t have no money to save back
to do nothing . . . and plus I been looking for jobs.” Id. at 23. When asked if it
was accurate that she had not seen J.H. since 2007, Mother answered “[t]hat’s
right.” Id.
[5] Mother testified she signed a lease for two years, the landlord had been giving
her things to place in the house and sprayed for bugs, she had filled out two job
applications, she had a caseworker who “worked with the FCC people next
door to the police station and I had got in that program and . . . they pay half of
everything, the only thing I have to pay at 109 90 every month,” and her
housing is through Section 8. Id. at 24. She testified “they taking $100 out of
[her] check” each month for child support for her other children, she has four
children including J.H., that two of the children were placed with her aunt and
uncle who have guardianship of them, and that one of her children was fifteen
years old and lived in a boys’ home in Springfield, Missouri. Id. at 24. Mother
indicated she did not have a car and just walks, she does not have a driver’s
license, and her intention is to stay in Cape Girardeau “[c]ause I’m on paper I
can’t go nowhere.” Id. at 27.
[6] When asked about her medications, Mother stated “I take a lot of
medications,” “I’ve got on of the fifth pill because I have nightmares and . . . I
can’t sleep all the time and so I’ve been on that medicine when I was in prison,”
and “I have to take medicine cause you got to be stay focused when you dealing
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 4 of 19 with kids too.” Id. at 28. She indicated she started receiving her social security
disability when she was a child, and when asked why she received it, answered
“they can give nobody they information cause I went down there ah to the
Social Security office . . . and she says she can’t give that information out
because she said the doctor have to give them . . . permission to give it to
them.” Id. at 29.
[7] When asked about her spending, Mother testified: “I spend my money how I
want to I have to pay my bills here and there and my fines,” “I got a pay my
rent I gotta do this do that I got to make sure this house is clean I got to do all
types of stuff going on with that money,” and “[t]hat money is not for me to
spend,” and when asked about her caseworker, she testified “[y]eah that’s my
caseworker she comes to my house sometimes and visits me sometimes she
supposed to have a home visit she look out for me sometime look for me some
furniture and stuff I ain’t got no furniture yet.” Id. at 30. When asked if she has
an issue with illegal drugs, Mother indicated she did not do drugs. When asked
if she ever sent Diana any money or clothes for J.H. while he was in her care,
Mother replied “I didn’t send Diana nothin,” “[c]ause I was locked up,” “how
could I send her stuff if I was locked up,” and “I didn’t have nothing myself.”
Id. at 32.
[8] Erin Stresemann, a DCS family case manager in the permanency unit assigned
to J.H., (“FCM Stresemann”) testified that paternity had not been established
for J.H. She stated that J.H. was currently placed in the transitional living unit
at Damar, a residential facility in Indianapolis that works with children who
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 5 of 19 have behavioral issues, developmental delays, and other needs requiring
twenty-four hour supervision. She testified J.H. has resided at Damar since
August 2014, that she believed he resided at Columbus Behavioral Health, a
residential facility, from October 2013 to August 2014, and that prior to
October 2013 he had been placed at YSC for a short time and prior to that in
licensed foster care. FCM Stresemann testified J.H. was removed from the care
of his aunt and guardian Diana in October 2012 and was adjudicated a CHINS
in February 2013. She testified she believed J.H. lived with Diana from 2007 to
2012, J.H. was removed because there were “concerns of abuse and neglect
which later became substantiated abuse and neglect,” the abuse was by Diana
and her boyfriend against J.H., and Diana and her boyfriend were both
convicted on felony neglect charges.
[9] FCM Stresemann testified that she first made contact as a case manager with
Mother in January 2015 when Mother was in a women’s correctional facility in
Missouri. She stated that she scheduled a teleconference with Mother for
February 2015, she followed up with a letter to tell Mother to contact her when
she was released from prison, and she attempted to make contact with Mother
after she was released but was not successful until August 2015. FCM
Stresemann testified she spoke with Mother in August and September of 2015,
Mother advised that she was working with a community agency and described
her progress, and Mother told her that she had been living “with a boyfriend in
St. Louis Missouri and that he didn’t let her call . . . and then he kicked her
out.” Id. at 48. FCM Stresemann testified Mother reported that she lived in her
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 6 of 19 sister’s basement and that her “understanding is that it was on and off because .
. . she’s given me three other addresses . . . that she’s lived at” and “then when I
ask her again she . . . said she was living with her sister.” Id. at 50. FCM
Stresemann testified Mother is unemployed and receives disability. When
asked if she ever asked Mother if she had any diagnosis, she replied that Mother
has not been forthcoming with that information. When asked the last time
Mother had communication with J.H., she answered “[m]y understanding the
last time was 2007.” Id. at 52.
[10] When asked how J.H. was doing, FCM Stresemann responded that “he has his
good days and bad days,” “he’s made a lot of progress . . . since he’s been
there,” “because he has been abused and neglected he does have . . .
developmental delays and behavioral issues,” he struggles sometimes with
aggressiveness with staff and other clients, according to his teachers “he’s made
tremendous progress since he’s been there and has had a lot of confidence
boosts,” and it seems like J.H. “really has improved in . . . a lot of areas since
he has been there.” Id. at 53. When asked if she knew how long J.H. will
continue to reside at Damar, she replied that “the goal would be to have him
step down to a . . . less restrictive unit” and “then to work at him like being able
to go on more day passes,” right now he is in his school on site and the goal
would be for him to “go to a charter school off-site to see if he could . . .
maintain his behavior there,” and the goal would be “for him to be able to be in
a more family like structure and the possibility . . . to go with an adoptive
family.” Id. She indicated she did not have a timetable when this will be
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 7 of 19 completed.
[11] FCM Stresemann indicated Mother was placed under a parent participation
plan and one of the provisions was that she establish paternity which she did
not do. She testified that Mother completed a five-session parenting class, and
her understanding was that Mother sought the services on her own. When
asked whether Mother inquired about J.H., FCM Stresemann testified “[s]he
initially did . . . in conversations that we had but recently like within the last six
months she doesn’t ask directly about him but she has talked about . . . getting
housing for him like she did say that that was her goal,” that she spoke with
Mother about “how would you do that visiting and she did discuss that she
needed to talk with her worker at Community Caring Council . . . to see if she
could get assistance with taking a bus down to visit him” in Indiana, and that
FCM Stresemann had initiated the conversation about visiting J.H. Id. at 56.
[12] When asked why DCS filed a termination petition, FCM Stresemann testified
“[i]t was due to [J.H.] being out of the home for . . . I believe . . . over two
years” and “he had not had contact with [Mother] in several years since 2007 . .
. and at that point it didn’t look like reunification was a possibility.” Id. at 57.
When asked if DCS has a plan for the care and treatment for J.H. should
Mother’s rights be terminated, FCM Stresemann testified that the plan would
be adoptive placement. When asked if it was fair to say that, after eight years in
prison, Mother started the process of getting her life back in order, tried to look
for appropriate housing, and sought out the assistance of people and services in
Cape Girardeau, FCM Stresemann replied affirmatively. When asked “this is
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 8 of 19 going to be a difficult adoption to accomplish is it not,” she responded “I don’t
know that that’s true,” “I think like the . . . issue is that there we can’t move
forward with adoption at this time because with the parents’ rights still being
intact,” “but he really actually has made really good connections with staff
there at Damar,” “his teacher that’s been working with him thinks that he’s
going to be able to do that,” and “there’s a lot of hope I think he will be able to
be adopted.” Id. at 69. She testified “the next step would be him to go to
charter school,” “then we’ll see how that would go,” and there were several
steps left to go. Id.
[13] J.H.’s guardian ad litem, Jennifer Young, (“GAL Young”) testified that she
was appointed at the preliminary inquiry hearing several years previously and
had attended a majority of the hearings involving J.H. and made
recommendations on his behalf. GAL Young testified that she believed it is in
the best interests of J.H. that Mother’s parental rights be terminated. When
asked why she made that recommendation, GAL Young testified Mother has
had little or no contact with J.H. since 2008, the majority of his life; Mother
allowed her sister Diana to obtain guardianship of J.H. and admitted Diana
was an inappropriate caregiver due to the mental and physical abuse she
inflicted upon J.H.; after her February 2015 release, Mother did not make any
attempt to contact DCS or seek visitation until August 2015 despite the fact
DCS had been trying to contact her and involve her in the case; Mother did not
provide any clothing, support, or money to Diana and has not provided
anything since this case started; Mother is not taking care of any of her other
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 9 of 19 children; Mother is unable to say why she receives social security disability;
“throughout the case and I’m not a doctor by any means but [Mother] appears
to be very low functioning maybe have mental health issues and so I would be
concerned about her care for [J.H.] at this time”; and J.H. “is very special needs
he’s been in residential treatment for quite some time” and is “finally slowly
stepping down to a less restricted . . . unit but still has a lot of behavioral issues
and needs that . . . I don’t feel that [Mother] can care for at this time.” Id. at 82.
[14] On March 15, 2016, the court entered a judgment of involuntary termination of
Mother’s parental rights. It found that Mother has not had contact of any type
with J.H. since her incarceration in 2007 and concluded that, “[g]iven the
established habitual patterns of conduct involving engagement in criminogenic
activity, unstable housing, lack of contact with the child and failure to provide
materially or financially for the child, the Court finds that there is a substantial
probability of future neglect or deprivation” and that DCS has established by
clear and convincing evidence that the allegations of the petition are true “in
that there is a reasonable probability that the conditions that resulted in the
child’s removal and the reasons for the placement outside the parent’s home
will not be remedied, and/or that continuation of the parent/child relationship
poses a threat to the wellbeing of the child.” Appellant’s Appendix at 7. The
court further found that termination of Mother’s parental rights is in the best
interests of J.H. and that DCS has a satisfactory plan for the care and treatment
of J.H. which is placement for adoption.
Discussion Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 10 of 19 [15] The issue is whether the evidence is sufficient to support the termination of
Mother’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[16] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 11 of 19 heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[17] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640. We also note that
the involuntary termination statute is written in the disjunctive and requires
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 12 of 19 proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
Individuals who pursue criminal activity run the risk of being denied the
opportunity to develop positive and meaningful relationships with their
children. K.T.K., 989 N.E.2d at 1235-1236. A parent’s incarceration is an
insufficient basis for termination, and there is not a “bright-line rule for when
release must occur to maintain parental rights.” K.E. v. Ind. Dep’t of Child Servs.,
39 N.E.3d 641, 643, 648 (Ind. 2015).
[18] Mother argues there is no evidence that she could have predicted that the
person she trusted to be the legal guardian of J.H., her own sister, would
criminally abuse and neglect J.H. She argues that she finished her prison
sentence in February 2015, completed parenting classes, and obtained suitable
housing in the form of a two-bedroom home, and consequently that it cannot be
said that there is no reasonable probability that the conditions that resulted in
J.H.’s removal would not be remedied. She also asserts that, to the extent there
is an inference that a continuation of the parent/child relationship poses a
threat to the well-being of J.H., there was no showing that J.H. was endangered
while in her care. She further contends the evidence does not support the
court’s determination that termination is in the best interests of J.H., arguing
the court failed to consider that she has a suitable two-bedroom home, has
completed parenting classes, has sufficient social security income to support the
household, and accomplished these things soon after completing an eight-year
prison term. She also asserts there has not been a showing that the plan for
J.H.’s care and treatment is satisfactory, arguing J.H. remains at Damar, “[t]he
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 13 of 19 likelihood that he would complete the Damar requirements to allow him to be
placed for adoption are problematic at best,” and “[w]hy not let a loving mother
attempt to parent a child rather than institutionalize him for the foreseeable
future.” Appellant’s Brief at 18.
[19] DCS argues that the court’s unchallenged findings support its conclusions and
judgment. It points to Mother’s criminal history, history of violating her
probation, failure to have contact with J.H. since 2007, failure to inquire about
his well-being in the six months before the factfinding hearing, housing
instability, and apparent mental health issues and unwillingness to disclose her
conditions, and to J.H.’s special needs and need for ongoing treatment. DCS
argues the court could reasonably infer, given Mother’s own mental health
issues and J.H.’s special needs, that she would not be able to provide for him.
DCS further argues termination is in J.H.’s best interests and that Mother has
had no relationship with now thirteen-year-old J.H. since he was placed with
Mother’s sister when he was about four years old. It also asserts that the court’s
conclusion that a plan of adoption is satisfactory is not clearly erroneous.
[20] In determining whether the conditions that resulted in the child’s removal will
not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643.
First, we identify the conditions that led to removal, and second, we determine
whether there is a reasonable probability that those conditions will not be
remedied. Id. at 643. In the second step, the trial court must judge a parent’s
fitness as of the time of the termination proceeding, taking into consideration
evidence of changed conditions, balancing a parent’s recent improvements
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 14 of 19 against habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. We entrust that delicate
balance to the trial court, which has discretion to weigh a parent’s prior history
more heavily than efforts made only shortly before termination. Id. Requiring
trial courts to give due regard to changed conditions does not preclude them
from finding that a parent’s past behavior is the best predictor of her future
behavior. Id.
[21] “The statute does not simply focus on the initial basis for a child’s removal for
purposes of determining whether a parent’s rights should be terminated, but
also those bases resulting in the continued placement outside the home.” In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation
marks omitted). A court may consider evidence of a parent’s prior criminal
history, history of neglect, failure to provide support, lack of adequate housing
and employment, and the services offered by DCS and the parent’s response to
those services, and, where there are only temporary improvements and the
pattern of conduct shows no overall progress, the court might reasonably find
that under the circumstances the problematic situation will not improve. Id.
[22] To the extent Mother does not challenge the court’s findings of fact, these
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
[23] As pointed out by the trial court, Mother’s conduct reveals she has a significant
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 15 of 19 history and pattern of engaging in criminal activity that has prohibited her from
providing care for J.H. and working towards reunification with him. J.H. was
born in March 2003, and Mother’s criminal activity includes second-degree
domestic assault in 2007, for which she later, upon the revocation of her
probation, served seven years in prison. She was convicted of trespass and theft
in 2007, escape or attempted escape in 2008, and stealing in 2016. After she
was released from prison on February 19, 2015, she was again incarcerated
approximately eleven months later from mid-January to mid-February 2016
and placed on probation for two years. J.H. was initially placed with Mother’s
sister Diana but was removed following concerns, which were later
substantiated, that Diana and her boyfriend abused or neglected him, leading to
felony neglect convictions for Diana and her boyfriend. Mother has three other
children in addition to J.H. for whom she is not caring. Also as noted by the
trial court, Mother is unemployed, does not have a vehicle or driver’s license,
has lived at several locations since her release from prison and recently in a two-
bedroom house with no furniture, and has not provided for J.H. financially or
otherwise during her incarceration or after her release. Further, the testimony
establishes, and the trial court found, that Mother has not had contact with J.H.
since 2007.
[24] In addition, J.H. was placed in the transitional living unit at Damar, has
demonstrated developmental delays and behavioral issues, sometimes struggles
with aggressiveness with staff and others, and has made tremendous progress
and has improved in a lot of areas since his residency at Damar. FCM
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 16 of 19 Stresemann testified that the goal was for J.H. to move to a less restrictive unit,
to attend a school off-site, and to be able to be in a more family-like structure
and possibly an adoptive family. GAL Young pointed to the facts that Mother
has had little or no contact with J.H. for the majority of his life, did not make
any attempt to contact DCS or seek visitation following her release from prison
until August 2015 despite the fact DCS had been trying to contact her, did not
provide support for J.H., and is not caring for her other children. GAL Young
also noted her concerns regarding Mother’s health and functioning, J.H.’s
needs, and her belief that Mother cannot care for J.H.
[25] Based upon the court’s findings and the record, we conclude that clear and
convincing evidence supports the trial court’s determination that there is a
reasonable probability that the conditions leading to J.H.’s removal will not be
remedied or that the continuation of the parent-child relationship poses a threat
to the well-being of J.H.
[26] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 17 of 19 that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, “focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry . . . .” Id. at 648. The testimony
of a child’s guardian ad litem regarding the child’s need for permanency
supports a finding that termination is in the child’s best interests. McBride, 798
N.E.2d at 203. Further, adoption is a satisfactory plan for the care and
treatment of a child under the termination of parental rights statute. In re B.M.,
913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). “This plan 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.” In re Termination of
Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),
trans. denied.
[27] When asked why DCS filed a termination petition, FCM Stresemann noted the
length of time J.H. had been out of the home and had no contact with Mother
and testified that it did not look like reunification was a possibility. GAL
Young testified that she believed it is in J.H.’s best interests that Mother’s rights
be terminated and noted the lack of contact between Mother and J.H., the
actions or inactions of Mother since her release from prison, her concern about
Mother’s ability to care for J.H., and J.H.’s needs. While Mother leased a two-
bedroom home, completed a parenting class, and receives certain social security
payments, the court had the opportunity to review the entirety of the testimony
and evidence presented at the evidentiary hearing, including evidence of
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 18 of 19 Mother’s criminal history and incarcerations, the condition and duration of her
housing, the transportation and community resources available to her, the
extent to which she provides care for her other children, her health, the extent
to which Mother had contact or an opportunity to contact J.H. and DCS and
did not do so, and J.H.’s health, development, and progress while residing at
the transitional living unit at Damar.
[28] Based on the testimony, as well as the totality of the evidence in the record and
set forth in the court’s termination order, we conclude that the court’s
determination that termination is in the best interests of J.H. is supported by
clear and convincing evidence. Also, the record, including evidence that J.H.
has made significant improvements and after certain steps are taken may be
adopted, reveals support for the court’s determination that adoption is a
satisfactory plan for the care and treatment of J.H. See A.J. v. Marion Cty. Office
of Family & Children, 881 N.E.2d 706, 719 (Ind. Ct. App. 2008) (concluding that,
in light of the evidence, the plan for adoption was not unsatisfactory), trans.
denied.
Conclusion
[29] We conclude that the trial court’s judgment terminating the parental rights of
Mother is supported by clear and convincing evidence. We find no error and
affirm.
[30] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A05-1609-JT-2159 | April 10, 2017 Page 19 of 19