Opinion
23A-JT-2824
08-21-2024
In re the Involuntary Termination of the Parent-Child Relationship of C.B-G. and M.B-G. (Minor Children) and J.G-T. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids' Voice of Indiana, Appellee-Guardian Ad Litem
ATTORNEY FOR APPELLANT Casey Farrington Marion County Public Defender Agency Indianapolis, Indiana. ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General, Marjorie Lawyer-Smith Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause Nos. 49D14-2202-JT-1499, -1502, The Honorable Marcia J. Harper, Magistrate.
ATTORNEY FOR APPELLANT Casey Farrington Marion County Public Defender Agency Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General, Marjorie Lawyer-Smith Indianapolis, Indiana.
Bradford and Tavitas, Judges concur.
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] J.G-T. (Mother) appeals the trial court's order involuntarily terminating her parental relationship with her minor children, C.B-G. (born in 2011) and M.B-G. (born in 2012) (collectively the Children). Finding no reversible error, we affirm.
Facts and Procedural History
[¶2] Mother and the Children, who are Honduran citizens, became undocumented immigrants and moved to Indiana in May 2014. Not long thereafter, the Department of Child Services (DCS) filed a petition alleging that, due to physical abuse of C.B-G. by Mother, the Children were children in need of services (CHINS). DCS removed the Children from approximately September 2014 through June 2016. Meanwhile, Mother received reunification services, including therapy and education regarding what constituted abuse and neglect in the United States versus in other countries. Mother completed services, and that CHINS case was closed.
[¶3] Sometime after the first CHINS case and prior to August 2020, Mother became upset and, "on purpose," placed a hot iron on C.B-G.'s leg, leaving a significant scar from the burn. Tr. Vol. 2 at 93, 116; Ex. Vol. 1 at 82. One day in August 2020, Mother "hit [M.B-G.] with a hanger and thr[ew him] down the stairs." Tr. Vol. 2 at 113; Ex. Vol. 1 at 83-87. The next morning, the Children ran away. They walked "a long way" to their babysitter's home and asked the sitter to call the police. Tr. Vol. 2 at 115. DCS removed the Children, and Mother was arrested. When then-nine-year-old C.B-G. was asked why she ran away with her then-seven-year-old brother, she stated that she "was tired of" the two of them "getting hit all the time" by Mother. Id. at 115-16. DCS filed a CHINS petition alleging neglect and serious endangerment of the Children's physical or mental health.
Mother has two younger children who also had been living at her home and who were originally included in the 2020 CHINS action. However, custody of the younger children was changed to their father, and the CHINS action was dismissed as to the younger children. Ex. Vol. 1 at 52. The termination does not include the younger children. Unlike the father of the younger children, the Children's father was never located and is not involved.
[¶4] On August 24, 2020, the State charged Mother under cause number 49D21-2008-F3-26475 with:
battery with serious bodily injury against a child under 14 years old as a level 3 felony, 2 counts of battery against a person under 14 years of age as level 5 felonies, 1 count of Neglect of a Dependent with bodily injury as a Level 5 felony, and 3 counts of Neglect of a Dependent as Level 6 felonies.
Appealed Order at 3. A no-contact order was issued between Mother and the Children. Mother was jailed in Marion County and remained there for more than a year.
[¶5] In December 2020, Mother entered an admission that the Children "are CHINS because family needs assistance to provide a safe and appropriate environment free from conflict and violence and to address family's therapeutic needs. Therefore, coercive intervention of the Court is necessary." Ex. Vol. 1 at 53. At the time, Mother was represented by counsel and had Spanish interpreter services. Id. at 50. In its factfinding order, the trial court adjudicated Children as CHINS, required Mother "to contact DCS within 72 hours of her release from incarceration[,]" acknowledged the active no-contact order between Mother and the Children, and authorized "supervised parenting time for [Mother] upon the lifting or modification of the no contact order and as recommended by the child and family team." Id. at 53. The trial court's order did not specify services for Mother while she was in jail, and, because of the pandemic, services were not being provided in jail. Tr. Vol. 2 at 50, 54, 60-61. The initial permanency plan was reunification.
[¶6] In October 2021, Mother posted bond. When she posted bond, she knew that she would be deported but erroneously believed that the Children would accompany her. Id. at 38. In November 2021, Mother was deported to Honduras, where she remains. An outstanding warrant still exists for Mother's felony battery and neglect charges. The Children, who were not deported, have been in foster care since their removal. Mother has not seen the Children in person since her arrest.
During testimony, Mother agreed with the statement that she "can't come back [to the United States] for at least ten years." Tr. Vol. 2 at 37.
[¶7] In a February 2022 order, the trial court changed the Children's permanency plan from reunification to adoption. Ex. Vol. 1 at 127. The order indicated that the Children were placed together in a pre-adoptive foster home and doing well, that Mother had been deported and had not been in contact with her counsel, and that father's whereabouts were unknown. Thereafter, DCS filed a petition to involuntarily terminate Mother's parental relationship with the Children.
[¶8] In the spring of 2023, a factfinding hearing occurred. During the four-day hearing, Mother appeared virtually and by counsel and with the assistance of an interpreter. In October 2023, the trial court issued a sixteen-page order terminating Mother's parental rights. She appeals.
Discussion and Decision
[¶9] We recognize that "a parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005)). "[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore "termination is intended as a last resort, available only when all other reasonable efforts have failed." Id.
[¶10] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." In re C.A., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).
In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note that unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind.Ct.App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind.Ct.App. 2012), trans. denied.
[¶11] A petition to terminate a parent-child relationship must allege, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the wellbeing 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). DCS must prove each element by "clear and convincing evidence." R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Our legislature made significant changes to Indiana Code Section 31-35-2-4 in 2024. DCS filed its petition in 2022, under the prior version of the statute.
Section 1 - Mother has not demonstrated fundamental error regarding her due process argument that DCS failed to make reasonable efforts to reunify her with the Children.
[¶12] Mother contends that she has a constitutional substantive due process right to raise the Children. She argues that although the original permanency plan was reunification, DCS offered her no services, diagnosis, or treatment in furtherance of that goal. Mother asserts that DCS's failures violated due process during the CHINS case, created a risk of the erroneous filing of the termination petition, and constituted fundamental error.
[¶13] It is well established "that a party on appeal may waive a constitutional claim." McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 194 (Ind.Ct.App. 2003); see, e.g., In re K.S., 750 N.E.2d 832, 834 n.1 (Ind.Ct.App. 2001) (determining that mother waived claim that trial court violated her due process rights because of court's alleged noncompliance with statutory requirements governing pre-termination proceedings, e.g., permanency hearing, case plan, and dispositional order, because she raised constitutional claim for first time on appeal). Here, because Mother did not specifically raise her due process challenge at the trial court, and would otherwise risk waiver, she has couched her argument in terms of fundamental error. See Appellant's Br. at 23. We have described the fundamental error doctrine as
a narrow exception to the waiver doctrine [that] applies to an "error that was so egregious and abhorrent to fundamental due process that the trial judge should or should not have acted, irrespective of the parties' failure to object or otherwise preserve the error for appeal." In re G.P., 4 N.E.3d 1158, 1167 n.8 (Ind. 2014). For our court to overturn a trial court ruling based on fundamental error, the error must have been "a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively." S.M. v. Elkhart Cnty. Office of Family and Children, 706 N.E.2d 596, 600 (Ind.Ct.App. 1999) (emphasis added).N.C. v. Ind. Dep't of Child Servs., 56 N.E.3d 65, 69 (Ind.Ct.App. 2016), trans. denied.
[¶14] When the State seeks to terminate parental rights, "it must do so in a manner that meets the requirements of due process." G.P., 4 N.E.3d at 1165. Procedural due process addresses the right to a fair proceeding, and substantive due process involves a parent's right to raise his or her children. In re T.W., 135 N.E.3d 607, 613 (Ind.Ct.App. 2019), trans. denied (2020). The nature of the process due in proceedings to terminate parental rights is governed by a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): the private interests affected by the proceeding, the risk of error created by the State's chosen procedure, and the countervailing governmental interest supporting use of the challenged procedure. Phelps v. Porter Cnty. Off. of Fam. &Child., 734 N.E.2d 1107, 1112 (Ind.Ct.App. 2000), trans. denied (2001).
[¶15] Here, the private interest, Mother's interest in the care, custody, and control of the Children, is substantial. Likewise, the State's interest in protecting the welfare of the Children is substantial. Because Mother and the State have substantial interests affected by the proceeding, we turn to the risk of error created by DCS's actions and the trial court's actions. Mother does not assert that she was denied notice of hearings, precluded from attending hearings, or denied the opportunity to testify or confront witnesses. Rather, she focuses on the risk of error caused by DCS's alleged failure to make reasonable efforts to reunify her with the Children.
[¶16] In the context of termination proceedings, a parent's due process rights encompass DCS's responsibility to make "reasonable efforts to preserve and/or reunify the family unit." T.W., 135 N.E.3d at 615. Yet, "[w]hat constitutes 'reasonable efforts' will vary by case, and ... it does not necessarily always mean that services must be provided to the parents." Id. Indeed, the "failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law." In re H.L., 915 N.E.2d 145, 148 n.3 (Ind.Ct.App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind.Ct.App. 2000) ("[T]he provision of family services is not a requisite element of our parental rights termination statute, and thus, even a complete failure to provide services would not serve to negate a necessary element of the termination statute and require reversal.").
[¶17] Mother likens her case to T.W., 135 N.E.3d 607, in which we reversed a trial court's termination of parental rights order, concluding that DCS did not make reasonable efforts to reunify the father with the child and that the insufficient process employed in the CHINS case created a risk of erroneous filing of a termination petition in violation of the father's due process rights. T.W. entailed a DCS family case manager (FCM) failing to make promised referrals for the father, the father being provided misinformation by the prosecutor's office that sidelined his application for establishing paternity, the FCM mistakenly sending drug screen information to the father at an outdated address, and the FCM failing to inform the father that his first supervised parenting time session had been cancelled. Id. at 609-11. T.W. is factually distinguishable in that there are no errors of that type in Mother's case. Also, there is no indication that the father in T.W. was ever jailed for allegations of felony battery or neglect of his own child.
[¶18] Mother cites favorably to In re O.G., 65 N.E.3d 1080 (Ind.Ct.App. 2016), trans. denied (2017), another termination reversal. However, in O.G., we noted "an extraordinarily troubling pattern of behavior" by DCS contrasted by positive actions of the parent. Id. at 1096. Specifically,
[t]he FCM made little to no effort to contact Father at the initiation of the CHINS case. And then, after DCS made its own internal decision that the case plan was to reunify Child with Mother, the FCM's minimal efforts to engage Father ceased altogether. While Father's own record is far from sterling, the evidence in the case establishes that, when he was not incarcerated, he made multiple attempts to contact the FCM and engage in services; furthermore, when he was incarcerated or on work release, he participated with services available to him.Id.
[¶19] Unlike in O.G., here, DCS maintained contact with Mother, and there is no evidence that DCS made an explicit decision to do nothing to reunify Mother with the Children. Rather, at the outset, services were not ordered or instituted because Mother was incarcerated, and the pandemic restrictions prevented providers from entering the jail where she was being held. Tr. Vol. 2 at 50, 54, 60-61. Mother was ordered to notify DCS within seventy-two hours of her release. Mother posted bond and was deported. Mother knew that she would be deported upon posting bond. Once Mother was deported, DCS could not refer services because it did not have agencies contracted in Honduras. Id. at 54, 61, 156. Further, a no-contact order continued to be in effect due to Mother's unresolved felony battery and neglect case. Moreover, once the plan changed from reunification to adoption, reunification services were no longer consistent with the court-ordered plan of adoption. Accordingly, it was Mother's arrest and incarceration for alleged felonies against the Children, the unavailability of services in jail due to the pandemic, and Mother's deportation, rather than any failures by DCS, that hindered the provision of services. As such, we find no infringement on Mother's right to due process as a result of DCS's, and by extension, the trial court's actions. Mother has not demonstrated fundamental error.
Mother also cites In re C.M.S.T., 111 N.E.3d 207 (Ind.Ct.App. 2018), for the proposition that DCS's failure to fulfill its statutory role during the underlying CHINS case can rise to the level of a due process violation. However, C.M.S.T. involved "unusual and alarming circumstances" in the underlying CHINS case, and both DCS and the State conceded that the parents were denied due process. Id. at 213, 209. The "egregious behavior" and "many instances" of "chaotic and unprofessional handling of" the case included an FCM submitting a false report, another FCM having an inappropriate relationship with the father, and improper preferential treatment of father. Id. at 212, 213. See also D.H. v. Ind. Dep't of Child Servs., 122 N.E.3d 832, 833 (Ind.Ct.App. 2019) (reversing termination because of "pervasive and admitted procedural irregularities" in CHINS case that violated due process), trans. denied. Again, the present case is factually distinguishable in that it did not contain the many and varied improper actions that occurred in C.M.S.T. or D.H. And, unlike Mother, the appellants in C.M.S.T. and D.H. were not charged with multiple felonies for battery and neglect of their own children.
Section 2 - Mother has failed to establish reversible error as to certain findings.
[¶20] In seeking reversal of the termination of her parental rights, Mother disputes a few of the 102 findings and conclusions made by the trial court. Recalling that we do not reweigh evidence or judge witness credibility and that we consider only the evidence and reasonable inferences therefrom that support the judgment, K.T.K., 989 N.E.2d at 1229-30, we address each challenged finding.
[¶21] Finding 26 provides:
On February 16, 2022, the CHINS court conducted a Permanency Hearing and changed the plan from reunification to adoption. At that time, Mother was no longer in contact with the DCS and had not participated in services. Also, Mother [sic] or visitation. In changing the child's permanency plan to adoption, the [CHINS] Court entered the following findings:
"The Court finds that it is in the best interests of the children for the jurisdiction of the Court to continue. The children have been removed from the care of parents for 15 of the past 22 months. Mother has been deported and
father's whereabouts are unknown. The children have needs, including the need for therapeutic services, which neither parent can meet. The needs of the children are being met in their current foster home, which is pre-adoptive. The children are in need of permanency. The Court orders that the permanency plan be changed to adoption. The Court finds that reasonable efforts have been made by DCS to prevent or eliminate the need for removal of the children from the care of the parents; reasonable efforts have been made by DCS to provide the family with services; and reasonable efforts have been made by DCS to mitigate the need for an alternative permanency plan. Reasonable efforts have been made by DCS and services have been offered to achieve the prior permanency plan of reunification, however, those efforts have been unsuccessful."
Appealed Order at 4-5 (emphasis added). Finding 37 provides that "Mother has not completed any services through the Honduran government or Honduran social services to mitigate the reasons for her children's removal from her care." Id. at 6. Finding 75 provides in part that "[a]s of the termination hearing, Mother had not participated in services, in the U.S. or Honduras, since the time of [the Children's] removal in August of 2020." Id. at 12.
Mother did not challenge the rest of finding 75, which provides that "[a]ny benefit [Mother] received from her successful participation in services in the prior CHINS case was not lasting, as she continued to physically abuse [the Children] after closure of that case." Appealed Order at 12. We accept all unchallenged findings as true. S.S., 120 N.E.3d at 608 n.2.
[¶22] Although Mother blames DCS for her nonparticipation in services, the findings that Mother had not participated in services were not incorrect. Moreover, we disagree that DCS was at fault for Mother's nonparticipation. Mother's arrest and incarceration for multiple felonies for alleged battery and neglect of the Children, the resulting no-contact order, the unavailability of services in jail due to the pandemic, Mother's deportation upon posting bond, and her unresolved criminal case combined to stymie the provision of services and, in turn, led to Mother not participating in services. DCS did provide services to the Children in the form of foster care and various therapies, but the no-contact order precluded visits with Mother, even absent the pandemic. Given these circumstances, we cannot say that DCS's efforts were unreasonable. Further, when asked if she had "done in services through the Honduran government or Honduran social services since" arriving in Honduras, Mother testified, "No. One, because it had not been-it has not been proposed, and the other one, 'cause I haven't done it." Tr. Vol. 2 at 20-21. Additionally, no evidence was admitted to support the notion that the home study completed in Honduras would mitigate the reasons for the Children's removal from Mother.
[¶23] Mother also insists that she maintained contact with DCS through phone calls and messaging applications. The "no longer in contact" phrase in finding 26 appears to stem from the February 16, 2022 CHINS order that stated: "Mother, by counsel, has nothing to add. Counsel has not had contact with mother." Ex. Vol. 1 at 127. To the extent that this isolated phrase is erroneous, we view it as "sufficiently minor so as not to affect the substantial rights" of Mother. See O.G., 159 N.E.3d at 19. That said, out of an abundance of caution, we will not consider it and will instead look to finding 39, which provides: "From August 2020 until October 2022, FCM [Briauna] Hampton would meet with Mother on Wednesdays to discuss the case and the Minor Children. Once Mother was deported to Honduras, FCM Hampton communicated with Mother weekly through what's Up text app." Appealed Order at 6. Mother has not demonstrated that findings 37, 75, or the majority of finding 26 are clearly erroneous.
[¶24] Mother also takes issue with a portion of finding 29. We include the entire finding and highlight the challenged part:
In June 2022, the DCS in Honduras then conducted a socioeconomic study for Mother. He opined that Mother's was satisfactory environment with Mother. However, he only spoke to the socioeconomic like level of education, current profession and ethnic background, and the individuals living in the home. Mother works at the family grocery store attached to her residence. He concerned his study with the physical and financial ability of Mother to provide for the Minor Children. Further, he was unaware of the reasons for removal from Mother, her criminal case or the no contact order. The Minor Children were found to be CHINS because of mother's physical abuse against them, an important fact for him to have known in order to make any recommendation to the court related to the factors this court must consider when deciding on the Petition at hand.
Appealed Order at 5 (emphasis added).
[¶25] Celvin Galo, a Honduran social worker, testified that he visited Mother's home in Honduras "to coordinate a family visit with the children." Tr. Vol. 2 at 123. Galo created a report, based upon what Mother told him and his observations, and concluded that the social and economic conditions were favorable for Mother to have the Children with her. Id. at 126-27. Galo's testimony demonstrated haziness as to the circumstances that led to Mother's situation. He acknowledged that Mother told him that the Children's injuries were "caused by a trampoline" as opposed to any action on her part. Id. at 127. When asked if Mother explained the iron-shaped burn on her daughter's leg, Galo acknowledged that "there was really no way to verify then that part because the children were in the United States. So, I don't know exactly about an iron." Id. Although Galo acknowledged that Mother told him she was facing felony charges for battering her children, he also stated, "I don't know exactly the case." Id. at 128. He candidly stated:
I have no knowledge really of what the legal reframe work is in the United States but, you know, but, you know, according to her, you know, she did lose her freedom for some time because of mistreating her children but then - then when we tried to establish contact then with authorities in the United States and then we didn't manage to and then what we knew then was the, you know, from speaking to her was that she had not been convicted, but that she had been deported and in my view and based in my experience then that - that is not an argument then for her not to have her children and that - that the decision was then that her children be repatriated to Honduras.Id. at 128-29 (emphasis added). When asked if Mother told Galo that "she has a no-contact order issued by a court in the United States between her and her children[,]" he stated, "I do recall that and she had told me that she had not managed to have any contact until I made the visit, which was in June of 2022." Id. at 128.
[¶26] We agree that Galo was not completely in the dark as to the reasons for the Children's removal or the existence of Mother's criminal case. However, the evidence also indicates that Galo's knowledge of the reasons for removal and the details of the criminal case was primarily gleaned from what Mother told him rather than from other sources. Thus, his understanding of the situation was incomplete at a minimum and muddied at best. In addition, his response regarding the no-contact order revealed that his understanding of the order was limited. In light of the evidence presented, the word "unclear" might have been a better word choice than "unaware." However, without reweighing evidence or judging credibility, we cannot say that finding 29 was clearly erroneous. Mother has failed to establish reversible error as to the challenged findings.
Section 3 - The trial court did not err in concluding that termination of the parent-child relationship is in the Children's best interests.
[¶27] Mother also challenges the trial court's conclusion that termination of the parent-child relationship is in the Children's best interests. Mother asserts that termination would sever the Children's last tie to their native Honduras and its culture and that termination is not a recipe for permanency and stability due to the possible complications of transnational adoption.
Mother does not contest the conclusion that DCS "has shown by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the [C]hildren's removal and for continued placement outside Mother's home will not be remedied." Appealed Order at 13. Likewise, Mother does not contest the conclusion that "DCS has shown by clear and convincing evidence that there is a reasonable probability that the continuation of the parent-child relationship between Mother and the [C]hildren poses a threat to their well-being." Id. at 14.
[¶28] To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158 (Ind.Ct.App. 2013), trans. denied. "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification-and courts 'need not wait until the child is irreversibly harmed such 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 636, 648 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1235). Also, "[p]ermanency is a central consideration in determining the best interests of a child." In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). "[W]e have previously held that the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." A.D.S., 987 N.E.2d at 1158-59.
[¶29] Briauna Hampton was the original FCM assigned to the case in August 2020 when the Children were removed due to the allegations of abuse and neglect. From the inception of the case, the Children were placed in foster care and moved just once, in November 2020. Per Hampton's actions and with the support of the foster mother, the Children received age-appropriate traumabased therapy. Tr. Vol. 2 at 48. Hampton testified that their behaviors improved, and the Children began to "open up" to her. Id. During that time, Hampton kept in contact with Mother through calls when she was jailed on allegations of felony battery and neglect and via texts when she was deported after posting bond. Id. at 46. Hampton eventually recommended that the plan change from reunification to adoption because of the no-contact order, Mother's "history with DCS being physical abuse," and the Children's improvement. Id. at 51. The Children were "happy" in the foster home, "bonded" with the people in the foster home, and had their needs met by the foster mother. Id. at 52. The Children's father was never located.
The foster mother elaborated on this testimony. She testified regarding C.B-G.'s initial passivity, explosiveness, and anxiety, as well as M.B-G.'s initial fear, anxiety, and timidity, and then she spoke of the Children's improvements. Tr. Vol. 2 at 70-72.
We reiterate that Mother's first CHINS case spanned 2014 to 2016 and, like the 2020 case, involved physical abuse of the Children.
[¶30] After FCM Hampton left DCS, FCM Jessica O'Donnell was assigned to the case. O'Donnell testified that DCS requested termination with a permanency plan for adoption to "establish and maintain a safe and stable environment" for the Children "free from physical abuse." Id. at 150. When asked about the best interests of the Children, O'Donnell confirmed that DCS wanted to pursue adoption. Id. at 151. Given that Mother did not benefit from the services provided in her original CHINS case, O'Donnell testified that she did not have a reason to believe that Mother would have benefited from services had they been available in the current case. Id. at 161.
[¶31] Regina Martinez, the guardian ad litem (GAL), was appointed by the court to represent the Children's best interests. Id. at 171, 179. In her role as the GAL, Martinez reviewed reports and documents, attended multiple court hearings and child and family team meetings, and met with the Children several times at the foster home. She testified that the Children were "doing extremely well" and that they were "healthy and excelling in school and they're very bonded with foster mom and her family." Id. at 178. Martinez described the foster home, where the Children have been since 2020, as very loving, encouraging, caring, supportive, and communicative. Id. at 178, 182. Martinez noted her concerns about Mother's "parenting skills," "her ability to provide" a safe home, and her ability to meet "all the [C]hildren's needs." Id. at 179. When asked, "[b]ased on everything you've heard, everything you know about the case, do you think it would be in the [Children's] best interest that they return to live with" Mother in Honduras, Martinez replied, "No, it would not." Id. at 181. She stated that the Children "have never expressed wanting to be returned" to Mother's care and opined that it would be "traumatic" for the Children to be returned to Mother. Id. Martinez reiterated that termination is in the Children's best interests because Mother "has not demonstrated the ability to parent the [C]hildren without using corporal punishment. This is the concerns that caused the case to open [and] are still present and haven't been alleviated." Id. at 182. She unequivocally recommended the plan of adoption and stressed that the Children "need stability and permanency." Id. at 179, 182. She had no "reason to believe that additional time would move" the Children "closer to a healthy and safe transition back home with" Mother. Id. at 183.
C.B-G. testified that if Mother's parental rights were terminated, she would like to be adopted by the foster mother. Tr. Vol. 2 at 116.
[¶32] In sum, there was no dispute among the FCMs or the GAL that termination with a plan of adoption by the foster mother was in the Children's best interests. The FCMs and the GAL knew of the Children's Honduran roots. Yet, they also knew that Mother had moved the Children to the United States when the Children were approximately two and three years old and that by the time of the termination hearing the Children were twelve years old and approximately ten years old. As for Mother's assertion that the transnational adoption component complicates this case in a way that somehow affects the best interests calculation, we disagree. Martinez noted that this was not her first case with children who had "special immigrant juvenile status." Id. at 189. Accordingly, she knew that there were special legal considerations different from those in adoption cases "where everyone is an American citizen," hence she "consult[ed] with the immigration attorney[.]" Id. at 189-90, 206. Indeed, the immigration attorney testified that special immigrant juvenile status means that the Children "are on a path to licensed permanent residency and possibly citizenship because of humanitarian purposes." Id. at 200. The attorney explained that the Children would "be able to apply for licensed permanent residency when visas become available" and with deferred action would be "protected for four years from deportation by ICE and the immigration courts." Id. The attorney stated that the current wait for visas for the Children was "approximately three years." Id. Adoption would "not affect their path to citizenship through special immigrant juvenile status." Id. at 202.
[¶33] Given the evidence presented, it is abundantly clear that the Honduran ties and the complexities of a transnational adoption were known and considered but did not change the conclusion that termination and adoption were in the Children's best interests. Mother has not demonstrated that the trial court erred in determining that termination of her parental rights was in the Children's best interests. Based on the foregoing, we affirm the trial court's termination orders.
[¶34] Affirmed.
Bradford, J., and Tavitas, J., concur.