Opinion
22A-JT-1860
02-13-2023
In the Matter of the Termination of the Parent-Child Relationship of I.H. and C.M. (Minor Children) v. Indiana Department of Child Services, Appellee-Petitioner. And B.H., et al, Appellants-Respondents,
ATTORNEY FOR APPELLANTS Litany A. Pyle Crawfordsville, Indiana, Aaron J. SpolarichLafayette, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Monika Prekopa Talbot Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Montgomery Superior Court, The Honorable Daniel G. Petrie, Judge, Trial Court Cause No. 54D02-2201-JT-3, 54D02-2201-JT-4
ATTORNEY FOR APPELLANTS Litany A. Pyle Crawfordsville, Indiana, Aaron J. SpolarichLafayette, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
RILEY, JUDGE.
STATEMENT OF THE CASE
[¶1] Appellant-Respondent, C.H. (Mother), appeals the trial court's termination of her parental rights to the minor children, I.H. and C.M. (collectively, Children); while Appellant-Respondent, B.H. (Father), appeals the trial court's termination of his parental rights to his minor child, I.H.
C.M.'s father, whose parental rights were also terminated by the trial court, does not participate in this appeal.
[¶2] We affirm.
ISSUES
[¶3] Mother and Father present this court with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by admitting into evidence Children's out-of-court statements made for the purpose of medical treatment; and
(2) Whether the Indiana Department of Child Services (DCS) presented sufficient evidence to support its petitions to terminate the parent-child relationship.
FACTS AND PROCEDURAL HISTORY
[¶4] In April 2019, DCS performed an "educational neglect assessment" on the family due to Children's numerous unexcused absences from school. (Exh. Vol. IV, p. 237). Children were not removed from Mother and Father's care (collectively, Parents), and the trial court declined to find Children to be Children in Need of Services (CHINS).
[¶5] In the fall of 2020, DCS received reports that Children were truant. On November 17, 2020, DCS filed two separate petitions, alleging that Children were CHINS due to educational neglect and domestic violence in the home. Three days later, DCS removed Children from the parental home for the same reasons and placed them in relative care. Eleven days later, DCS relocated Children to foster care due to the relative's drug use. Then, in Children's first foster placement, C.M. disclosed sexual abuse by the foster family, and Children were placed with a second foster family.
[¶6] Around December 2020, after Children's removal from the home, Mother petitioned for a restraining order against Father, claiming that he had held her at gunpoint and had confined her to the bedroom. Because the restraining order included protection for Children, Father was unable to visit with I.H. DCS developed a safety and visitation plan for Mother.
[¶7] On February 26, 2021, the trial court adjudicated Children to be CHINS. On March 16, 2021, the trial court entered dispositional orders, ordering Parents to participate in reunification services. Due to Parents' refusal to participate, the trial court entered a parental participation decree on April 28, 2021, again ordering Parents to attend reunification services. Specifically, the court ordered Mother to complete a substance abuse assessment and follow all recommendations, complete a psychological evaluation, meet with medical and psychiatric personnel, take prescribed medications, attend scheduled visitations, and not commit any acts of domestic violence. Father was ordered to abstain from illegal substances, submit to random drug screens, complete a parenting assessment, meet all personal medical and mental health needs, attend scheduled visits with I.H., and participate in fatherhood engagement.
[¶8] Mother was diagnosed with histrionic personality disorder, and from the inception of the CHINS case, she was combative with DCS's family case manager (FCM). Throughout these proceedings, Mother insisted that she did not need services and she failed to stay in contact with FCM. At a family team meeting, Mother yelled at FCM and called her names. At other times, Mother threatened FCM and accused her of lying.
[¶9] Prior to the factfinding hearing, DCS referred Mother to Raintree for a clinical assessment and homebased case management. In December 2020, based on Mother's intake and clinical assessment, Raintree recommended Mother to participate in individual counseling and homebased case management. Mother failed to participate in these services.
[¶10] Mother received supervised visitation with Children through Raintree. From January through June 2021, Mother engaged in weekly therapeutically-supervised visitation with Children. Although Mother sometimes arrived late for the visits, Mother would bring snacks and activities for Children; she was concerned regarding their medical appointments and health; and she went two months without needing intervention. In June of 2021, the supervision provider ceased the visits because Mother became argumentative and stated that the supervision provider was "disrespecting her" in front of Children. (Transcript Vol. II, p. 40). Mother threatened to call the police on the supervision provider and have her put in jail for contempt. The visit ended early and the supervision provider returned Children to their foster placement. Because of Mother's threatening behavior, which upset Children, the therapeutic visits ended in June 2021 pursuant to a court order. As of the termination hearing, Mother had not seen Children in a year.
[¶11] In December 2020, therapist Steve Center (Center) received DCS's referral for a parenting assessment for Mother. Mother did not respond to Center's meeting requests until May 2021. Center conducted two interviews with Mother on May 7 and 15, 2021, and he created a parenting assessment for Mother based on the interviews. On May 7, 2021, Mother appeared to be cooperative, she felt positive about herself as a mother, and reiterated that she did not need services. On May 16, 2021, Mother's demeanor was different: she was fidgety and argumentative, she appeared paranoid, she had "pressured speech," and she admitted to having "some anxiety." (Tr. Vol. II, pp. 174-75). Center recommended therapy and marriage counseling, but Mother responded aggressively, which "could be taken as threatening." (Tr. Vol. II, p. 175). Center was under the impression that Mother was suffering from a manic episode due to bipolar disorder, paranoid schizophrenia, or schizoaffective disorder.
[¶12] In June 2021, DCS referred Mother to services at Valley Oaks because she insisted that she would only participate in services at that facility. Mother did not contact Valley Oaks until August 2021. Therapist Brenna Fisher (Fisher) first met Mother during her intake interview on August 13, 2021. At that time, Mother admitted that she self-medicated on a daily basis with marijuana for nausea. Fisher recommended that Mother attend addiction counseling as her marijuana abuse interfered with her ability to take care of Children. Despite attending group sessions through January 5, 2022, Mother continued her daily marijuana use. Mother also worked with Valley Oaks' case manager to obtain housing and employment, file for divorce from Father, recover from her marijuana addiction, and reunify with Children. Although she did file for divorce, Mother did not accomplish any of her other goals. Mother's case management ended in February 2022 after she sent threatening messages to the case manager. Ultimately, Mother was unsatisfactorily discharged from Valley Oaks.
[¶13] While Parents were living together for most of 2021, the violence between them was also ongoing. On June 30, 2021, Mother had bruises on her face and stated that Father had broken her nose.
[¶14] DCS spoke with Father at the beginning of the CHINS proceedings, and Father stated that he did not understand why Mother had left him and petitioned for a protective order. The protective order was lifted in January 2021, at Mother's request. Although Father was allowed to visit with I.H. after the lifting of the protective order, he did not visit with I.H. until July 2021. Father had several visits in July 2021, and single visits in August 2021 and September 2021. After the September visit Father stopped communicating with the provider and the referral was closed.
[¶15] On June 7, 2021, DCS referred Father to Valley Oaks to participate in homebased casework, individual therapy, and a substance abuse assessment due to cannabis use and "suspicious misuse of amphetamines." (Tr. Vol. II, p. 213). After his intake on July 28, 2021, Father tested positive for THC on July 30, 2021. Father refused to participate in any DCS-related services, and did not respond to Valley Oaks' attempts to schedule him for individual therapy. Father also failed to respond to Valley Oaks' nine attempts to schedule him for homebased case management. DCS referred Father to the father engagement program, which is designed to help fathers become more involved in services. While at one point Father did engage, he later failed to communicate with the provider and was unsatisfactorily discharged as a result.
[¶16] Commencing in 2021 and still at the time of the termination hearing, Father was living in a camper outside the family home. In early 2022, FCM tried to reengage Father in services, but Father informed FCM that he did not need them and was not going to attend. Father never completed any of the services he was ordered to attend.
[¶17] After removal from Parents' care, Children were briefly placed in relative care and then moved to a foster family. The foster family placed Children in respite care multiple times, thereby convincing I.H. that she was not wanted by the foster family. DCS then placed Children with a second foster family, where they were still residing at the time of the termination hearing.
[¶18] I.H., born on November 15, 2009, was initially referred to therapy at Raintree for anger management and emotional regulation issues but the referral was closed out because I.H. refused to talk to the therapist. Therapist Mary Alanos (Alanos) worked with I.H. from December 14, 2021, through April 18, 2022. During this time, she diagnosed I.H. with social anxiety, which improved through therapy in such a way that I.H. "developed a great social system at school." (Tr. Vol. II, p. 87). Therapist Deborah Tolle (Tolle) started working with I.H. on May 11, 2022. I.H. talked to Tolle about her Parents' fights and physical violence. She explained that Mother was up multiple times during the night, screaming and yelling at Children and pulling their hair. On one occasion, Mother threw a weight at Father.
[¶19] C.M., born on February 4, 2005, has a long history of abuse by her caregivers. She has endured sexual abuse, emotional abuse, and neglect. She was on probation for trespassing when DCS became involved with the family. DCS initially referred C.M. to Valley Oaks for an assessment and individual therapy in December 2020. After she reported symptoms of panic disorder, depression, and marijuana abuse, she was referred to mental health and addiction services. She last attended Valley Oaks in May 2021, having not met her treatment goals. Alanos started working with C.M. on January 27, 2022. C.M., who had a history of self-harm and had attempted suicide on two occasions, scored moderately on the depression and anxiety assessments. C.M. also informed Alanos that she had abused methamphetamines, alcohol, marijuana, and hydrocodone. She told Alanos that she had experienced sexual abuse from her biological father and her first foster family. C.M.'s symptoms improved with therapy.
[¶20] Around November 2021, Children became very vocal in expressing their wish of wanting to be adopted. They refused to visit with Parents, and they expressed a fear of being returned to Parents. Children are currently in a placement where "they are loved unconditionally and where they are happy, and where they are successful in what they are doing." (Tr. Vol. II, pp. 223-24). Children no longer have problems with school attendance and schoolwork.
[¶21] On January 6, 2022, DCS filed petitions to terminate Parents' rights to I.H. and C.M. On March 16, June 16 and 17, 2022, the trial court conducted a factfinding hearing. During the proceedings, DCS questioned Tolle about I.H.'s statements regarding her home life with her Parents. Parents objected to this testimony as inadmissible hearsay. After DCS argued that the testimony was admissible for the purpose of medical diagnosis or treatment, the trial court overruled the objection and permitted Tolle to testify. During Alanos' testimony, DCS attempted to enter into evidence a letter written by C.M. which was intended to replace C.M.'s testimony. Parents objected and the trial court sustained the objection because the letter "was not made for the purpose of forming a diagnosis or any treatment." (Tr. Vol. II, pp. 93-94). Next, DCS questioned Alanos about the contents of the letter, asking "[a]s part of therapy, has [C.M.] expressed [] to you anything about these court proceedings?" (Tr. Vol. II, p. 95). After Alanos replied affirmatively, DCS asked her to explicitly relay what C.M. had told her. Parents again objected to this testimony as hearsay. The trial court overruled the objection and admitted the testimony, finding that C.M.'s statements related to "ongoing trauma, [and] mental health treatment" and therefore had been made for the purpose of diagnosis or treatment. (Tr. Vol. II, p. 96).
[¶22] On July 15, 2022, the trial court entered its Order, terminating Mother's parental rights in I.H. and C.M., and terminating Father's parental rights in I.H., concluding that there was a reasonable probability that the conditions that resulted in Children's removal and continued placement outside the home would not be remedied; that termination of parental rights was in Children's best interests; and that there was a satisfactory plan for the care and treatment of Children, namely adoption.
[¶23] Parents now appeal. Additional facts will be provided if necessary.
DISCUSSION AND DECION
I. Admissibility of Evidence
[¶24] Mother contends that the trial court abused its discretion by admitting Children's statements made to their therapists pursuant to the medical diagnosis or treatment exception of the hearsay rule without requiring DCS to properly lay a foundation for the exception to apply. The decision to admit or exclude evidence at trial is squarely within a trial court's discretion and we afford it great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). We will not reverse such a decision, often made in the context of heated testimony and argument, unless it is clearly contrary to the logic and effect of the facts and circumstances of the case or misinterprets the law. Id. at 703.
[¶25] A hearsay statement is one "other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay statements are not admissible, except pursuant to certain exceptions within the Rules of Evidence. Ind. Evidence Rule 802. One such exception, which DCS argues is applicable here, "generally permits statements made for the purpose of medical diagnosis or treatment to be admitted into evidence, even when the declarant is available." VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013) (citing Ind. Evidence Rule 803(4)). The statements must be "made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Id. "Rule 803(4)'s exception is grounded in a belief that the declarant's self-interest in obtaining proper medical treatment makes such a statement reliable enough for admission at trial-more simply put, Rule 803(4) reflects the idea that people are unlikely to lie to their doctors because doing so might jeopardize their opportunity to be made well." Id.
[¶26] "This belief of reliability, though, necessitates a two-step analysis for admission under Rule 803(4)." Id. "First, 'is the declarant motivated to provide truthful information in order to promote diagnosis and treatment,' and second, 'is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.'" Id. (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)). "Statements made by victims of sexual assault or molestation about the nature of the assault or abuse-even those identifying the perpetrator-generally satisfy the second prong of the analysis because they assist medical providers in recommending potential treatment." Id.
But in cases [] where the declarant is a young child brought to the medical provider by a parent, we have acknowledged that such an inference may be less than obvious. Such young children may not understand the nature of the examination, the function of the examiner, and may not necessarily make the necessary link between truthful responses and accurate medical treatment. In that circumstance, "there must be evidence that the declarant understood the professional's role in order to trigger the motivation to provide truthful information." This evidence does not necessarily require testimony from the child-declarant; it may be received in the form of foundational testimony from the medical professional detailing the interaction between him or her and the declarant, how he or she explained his role to the declarant, and an affirmation that the declarant understood that role. But whatever its source, this foundation must be present and sufficient.Id. at 261 (internal citations omitted).
[¶27] DCS elicited a sufficient foundation to support the admissibility of I.H.'s hearsay statements to Tolle. Tolle testified that at her first meeting with I.H., who was twelve years old at the time, she informed I.H. that what she was "there for is to do therapy." (Tr. Vol. II, p. 66). She discussed I.H.'s "fears or thoughts or concerns of [] the events that are occurring as far as termination goes[.]" (Tr. Vol. II, p. 66). Tolle also established goals for therapy, which were "learning about her anxiety and helping her process through that, helping her work through the termination and the trauma that she experienced, having any issues from that." (Tr. Vol. II, p. 68). Accordingly, based on these interactions, I.H., as a twelve-year-old, must have understood that she was in treatment and that truthful information would assist Tolle in providing a diagnosis.
[¶28] Mother also objected to Alanos' testimony with respect to the contents of the letter C.M. had written in therapy. At the commencement of her testimony, Alanos described how she talked with C.M., who was seventeen years old, "about what therapy would look like, what it would entail, how [Alanos] practice[s] therapy." (Tr. Vol. II, pp. 88-89). Alanos questioned C.M. "about some things that maybe she has tried or that she wants to try in order to kind of reduce some of her symptoms that she's having." (Tr. Vol. II, p. 89). Within the framework of formulating C.M.'s treatment goals, Alanos explained that "one kind of intervention to help with a trauma narrative is to write a letter." (Tr. Vol. II, p. 93). As such, we conclude that DCS provided a sufficient foundation that C.M. understood she was in therapy, the necessity to provide truthful information, and that her statements would be relied upon by Alanos for diagnosis and treatment. Therefore, the trial court did not abuse its discretion in admitting Alanos' testimony.
[¶29] Nevertheless, any error in the admission of Children's statements is, at best, harmless. "[E]rrors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party." VanPatten, 986 N.E.2d at 267 (quoting McClain, 675 N.E.2d at 331). "Admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted." Id.
[¶30] Here, the challenged evidence concerned trauma that Children experienced in Parents' home. However, DCS introduced the same evidence without triggering an objection by Parents. Alanos testified at length that C.M. had a history of self-harm, that she had attempted suicide on two occasions, and that she suffered from anxiety and depression. Alanos explained that C.M. had admitted to having abused amphetamines, alcohol, marijuana, and hydrocodone. She had been the victim of sexual abuse by her biological father and the first foster family and had also witnessed domestic violence and emotional abuse. Other testimony established that the domestic violence between Parents was the basis of Children's trauma. Accordingly, the therapists' challenged evidence was cumulative to other evidence that had not been the subject of an objection. As such, the contested evidence was, at best, harmless and no reversal is required.
II. Termination of Parental Rights
A. Standard of Review
[¶31] Mother challenges the trial court's termination of her parental rights to her Children, while Father contests the trial court's termination of his parental rights to I.H. The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). "A parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, parental rights "are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights." Id. If "parents are unable or unwilling to meet their parental responsibilities," termination of parental rights is appropriate. Id. We recognize that the termination of a parent-child relationship is "an 'extreme measure' and should only be utilized as a 'last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.'" K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 623 (Ind.Ct.App. 2006)).
[¶32] Indiana courts rely on a "deferential standard of review in cases concerning the termination of parental rights" due to the trial court's "unique position to assess the evidence." In re A.K., 924 N.E.2d 212, 219 (Ind.Ct.App. 2010), trans. dismissed. Our court neither reweighs evidence nor assesses the credibility of witnesses. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We consider only the evidence and any reasonable inferences that support the trial court's judgment, and we accord deference to the trial court's "opportunity to judge the credibility of the witnesses firsthand." Id.
B. Reasonable Probability
[¶33] In order to terminate a parent's rights to his or her child, DCS must prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree. * * * *
(iii) The child has been removed from the parent and has been under the supervision of a local office . . . for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a [CHINS] . . .;
(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 [CHINS];
(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 of the foregoing elements by clear and convincing evidence. C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014). "[C]lear and convincing evidence requires the existence of a fact to be highly probable." Id.
[¶34] It is well-established that "[a] trial court must judge a parent's fitness as of the time of the termination hearing and take into consideration evidence of changed conditions." Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 828 (Ind.Ct.App. 1995), trans. denied. In judging fitness, a trial court may properly consider, among other things, a parent's substance abuse and lack of adequate housing and employment. McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind.Ct.App. 2003). The trial court may also consider a parent's failure to respond to services. Lang v. Starke Cnty. OFC, 861 N.E.2d 366, 372 (Ind.Ct.App. 2007), trans. denied. "[H]abitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation." Stone, 656 N.E.2d at 828. A trial court "need not wait until the child[] [is] irreversibly influenced by [its] deficient lifestyle such that [its] physical, mental and social growth is permanently impaired before terminating the parent-child relationship." Id. Furthermore, "[c]lear and convincing evidence need not reveal that the continued custody of the parents is wholly inadequate for the child's very survival. Rather, it is sufficient to show by clear and convincing evidence that the child's emotional and physical development are threatened by the respondent parent's custody." K.T.K., 989 N.E.2d at 1230.
[¶35] In adjudicating Children as CHINS, the trial court determined that Children's removal from Parents' care was necessary due to educational neglect and Parents' domestic violence issues. Mother now appears to contend that she is not to be blamed for her failed reunification with Children, but rather "DCS and other service providers' adverse feelings towards Mother due to the 'emotional turmoil' of her mental health issues damaged Mother's chances of reunification." (Mother's Appellate Br. p. 19). She maintains that she "demonstrated a willingness to complete services. But providers would terminate services for Mother when she would state that she would report them to their supervisors or the police." (Mother's Appellate Br. p. 20). It is well-documented that throughout these proceedings, Mother insisted that she did not need services and she failed to successfully complete any of the court-ordered services. Mother failed to participate in individual therapy and when Raintree reached out to Mother about homebased case management, she did not respond. When DCS referred Mother to Valley Oaks, at her insistence, Mother waited three months to contact the facility. Although Mother did attend some therapy sessions at Valley Oaks for a while, she was ultimately unsuccessfully discharged. The evidence reflects that Mother's discharge from services was due to her aggressive and threatening behavior towards the caseworkers. At a family team meeting, Mother yelled at the FCM and called her names. At other times, Mother threatened the FCM and accused her of lying. When Center recommended therapy and marriage counseling in May 2021, Mother responded aggressively, which "could be taken as threatening." (Tr. Vol. II, p. 175). Mother's case management at Valley Oaks ended in February 2022 after she sent threatening messages to the case manager.
[¶36] Like Mother, Father refused to participate in any DCS services and did not respond to Valley Oaks' attempts to schedule him for individual therapy and homebased case management. Although Father did engage initially with fatherhood engagement services, he failed to remain in contact with the provider and was consequently unsatisfactorily discharged. Father never completed any of the services DCS recommended as part of the disposition.
[¶37] The domestic violence issues which initiated DCS's intervention with the family continued through these proceedings. Around the time DCS removed Children, Mother took out a restraining order against Father, alleging that he had held her at gunpoint and confined her to the bedroom. While the restraining order was lifted in early 2021, Parents have not resolved their domestic violence issues and have continued living together. They separated around June 30, 2021, when Mother appeared in court with bruises on her face and stated that Father had broken her nose. Mother did file for divorce during the CHINS proceedings, but it is unclear if she pursued the case. The evidence reflects that, at the time of the termination hearing, Father lived in a camper outside the family home, where Mother resided. Mother testified that she and Father had been "getting along just fine" and she denied that there was any physical violence in the home. (Tr. Vol. III, p. 21).
[¶38] Although Father contends that he was not allowed to visit with I.H. due to the restraining order, we note that when the restraining order was lifted in early 2021, he did not comply with visitation until July 2021. While Father had numerous visits in July, he only visited once in August, and once in September 2021. After his September visit, he stopped communicating with the provider and the referral was closed.
[¶39] Parents' failure to engage in services during these proceedings demonstrates a "lack of commitment to complete the actions necessary to preserve [the] parent-child relationship." In re A.L.H., 774 N.E.2d 896, 900 (Ind.Ct.App. 2002). We have previously concluded that "parents' past behavior is the best predictor of their future behavior." In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Despite DCS's referral to services aimed at reunification of Parents with Children, Parents refused to participate in the services, and in the rare case that Parents did attend, the services were closed out unsuccessfully. The domestic violence issues continued while these proceedings weaved through the court, with no evidence at the termination hearing that an effort had been made to even address the domestic violence. The trial court was entitled to weigh the evidence as it found appropriate in the context of this case, and we affirm the trial court's conclusion that a reasonable probability exists that the conditions that resulted in Children's removal will not be remedied. See K.T.K., 989 N.E.2d at 1234. As such, we affirm the trial court's decision.
C. Best Interests of Children
[¶40] Parents also challenge the trial court's conclusion that termination is in Children's best interests. To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind.Ct.App. 2013), trans. denied. The court must subordinate the interests of the parents to those of the child and need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. In this regard, "recommendations by both the case manager and the 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. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind.Ct.App. 2013), trans. denied.
[¶41] Here, FCM and CASA both supported the termination of Parental rights and adoption. FCM testified that around November 2021, Children became very vocal in expressing their wish in wanting to be adopted and refused to visit with Parents, expressing a fear of being returned to Parents. FCM confirmed that Children are in a placement where "they are loved unconditionally and where they are happy, and where they are successful in what they are doing." (Tr. Vol. II, pp. 223-24). Children's problems with school attendance and schoolwork, which had prompted their removal from Parents, have been resolved since their placement in foster care.
[¶42] Likewise, CASA opined that the termination of Parents' parental rights is in Children's best interests. As she did not see any progress on Parents' part, Children wanted to be adopted by their placement, and CASA believed that the bond between Parents and Children had been broken. "Termination, allowing for a subsequent adoption, would provide [Children] with the opportunity to be adopted into a safe, stable, consistent, and permanent environment where all their needs will continue to be met, and where they can grow." In re A.D.S., 987 N.E.2d at 1159.
[¶43] Contrary to Mother's argument, it is not the removal from Parents' home that caused Children's trauma. Rather, it was being in the midst of Parents' tumultuous relationship that caused Children trauma. After their removal from Parents, Children were provided with services to address their mental health and the resulting consequences of having witnessed and suffered from the domestic violence issues that existed in the home.
[¶44] Parents failed to avail themselves of the opportunities and services offered by DCS to reunite with Children and made no progress nor commitment during the proceedings of the case. "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification." In re E.M., 4 N.E.3d at 648. Even though "the ultimate purpose of the law is to protect the child, the parent-child relationship will give way when it is no longer in the child's best interest to maintain this relationship." In re B.D.J., 728 N.E.2d 195, 200 (Ind.Ct.App. 2000). Parents' inability to address their domestic violence issues to provide a safe environment for Children, together with their lack of participation in services requested by DCS to address family issues, supports the trial court's conclusion that termination of Parents' parental rights is in the best interests of Children. Accordingly, we affirm the trial court's decision.
CONCLUSION
[¶45] Based on the foregoing, we conclude that the trial court did not abuse its discretion by admitting into evidence Children's out-of-court statements made for the purpose of medical treatment and that DCS presented sufficient evidence to support its petitions to terminate the parent-child relationship.
[¶46] Affirmed.
[¶47] Bailey, J. and Vaidik, J. concur.