MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 29 2020, 11:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General Jeffersonville, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the July 29, 2020 Parent-Child Relationship of: Court of Appeals Case No. E.G. and M.R. (Minor Children) 19A-JT-2331 and M.G. (Mother) Appeal from the M.G. (Mother), Clark Circuit Court The Honorable Appellant-Respondent, Vicki Carmichael, Judge v. The Honorable Joni Grayson, Magistrate Indiana Department of Child Trial Court Cause Nos. Services, 10C04-1906-JT-30 10C04-1906-JT-31 Appellee-Petitioner
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 1 of 14 Case Summary [1] M.F.G. (“Mother”) appeals the termination of her parental rights to two of her
sons. We affirm.
Facts and Procedural History [2] The facts that follow are taken primarily from the trial court’s findings of fact,
none of which Mother challenges on appeal.1 Mother is the biological parent of
M.R., born in 2014, and E.C.G., born in 2015 (collectively, “Children”).2
Mother has a third child, M.M. (“Sibling”), who was removed from her care at
the same time as Children. Since then, Sibling’s father has been granted full
custody, and therefore Sibling is not a subject of this appeal. See Tr. p. 45.
[3] In October 2015, the Department of Child Services (DCS) received a report that
six-month-old E.C.G. had been admitted to Kosair Children’s Hospital in
Louisville “due to bleeding on the brain and multiple bruises on his right
temple, left ribcage, back, and knees.”3 Ex. 4. In addition to the bruising,
medical providers observed that E.C.G. was dirty, had severe diaper rash, and
1 Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992). 2 E.C.G.’s father is unknown, and no one had sought to establish paternity by the time of the termination hearing. See Appellant’s App. Vol. II p. 12. M.R.’s alleged father was served by publication but never appeared in the CHINS or termination proceedings, and no paternity action had been filed by the time of the termination hearing. See id. at 26. 3 Kosair Children’s Hospital was renamed “Norton Children’s Hospital” in 2016.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 2 of 14 was malnourished. Emergency surgery was required to address E.C.G.’s brain
injury, and doctors placed a shunt in E.C.G.’s head to relieve the pressure on
his brain. E.C.G. would remain in the hospital for the next six months,
recovering from his near fatal injuries. See Tr. p. 37.
[4] Family Case Manager (FCM) Lynelle Amstutz was assigned to investigate and
spoke with Mother about E.C.G.’s injuries. Mother initially told FCM Amstutz
that “the bruising that was on [E.C.G.’s] right temple was caused by [Sibling],
by that child hitting [E.C.G.] with a hard, plastic toy several days earlier.” Id.
Mother then gave FCM Amstutz conflicting stories as to who had been caring
for E.C.G. in the days leading up to his hospitalization, saying at one point
“that she had been the only person that had been alone with [E.C.G.] for
several days,” but at another point saying “that grandma had . . . been the only
person with [E.C.G.] for several days.” Id. Mother later told FCM Amstutz that
she “did not know where [E.C.G.’s] injuries or bruising had come from.” Id.
During her assessment, FCM Amstutz also learned that Sibling had been seen
at the same hospital two weeks before E.C.G. was admitted and was observed
as having bruising on his body. See Ex. 4. Children and Sibling were removed
from Mother’s care on October 5, and a no-contact order was put in place
between Mother and E.C.G. Later, a forensic medical examination concluded
that E.C.G.’s injuries were consistent with intentional physical abuse.
[5] On October 7, DCS filed petitions alleging Children to be Children in Need of
Services (CHINS). In December, the State charged Mother with Level 3 felony
battery resulting in serious bodily injury to a person less than fourteen years old,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 3 of 14 Level 3 felony neglect of a dependent resulting in serious bodily injury, Level 5
felony battery on a person less than fourteen years old, and Level 5 felony
neglect of a dependent resulting in bodily injury. She was incarcerated from
December 2015 to January 2017. While incarcerated, Mother admitted that
Children were CHINS and agreed to participate in services. Mother ultimately
pled guilty to two counts of Level 5 felony neglect of a dependent resulting in
bodily injury and was sentenced to six years, with one-and-a-half years
executed and four-and-a-half years suspended to probation. See Ex. E.
[6] During the year following her release in January 2017, Mother was somewhat
compliant with services. In February 2017, Mother began supervised visits with
Children. Visits did not go well, and visitation supervisors often observed
Mother “sitting on the couch or on her phone, rather than interacting with
[Children] during visits.” Appellant’s App. Vol. II p. 15. Eventually, visits were
changed from supervised visitation to therapeutic visits. During therapeutic
visits, Mother received “one-on-one direction in real time as issues would arise
during the visits.” Id. However, Mother’s parenting skills did not improve, and
visits were eventually suspended “[d]ue to the detrimental effect the visits were
having on [Children].” Id. at 16.
[7] In March 2018, the trial court ordered that Children’s permanency plan be
changed from reunification to termination and adoption. Thereafter, DCS filed
petitions to terminate Mother’s parental rights to Children. A month later, DCS
agreed that it would dismiss the pending termination case if Mother agreed to
seek mental-health treatment and medication management, to follow all
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 4 of 14 recommendations from a psychological assessment, and to continue in all
current therapy services. See Ex. 5. Mother agreed to those terms, and DCS
dismissed the termination case. However, by October 2018, the trial court once
again found that Mother was not consistently participating in services and
ordered that Children’s permanency plan be changed from reunification to
termination and adoption. In December 2018, DCS again filed petitions to
terminate Mother’s parental rights to Children. Those petitions were later
dismissed due to statutory-timeliness issues.
[8] In June 2019, DCS filed a third set of petitions to terminate Mother’s parental
rights to Children. A fact-finding hearing was held in August. FCM Amstutz
testified that after serving as the assessment case manager, she continued
managing the case until September 2016. She explained that Mother was
incarcerated the entire time that she was managing the case but was able to
participate in some services while in jail. Specifically, Mother participated in
case management and therapy and completed a psychological evaluation.
[9] FCM Angela Johnson testified that she took over as the family’s case manager
in February 2018. FCM Johnson said that Mother had not maintained stable
housing and lived in at least five different places: Mother’s grandparents’ house,
Mother’s mother-in-law’s house, a mobile home, and two different hotel stays.
Tr. p. 133. Regarding employment, FCM Johnson stated that Mother was “not
interested in being employed right now. That she [was] going to . . . online
classes.” Id. at 135. FCM Johnson explained that DCS had given Mother
“every opportunity that [she felt] a mother could be given to work towards
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 5 of 14 reunification” and that there were not any services that DCS had at its disposal
that were not offered to Mother. Id. at 135-36. FCM Johnson said that Children
need a stable, appropriate, safe, nurturing, consistent, healthy living
environment and that she did not believe Mother could provide that. See id. at
138. FCM Johnson believed that it is in Children’s best interests for Mother’s
parental rights to be terminated. See id. at 139.
[10] Mary Louise Watkins testified that she was referred to provide Mother with
parenting classes in October 2018. Watkins said that Mother completed an
initial intake in November 2018 but then did not show up for her first class. See
id. at 58-59. Watkins stated that she tried texting and calling Mother but never
got a response. Watkins explained that after missing the first class, Mother
needed to have contacted her before the second class began in order for Mother
to stay in that parenting-class program. See id. at 60-61. Watkins said that the
program was set up so that one class builds on the other and if Mother missed
more than one class, she would have to wait until the next parenting-class
program began approximately three months later. See id. Watkins testified that
each time she started a new parenting-class program she would reach out to
Mother and tried for three months to contact Mother but never received a
response. See id. at 61, 67.
[11] Therapist Nina Fox testified that she was referred to provide Mother with
home-based therapy in March 2016. Therapist Fox said that initially she met
Mother once a week at the Clark County Jail, and once Mother was released,
she met Mother once a week at her house. See id. at 70. Therapist Fox stated
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 6 of 14 that Mother “moved quite a number of times. Initially, she was staying with her
grandparents. And then she moved from there several times.” Id. at 70.
Therapist Fox also said that after Mother was released, “her focus changed in
therapy. She was not as engaged. It was difficult to get her to meet [and]
towards the end[,] [i]t became more of [Therapist Fox] driving around, trying to
find her.” Id. at 72. Therapist Fox explained, regarding Mother’s change in
focus, that “[s]he was a little bit more interested in reconnecting with outside
individuals, males in particular,” and that Mother’s “mind set was she was
grown and she could do with her life what she wanted to do.” Id. at 73.
Therapist Fox said that her therapeutic relationship with Mother ended in May
2018, after Mother missed several appointments. See id. at 73. Therapist Fox
testified that during the two years she worked with Mother she did not make
progress toward being a better parent. See id. at 75.
[12] Stacey Marie Capps testified that she supervised visits for Mother and Children
for over a year. Capps said that Mother attended forty-three visits and cancelled
six, and that most of the visits were “poor.” Id. at 80. Capps explained that
“there was a lack of bond, parental bond, between [Mother] and [Children,]
especially E.C.G. E.C.G. cried hysterically for the first several months each
week at the visits. . . [M.R.] absolutely did not want to be there. There was no
parental bond with either child. Lack of supervision. Lack of structure.” Id. at
82. Capps stated that Mother’s discipline methods of “yelling and time out”
were not appropriate for Children, and that often “what should have been a two
(2) or three (3) minute time out ended up stretching into fifteen (15) minutes.”
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 7 of 14 Id. Capps testified that her involvement ended in May 2018 when visits moved
to a therapeutic setting. See id. at 81. Capps said that of the forty-three visits she
supervised, “none” was a positive experience for Children. Id. at 88. Therapist
Jerri Whitworth testified that she provided therapeutic visits for Mother and
Children from July 2018 until April 2019. Therapist Whitworth said that
Mother attended twenty-eight visits and “cancelled or no-showed” eighteen
visits. Id. at 94. Therapist Whitworth stated that therapeutic visits occurred
twice a week, one visit per child, for four hours each. See id. at 92. Therapist
Whitworth explained that Children’s visits were separated because Mother was
not “able to handle both Children at the same time.” Id. Therapist Whitworth
said that she would “walk [Mother] through things to do” to manage Children’s
behaviors, but “nothing carried over to the next visit” and every visit they’d
“just kind of start from scratch.” Id. at 93. Therapist Whitworth testified that
based on her observations, she did not believe that Mother “has the ability to
parent [Children] on her own.” Id. at 96.
[13] Caseworker Gayle Bibb testified that she provided home-based case work and
supervised visits to Mother. Bibb said that she met initially Mother in jail and
worked with her to establish goals for when she was released. Bibb stated that
Mother’s goals were to improve her parenting skills, gain employment, and
maintain stable housing. See id. at 103. Bibb said that since Mother was
released, she had not had trouble getting a job, but maintaining employment
was an issue. See id. at 105. Bibb explained that Mother had “several” jobs in
the two-and-a-half years, but none lasted longer than “at the very best, three (3)
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 8 of 14 months.” Id. Bibb stated that Mother was no longer looking for employment
but was focusing on school and attending school online for photography. See id.
at 115. Regarding housing, Bibb said that Mother had moved “approximately
five (5) to six (6)” times in two-and-a-half years and was currently living with
her mother-in-law and new husband. Id. at 106. Bibb stated that she had visited
the mother-in-law’s house and saw that there were two bedrooms, but that
Mother was sleeping on the couch. See id. Bibb testified that since she began
working with Mother in 2016, Mother had not made any consistent progress
toward reunification. See id. at 118.
[14] Therapist Susan Marie Robinson testified that she provided therapy to
Children. Therapist Robinson said that M.R. was referred for therapy in
February 2018 for “very aggressive behavior.” Id. at 14. Regarding E.C.G.,
Therapist Robinson said that he was referred for therapy in March 2019, for
“pretty major tantruming behavior and because of the history of traumatic brain
injury that [she] felt like needed further evaluation.” Id. Therapist Robinson
said that her initial therapy sessions with Children followed their supervised
visits with Mother and that after visits Children “were usually either very, very
quiet or what [she] would call very, very disorganized, having trouble, kind of,
coming into the office and settling down to begin the work [they] were trying to
do.” Id. at 18. Therapist Robinson testified that Children “voiced, on more than
one occasion, that they didn’t want to go to the visits.” Id. at 19. Therapist
Robinson stated that since visits with Mother were suspended, Children “have
been happier, calmer, more peaceful, smiling, laughing more, talking about
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 9 of 14 things that are important in their lives right now, like school and various
activities.” Id. at 19-20. When asked whether Children talked about Mother
during therapy, Therapist Robinson said, “They do not talk about her at all.”
Id. at 20. Therapist Robinson believed that it is in Children’s best interests for
Mother’s parental rights to be terminated so that Children “can continue
moving forward and growing into happy, health human beings.” Id. at 26.
When asked why, Therapist Robinson said that in order to recover from their
past trauma, Children need consistency, stability, unconditional love,
“confidence that [their] parent is going to be there for them,” and engagement,
and that she did not believe that Mother could provide those things for
Children. Id. at 29.
[15] Children’s foster mother, M.A.M., testified that Children “are the two (2) most
important people in [her family’s] life right now.” Id. at 122. M.A.M. said that
if Mother’s parental rights were terminated, she and her family would want to
adopt Children. M.A.M. said that Children did not speak about Mother “unless
something triggers their memory,” such as when M.R. asked for a soda and
M.A.M. said no, M.R. said that “his other mommy would let him have soda.”
Id. at 124. Court-Appointed Special Advocate (CASA) Shannon Holt testified
that Children “have waited an extremely long time for permanency” and that
she believed it is in Children’s best interests for Mother’s parental rights to be
terminated. Id. at 152. In December 2019, the trial court issued its order
terminating Mother’s parental rights.
[16] Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 10 of 14 Discussion and Decision [17] Mother contends that the evidence is insufficient to support the trial court’s
order terminating her parental rights to Children. 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 that are most favorable to
the judgment of the trial court. Id. When 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. Id. To determine whether a judgment
terminating parental rights is clearly erroneous, we review whether the evidence
supports the trial court’s findings and whether the findings support the
judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[18] A petition to terminate parental rights 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 well- being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 11 of 14 (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 the alleged circumstances by clear
and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court finds
that the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[19] Mother first challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in Children’s removal will not be
remedied. In determining whether such a probability exists, the trial court
engages in a two-step analysis. First, the trial court must ascertain what
conditions led to the child’s placement and retention in foster care. In re K.T.K.,
989 N.E.2d at 1231. Second, the trial court determines whether there is a
reasonable probability that those conditions will not be remedied. Id.
[20] Here, Mother has not demonstrated that she is any closer to providing Children
a safe, stable home than she was at the beginning of the CHINS case. The trial
court’s unchallenged findings on this issue support its conclusion that there is a
reasonable probability that the conditions resulting in Children’s removal and
continued placement outside Mother’s care will not be remedied. See, e.g., In re
E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-
compliance with services support trial court’s conclusion that there is
reasonable probability that conditions resulting in children’s removal would not
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 12 of 14 be remedied). The trial court found that “DCS has provided ample
opportunities and substantial services to [Mother], yet she still has not
maintained a stable home where [Children] can live, and has not achieved any
financial stability or independence.” Appellant’s App. Vol. II p. 17. The trial
court further concluded that “[Mother] has failed to maintain contact with the
FCM; missed appointments and visits; has been unwilling or unable to deal
with or remedy her parenting problems[; and] has been unable to ‘carry over’
the information and skills imparted to her by service providers from session to
session.” Id. at 18-19. Accordingly, the trial court did not err when it concluded
that there is a reasonable probability that the conditions resulting in Children’s
removal and continued placement outside the home will not be remedied. 4
[21] Mother also challenges the trial court’s conclusion that termination is in
Children’s best interests. To determine what is in the 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. In doing so, the trial court must
subordinate the interests of the parent to those of the child. Id. The trial court
need not wait until the child is irreversibly harmed before terminating the
parent-child relationship. Id. When assessing the child’s physical, emotional,
4 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions resulting in Children’s removal and continued placement outside the home will not be remedied, we need not address its alternate conclusion that there is a reasonable probability that the continuation of the parent-child relationships poses a threat to the well-being of Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2) is written in the disjunctive and requires the trial court to find only one of the two requirements of subsection (b) has been established by clear and convincing evidence), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 13 of 14 and mental well-being, the trial court may consider a myriad of factors. In re
K.T.K., 989 N.E.2d at 1235. Among those factors contemplated, “permanency
is a central consideration in determining the child’s best interests.” Id.
[22] Here, the trial court found that Mother moved several times and did not find
permanent and stable housing. See Appellant’s App. Vol. II p. 14. At the time of
the termination hearing, Mother was living with her mother-in-law, sleeping on
her couch, and there was no room for Children in the house. Additionally, the
trial court found that Children “do not have a healthy bond to their mother,”
that E.C.G. “continues to have special needs due to the severe injuries he
suffered as an infant,” and that “[d]espite the one-on-one instruction by
multiple service providers, [Mother’s] parenting skills did not improve.” Id. at
16. The trial court concluded that the CHINS case had been pending for nearly
four years, that Children need stability and permanency, and that it was time
for permanency to be achieved for Children. See id. at 19. In addition to the trial
court’s findings and conclusions, FCM Johnson, Therapist Robinson, and
CASA Holt all testified that terminating Mother’s parental rights is in
Children’s best interests. See Tr. pp. 26, 139, 152. As such, the totality of the
evidence supports the trial court’s conclusion that termination is in Children’s
best interests.
[23] Affirmed.
Baker, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020 Page 14 of 14