In re the Termination of the Parent-Child Relationship of A.C., J.S., and D.P. (Minor Children) and A.S. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 6, 2020
• Docket: 19A-JT-2592
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 06 2020, 11:39 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Robert J. Henke Natalie F. Weiss Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the April 6, 2020 Parent-Child Relationship of Court of Appeals Case No. A.C., J.S., and D.P. (Minor 19A-JT-2592 Children) and Appeal from the Tippecanoe A.S. (Mother), Superior Court The Honorable Faith A. Graham, Appellant-Respondent, Judge v. Trial Court Cause Nos. 79D03-1902-JT-34 79D03-1905-JT-61 Indiana Department of Child 79D03-1905-JT-81 Services, Appellee-Petitioner.

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 1 of 10 [1] A.S. (“Mother”) appeals the order of the Tippecanoe Superior Court

terminating her parental rights to her minor children A.C., J.S., and D.P.

(collectively “the Children”). Mother presents one issue for our review: whether

the Indiana Department of Child Services (“DCS”) presented sufficient

evidence to establish that termination of Mother’s parental rights was in the best

interests of the Children.

[2] We affirm.

Facts and Procedural History [3] Mother is the biological mother of A.C., born in March 2012; J.S., born in

March 2016, and D.P., born in January 2018.1 When D.P. was born at thirty-

eight weeks of gestation, he weighed six pounds, seven ounces. Hospital staff

were concerned about Mother’s parenting because neither she nor D.P.’s father

was caring for the infant at the hospital; Mother would not even get out of bed

to care for herself. Hospital staff had to consistently remind Mother to feed

D.P., who was crying, hungry, and in clothes saturated with urine. When

Mother and D.P. were discharged on January 7, 2018, he weighed six pounds

and .19 ounce. Hospital staff were concerned that the car seat Mother had for

D.P. was too small and that she did not have sufficient clothing for the infant

for the cold weather.

1 M.S. is the alleged biological father of A.C.; T.G. is the biological father of J.S.; and D.P., Sr. is the father of D.P. None of the fathers are active participants in this appeal, but D.P., Sr. was a party below.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 2 of 10 [4] On February 4, 2018, DCS received a report that D.P. was malnourished. At a

follow-up medical appointment on February 14, 2018, D.P. weighed six pounds

and .14 ounces. The doctor told Mother to take D.P. to the hospital emergency

room immediately, but Mother did not go until over four hours later, claiming

that the other children were sleeping and she did not want to wake them. When

Mother arrived at the emergency room, D.P.’s condition was dire. His heart

rate was very low. He remained curled up and did not wake up or cry. He

appeared very malnourished and had skin flaps due to lack of body fat. D.P.

was diagnosed with failure to thrive and admitted to the hospital.

[5] Mother’s behavior at the hospital was concerning. She was not worried about

D.P. but was angry with hospital staff. She was unable to say when she had last

fed the infant. She had no plans for the care of A.C. or J.S., who were not

allowed to stay at the hospital due to restrictions to limit the spread of

influenza. Mother threatened to remove D.P. from the hospital and take A.C.

and J.S. to Illinois where DCS would be unable to locate them.

[6] At the hospital, D.P.’s condition improved. He was given regular feedings and

gained fourteen ounces in six days. By February 20, D.P. weighed seven

pounds and could be discharged safely from the hospital. However, Mother still

struggled with maintaining a feeding schedule and giving D.P. the proper

amount of food. Nursing staff had to assist Mother while she fed the child.

[7] Mother informed DCS that her children had no beds and slept on the floor but

claimed that she was working with a local organization to obtain beds. She also

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 3 of 10 stated that five-year-old A.C. had threatened to kill her infant sibling D.P. In

turn, A.C. reported that she had not eaten that day, and that her parents locked

her in her room as punishment. She also had bruises on her arms, and medical

records revealed that Mother and D.P.’s father had struck A.C. on her arms

during an obstetrician appointment when Mother was pregnant with D.P. Both

A.C. and J.S. had head lice, and J.S. had severe diaper rash.

[8] Because Mother continued to demonstrate an inability to care for the Children,

DCS decided to remove the Children from Mother’s care. On February 20,

DCS placed the Children in protective custody and two days later filed a

petition alleging that the Children were children in need of services (“CHINS”).

The trial court found the Children to be CHINS on May 31 and entered a

dispositional decree the same day. Pursuant to the dispositional decree, Mother

was required to inter alia: attend all court hearings, conferences, visitations, and

appointments; contact DCS regularly; obtain and maintain safe and suitable

housing; promptly enroll in all referred services; follow the recommendations of

all assessments and evaluations; and find and maintain a legal and stable source

of income.

[9] Unfortunately, Mother’s participation in services was sporadic. She completed

a mental health evaluation, a parenting evaluation, and a substance abuse

assessment in spring 2018. However, she failed to complete a psychological

examination. She was also discharged from therapy for failure to attend.

Mother was referred to multiple agencies for case management services. Mother

was uncooperative with case management providers and refused to give them

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 4 of 10 the information they requested and was dishonest with them. She was

ultimately discharged for failure to attend scheduled case management sessions.

In December 2018, the trial court found Mother in contempt in part for her

failure to attend case management sessions. But even after being found in

contempt, she attended only two of four scheduled sessions.

[10] Mother also failed to maintain employment. She was employed with two

different employers for only five days. She was hired by another employer but

failed to show up. She did occasionally sell her blood plasma to generate

income. Additionally, Mother struggled to maintain adequate housing. She was

evicted from her home in November 15, 2018, and lived in a tent in December

2018. She also stayed in a hotel temporarily. “Seeds of Hope,” a community

program, offered Mother housing assistance. Mother moved into the program’s

housing but left after a few days and again lived in a tent. In late January 2019,

after her tent flooded, Mother returned to the Seeds of Hope housing. Seeds of

Hope also provided Mother with life-skills training. Mother had difficulty

creating a budget because she was vague about her income. Even when she

needed groceries, Mother refused to use a food pantry. At the time of the

termination hearing, Mother and D.P.’s father were living in a two-bedroom

apartment provided by Seeds of Hope.

[11] DCS referred Mother to several different agencies to facilitate supervised

parenting time. Mother failed to regularly attend scheduled visitation and was

eventually discharged by seven facilitators for failure to attend and follow

policies. The trial court found Mother in contempt of court in part in December

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 5 of 10 2018 for failure to attend visitations. Because Mother’s failure to attend caused

the children distress, the trial court suspended Mother’s visitations.

[12] The Children were placed with the same pre-adoptive foster family in May

2018, and all are doing well in foster care.

[13] On March 7, 2019, DCS filed petitions to terminate Mother’s parental rights to

the Children. The trial court held evidentiary hearings on the petitions on June

11, 2019. On October 9, 2019, the trial court entered findings of fact and

conclusions of law terminating Mother’s parental rights. Mother now appeals.

Termination Statute [14] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate

parental rights must allege:

(B) that one (1) of the following is true: (i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied. (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services; (C) that termination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 6 of 10 DCS must prove each of these elements by clear and convincing evidence. Ind.

Code § 31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Because

section 4(b)(2)(B) is written in the disjunctive, the trial court is required to find

that only one prong of subsection 4(b)(2)(B) has been established by clear and

convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

[15] Clear and convincing evidence need not establish that the continued custody of

the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead

sufficient to show by clear and convincing evidence that the child’s emotional

and physical development are put at risk by the parent’s custody. Id. If the court

finds the allegations in a petition are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

Standard of Review [16] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). Thus, on appeal, we neither reweigh the evidence nor assess witness

credibility. Id. We consider only the evidence and reasonable inferences

favorable to the trial court’s judgment. Id. In deference to the trial court’s

unique position to assess the evidence, we will set aside a judgment terminating

a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

which leaves us with a definite and firm conviction that a mistake has been

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 7 of 10 made. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

App. 2004), trans. denied.

[17] We note that, here, Mother does not challenge any of the trial court’s factual

findings as being clearly erroneous. We therefore accept the trial court’s

findings as true and determine only whether these unchallenged findings are

sufficient to support the judgment. In re S.S., 120 N.E.3d 605, 610 (Ind. Ct.

App. 2019) (citing McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App.

1997); In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans. denied; see

also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012)

(holding that when the trial court’s unchallenged findings support termination,

there is no error), trans. denied.

Discussion and Decision [18] On appeal, Mother argues that DCS did not prove that termination of her

parental rights was in the best interests of the Children. In determining what is

in the best interests of a child, the trial court must look beyond the factors

identified by DCS and 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. In so

doing, the trial court must subordinate the interests of the parent to those of the

child and need not wait until the child is irreversibly harmed before terminating

the parent-child relationship. Id. Moreover, a recommendation by a case

manager or a child advocate to terminate parental rights is sufficient to show by

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 8 of 10 clear and convincing evidence that termination is in the child’s best interests. Id.

at 1158–59.

[19] In the present case, both the court-appointed special advocate (“CASA”) and

the family case manager testified that termination of Mother’s parental rights

was in the best interests of the Children. Mother did not participate in

recommended services after she completed the initial assessments. She failed to

complete the psychological evaluation and was discharged from therapy for

failure to attend. She was discharged from case management services for failure

to attend. And, even after being found in contempt for her failure to participate,

she attended only two of four sessions. Mother was unable to maintain steady

employment or find another source of income. Although Mother appeared to

be bonded with the Children, she failed to regularly attend scheduled visitation,

and her failure to attend distressed the Children. She was discharged by all of

the referred visitation facilitators for failure to attend and follow the applicable

policies. Furthermore, Mother did not maintain regular contact with DCS.

And, perhaps most disturbing, she never took responsibility for D.P.’s failure to

thrive, instead blaming doctors and others. Lastly, the Children are all thriving

in the same pre-adoptive foster home.

[20] In short, Mother never demonstrated an ability to adequately care for herself,

much less three young children. Thus, there was sufficient evidence that

termination of Mother’s parental rights was in the best interests of the Children.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 9 of 10 Conclusion [21] Considering only the evidence favoring the trial court’s judgment, and the

reasonable inferences to be drawn from this evidence, we hold that the trial

court did not clearly err in concluding that DCS proved by clear and convincing

evidence that termination of Mother’s parental rights was in the best interests of

the Children. We therefore affirm the judgment of the trial court.

[22] Affirmed.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020 Page 10 of 10