MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 01 2018, 5:35 am regarded as precedent or cited before any CLERK court except for the purpose of establishing 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 Kyle D. Gobel Curtis T. Hill, Jr. Collier Gobel Homann, LLC Attorney General of Indiana Crawfordsville, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Parent-Child March 1, 2018 Relationship of: Court of Appeals Case No. 54A01-1709-JT-2139 Appeal from the Montgomery C.A. (Minor Child), Circuit Court And The Honorable Harry Siamas, M.A. (Mother), Judge Trial Court Cause No. Appellant-Respondent, 54C01-1702-JT-52 v.
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 1 of 17 Riley, Judge.
STATEMENT OF THE CASE [1] Appellant-Respondent, M.M.A. (Mother), appeals the trial court’s termination
of her parental rights to her minor child, C.A. (the Child).
[2] We affirm.
ISSUE [3] Mother raises one issue on appeal, which we restate as: Whether the Indiana
Department of Child Services (DCS) provided clear and convincing evidence to
support the termination of her parental rights.
FACTS AND PROCEDURAL HISTORY [4] Mother and R.C. (Father) 1 are the biological parents of the Child, born on
December 27, 2004. Father and Mother are not married, and it is unclear to
what extent, if any, Father was involved in the Child’s life. Mother has a long
history of severe schizophrenia, which has largely gone untreated. Mother has
been unable to provide for her own housing or basic necessities; thus, the Child
and Mother have primarily lived with extended maternal family. Throughout
his formative years, the Child was regularly exposed to drug use and domestic
violence. In 2006, DCS became involved with the family after Mother tested
1 On August 16, 2017, Father voluntarily consented to the termination of his parental rights to the Child. Father does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 2 of 17 positive for methamphetamine, cocaine, and marijuana, and the Child’s hair
follicle test was positive for cocaine. Although it appears that the Child was
adjudicated as a Child in Need of Services (CHINS) at that time, there is
nothing in the record to indicate how the matter was ultimately resolved.
[5] In June of 2015, Mother was arrested for committing a battery against her
mother—i.e., the Child’s maternal grandmother, B.A. (Grandmother)—in the
Child’s presence. During the altercation, Mother believed that Grandmother
“was actually a man and was kicking, punching and pushing her around the
home. [Mother] was also making claims that she was the Lady of the House
and could not be arrested. [Mother] was stating that she worked for Homeland
Security and needed to be taken to the Social Security Office to [retrieve] her
badge so she could not be arrested.” (DCS Exh. 35, p. 157). Following
Mother’s incarceration in the Montgomery County Jail, the Child was left in
the care of Grandmother. Grandmother never formally obtained a
guardianship.
[6] On August 9, 2015, the Montgomery County office of DCS received a report
indicating that the eleven-year-old Child did not have a suitable caregiver.
Specifically, it was reported that Grandmother had been arrested for possession
of methamphetamine and had admittedly been smoking it. The other relatives
with whom Grandmother and the Child had been living expressed their lack of
interest in caring for the Child. In addition, at the time, Father was
incarcerated in the Indiana Department of Correction. Accordingly, DCS took
the Child into custody and subsequently placed him with a maternal uncle.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 3 of 17 However, a few months later, DCS removed the Child from the care of his
maternal uncle—who could not provide proper care and stability for the
Child—and placed him in a foster home.
[7] On August 11, 2015, DCS filed a petition alleging that the Child is a CHINS
based on the inability, refusal, or neglect of the parents to supply the Child with
necessary care. The same day, the trial court conducted an initial and detention
hearing. On October 6, 2015, the trial court conducted a fact-finding hearing
and issued an order on October 21, 2015, adjudicating the Child to be a
CHINS. On November 2, 2015, the trial court issued a Dispositional Order.
The trial court granted wardship of the Child to DCS and ordered both parents
to participate in services designed for reunification. As to Mother, the trial
court ordered that, upon her release from incarceration, she must participate in
individual counseling and home-based casework services; complete a
psychological evaluation and follow all recommendations; attend all psychiatric
appointments and follow all recommendations; and participate in visits with the
Child.
[8] During Mother’s incarceration, DCS struggled to communicate with her due to
“her mental health.” (Tr. Vol. II, p. 61). The family case manager “could not
get anywhere as to . . . what kind of services [Mother] would participate in
because all we discussed were the jail walls talking and demons.” (Tr. Vol. II,
p. 61). On March 15, 2016, having been found incompetent to stand trial,
Mother was transferred to the Logansport State Hospital for psychiatric
treatment. On May 20, 2016, Mother was released from the state hospital and
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 4 of 17 returned to jail. On May 26, 2016, Mother pled guilty to battery as a Class A
misdemeanor and was sentenced to time served. Following her release, Mother
began living in a motel with her sister and Grandmother. She did not contact
DCS. In June of 2016, the DCS case manager observed Grandmother in a
parking lot and communicated with her; DCS was subsequently able to reach
Mother by phone. In mid-August of 2016, Mother completed an intake
appointment at Cummins Behavioral Health. However, it was discovered that
Mother’s Medicaid coverage had lapsed, so services were put in place to get her
insurance re-established because “things were so bad mentally that . . . the key
was to get [Mother] with the psychiatrist to get the medicine then to focus on
her being able to do the services.” (Tr. Vol. II, p. 65). DCS also referred
Mother for individual therapy.
[9] On September 21, 2016, Mother was picked up by the police and taken to
Sycamore Springs for inpatient psychiatric treatment. Mother remained
hospitalized between seven and ten days. When she was released from the
hospital, Mother was not given any medication. In October of 2016, a life skills
specialist with Cummins Behavioral Health accompanied Mother and
Grandmother to the Medicaid office to obtain the necessary paperwork for re-
establishing coverage. Because Mother was incapable of handling her own
affairs, the burden fell to Grandmother to ensure that Mother completed the
forms and attended appointments. However, the Medicaid paperwork was
never submitted, and the life skills specialist’s attempts to contact Grandmother
were fruitless. Unable to move forward with “case management type stuff”
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 5 of 17 without Grandmother’s participation, the life skills specialist attempted to work
with Mother on mental health issues, such as “mindfulness techniques and
coping instructions to try and work on her hallucinations,” but Mother missed
most of her appointments and eventually stopped attending altogether. (Tr.
Vol. II, p. 30).
[10] On November 3, 2016, a psychiatrist at Cummins Behavioral Health conducted
a psychiatric evaluation on Mother. The psychiatrist concluded “that this was a
case of disorganized schizophrenia, based on . . . the gross disorganization, but
. . . also she had voiced that she was experiencing hallucinations and there was
some bizarre ideation that was voiced throughout that time.” (Tr. Vol. II, p.
18). Mother specifically requested that the psychiatrist prescribe Klonopin (a
benzodiazepine) and Adderall (a stimulant). The psychiatrist opined that those
medications “would not help her.” (Tr. Vol. II, p. 22). Instead, the psychiatrist
recommended that Mother continue with the anti-psychotic medication that
had been prescribed at Sycamore Springs—preferably in the form of an
injection that would last for thirty days. Mother still did not have insurance in
place, and “the medications[,] even a generic[,] are quite expensive.” (Tr. Vol.
II, p. 18). Mother missed her follow-up appointment, and she never contacted
her treatment team. During a family and team meeting in November of 2016,
DCS indicated that it would pay for the injectable medication until Mother
could re-establish Medicaid. However, Mother “was very, very, very upset
because . . . the doctor would not prescribe her Adderall and Klonopin like she
wanted and so she wasn’t taking anything.” (Tr. Vol. II, p. 68). Mother
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 6 of 17 eventually agreed that she would “think about it,” but she never appeared to
receive the injection. (Tr. Vol. II, p. 33). Mother continued to express to DCS
her belief that the family case worker is a “demon” and that “someone’s trying
to hurt [the Child].” (Tr. Vol. II, p. 71).
[11] In August of 2016, the Child began seeing a therapist to address “emotional and
behavioral symptoms.” (Tr. Vol. II, p. 39). Specifically, the therapist focused
“on addressing traumatic incidents from his life, to decrease his depressive
symptoms, to increase his impulse control and to also help him develop
adaptive coping skills.” (Tr. Vol. II, p. 40). Although the Child remained
“insistent on avoiding talking about his past experiences,” the therapist reported
that the Child had “verbalized experiencing a lot of violence between family
members, violent outbursts from his [M]other and some mental health
symptoms from his [M]other’s behavior that he found to be scary in his words.”
(Tr. Vol. II, p. 40). The therapist observed that the Child “had a very flat affect.
He does not speak positively about himself or . . . others or the world.” (Tr.
Vol. II, p. 40). When questioned about his life with Mother, the Child “will
become very quiet and it will appear as if he shuts down.” (Tr. Vol. II, p. 42).
In September of 2016, DCS had planned to initiate visits between the Child and
Mother, and the Child’s reaction to such news “was terrible. It was probably
one of the worst home visits [the DCS family case manager] had.” (Tr. Vol. II,
p. 74). The Child’s “face got red, he balled his fists up[,] and . . . tears came
down his face, huge tears and he said no he’s not doing it.” (Tr. Vol. II, p. 74).
The therapist worked with the Child on becoming receptive to a visit with
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 7 of 17 Mother, but the Child never wavered in his resolve against interacting with
Mother. The Child expressed that he did not want to see Father either.
[12] In November of 2016, Father was released from prison and subsequently tested
positive for methamphetamine. Father was thereafter re-incarcerated for
violating his parole. Father never availed himself of services available in the
Department of Correction, nor did he participate with DCS when given the
opportunity.
[13] In December of 2016, the trial court granted DCS’s request to be relieved of any
obligation to continue providing reunification services for Father and Mother.
Mother was not participating in her mental health treatment plan or other
services and had made no progress. Mother was again hospitalized in February
of 2017 and has since continued to refuse to take her medication. On February
21, 2017, DCS filed a petition to terminate the parental rights of Father and
Mother. On August 16, 2017, the trial court conducted a hearing on DCS’s
termination petition, at which time Father consented to the termination of his
parental rights. During the hearing, DCS, the Child’s therapist, and the court-
appointed special advocate (CASA) all opined that termination of Mother’s
parental rights was in the Child’s best interests. On August 18, 2017, the trial
court issued Findings of Fact, Conclusions of Law and Judgment, terminating
Mother’s parental rights.
[14] Mother now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 8 of 17 DISCUSSION AND DECISION I. Standard of Review
[15] Mother challenges the termination of her parental rights. 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)). Yet, 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,” their parental rights may be terminated. Id. We also
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) (internal quotation marks omitted).
[16] Indiana courts utilize 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. On appeal, we will not reweigh the evidence or assess the credibility
of witnesses. Bester, 839 N.E.2d at 147. Rather, we “consider only the evidence
and reasonable inferences that are most favorable to the judgment.” Id.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 9 of 17 Additionally, because the trial court entered special findings of fact and
conclusions thereon, we rely on the standard set forth in Indiana Trial Rule
52(A), pursuant to which we “shall not set aside the findings or judgment unless
clearly erroneous, and due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.” In applying this standard, we
must first determine whether the evidence supports the trial court’s findings;
second, we consider whether the findings support the judgment. Id. We will
find a judgment to be clearly erroneous “if the findings do not support the trial
court’s conclusions or the conclusions do not support the judgment.” Id.
II. Termination of Parental Rights Statute
[17] To terminate a parent’s rights to 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
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 10 of 17 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.
[18] In ordering the termination of Mother’s parental rights, the trial court
concluded that DCS had established each element of Indiana Code section 31-
35-2-4(b)(2). On appeal, Mother challenges only the trial court’s conclusions
with respect to Indiana Code section 31-35-2-4(b)(2)(B): that DCS failed to
establish either that there is a reasonable probability that the conditions resulting
in the Child’s removal or continued placement out of her custody will not be
remedied or that the continuation of the parent-child relationship poses a threat
to the Child’s well-being. 2
2 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to prove only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, DCS did not allege that the Child had twice been adjudicated a CHINS; therefore, the two relevant inquiries are whether there is a reasonable probability that the conditions resulting in the Child’s removal and continued placement outside
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 11 of 17 III. Remediation of Conditions
[19] In determining whether there is a reasonable probability that conditions will not
be remedied, we must identify what conditions led to the Child’s “placement
and retention” outside the home and subsequently determine whether there is a
reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these
decisions, a court “must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions—balancing a parent’s recent improvements against habitual
pattern[s] 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)
(citation and internal quotation marks omitted) (quoting Bester, 839 N.E.2d at
152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include ‘criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment.’” K.E., 39 N.E.3d at 647. “A
pattern of unwillingness to deal with parenting problems and to cooperate with
those providing social services, in conjunction with unchanged conditions,
support a finding that there exists no reasonable probability that the conditions
will change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,
372 (Ind. Ct. App. 2007), trans. denied. DCS need not “provide evidence ruling
out all possibilities of change; rather, it need only establish ‘that there is a
of the home will not be remedied or whether there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the Child’s well-being.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 12 of 17 reasonable probability that the parent’s behavior will not change.’” A.D.S. v.
Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.
denied.
[20] In this case, the trial court concluded that
DCS removed the Child from [Grandmother] who was caring for the Child in the absence of both his parents [beginning on] August 9, 2015. . . . DCS has offered reunification services to both parents but neither parent was able to participate in these services in order to overcome their parenting deficits. . . . Mother was in jail and in and out of psychiatric hospitals. Her severe mental illness prevents from caring for herself or the Child. Unfortunately, Mother refuses to consistently take medication prescribed for her that might ameliorate some of her symptoms and as a result, there does not appear to be any other services that . . . DCS can offer in order to reunify the Child with her.
(Appellant’s App. Vol. II, p. 18). In further support of its determination, the
trial court found that
[w]hile [Mother] urgently requires appropriate psychotropic medications to ameliorate her Schizophrenia she resists taking the medications prescribed for her and she insists that she needs prescriptions that will not help her. As a result she remains chronically mentally ill[,] the victim of her own mental distortions. Her hallucinations are so severe that it prevents service providers who attempt to help her from providing appropriate services to her or even to have a rational conversation with her. She has frequent hallucinations that demons are issuing forth from the walls of the jail and that her son has been missing for years. As a result of her chronic poor mental health . . . DCS’[s] efforts to begin Mother on appropriate reunification services were frustrated. When case management
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 13 of 17 services were offered to her in October and November of 2016 she missed the majority of her sessions with her case manager. In December she only made one out of seven appointments and after December 15, 2016[,] Mother did not return for her appointments. Mother is incapable of providing for her own needs. She relies on [Grandmother] and [her] sister for food, shelter and the necessities of life. She is not employed. She would be homeless if [Grandmother] and [her] sister did not give her temporary shelter. She is not capable of providing the necessities of life to the Child.
(Appellant’s App. Vol. II, p. 15).
[21] Without specifically challenging the trial court’s findings, Mother now claims
that there is insufficient evidence to support a determination that there is a
reasonable probability that conditions will not be remedied because DCS failed
to properly assist Mother “in enhancing her parenting abilities.” (Appellant’s
Br. p. 16). Mother also argues that “[t]here was . . . undisputed testimony . . .
that, given proper medication and supports, a parent with . . . Mother’s
condition can appropriately parent a child.” (Appellant’s Br. p. 17). Thus,
Mother insists that termination is not appropriate because there is no evidence
that “all other reasonable efforts have failed.” (Appellant’s Br. p. 17).
[22] DCS cannot force a parent to engage in services or otherwise make the
necessary improvements to become a fit parent. In fact, “the law concerning
termination of parental rights does not require [DCS] to offer services to the
parent to correct the deficiencies in childcare,” and while DCS “routinely
offer[s] services to assist parents in regaining custody of their children,
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 14 of 17 termination of parental rights may occur independently of them, as long as the
[statutory elements] are proven by clear and convincing evidence.” In re B.D.J.,
728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (noting that “a parent may not sit
idly by without asserting a need or desire for services and then successfully
argue that he was denied services to assist him with his parenting”). Here,
services were clearly offered for a period of time, but Mother refused to avail
herself of them. It is obvious that her mental illness is severe and contributed to
her refusal to participate; however, DCS cannot be blamed for Mother’s
rejection of mental health services. DCS even went so far as to arrange to pay
for an injectable form of medication in order to stabilize Mother to the point
that she could meaningfully participate in other services. Yet, Mother has
consistently refused to take her medication and instead requires frequent
hospitalizations. Mother would not cooperate, and despite the added efforts of
DCS and service providers to engage Grandmother’s assistance in the process,
no progress was made throughout the two years between the Child’s removal
and the termination hearing.
[23] At the termination hearing, Mother’s schizophrenic symptoms were glaringly
on display. Not only did she refer to herself in the third person, she was unable
to directly answer questions that were asked of her, and her responses were
nonsensical. Mother, while able to identify the judge and her attorney, did not
know the date, and she believed that her presence in court was because the
Child was “missing.” (Tr. Vol. II, p. 57). When directed to consider whether
the Child was actually in foster care, Mother answered, “That’s what they say.
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 15 of 17 His body is missing. There’s someone missing from Montgomery County.
Three years and still no word.” (Tr. Vol. II, p. 57). Mother readily admitted
that she was “[s]elf medicating” with Adderall and Valium “because the doctors
won’t come off of nothing. There is nothing you can mother fucking say to
these people.” (Tr. Vol. II, p. 56). Yet, when questioned as to the source of
these medications, Mother was oblivious to the fact that taking non-prescribed
Adderall and Valium, both of which she was receiving from Grandmother, was
illegal. At that time, Mother was unemployed, living in a motel with
Grandmother, and had made no effort to seek out any mental health treatment.
The Child’s therapist and CASA testified as to the negative impact of Mother’s
untreated mental illness on the Child, including her proclivity for violent
outbursts. By the time of the termination hearing, the Child was beginning to
speak positively about himself for the first time and was finally experiencing a
sense of permanency with his foster family.
[24] Although Mother blames DCS for discontinuing its reunification services based
on her refusal to comply, it was incumbent upon Mother to develop an ability
to appropriately parent without DCS intervention. Prince v. Dep’t of Child Servs.,
861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007) (noting that “the responsibility to
make positive changes will stay where it must, on the parent”). Mother is
correct that the evidence suggested that a parent who suffers from schizophrenia
may be able to independently raise children. The evidence in this case,
however, clearly and convincingly establishes that Mother is unable to provide
for her own needs, let alone the needs of the Child. Therefore, the trial court
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 16 of 17 properly concluded that there is a reasonable probability that the conditions
resulting in the Child’s removal and continued placement out of the home will
not be remedied, and we affirm the termination of Mother’s parental rights.
CONCLUSION [25] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the termination of Mother’s parental rights.
[26] Affirmed.
[27] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2139 | March 1, 2018 Page 17 of 17