In the Matter of the Termination of the Parent-Child Relationship of: G.L. (Minor Child) and C.L. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 10, 2018
• Docket: 18A-JT-977
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 10 2018, 9:21 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 10, 2018 of the Parent-Child Relationship Court of Appeals Case No. of: 18A-JT-977 G.L. (Minor Child) Appeal from the Dearborn Circuit Court and The Honorable James D. C.L. (Mother), Humphrey, Judge Appellant-Respondent, Trial Court Cause No. 15C01-1708-JT-22 v.

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 1 of 14 Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Respondent, C.L. (Mother), appeals the trial court’s order

terminating her parental rights to her minor child, G.L. (Child).

[2] We affirm.

ISSUE [3] Mother raises one issue on appeal which we restate as: Whether there was

sufficient evidence to support the termination of Mother’s parental rights.

FACTS AND PROCEDURAL HISTORY [4] On April 2, 2015, the Department of Child Services (DCS) removed Child, who

was five years old at the time, and his four-year-old sister (Sister) 1 from

Mother’s home. On April 6, 2015, DCS filed a petition alleging that Child was

a child in need of services (CHINS) because Mother had attempted to

voluntarily relinquish custody to a family friend, Child had been reported to be

acting out with sexual behaviors, Mother’s home had no utilities, Mother had

been observed to have decreased mental health over the prior thirty days,

Mother had reported terminating her mental health workers because they

refused to refill Child’s medication, and because Child’s arm was bruised in a

1 Mother’s parental rights to Sister were terminated in a separate proceeding.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 2 of 14 manner consistent with having been grabbed. On July 13, 2015, the trial court

entered an order finding all the DCS allegations to be true and declaring Child a

CHINS. On August 13, 2015, the trial court entered its Dispositional Order

directing Mother to, among other things, establish and maintain contact with

the DCS family case manager (FCM), notify the FCM of any change in

address, notify the FCM of any criminal arrest or pending criminal charges, and

to comply with any recommendations for programs or services made by the

FCM. The trial court also ordered Mother to maintain suitable, safe, and stable

housing, obey the law, complete and comply with parenting and substance

abuse assessments, consistently meet with mental health personnel and comply

with any medication orders issued, and to attend all scheduled visitation.

[5] Prior to the underlying CHINS case being initiated, Mother had been

prosecuted for neglect of a dependent for an incident wherein then one-and-one-

half-year-old Child had been left alone by his caregiver in whose care Mother

had left him. From April 6, 2015, until February 22, 2018, Mother was arrested

on at least three occasions for offenses including battery with bodily injury,

theft, and allowing an unlicensed driver to operate her vehicle. Mother’s

probation was revoked, and during the pendency of the CHINS and the instant

matter, Mother was incarcerated for approximately sixteen months at various

times.

[6] When Mother was not incarcerated, she was offered a number of services

through DCS, including behavioral therapy and medication management

services to address her mental health diagnosis of bi-polar disorder and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 3 of 14 depression. Mother’s compliance with these services was sporadic. Mother

made improvement when she attended her mental health services and took her

medication, but she often would not take her medication. Mother did not

attend any medication management appointments in 2016 or 2017. Mother did

not regularly attend her weekly behavioral therapy, only attending on two or

three occasions during the first eighteen months of the CHINS case. Mother

did complete psychological testing, which resulted in a recommendation for

ongoing therapy and medication. During the pendency of the CHINS

proceedings, it was reported that Mother threatened Child’s foster parents and a

number of caregivers. Mother had also been involved in an incident during one

of her periods of incarceration wherein she threatened to remove a pregnant

inmate’s fetus from her womb and force her to eat it.

[7] During the CHINS proceedings, Mother was scheduled to have supervised

parenting time with Child once a week for approximately four hours. Mother’s

attendance was sporadic, and Mother did not always follow the rules for

supervised parenting time. Child’s guardian ad litem (GAL) was present at

each occasion that Mother had parenting time with Child. The GAL observed

that Child appeared to be afraid during these visits and would visibly flinch if

Mother moved quickly. After these interactions with Mother, Child would soil

his bed at night, have tantrums, and self-harm through head banging, hitting, or

scratching. Child did not exhibit these behaviors when Mother missed

parenting time or was incarcerated. Mother would telephone Child’s foster

home at inappropriately early or late times and berate Child until he cried and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 4 of 14 experienced insomnia. Child would attempt to avoid seeing Mother.

Beginning in March of 2016, Child’s GAL consistently, and, at times

vehemently, requested that the trial court discontinue Mother’s parenting time

due to its negative effect on Child. In June of 2017, Child’s GAL reported an

incident to the trial court wherein Child, anticipating parenting time with

Mother, pulled feces from his body and used it to write “don’t make me go” on

the refrigerator. Child was diagnosed with complex post-traumatic stress

disorder due to his experiences in Mother’s home.

[8] From April of 2015 until June of 2017, Child’s permanency plan was

reunification with Mother. During the summer of 2017 after a putative father

was excluded as Child’s father, Child’s permanency plan was altered from

reunification to adoption. On August 25, 2017, the State filed a verified

petition for involuntary termination of parent-child relationship (TPR), alleging,

among other statutory considerations, that it was in Child’s best interests to

terminate Mother’s 2 parental rights and that the State had a satisfactory plan for

the care and treatment of Child, namely, adoption. Hearings on the TPR

petition were held on November 22, 2017, January 29, 2018, and February 22,

2018. Mother did not appear for the January hearing, despite having notice of

the time and date. Mother was not in contact with her attorney, was not

incarcerated, and did not contact the trial court regarding her absence.

2 The parental rights of any putative fathers were also terminated in these proceedings.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 5 of 14 [9] FCM Rachel Leonard (FCM Leonard), who was on the case until

approximately December of 2016, testified at the January TPR hearing that she

never recommended placement of Child with Mother because conditions

meriting the initial removal of Child from Mother’s home were never remedied

and because Mother did not participate in services regularly enough to address

her own mental health needs. Mother had been ordered to maintain contact

with FCM Leonard, but there were multiple occasions when Mother was

incarcerated that DCS was not notified, and FCM Leonard only determined

Mother’s whereabouts by searching for Mother herself. Mother always told

FCM Leonard that she wanted to participate in services, but Mother never

followed through. FCM Leonard had concerns over Mother’s ability to parent

Child. FCM Leonard felt that the conditions that had merited removal of Child

from Mother’s home were not likely to be remedied because Mother did not

participate in services, did not go to therapy, and did not take her medications.

[10] FCM Julie Colen (FCM Colen), who succeeded FCM Leonard, testified at the

January TPR hearing that Mother had not established a stable home and had

made no progress through the case. In January of 2017, Mother moved to

Lawrenceburg. DCS paid Mother’s deposit and the first month’s rent on a

home for her. However, Mother only lived there until February of 2017, when

Mother was incarcerated until May 27, 2107. After being released, Mother

moved to a friend’s home for a month. FCM Colen felt that, due to her

frequent arrests and incarcerations, Mother was unavailable to parent. FCM

Colen also felt that Mother had not addressed her mental health needs which

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 6 of 14 she believed would help Mother to be stable and to maintain a stable residence.

Mother had reported to FCM Colen that she believed that she had mental

health issues but that she did not require medication to treat them.

[11] FCM Colen also testified that Child had been in five different foster home

placements since being removed from Mother’s home. His first placement had

been long-term, almost two years. Child’s foster parents asked that he be

moved due to behavioral issues. The other moves were also due to behavioral

issues, except the last one which had been a pre-adoptive placement that fell

through because the foster parents ultimately did not think Child would be a

good fit in the home. Child had been in his most recent placement since

December 15, 2017, and was doing better, academically and socially. Child’s

permanency plan was to have him adopted with Sister into the same home, but

no adoptive family had been identified.

[12] Mother appeared for the February 2018 TPR hearing and reported that she was

living in Ohio with her boyfriend. She was not currently taking any mental

health medications. Mother felt that the CHIN case had been opened because

bad blood existed between her and DCS workers due to a previous case.

[13] On March 14, 2018, the trial court issued its Order terminating Mother’s

parental rights. The trial court found that termination of Mother’s parental

rights was in Child’s best interests because

Mother continues to have issues with stable housing, although she is now living in Ohio with her current paramour. Mother’s refusal to acknowledge her own mental health issues, as well as Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 7 of 14 her instability, places her child at continued risk of abuse or neglect.

(Appellant’s Appendix, Vol. II, p. 30). The trial court also found that DCS had

“a satisfactory plan for the care and treatment of [Child], which is: adoption.”

Id.

[14] Mother now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION I. Standard of Review

[15] It is well-settled that when reviewing the evidence supporting the termination of

parental rights we neither reweigh the evidence nor determine the credibility of

witnesses. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). In addition, we consider

only the evidence that supports the judgment and the reasonable inferences to

be drawn from that evidence. Id. “We confine our review to two steps:

whether the evidence clearly and convincingly supports the findings, and then

whether the findings clearly and convincingly support the judgment.” Id. We

do not set aside the trial court’s findings or judgment unless it is clearly

erroneous. Id.

II. Termination of Mother’s Parental Rights

[16] “[O]ne of the most valued relationships in our culture” is that between a parent

and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

Indeed, “[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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 8 of 14 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Accordingly, the

Fourteenth Amendment to the United States Constitution safeguards “the

traditional right of parents to establish a home and raise their children.” Id.

Nevertheless, parental interests are not absolute; rather, termination of parental

rights is appropriate when parents are unable or unwilling to meet their parental

responsibilities. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008).

[17] Termination of parental rights is an extreme sanction that is intended as a “last

resort” and is available only when all other reasonable efforts have failed. C.A.

v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,

before a termination of parental rights is merited, the State is required to prove

a host of facts by clear and convincing evidence, the most relevant for our

purposes being that termination is in the best interests of the child and that there

is a satisfactory plan for the care and treatment of the child. 3 Ind. Code §§ 31-

35-2-4(b)(2)(C),(D); 31-37-14-2. We address each of those factors in turn.

A. Child’s Best Interests

[18] Our supreme court has recently recognized that one of the most difficult aspects

of a termination of parental rights determination is the issue of whether the

termination is in the child’s best interest. In re E.M., 4 N.E.3d at 647 (noting

that the question “necessarily places the children’s interest in preserving the

3 Mother initially concedes that the State met its burden of proof as to all other statutorily mandated factors apart from showing termination was in Child’s best interest, but she also makes a related argument that the State did not show that adoption was a satisfactory plan for Child. (Appellant’s Brief pp. 13, 17-18).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 9 of 14 family into conflict with their need for permanency.”). The trial court’s

determination that termination was in the child’s best interests requires it to

look at the totality of the evidence of a particular case. In re D.D., 804 N.E.2d

258, 267 (Ind. Ct. App. 2004), trans. denied. “In doing so, the trial court must

subordinate the interests of the parents to those of the children involved.” Id.

[19] Here, the trial court found that termination was in Child’s best interests because

Mother continued to have issues with stable housing, refused to acknowledge

her mental health issues, and was unstable. Regarding the issue of stable

housing, the evidence indicated that Child was initially removed from Mother’s

home in part because she had no functioning utilities. Mother’s home during

sixteen months of the period preceding termination was jail or prison. The

record is largely silent as to where Mother resided in between those periods of

incarceration. Mother quickly lost a home DCS had helped her procure.

Although Mother was living with her boyfriend in Ohio by the time of the last

TPR hearing, she had only been there for approximately one month after being

released from her latest period of incarceration, which was not a long enough

period of time to establish a pattern of stability.

[20] As to her mental health issues, Mother did not comply with her treatment plan

to attend behavioral therapy and medication management. Mother felt that she

did not require medication and apparently stopped taking her medication

without consulting any treating physician. At the time of the final TPR

hearing, Mother was not taking any medication. In addition, during the course

of the underlying CHINS proceedings and the TPR case, Mother threatened

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 10 of 14 Child’s foster parents and caregivers, berated Child until he cried and had

insomnia, and threatened to tear a fetus from a woman’s womb and make her

eat it. In light of this evidence, we cannot say that the trial court’s conclusions

regarding Mother’s housing instability, unacknowledged mental health issues,

and overall instability were clearly erroneous. In re E.M., 4 N.E.3d at 642.

[21] Our review of the evidence as a whole leads us to adopt the trial court’s

conclusion that termination was in Child’s best interests because that

conclusion was supported by clear and convincing evidence and was not clearly

erroneous. Id. By the time DCS sought to terminate Mother’s parental rights,

Child had been removed from Mother’s care for approximately twenty-eight

months. Mother was incarcerated for a significant amount of that time period,

sixteen months, during which she did not parent Child, as there is no evidence

in the record that Mother attempted to maintain her parental relationship with

Child or pursue the goals of her case management plan during her periods of

incarceration. When Mother was not incarcerated, her parenting time with

Child was sporadic and resulted in severe harm to Child, who acted out and

self-harmed before and after seeing Mother. The FCMs felt that Mother made

little to no progress in bettering her ability to parent Child despite the resources

provided to her through DCS. In addition, Child’s GAL repeatedly urged the

trial court to terminate Mother’s parental rights so that Child could be adopted.

[22] Nevertheless, Mother argues that we should reverse the trial court’s

determination because “Indiana appellate courts have long recognized that

incarceration is an insufficient basis for terminating parental rights.”

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 11 of 14 (Appellant’s Brief p. 15). While we agree with this proposition as a general

matter, this argument is misplaced, as the trial court did not list Mother’s

incarceration specifically as one of the factors it relied upon in reaching its

determination regarding Child’s best interests, and we do not rely upon that

factor exclusively in reaching our conclusion on review. In addition, the case

relied upon by Mother in support of her argument, In re G.Y., 904 N.E.2d 1257

(Ind. 2009), reh’g denied, is factually distinguishable, because our supreme court

found that termination was not merited where mother had maintained a

relationship with her child during incarceration and made a good faith effort to

better herself as a person and a parent while imprisoned, both factors that, as

noted above, are not present here. Id. at 1262, 1264. Based on the totality of

the evidence, we will not disturb the trial court’s conclusion that termination of

Mother’s rights was in Child’s best interests.

B. Plan for Child’s Treatment and Care

[23] In a related argument, Mother contends that adoption as the plan for Child’s

treatment and care was not in his best interests. “In order for the trial court to

terminate the parent-child relationship the trial court must find that there is a

satisfactory plan for the care and treatment of the child.” In re D.D., 804

N.E.2d at 268. The plan for care and treatment need not be detailed if it offers

a general sense of the direction in which the child will be going after the parent-

child relationship is terminated. Id. A plan to attempt to find suitable parents to

adopt a child is a satisfactory plan. In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct.

App. 2014) (“[T]here need not be a guarantee that a suitable adoption will take

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 12 of 14 place, only that DCS will attempt to find a suitable adoptive parent.”), trans.

denied. However, in order to be viable, a permanency plan must have some

likelihood of coming to fruition. A.K.G. v. Ind. Dep’t of Child Servs., 92 N.E.3d

1083, 1085 (Ind. 2017).

[24] Here, Child had been in a series of foster care placements for varying periods of

time. Child had been in a pre-adoptive placement which did not come to

fruition due to reasons which were not entirely clear from the record. Child

was doing better in his last placement. Thus, Child had some placement issues,

but we cannot say that it is clear from the record before us that there was no

likelihood that Child would ever be adopted. While acknowledging that

adoption is usually an adequate plan for a child despite the lack of identification

of a pre-adoptive home, Mother argues that this plan was not in Child’s best

interests given the specific circumstances of this case. In support of her

argument, Mother directs our attention to evidence in the record that does not

support the trial court’s conclusion that adoption was an adequate plan for

Child, which is unpersuasive given our standard of review. In re E.M., 4 N.E.3d

at 642. We will not disturb the trial court’s determination that termination of

Mother’s parental rights was in Child’s best interests based upon the DCS

satisfactory plan of adoption for Child.

CONCLUSION [25] Based on the foregoing, we conclude that the trial court’s conclusions, namely

that termination of Mother’s parental rights was in Child’s best interests and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 13 of 14 that a satisfactory plan for Child was in place, were supported by clear and

convincing evidence and were not clearly erroneous.

[26] Affirmed.

[27] Vaidik, C. J. and Kirsch, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-JT-977 | October 10, 2018 Page 14 of 14