IN RE: the Termination of the Parent-Child Relationship of L.G. (Father) and S.V. (Mother) and A.P. (Minor Child) (2025)

MEMORANDUM DECISION

Case Summary

[1] L.G. (“Father”) and S.V. (“Mother”) appeal the termination of their parental rights to their child. We affirm.

Facts and Procedural History

[2] Father and Mother are the parents of A.P. (“Child”), born in June 2021. Mother has three other children: Z.S., born in October 2010, V.S., born in January 2012, and A.L.P., born in December 2016. On July 7, 2023, 12-year-old Z.S. called 911 and reported that Mother was the victim of domestic violence by her boyfriend, A.V., while all four children were in the home. This was the third time since December 2022 that police had been called to Mother's home for domestic violence. When police responded, they saw “blood splattered all over the house” and that “[M]other's face had marks and bruises.” Father's App. Vol. 2 pp. 23, 24. A.V. refused to leave the home and was eventually arrested. Mother wouldn't cooperate with police or let them speak to the children, so police called the Department of Child Services (DCS). Mother was also uncooperative with DCS and didn't have a safety plan for herself and the children, so DCS removed the children from Mother's care. Child was placed in foster care, where he has since remained.

[3] A few days later, DCS filed a petition alleging that all four children were in need of services (CHINS). Father's paternity of Child had not yet been established, and DCS named another man as Child's father in the CHINS petition. See Ex. 2 p. 31. Father was named in the petition as the “Alleged Father” of A.L.P. Id. (It was later determined that Father is not A.L.P.’s father.) At the time, Father was incarcerated and facing multiple felony charges for an incident with Mother in 2020, including two counts of Level 5 felony intimidation with a deadly weapon and a habitual-offender allegation. Father's paternity of Child was established later in the CHINS case.

[4] In September 2023, the trial court adjudicated the children to be CHINS. The next month, the court issued a dispositional order requiring Mother to, among other things, complete a clinical interview and assessment, submit to random drug screens, and participate in individual counseling, home-based casework, supervised visitation, and domestic-violence programming. The court ordered Father to contact DCS within 48 hours of his release from incarceration to initiate services, including batterer's services. But later in October, Father pled guilty to Level 5 felony intimidation with a deadly weapon, admitted being a habitual offender, and was sentenced to 10 years in the Department of Correction (DOC). This was not Father's first conviction for violent behavior toward Mother—in 2019, he was convicted of Class A misdemeanor domestic battery against Mother, and a domestic-violence determination was made.

[5] DCS referred Mother for supervised visitation, home-based case management, a clinical interview and assessment, and a parenting assessment. Mother attended supervised visitation but was unsuccessfully discharged by the provider and recommended for therapeutic visitation “due to [her] lack of self-regulation and coping skills.” Father's App. Vol. 2 p. 29. DCS referred Mother to another visitation provider, but in October, the trial court temporarily suspended Mother's visitation until it could be arranged to have two visit facilitators present. Mother completed an intake for home-based case management but told the provider she didn't need services. She refused to meet with the provider after the intake and was unsuccessfully discharged at the end of October. By that time, A.V. had been released from jail and ordered to have no contact with Mother. A DCS family case manager (FCM) saw Mother and A.V. together, but Mother denied contact. In November, Mother went in for a clinical interview and assessment, but the assessor ended the appointment after 10 minutes because Mother refused to answer questions and became “verbally combative and argumentative.” Id. at 27.

[6] Mother's noncompliance continued into 2024. She completed a parenting assessment in January but was resistant to certain questions and not forthcoming in her answers. As a result of the assessment, Mother was recommended to participate in therapy and domestic-violence services, but she “stated she did not want any more services.” Id. Mother submitted to random drug screens but frequently tested positive for THC. In April 2024, upon a motion by DCS, the trial court suspended Mother's parenting time “due to safety concerns regarding Mother's behaviors.” Id. at 25. The court ordered Mother to complete a clinical interview and assessment and six individual therapy sessions before it would reconsider parenting time. Mother completed a mental-health assessment later in April. The assessor thought Mother might have PTSD but didn't have enough information to make a diagnosis because Mother wasn't forthcoming in her answers. She also went in for a psychiatric evaluation but didn't complete it because “she ended up yelling at the staff and flipping them off and walking out of the building.” Tr. p. 76. Also in April, DCS referred Mother for domestic-violence programming. She completed orientation and attended one class in May but was absent for the next two weeks because she was arrested for resisting law enforcement and public intoxication on May 26. Mother was in jail until June 10, when she pled guilty to Class B misdemeanor public intoxication and was sentenced to time served.

[7] Mother resumed domestic-violence programming after her release from jail. Though her attendance was consistent over the next couple of months, she didn't receive credit for several classes due to lack of participation, and she was removed from one class for making an inappropriate comment. Mother stopped attending classes in August and never returned. That same month, Mother underwent a mental-health assessment and was recommended for parenting education, individual therapy, therapeutic visitation, and a psychological evaluation. In September, DCS referred Mother to therapist Laura Houze to address her domestic-violence issues. Mother attended an intake and two additional sessions but was resistant and defensive when discussing her history, said she'd already worked through her trauma, and yelled at Houze. Houze unsuccessfully discharged Mother because Mother “didn't want to work with [her] anymore,” and “nothing was accomplished, at all.” Id. at 42, 43. Houze recommended to DCS that Mother undergo a psychological evaluation because she was concerned about Mother potentially exhibiting “psychosis, psychotic symptoms” or “dissociative behavior.” Id. at 45.

[8] At the end of September, the court allowed Mother to begin therapeutic supervised visitation with the children. At the first therapeutic visit, the supervisor “observed a strong ․ odor coming from Mother ․ that smelled like marijuana.” Id. at 61. After visitation resumed, Child regressed in his potty training and showed an increase in violent behaviors and outbursts. At the October child-and-family team meeting, providers brought up Houze's recommendation that Mother undergo a psychological evaluation, but Mother was resistant and adamant that it wouldn't benefit her.

[9] DCS petitioned to terminate Father's and Mother's parental rights to Child on October 30.¹ The fact-finding hearing began on January 13, 2025. The DOC didn't make Father available for the hearing, so evidence was heard only as to Mother. That morning, Mother had been unsuccessfully discharged by her therapeutic visitation provider “due to her behavior and the instability and hostility that she's been showing.” Id. at 56. FCM Caitlin Dunn opined that termination of Mother's parental rights is in Child's best interests due to Mother's lack of engagement in services and inability to provide a safe home for Child. She explained that Child was doing well in his current placement and that he exhibited some behavioral issues when he was first placed there, but the issues decreased “due to being able to show him some stability and him being placed there consistently.” Id. at 69. FCM Dunn also testified that there are numerous visitation providers in the area that will no longer facilitate visits with Mother and the children “due to their past ․ experiences with Mother or past referrals that they've had to ․ discharge Mother from unsuccessfully.” Id. at 57. Mother yelled out during several witnesses’ testimony, including FCM Dunn's, and the court warned her that she'd be excused if she didn't remain quiet. Despite the court's warnings, Mother had another outburst, and when the court called the bailiff to remove Mother, she said, “Don't even waste their f***ing time!” and left the courtroom. Id. at 97.

[10] The fact-finding hearing continued on January 28. FCM Dunn testified that Father's earliest possible release date is January 2030 and that, to her knowledge, Father hasn't been able to participate in batterer's services or parenting time while incarcerated. She believed termination of Father's parental rights was in Child's best interests, explaining that Father's and Child's relationship is “basically non-existent” and that Father won't be able to safely parent Child for at least the next five years because of his incarceration. Id. at 118. During Father's testimony, DCS asked him about his pending criminal charges in several other cases. DCS had received a progress report for Father from the DOC, and among his pending charges listed were four counts of child molesting. But DCS confirmed with Father that he was “incorrectly identified as the individual in those charges.” Id. at 124. Father acknowledged that he'd never met or communicated with Child but said he “was trying to get visitation rights” the last time he was in court (which was presumably the December 9, 2024 CHINS review hearing, since Father wasn't present for the first day of the fact-finding hearing). Id. at 126. He was also participating in the Plus Program, a yearlong program with classes including victim impact and abuse awareness.

[11] Barbara Strasburger, Child's court-appointed special advocate (CASA), testified that termination is in Child's best interests. As to Mother, CASA Strasburger opined that continuing the parent-child relationship would be harmful to Child due to Mother's reluctance to get the help she needs and her unstable behavior, including in front of the children during visits. Mother testified that she doesn't need therapy or a psychological evaluation.

[12] In April, the court terminated Father's and Mother's parental rights to Child.

[13] Father and Mother now separately appeal.

Discussion and Decision

[14] Father and Mother contend there is insufficient evidence to support the termination of their parental rights. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences most favorable to the trial court's judgment. Id. When a trial court has entered findings of fact and conclusions of law, we will not set aside the court's findings or judgment unless clearly erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the court's findings and whether the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016). DCS must prove the allegations in a termination petition by clear and convincing evidence. See Ind. Code § 31-34-12-2.

I. The trial court's findings of fact are not clearly erroneous

[15] Father challenges one of the trial court's findings of fact. A finding is clearly erroneous only when the record contains no evidence to support it, either directly or by inference. In re A.D.S., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

[16] Father argues that the trial court erred in listing his pending criminal charges in Finding 44. He claims the court “erroneously referenced the alleged criminal charge of child molestation ․ despite the fact that there is no conviction or substantiated evidence of such conduct in the record.” Father's Br. p. 13. But the court didn't find that Father was convicted of child molestation or that any allegations of molestation were substantiated. Finding 44 states, in relevant part, “A DOC Report created 12/10/2024 indicates Father has detainers or pending charges for the following: ․ Three Counts of Child Molesting (Class B Felony) and Child Molesting (Class C Felony) in Marion County ․” Father's App. Vol. 2 p. 30. This is exactly what Father's DOC progress report— which was admitted into evidence at the fact-finding hearing without objection, see Tr. p. 133—shows, see Ex. 18 p. 1. Father highlights his testimony that he was “incorrectly identified as the individual in those charges.” But what he doesn't acknowledge is the court also noted in Finding 44 that “Father claims misidentification as to the sex crimes noted above.” Father's App. Vol. 2 p. 30. This finding accurately reflects the evidence and is not clearly erroneous. And even if this finding were erroneous, such error wouldn't warrant reversal because, as explained further below, the remaining evidence is sufficient to support the trial court's judgment. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“Because there is evidence sufficient to support the trial court's ultimate findings on the elements necessary to sustain the judgment, we hold that the erroneous finding was merely harmless surplusage that did not prejudice Mother and, consequently, is not grounds for reversal.”), trans. denied.

II. The trial court did not err in concluding that DCS satisfied the statutory requirements for termination

[17] Father and Mother argue that DCS failed to meet the statutory requirements for termination. Here, DCS filed its termination petition under Indiana Code section 31-35-2-4. A petition under that section must allege:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

Ind. Code § 31-35-2-4(c) (2024).² As to the first requirement, DCS alleged, and the trial court found, that the following circumstances in Section 31-35-2-4(d) exist:

(2) That:

(A) the child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months ․ ; and

(B) despite the department's reasonable efforts to preserve and reunify the child's family under IC 31-34-21-5.5, the parent has been unable to remedy the circumstances that resulted in the child being placed in care outside the parent's home.

(3) That 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.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

See Father's App. Vol. 2 pp. 17-18, 22. Father challenges the trial court's conclusions that there is a reasonable probability that the conditions resulting in Child's removal will not be remedied and that there is a reasonable probability that continuation of the parent-child relationship poses a threat to Child's well-being, safety, physical health, or life. Mother's only challenge is to the court's conclusion that termination is in Child's best interests.

A. Conditions Remedied

[18] In determining whether there is a reasonable probability the conditions resulting in a child's removal and continued placement outside the home will not be remedied, the trial court engages in a two-step analysis: first, the court identifies what conditions led to the child's placement and retention outside the home, and then it determines whether there is a reasonable probability those conditions will not be remedied. K.T.K., 989 N.E.2d at 1231. This second step requires the court to judge a parent's fitness at the time of the termination proceeding, considering evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).

[19] DCS removed Child from Mother and placed him in foster care due to domestic violence in Mother's home and Mother's lack of a safety plan for Child and his siblings. At the time, Father was incarcerated for an incident against Mother and didn't know he was Child's father. But even once Father's paternity was established, Child couldn't be placed with him because he remained incarcerated—shortly after the CHINS court issued its dispositional order, Father pled guilty to Level 5 felony intimidation with a deadly weapon against Mother and was sentenced to 10 years. His earliest possible release date for that sentence is January 2030, but he could be incarcerated even longer because he has several other criminal cases pending, some of which involve multiple felony charges.

[20] Father attempts to liken his circumstances to In re G.Y., 904 N.E.2d 1257 (Ind. 2009), reh'g denied, but that case is easily distinguishable. There, an incarcerated mother committed a crime before her child was born, didn't commit any other crimes, and while incarcerated was committed to maintaining a parent-child relationship and participating in personal-improvement programs. Father, on the other hand, has significant involvement with the criminal-justice system, including two convictions for crimes against Mother and multiple pending criminal charges. Although he is participating in the Plus Program, he has never met or communicated with Child. Father's current incarceration, outstanding criminal matters, and complete lack of contact with Child support the trial court's conclusion that there is a reasonable probability the conditions that resulted in Child's removal and continued placement outside the home will not be remedied. Because Section 31-35-2-4(c)(1) requires the existence of only one circumstance in subsection (d), we need not address the court's other conclusions under this subsection. See In re J.W., 259 N.E.3d 1039, 1045 (Ind. Ct. App. 2025), trans. denied.

B. Best Interests

[21] Mother contends DCS failed to prove that termination of her parental rights is in Child's best interests. Deciding whether termination is in a child's best interests requires the trial court to look at the totality of the evidence and, in doing so, subordinate the parent's interests to those of the child. In re Ma.H., 134 N.E.3d 41, 49 (Ind. 2019), reh'g denied. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. K.T.K., 989 N.E.2d at 1235. Additionally, a child's need for permanency is a “central consideration” in determining their best interests. Id. “Indeed, children cannot wait indefinitely for their parents to work toward preservation or reunification.” Ma.H., 134 N.E.3d at 49 (quotation omitted).

[22] In arguing that termination is not in Child's best interests, Mother highlights her completion of mental-health and parenting assessments and participation in home-based case management and parenting education. But these achievements only tell a small part of the story. In October 2023, Mother was unsuccessfully discharged from her initial home-based-case-management provider after she refused to meet with them. Mother was also unsuccessfully discharged by her visitation supervisor due to her behavior and had her visits temporarily suspended. When Mother first went in for a clinical interview and assessment, the assessor ended the appointment after 10 minutes because Mother was combative and refused to answer questions. During her parenting assessment in January 2024, Mother wasn't forthcoming and, despite being recommended for services as a result of the assessment, “stated she did not want any more services.” At Mother's mental-health assessment a few months later, the assessor thought Mother might have PTSD, but Mother wouldn't give her enough information to make a diagnosis. Around the same time, the court suspended Mother's visitation again due to safety concerns stemming from her behavior. Although Mother attended a psychiatric evaluation, she didn't complete it because “she ended up yelling at the staff and flipping them off and walking out of the building.” And despite numerous providers recommending that Mother complete a psychological evaluation, she repeatedly insisted she didn't need one. The morning of the fact-finding hearing, Mother was unsuccessfully discharged by her therapeutic visitation provider due to her behavior, and DCS struggled to find a new provider because numerous providers in the area will no longer facilitate visits “due to their past ․ experiences with Mother.” Both FCM Dunn and CASA Strasburger opined that termination of Mother's parental rights is in Child's best interests due to Mother's failure to engage in services to address her behavioral issues.

[23] Another concern for Child is Mother's failure to address her issues with drug use and domestic violence. See A.D.S., 987 N.E.2d at 1159 (finding evidence sufficient to support trial court's conclusion that termination was in children's best interests where “Mother's issues with substance abuse and domestic violence have not been remedied and pose a risk to the safety of the Children if they were to be returned to her care”). Mother regularly tested positive for THC, and visitation providers noticed that she smelled like marijuana. Despite the history of domestic violence by A.V. and the no-contact order in place, Mother spent time with A.V. after he was released from jail. Mother began domestic-violence programming in May 2024 but didn't receive credit for several classes due to lack of participation, was removed from one class for making an inappropriate comment, and eventually stopped attending altogether. When she attended therapy for domestic-violence issues, she was resistant, insisted that she'd already worked through her trauma, and was ultimately unsuccessfully discharged after three appointments.

[24] Permanency is also a central consideration in determining Child's best interests. Child, now four, was removed from Mother over two years ago and never returned to her care. Child's behavioral issues decreased after he was placed in foster care and able to achieve some stability. But after Mother's visitation with Child was reinstated in September 2024, Child regressed and showed an increase in violent behaviors and outbursts. By contrast, Child is doing well in his foster placement, who wish to adopt him. The evidence supports the trial court's conclusion that termination is in Child's best interests.

III. Father has not shown that his due-process rights were violated

[25] Finally, Father contends DCS's “failure to afford services or visitation” to him while incarcerated “constitutes a due process violation.” Father's Br. p. 12. There is no indication in the record that Father made this argument in the trial court. Generally, an argument cannot be presented for the first time on appeal. In re D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019), aff'd as modified on reh'g, 122 N.E.3d 832 (Ind. Ct. App. 2019), trans. denied. But we have discretion to address due-process claims because they involve a parent's constitutional rights, the violation of which would be fundamental error, id., and we exercise that discretion here.

[26] To protect a parent's due-process rights in a termination case, DCS must generally make reasonable efforts to preserve and reunify the family during the CHINS proceedings. In re T.W., 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied; I.C. § 31-34-21-5.5. “What constitutes ‘reasonable efforts’ will vary by case, and ․ does not necessarily always mean that services must be provided to the parents.” T.W., 135 N.E.3d at 615. Father claims that DCS “failed to ․ [f]acilitate contact between Father and his child” and “[p]rovide Father access to the court-ordered domestic violence and batterer's intervention services while incarcerated.” Father's Br. p. 12. But Father doesn't direct us to any evidence that he requested services or that the court-ordered services would've been available to him in prison. And although Father testified at the fact-finding hearing that he “tr[ied] to get visitation rights” at the December 2024 CHINS review hearing, that would be the first time in the 17 months since the CHINS case began that Father requested visitation. “A parent may not sit idly by for such an extended period without asserting a need and desire for services and then successfully argue that she was denied services to assist her with her parenting.” Jackson v. Madison Cnty. Dep't of Fam. & Child., 690 N.E.2d 792, 793 (Ind. Ct. App. 1998), trans. denied; see also In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009) (finding no due-process violation where “the absence of services was due to Father's incarceration and he does not point to any evidence that he specifically requested visitation or other services”). Father has not shown that his due-process rights were violated.

[27] Affirmed.

FOOTNOTES

1.   DCS also petitioned to terminate Mother's parental rights to Z.S. and V.S. but later dismissed the petitions.

2.   Section 31-35-2-4 was amended effective July 1, 2025, several months after the termination order was issued in this case. See Pub. L. No. 179-2025, § 25. None of the parties argue that this amendment has any bearing on the proceedings.

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.