In the Matter of the Termination of the Parent-Child Relationship of N.H. and K.M. (Children) and: A.M. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2020
• Docket: 19A-JT-3004
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jun 16 2020, 11:41 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose CLERK Indiana Supreme Court of establishing 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 Steven R. Knecht Robert J. Henke Vonderheide & Knecht Marjorie Lawyer-Smith Lafayette, Indiana Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 16, 2020 of the Parent-Child Relationship Court of Appeals Case No. of N.H. and K.M. (Children) 19A-JT-3004 and: Appeal from the Tippecanoe Superior Court A.M. (Mother), The Honorable Matthew Boulac, Appellant-Respondent, Judge Pro Tempore Trial Court Cause No. v. 79D03-1812-JT-163 & 79D03-1812- JT-164 Indiana Department of Child Services, Appellee-Petitioner.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 1 of 13 STATEMENT OF THE CASE Appellant-Respondent, A.M. (Mother), appeals the trial court’s termination of

her parental rights to her minor children, N.H. and K.M. (Children).

We affirm.

ISSUE Mother presents one issue on appeal, which we restate as: Whether the trial

court’s Order terminating Mother’s parental rights was supported by clear and

convincing evidence.

FACTS AND PROCEDURAL HISTORY N.H. was born in August 2015 and K.M. was born in April 2017. 1 Mother

received no prenatal care while pregnant with K.M. K.M. was then born

prematurely and immediately admitted into the NICU. On May 5, 2017, the

Tippecanoe County Department of Child Services (DCS) responded to a report

that Mother was inadequately caring for K.M. On the same day, DCS visited

Mother’s home. During the visit, DCS observed Mother holding K.M.

inappropriately. Mother also told DCS that a week prior to the report, mother’s

1 K.M.’s biological father’s parental rights were terminated, and he does not participate in this appeal. N.H.’s biological father remains unknown.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 2 of 13 mother, Grandmother, had to revive K.M. after he stopped breathing and

turned blue and limp. Mother did not seek medical attention until the next day.

Mother admitted having been diagnosed with bipolar disorder, multiple

personality disorder, schizophrenia, ADHD, depression, and mild mental

retardation. Mother reported that her mental disorders, except schizophrenia,

were diagnosed when she was five years old, and that her schizophrenia was

attributed to the fact that she was a recovering drug addict. Mother added that

she also experiences visual hallucinations such as seeing spiders and faces, and

that the last episode was a month prior to the DCS report. Mother claimed that

she did not “need psychological counseling, or medication[],” and that her

disorders could be controlled within her mind and medications were not

necessary. (Exh. Vol. I, p. 11). Mother also admitted using alcohol, marijuana,

pills, and cocaine as well as experimenting with methamphetamine and heroin

in the past.

Following the visit, DCS removed the Children from Mother’s home and

placed them in foster care. On May 7, 2017, DCS filed petitions alleging the

Children were Children in Need of Services (CHINS) due to allegations of

neglect or abuse. On June 21, 2017, the trial court adjudicated Children to be

CHINS. A dispositional order was issued on July 19, 2017, where Mother was

ordered to participate in case management, random drug screens, a mental

health assessment, a substance abuse assessment, a psychological assessment,

and supervised visits with Children.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 3 of 13 Both Children have special needs. N.H. has problems with aggression,

developmental delays, and possible fetal alcohol syndrome. N.H. also attends

speech, feeding, and behavioral therapy. As for K.M., he was diagnosed with

failure to thrive and struggled to gain weight. K.M. underwent surgery and a

“G-Tube” was inserted in abdomen to ensure that he was receiving enough

calories. (Appellant’s App. Vol. II, p. 28). Due to the G-Tube, K.M. had

dietary restrictions, and Mother was required to participate in training on how

to feed K.M. Mother did not understand or retain enough information from

those training sessions to properly feed K.M. On other occasions, Mother

disregarded K.M.’s dietary restrictions and would try to feed him solids,

insisting “that’s what he needed at the time.” (Transcript Vol. II p, 133).

In September 2017, Mother underwent a mental health assessment due to her

untreated mental health conditions. The clinician noted that “it would be

difficult for [Mother] to safely parent her children with untreated mental health

disorders.” (Exh. Vol. I, p. 218). Mother was unsure why the DCS became

involved in the first place, and the clinician noted that Mother appeared to

“parrot” information regarding K.M.’s health condition. (Exh. Vol. I, p. 217).

In November 2017, Mother completed a parenting/family functional

assessment. It was reported that Mother’s mental health issues affected her

ability to parent the Children. The clinician expressed concern that Mother

may always need extra support in parenting the Children and that her mental

health could greatly impact her ability to parent appropriately.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 4 of 13 When the CHINS case began, Mother had secure housing, however, around

February 2018, Mother was threatened with an eviction for having a pet and for

allowing other people to live in her apartment, which were violations of her

subsidized housing rules. Mother’s boyfriend, who had failed a DCS drug

screen, was living in Mother’s home.

Around June 2018, Mother became increasingly confrontational and aggressive

toward her service providers. In July 2018, Mother was discharged from case

management. Mother claimed that she did not need any assistance with

organization despite the clutter in her home. Services were stopped with two

different case management providers because of Mother’s aggressive behavior,

including shouting and cussing at the case managers.

In August 2018, a second visit facilitator for parenting time sessions was added

to ensure adequate supervision during Mother’s supervised visits. After Mother

appeared to struggle with the needs of both Children at the same time, Mother’s

visits were individualized for each child. Even with the separate supervised

visits, Mother struggled to understand the Children’s individual medical

concerns.

In December 2018, Mother completed a psychological assessment. Mother’s

“cognitive and personality testing” were “suggestive of someone who is easily

frustrated and overwhelmed.” (Exh. Vol. I, p. 194). Mother was also found to

have a hard time realistically appraising her strengths and weaknesses and she

lacked sufficient awareness and empathy for the needs of others. Those

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 5 of 13 findings were of “potential concern when it comes to her ability to consistently

manage the practical demands of raising two small children while balancing her

own needs with those of the children as well.” (Exh. Vol. I, p. 194).

In December 2018, DCS filed termination petitions and an evidentiary hearing

was conducted on February 20 and May 1, 2019. The Children had been out of

Mother’s care since their initial removal in May 2017. At the time of the

termination hearing, Mother had been discharged from visitation services due

to safety concerns for the Children and her inability to appropriately care for

them. DCS concluded that it was traumatizing for them to continue visits since

Mother disregarded the specific doctor’s orders regarding K.M.’s feedings and

she would try to feed him solids, insisting “that’s what he needed at the time.”

(Tr. Vol. II p, 133). In addition, the Children displayed behavioral issues after

visits with Mother, including N.H. not eating or sleeping and hiding when it

was time for the visits because he did not want to go.

The DCS family case manager Caitlin Jackson (FCM Jackson), testified

although Mother participated in services, she was not able to retain that

information due to her cognitive limitations and was not able to progress to

safely parent the Children. FCM Jackson added that the Children were thriving

in their current placement, and their caregivers were able to properly care for

their medical needs and were willing to adopt them. She ultimately concluded

that the continuation of the parent-child relationship was not in the Children’s

best interest. The court appointed special advocate Brenda Parker (CASA

Parker) testified that Mother had no housing, did not know the extent of the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 6 of 13 Children’s medical needs, and did not follow doctor’s recommendations

regarding the Children’s medical needs. She likewise believed that the

conditions leading to the Children’s removal would not be remedied because

during the two years the Children had been out of the home, Mother

“continually exhibit[ed] the inability to care for the children, either through

unwillingness or through her cognitive disabilities.” (Tr. Vol. II, p. 190). She

added that Mother had been “very combative” during the CHINS case and had

been discharged from many service providers. (Tr. Vol. II, p. 195). CASA

Parker equally testified that termination of parental rights was in the Children’s

best interest, and she indicated that the foster parents were willing to adopt the

Children. On September 23, 2019, the trial court entered its Order, terminating

Mother’s parental rights to the Children.

Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION A. Standard of Review

Mother’s challenge on appeal is limited to the trial court’s decision that the

termination of her parental rights was in the Children’s best interest. 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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 7 of 13 Granville, 530 U.S. 57, 65 (2000)). However, 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,” termination of parental

rights is appropriate. Id. We 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) (quoting Rowlett v. Vanderburgh Cnty.

Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).

Indiana courts rely on 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. Our court neither reweighs evidence nor assesses the credibility of

witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

2013). We consider only the evidence and any reasonable inferences that

support the trial court’s judgment, and we accord deference to the trial court’s

“opportunity to judge the credibility of the witnesses firsthand.” Id.

B. Termination of Parental Rights

In order to terminate a parent’s rights to his or 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)

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 8 of 13 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 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.

When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester, 839 N.E.2d at 147.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 9 of 13 We determine whether the evidence supports the findings and whether the

findings support the judgment. Id. “Findings are clearly erroneous only when

the record contains no facts to support them either directly or by inference.”

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and

inferences support the juvenile court’s decision, we must affirm. In re L.S., 717

N.E.2d 204, 208 (Ind. Ct. App. 1999), cert. denied 534 U.S. 1161, 122 S. Ct.

1197 (2002).

Mother does not challenge the findings, so they stand proven. See Madlem v.

Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge

the findings of the trial court, they must be accepted as correct.”). Instead,

Mother’s sole challenge is that the trial court erred by concluding that

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

Pursuant to Indiana Code section 31-35-2-4(b)(2)(C), DCS must provide

sufficient evidence “that termination is in the best interests of the child.” In

determining what is in the best interests of a child, the trial court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the

trial court must subordinate the interests of the parent to those of the child. Id.

The court need not wait until a child is harmed irreversibly before terminating

the parent-child relationship. Id. Recommendations of the case manager and

court-appointed advocate, in addition to evidence that the conditions resulting

in removal will not be remedied, are sufficient to show by clear and convincing

evidence that termination is in the child’s best interests. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 10 of 13 Over the course of the CHINS proceeding, the concerns regarding Mother’s

ability to properly parent and supervise her children became evident. At the

onset of the CHINS case, K.M. was diagnosed with failure to thrive and

required a G-Tube for feeding, which he may need for the rest of his life. Due

to the G-Tube, there were specific instructions on how to feed K.M. and

Mother was trained on how to administer his feedings. Mother did not

understand or retain enough information from those training sessions to

properly feed K.M. On other occasions, Mother disregarded K.M.’s dietary

restrictions and would try to feed him solids, insisting “that’s what he needed at

the time.” (Tr. Vol. II p, 133). Mother also acknowledged that she struggled to

bond with K.M. who was removed from her care soon after he was born. As

for N.H., he increasingly began displaying negative behavior following his visits

with Mother. N.H. was not sleeping well, did not want to attend the visits, and

would cry, scream, and hide when it was time for the next visit. In addition,

N.H., who also struggled with weight gain, refused to eat and he started losing

weight.

CASA Parker stated that Mother’s “cognitive disability” prevented her from

fully understanding the Children’s medical issues, and at times, “she [was]

unwilling to follow doctor’s orders on ways to treat her children.” (Tr. Vol. II,

p. 191). CASA Parker was concerned that the continuation of the parent-child

relationship would be harmful to K.M. since Mother had undergone training on

how to feed K.M., but Mother had never been certified to feed K.M. on her

own and would require a third party to help her feed K.M. FCM Jackson also

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 11 of 13 testified that the Children were thriving in their current placement and their

caregivers were able to properly address their medical needs. She ultimately

concluded that the continuation of the parent-child relationship was not in the

Children’s best interests since Mother “hasn’t understood the ability to

appropriately parent her children and . . . the children wouldn’t thrive in her

care without her understanding.” (Tr. Vol. II, p. 157).

We will reverse a termination of parental rights only upon a showing of clear

error—that which leaves us with a definite and firm conviction that a mistake

has been made. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92 (Ind. Ct. App.

2014). Although Mother attended nearly all supervised parenting time sessions,

Mother’s parenting skills never improved. Both CASA Parker and FCM

Jackson testified Mother was unable to understand the Children’s medical

needs and provide proper care without continuous intervention, and that it was

in the best interests of the Children to terminate Mother’s parental rights.

Mother was also homeless at the time of the termination hearing, raising

concerns of housing instability. Based on the totality of the evidence, we

cannot say that the trial court’s termination of Mother’s parental rights to the

Children was clearly erroneous. Thus, we decline to set aside the termination

Order.

CONCLUSION Based on the foregoing we conclude that DCS presented sufficient evidence to

support the trial court’s Order terminating Mother’s parental rights to the

Children. Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 12 of 13 Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-JT-3004 | June 16, 2020 Page 13 of 13