FOR PUBLICATION Jul 30 2014, 10:04 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES D. CRUM GREGORY F. ZOELLER CATHY M. BROWNSON Attorney General of Indiana Coots, Henke & Wheeler, P.C. Carmel, Indiana ROBERT J. HENKE Deputy Attorney General Indianapolis, Indiana
CHRISTINE REDELMAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE ) TERMINATION OF THE PARENT-CHILD ) RELATIONSHIP OF: ) ) S.E. (Minor Child), ) ) And ) ) R.K. (Mother), ) No. 29A02-1312-JT-1064 ) Appellant/Respondent, ) ) vs. ) ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee/Petitioner. ) APPEAL FROM THE HAMILTON CIRCUIT COURT The Honorable Paul Felix, Judge Cause No. 29C01-1203-JT-413
July 30, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
R.K. (“Mother”) appeals the termination of her parental rights to her daughter,
S.E. Mother, who is deaf, contends that the trial court denied her due process by
requiring her to use sign language when she testified at the termination hearing. She also
argues that there is insufficient evidence to support the termination order.
Trial courts have wide latitude to control the flow of the proceedings and the
presentation of evidence. In some cases, an interpreter may be required to ensure that the
trier of fact hears and understands a witness’s testimony. Here, the trial court could not
understand Mother when she attempted to testify orally. As a result, the trial court
required Mother to testify by signing to an interpreter, who then spoke Mother’s
responses aloud. We conclude that this procedure did not violate Mother’s due-process
rights. We also conclude that there is sufficient evidence to support the trial court’s
decision to terminate the parent-child relationship. We affirm.
2 Facts and Procedural History
Mother gave birth to a daughter, S.E., on January 4, 2011.1 Mother, who is in her
early thirties, was born with hearing loss and became deaf as an adult. Mother has a
serious and complicated medical history. She suffers from foot, knee, back, and neck
pain. Among other things, she has fibromyalgia, scoliosis, degenerative disk disease,
arthritis, irritable bowel syndrome, high blood pressure, and acid reflux. She also has
blood clots in her lungs and elevated white blood cell counts. Mother has been diagnosed
with attention deficit disorder (ADD), borderline personality disorder, depression, and
anxiety, and she takes medications for these diagnoses. She has attempted suicide more
than twenty times and has been hospitalized more than fifty times.
A few months after S.E.’s birth, Mother began living in a homeless shelter.
Shelter staff contacted the Hamilton County Department of Child Services (HCDCS)
with concerns about Mother’s ability to care for S.E. A short time later, HCDCS filed a
petition alleging that S.E. was a child in need of services (“CHINS”), but allowed S.E. to
remain in Mother’s care. Around that time, Mother moved into her mother’s home.
S.E. was adjudicated a CHINS in June 2011 and removed from Mother’s care.
Mother was ordered to do a number of things designed to facilitate reunification,
including:
Obtain and maintain appropriate housing and a source of income Successfully complete a parenting assessment Successfully complete home-based therapy Successfully complete individual counseling Successfully complete a mental-health evaluation and medication- management services
1 L.E. is S.E.’s biological father. He does not participate in this appeal. 3 Attend all scheduled parenting time with S.E.
See State’s Ex. 7.
Mother’s compliance with the trial court’s order was sporadic and ultimately
unsuccessful. In late 2011 Mother did not participate in services or exercise parenting
time with S.E. regularly. By early 2012 Mother was still failing to exercise parenting
time consistently. She had not completed a mental-health evaluation and was not
participating in individual counseling or any mental-health treatment. In August 2012
Mother gave birth to another child, E.K.2 E.K. was removed from Mother’s care three
days after her birth, and a CHINS petition was filed for E.K. a short time later.
Because she continued to attend parenting time inconsistently, Mother’s parenting
time was suspended in October 2012. Two months later, the trial court suspended all
services due to Mother’s noncompliance. In March 2013 Mother abruptly moved to
Terre Haute to live with her boyfriend. The same month, HCDCS filed a petition to
terminate Mother’s parental rights. The trial court held three hearings on the termination
petition in July and September 2013.
At the hearings, those involved in the case expressed concern about Mother’s
health and her ability to parent S.E. Throughout the case, Mother saw a number of
different service providers. Multiple providers were unable to provide services to Mother
because she was confrontational, accusatory, or noncompliant. Tr. p. 23 (testimony of
psychologist Dr. Tyrone Powell), 56 (testimony of social worker Cristina Werremyer),
120 (testimony of social worker Carol Ganza), 236 (testimony of therapist John Polstra).
2 The initials of Mother’s youngest child are E.K. The transcript refers to the child incorrectly as A.K. 4 Dr. Dawn Castner-Rector, a psychologist, was the only service provider working with
Mother at the time of the hearings. Dr. Castner-Rector described Mother’s progress as
“mild” and testified that she would need ongoing mental-health services “for an extended
period of time[,] if she’s motivated to participate in services.” Id. at 83-84.
Jerri Gibson, Mother’s case manager, also summarized Mother’s progress:
Q: Ultimately by the end of your time overseeing the case, what had successfully occurred as far as goals reached and referrals completed successfully, if anything?
A: I can’t say that anything ended and was completed successfully other than the psych evaluation was completed.
Q: Did the necessity to supervise visitation ever halt?
A: No.
Q: Did visitations ever increase as far as the amount of time per visitation or the number of visitations offered per week or per month?
A: No. In fact, visits decreased.
Id. at 302-03. Gibson also described S.E. as “happy” and “content” in her foster
placement. Id. at 304. She recommended terminating Mother’s parental rights. Id.
Vivian Gross, the guardian ad litem (GAL) assigned to the case, also testified.
GAL Gross stated that she did not believe S.E. would be safe in Mother’s care. Id. at
351. She also testified that S.E. had adjusted to her foster home and was happy there. Id.
at 352-53. She likewise recommended terminating Mother’s parental rights. Id. at 355.
Before Mother took the stand, there was a discussion about how she would testify
due to her deafness:
5 MOTHER’S COUNSEL: As a procedural issue, is my client going to be speaking or is the interpreter going to be speaking?
THE COURT: The interpreter will need to speak for her as she signs back and we’ll show that she’s been sworn . . . if you could do that for me as an assistance to the Court.
INTERPRETER: Okay.
MOTHER’S COUNSEL: Do you guys, do you want to explain that to her?
THE COURT: Is she more comfortable testifying that way, [counsel]?
MOTHER’S COUNSEL: I need to know does she want to speak?
INTERPRETER: Prefers to speak.
THE COURT: She prefers to speak then?
MOTHER’S COUNSEL: Yeah, she does.
THE COURT: Okay.
MOTHER’S COUNSEL: It is from my experience sometimes difficult to understand her and we are making a record here for the appellate court. It will be difficult I think for the court reporter to – we’ll try it.
THE COURT: Well, it’s your client and her record so if the Court’s record can’t be clear by her speaking and you would wish to have a more clear record by the interpreter speaking for her, then let’s proceed in that fashion if you’re desiring to preserve a clear record.
MOTHER’S COUNSEL: I mean ultimately that’s my goal. So I’m willing to let her try it but in the event that it’s not going well, we’ll need to stop.
6 THE COURT: Al[right]. You’ll need to be the judge of that then because I may understand what she says and you may not or vice versa. So if I can’t understand her, I’ll certainly let you know.
MOTHER’S COUNSEL: Thank you. Please state your name for the record.
MOTHER: [R.K.].
MOTHER’S COUNSEL: And you are the mother of S.E., correct?
MOTHER: Yes, ma’am.
THE COURT: Okay, we’ll need to have the interpreter.
Id. at 453-54. Mother gave the rest of her testimony through the interpreter.
In December 2013 the trial court entered a twenty-seven-page order with findings
terminating Mother’s parental rights. Appellant’s App. p. 7-33. In its very detailed
order, the court described Mother’s health issues and her lack of participation and
progress in services:
[Mother] continues to have mental-health issues that make her unable to adequately parent [S.E.]. These issues have existed for her since at least the age of ten [], and remain without remedy through the date of the final termination [hearing] . . . .
[Mother] has received treatment since at least the age of ten [] for these issues, which has included multiple hospitalizations, assessments, treatment programs, medications, and counseling attempts. DCS in Madison, Hamilton, and Vigo Counties have all added to the extensive history of these efforts, without being able to achieve any measure of success in remedying her condition or eliminating her parenting deficits[.]
[Mother] has failed to adequately participate in services offered by DCS. Her participation, when active, has been marked by a familiar pattern . . . centered around belligerence, denial of responsibility, combativeness, distorted perception, and ultimately withdrawal by [Mother]. The list of therapists and doctors that have ceased participation during the lifetime of [S.E.] in these proceedings alone is comprehensive, illustrative, and extensive, and applies to virtually every such professional except the latest
7 therapist at Hamilton Center, who continues to observe parenting deficits and continues to recommend basic and remedial parenting-skills training for [Mother]. This training was not even scheduled to begin until after the conclusion of the terminating proceedings[.]
[Mother] has refused to participate in good faith with DCS-provided services, and has actively undermined and/or sabotaged such efforts for multiple superficial reasons, but which ultimately return to the underlying fact that her mental-health issues remain unresolved.
* * * * *
[S.E.] has been removed from . . . [Mother] since June of 2011, a time period of approximately twenty-seven (27) consecutive months . . . . [S.E.] has resided with her current pre-adoptive foster family since August of 2012 . . . . [S.E.] knows this family as her own, and identifies the foster parents as her mother and father. It would be devastating to [S.E.] to be removed from this family. The foster family has identified and overcome multiple physical and psychological issues that [S.E.] had when they took [her] into their home. They are diligent and loving, provide [S.E.] with her daily necessities, both physical and emotional, and are clearly an appropriate final placement for the child.
The child’s DCS case manager, GAL, and foster mother have all testified that termination of the parent-child relationship and adoption of the child are in her best interests. The court agrees with these opinions . . . .
There is a reasonable probability that the conditions that resulted in [S.E.’s] removal from and continued placement outside the care and custody of [Mother] will not be remedied.
Id. at 30-32 (formatting altered).
Mother now appeals. Discussion and Decision
On appeal, Mother contends that the trial court denied her due process by
requiring her to use sign language when she testified at the termination hearing. She also
argues that there is insufficient evidence to support the termination order.
8 I. Sign-Language Interpreter
Mother first contends that the trial court denied her due process by requiring her to
use sign language when she testified at the termination hearing. Mother did not challenge
this procedure at the trial level; instead, she raises this due-process argument for the first
time on appeal.
The State must satisfy the requirements of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution when it seeks to terminate the
parent-child relationship. Castro v. State Office of Family & Children, 842 N.E.2d 367,
375 (Ind. Ct. App. 2006) (citation omitted), trans. denied. Due process in parental-rights
cases involves the balancing of three factors: (1) the private interests affected by the
proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the
countervailing government interest supporting the use of the challenged procedure. In re
C.G., 954 N.E.2d 910, 917 (Ind. 2011) (citing A.P. v. Porter Cnty. Office of Family &
Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), reh’g denied, trans. denied). The
private interest affected by the proceeding is substantial—a parent’s interest in the care,
custody, and control of his or her child. Id. (citation omitted). And the State’s interest in
protecting the welfare of a child is also substantial. Id. Because the State and the parent
have substantial interests affected by the proceeding, we focus on the risk of error created
by DCS’s actions and the trial court’s actions. Id.
Any procedural irregularities in a CHINS proceeding may be of such significance
that they deprive a parent of procedural due process with respect to the termination of his
or her parental rights. A.P., 734 N.E.2d at 1112-13. Nevertheless, a parent may waive a
9 due-process claim in a CHINS or termination proceeding by raising that claim for the
first time on appeal. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d
185, 194-95 (Ind. Ct. App. 2003); see also In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct.
App. 2001) (by raising issue for first time on appeal, mother waived due-process claim
that trial court violated her rights in failing to follow statutory requirements governing
permanency hearings, case plans, and dispositional orders). Here, Mother never objected
to the interpretation procedure used by the trial court; therefore, she has waived this
challenge.
Waiver notwithstanding, we cannot agree that Mother was denied due process
when the trial court required her to testify through an interpreter. Interpreters serve not
only defendants, but our trial courts as well. In light of this dual duty, interpreters are
often referred to as “defense interpreters,” who translate for the benefit of the defendant,
or “proceedings interpreters.” See Arrieta v. State, 878 N.E.2d 1238, 1242-44 (Ind.
2008). Proceedings interpreters “serve[] judge, counsel, parties, and jury by translating to
or from English during various events in a case.” Id. A proceedings interpreter may be
required during “the taking of testimony” to ensure “that the finder of fact hears all
probative testimony, some of which might otherwise be unavailable or misconstrued.”
Id.
Here, the trial court initially agreed to allow Mother to testify orally, but it stopped
her when it could not understand her testimony, determining that an interpreter was
necessary. See Tr. p. 453-54 (Trial court: “So if I can’t understand [Mother], I’ll
certainly let you know.”). The court was within its discretion in making this decision.
10 Indiana Rule of Evidence 611(a) explains that “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.” Rule 611(a) acknowledges that the process of examining
witnesses, while conducted by counsel, is subject to the control of the trial court, “which
has a wide discretion therein. Phases of the examination, such as the length and time that
a witness shall be examined, and the manner and mode of [] examination, are under
the control of, and within the discretion of, the trial court.” Sowders v. Murray, 151 Ind.
App. 518, 525, 280 N.E.2d 630, 635 (1972).
We acknowledge Mother’s preference for communicating orally rather than
through sign language. But we can conceive of no other method the trial court could
have used that would have ensured that it heard and understood Mother’s testimony. And
Mother fails to establish that testifying this way prejudiced her. Although she gives one
example of testimony as proof that “communication error[s] occurred,” Appellant’s Br. p.
17, this single example does not establish that the interpreter—or Mother—made a
mistake. To the extent that Mother asserts that she is not adept at using sign language,
Mother never indicated that she was having difficulty explaining herself using sign
language at the terminating hearings. We cannot say that the trial court violated Mother’s
due-process rights by requiring her to testify by signing to an interpreter.
II. Termination of Parental Rights
11 “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re K.T.K., 989
N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child relationship is one of
our culture’s most valued relationships. Id. (citation omitted). “And a parent’s interest in
the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests
recognized by the courts.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).
But parental rights are not absolute—“children have an interest in terminating parental
rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships.” Id. (citations omitted). Thus, a parent’s interests must be subordinated to
a child’s interests when considering a termination petition. Id. (citation omitted). A
parent’s rights may be terminated if the parent is unable or unwilling to meet their
parental responsibilities by failing to provide for the child’s immediate and long-term
needs. Id. (citations omitted).
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,
we consider only the evidence and reasonable inferences that support the judgment. Id.
(citation omitted). “Where 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. (citing Ind. Trial Rule 52(A)). In determining whether the court’s decision to
terminate the parent-child relationship is clearly erroneous, “we review the trial court’s
judgment to determine whether the evidence clearly and convincingly supports the
12 findings and the findings clearly and convincingly support the judgment.” Id. (citation
omitted).
A petition to terminate parental rights must allege:
(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.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department 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 child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
13 Ind. Code § 31-35-2-4(b)(2). “DCS must prove the alleged circumstances by clear and
convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Mother
challenges the sufficiency of the evidence supporting the trial court’s judgment as to
subsections (B) and (C) of the termination statute.
A. Conditions Remedied
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,
HCDCS was required to establish, by clear and convincing evidence, only one of the
three requirements of subsection (B). Because we find it to be dispositive, we address
only the arguments regarding subsection (B)(i); that is, whether there was a reasonable
probability that the conditions resulting in S.E.’s removal or the reasons for her
placement outside Mother’s home would be remedied.
In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step analysis. In re
E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted). We first identify the conditions
that led to removal or placement outside the home and then determine whether there is a
reasonable probability that those conditions will not be remedied. Id. (quotation
omitted). The second step requires trial courts to judge a parent’s fitness at the time of
the termination proceeding, taking into consideration evidence of changed conditions,
and balancing any recent improvements against “habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation.” Id.
(citations omitted). In so doing, trial courts have discretion to “weigh a parent’s prior
14 history more heavily than efforts made only shortly before termination,” and courts may
find “that parents’ past behavior is the best predictor of their future behavior.” Id.
Here, the trial court concluded that there was a reasonable probability that the
conditions resulting in S.E.’s removal from Mother’s care or placement outside her home
would not be remedied. The court was primarily concerned with Mother’s extensive
health problems, particularly her mental-health issues. The court explained that:
[Mother] continues to have mental-health issues that make her unable to adequately parent [S.E.]. These issues have existed for her since at least the age of ten [], and remain without remedy through the date of the final termination [hearing] . . . .
[Mother] has received treatment since at least the age of ten [] for these issues, which has included multiple hospitalizations, assessments, treatment programs, medications, and counseling attempts. DCS in Madison, Hamilton, and Vigo Counties have all added to the extensive history of these efforts, without being able to achieve any measure of success in remedying her condition or eliminating her parenting deficits[.]
Id. at 30. Because Mother “refused to participate in good faith with DCS-provided
services, and has actively undermined and/or sabotaged such efforts for multiple
superficial reasons,” those issues remained unresolved at the time of the termination
hearing. Id.
The evidence provided at the termination hearings supports the trial court’s
findings. Multiple service providers testified that they were unable to provide services to
Mother because she was confrontational, accusatory, or noncompliant. The lone provider
still working with Mother at the time of the hearings, Dr. Castner-Rector, characterized
Mother’s progress as mild, and Gibson, Mother’s case manager, testified that Mother
made essentially no progress while the case was pending.
15 In arguing that the evidence does not support termination, Mother claims that she
was making progress, however mild, with Dr. Castner-Rector. She also claims that she
can provide financially for S.E. because she receives social-security disability payments.
We do not find these arguments persuasive. To the extent Mother contends she began
making progress just before the termination hearings, the trial court was well within its
discretion to discount this, particularly in light of Mother’s history of noncompliance and
refusal to participate in services. See E.M., 4 N.E.3d at 643. And even if Mother is
capable of providing financially for S.E. as she claims, that does not mean that Mother is
capable of parenting S.E. The primary issue throughout this case has been Mother’s
health, specifically her mental health. The trial court’s extensive findings show—and
Mother does not dispute—that Mother’s mental-health problems were not resolved at the
time of the termination hearings, despite HCDCS’s efforts.
The evidence supports the trial court’s conclusion that there was a reasonable
probability that the conditions resulting in S.E.’s removal or the reasons for her
placement outside Mother’s home would not be remedied.
B. Best Interests
Mother also contends that termination of her parental rights is not in S.E.’s best
interests. In determining what is in a child’s best interests, the trial court must look to the
totality of the evidence. See A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158
(Ind. Ct. App. 2013), trans. denied. “In so doing, the trial court must subordinate the
interests of the parent to those of the child.” Id. The court need not wait until a child is
irreversibly harmed before terminating the parent-child relationship. Id. “Moreover, we
16 have previously held that the recommendations of both the case manager and child
advocate to terminate parental rights, in addition to evidence that the conditions resulting
in removal will not be remedied, is sufficient to show by clear and convincing evidence
that terminating is in the child’s best interests.” Id. (citation omitted).
Gibson, Mother’s case manager, and the GAL assigned to the case recommended
terminating Mother’s rights. They testified that Mother failed to participate or benefit
from services and continued to have significant mental-health problems. They also
testified that S.E. is thriving in her current foster-care placement. Referencing this
testimony, the trial court found that:
[S.E.] has been removed from . . . [Mother] since June of 2011, a time period of approximately twenty-seven (27) consecutive months . . . .[S.E.] has resided with her current pre-adoptive foster family since August of 2012 . . . .[S.E.] knows this family as her own, and identifies the foster parents as her mother and father. It would be devastating to [S.E.] to be removed from this family. The foster family has identified and overcome multiple physical and psychological issues that [S.E.] had when they took [her] into their home. They are diligent and loving, provide [S.E.] with her daily necessities, both physical and emotional, and are clearly an appropriate final placement for the child.
Appellant’s App. p. 31.
Again, Mother contends that the trial court failed to credit her recent progress, and
she also argues that S.E. can remain in foster care until Mother is ready to parent her.
Appellant’s Br. p. 24-25. But as we have already explained, the trial court was within its
discretion, in light of Mother’s history of noncompliance, to discount any last-minute
efforts by Mother. And after twenty-seven months in foster care, S.E. should not be
forced to wait any longer to see if Mother will resolve the issues that led to her removal
more than two years earlier.
17 We conclude that the evidence supports the trial court’s determination that
termination of Mother’s parental rights is in S.E.’s best interests. See In re A.I., 825
N.E.2d 798 (Ind. Ct. App. 2005) (testimony of caseworkers, together with evidence that
the conditions resulting in placement outside the home will not be remedied, was
sufficient to prove by clear and convincing evidence that termination was in child’s best
interests), trans. denied; see also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004)
(children’s needs are too substantial to force them to wait while determining if their
parents will be able to parent them).
Affirmed.
NAJAM, J. and BROWN, J. concur.