In the Matter of the Termination of T.P. & D.P. (Minor children) E.N. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 19, 2015
• Docket: 49A02-1501-JT-35
• Status: Published

Opinion

MEMORANDUM DECISION Aug 19 2015, 9:36 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jill M. Acklin Gregory F. Zoeller McGrath, LLC Attorney General of Indiana Carmel, Indiana Robert J. Henke David E. Corey Deputy Attorney Generals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination August 19, 2015 of T.P. & D.P. (Minor children) Court of Appeals Case No. 49A02-1501-JT-35 E.N. (Mother), Appeal from the Marion Superior Appellant-Respondent, Court Trial Court Cause Nos. v. 49D09-1406-JT-278 49D09-1406-JT-279 The Indiana Department of Child The Honorable Marilyn A. Moores, Services, Judge Appellee-Petitioner. The Honorable Larry Bradley, Magistrate

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 1 of 12 Statement of Case [1] E.N. (“Mother”), the mother of T.P. and D.P. (collectively the “Children”),

appeals the involuntary termination of the parent-child relationship between her

and Children. Throughout the Child in Need of Services (“CHINS”)

proceeding, Mother did not comply with the parental participation plan because

she did not consistently take her medication or consistently participate in

treatment or therapy. At the time of the termination hearing, Mother still

refused to admit to having a psychological disorder or admit to its connection

with Children’s trauma. The trial court terminated Mother’s parental rights,

finding both that the conditions and reasons for continued placement outside of

the home that led to Children’s removal from Mother’s care would not be

remedied and that the continuation of the parent-child relationship posed a

threat to the well-being of Children. On appeal Mother argues that the

Department of Child Services (“DCS”) did not present clear and convincing

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

and affirm the trial court’s decision.

We affirm.

Issue Whether DCS presented clear and convincing evidence to support the involuntary termination of Mother’s parental rights to Children.

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 2 of 12 Facts [2] On June 15, 2013, DCS received a report that Mother had been missing for

twenty-four hours and that Children were at her home without supervision.1 At

that time, T.P. was eight years old and D.P. was seven years old. DCS

discovered that police had incarcerated Mother on charges of trespass and

battery, and DCS filed CHINS Petitions on Children on June 18. DCS then

removed Children from Mother’s care and placed them in relative care with

their paternal aunt. During the initial hearing on July 10, 2013, the court

ordered Children be placed with Mother on a trial home visit. However, on

July 24, 2013, DCS removed Children because Mother was admitted to the

psychiatric unit. She remained hospitalized until July 29, 2013, and, upon her

release from the unit, Mother did not follow through with her treatment,

medication plan, or therapy because she did not believe she had a mental health

issue.

[3] At the fact-finding hearing on August 19, 2013, the court adjudicated Children

as CHINS and also ordered Mother to engage in home-based counseling with

family participation, submit to random drug screens, and complete a mental

health evaluation. For approximately eleven months, Mother was under the

court’s dispositional decree.

1 M.G., the oldest son, then seventeen years old, reported Mother missing. However, M.G. is not a part of this proceeding.

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 3 of 12 [4] In August 2013, Children started therapy with Jessica Ramey (“Ramey”).

Children had been discussing with Ramey the trauma that they experienced

while living with Mother. Ramey summarized Children’s traumatic conditions

that were related to Mother’s mental health issues, as follows:

they didn’t have enough food, that mom would get sick . . . and she would talk to herself and she would leave for days at a time. They were never sure when she was going to come back home. It was very scary for them. They were afraid that she was going to hurt somebody when she was having these mental health events. And this had occurred for a period of two years according to [T.P].

[5] (Tr. 97). Ramey diagnosed Children with post-traumatic stress disorder due to

the trauma at home with Mother. Ramey noted that Children would have

“bedwetting, [and] nightmares” after they visited Mother. (Tr. 95). Children

would also have “intrusive thoughts” about traumatic things they had

experienced. (Tr. 97). During therapy, T.P. stated that “there were other [bad]

things that happened” while in Mother’s care that he was not ready to discuss. 2

(App. 62; GAL Ex. XIII).

[6] Dr. Jeffrey Vanderwater-Piercy (“Dr. Vanderwater-Piercy”), a clinical

psychologist, performed an evaluation on Mother in January and February of

2014, and diagnosed her with a “Psychotic disorder . . . not otherwise

2 At the termination hearing, Ramey also testified that there had been some sexual abuse concerns regarding Children, and the Guardian Ad Litem (“GAL”) testified that there had been allegations that M.G. had “sexually perpetrated” them. (Tr. 153).

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 4 of 12 specified.”3 (Tr. 165). Dr. Vanderwater-Piercy explained that Mother’s denial

of her mental illness affected her risk of relapse and recommended that she

participate in home-based therapy.

[7] In March 2014, Mother had two scheduled visits with Children at Mother’s

home that were supervised by Ramey. Mother participated in both visits but

seemed detached from Children at the second visit. At a scheduled visit on

April 2, 2014, Mother stayed upstairs and did not come down to visit with

Children. The oldest son, M.G., who was still living with her, advised Ramey

that “it would not be good for [Children] for her to participate in the visit that

day.” (Tr. 106).

[8] A few days later, on April 8, 2014, Mother’s therapist and her home-based case

manager went to see Mother at her home, and they reported that “[Mother] was

clearly . . . having some kind of mental health event[.]” (Tr. 108). Soon

thereafter, Mother was hospitalized for a “mental breakdown[.]” (Tr. 49).

Thereafter, the court suspended Mother’s visitation. In June 2014, DCS filed a

petition for termination of parental rights.

[9] On July 25, 2014, Mother went to the aunt’s house and threatened to harm her.

That same day, Mother was hospitalized again due to her mental health issues.

Additionally, the court issued a no-contact order on August 20, 2014 at the

3 At the termination hearing, Dr. Vanderwater-Piercy testified that a psychotic disorder is “a category of . . . different disorders which are marked by either hallucinations, delusional beliefs or a . . . marked impairment in thinking such as [an] incoherent thought or speech or grossly disorganized behavior.” (Tr. 165).

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 5 of 12 CHINS hearing, ordering Mother not to have contact with Children or the

aunt. On July 21, 2014, during a DCS family meeting, Mother appeared

“extremely agitated” and “seemed very out of touch with reality.” (Tr. 118).

Ramey “observed that [Mother] was talking to herself in a way that was

indicative that she was trying to get a response from someone that wasn’t” there

and “was not responding to the questions that were being asked of her and was

instead responding to some other stimulus . . . that could not [be] see[n].” (Tr.

119).

[10] Prior to the termination hearing, GAL petitioned the court, pursuant to

INDIANA CODE § 31-35-4, to make some of Children’s out of court statements

admissible at the termination hearing and to determine the competency of

Children as witnesses. The statements at issue were some of Children’s

statements made to Ramey during therapy and written down in her therapy

notes. In part, in these statements, Children reported that they felt unsafe

around Mother because of her mental illness and that they did feel safe with the

aunt. After holding a hearing, the trial court granted GAL’s request and found

that “there exists sufficient indications of reliability due to time, content, and

circumstances of the children’s statements.” (App. 74). The trial court further

found that the statements were admissible only if Children testified pursuant to

INDIANA CODE § 31-35-4-3 because “they ha[d] been found to be available as

witnesses by a psychiatrist.” Id. Additionally, DCS petitioned, pursuant

INDIANA CODE § 31-35-5-2, that Children testify through a closed circuit

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 6 of 12 testimony at the termination hearing. (App. 78). The trial court granted the

request. (App. 81).

[11] At the termination hearing on December 10, 2014, DCS presented evidence

regarding Mother’s refusal to acknowledge her mental illness and its connection

to Children’s reported trauma. Ramey testified that Children had made

“remarkable progress” in therapy since the court suspended Mother’s visitation.

(Tr. 114). Ramey also stated that Children did not want to return to Mother’s

home because they “fe[lt] safe and secure in their relative placement.” (Tr.

113). Children testified that they both enjoyed living with their aunt and did

not want to go back with Mother.

[12] DCS, GAL, and Ramey all recommended that the court terminate Mother’s

parental rights because it was in Children’s best interest. Specifically, Ramey

testified that:

Even if [Mother] is not actively psychotic today[,] there is evidence to support that she has been in the past. Psychosis is a mental health diagnosis that manifests in re-occurrences so I would be concerned about having a reoccurrence of psychosis in the future[,] which would be traumatic for the boys.

(Tr. 116).

[13] Mother did not challenge the factual evidence presented at trial by DCS.

However, Mother’s home-based therapist testified on behalf of Mother’s

progress and stated that in the four months preceding the termination hearing,

Mother had shown “steady progress” by working a full-time job and

maintaining a stable mood by consistently taking her medication. (Tr. 194). Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 7 of 12 She also testified that Mother had maintained stable housing and had her

driver’s license and a car. The home-based therapist stated that Mother’s

consistency showed that she was capable of being compliant. However, the

trial court was not convinced.

[14] On December 23, 2014, the trial court found, in relevant part, that (1) Mother

would not remedy the conditions of removal and reasons for continued

placement outside the home; and (2) that the continuation of the parent-child

relationship posed a threat to Children’s wellbeing. In regard to the reasons for

continued placement outside the home, the trial court concluded:

There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their mother. The children were placed in the home at one time, visits were placed in the home, and the children were close to being placed in the home a second time. However, [Mother’s] mental illness became a barrier and she continues to deny it is an issue . . . . Termination would allow [Children] to be adopted into a stable and permanent home where their needs will be safely met and they can continue to progress in therapy.

[15] (App. 20). The trial court determined that the permanent termination of

Mother’s parent-child relationship was in the best interest of Children and

terminated Mother’s parental rights. Mother now appeals.

Decision [16] Mother argues that DCS did not present clear and convincing evidence that she

would not remedy the conditions resulting in the removal or continued

placement of Children outside of her care. Mother also contends that the

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 8 of 12 continuation of the parent-child relationship would not pose a threat to

Children’s wellbeing.

[17] “[W]hen seeking to terminate parental rights, DCS must prove its case by ‘clear

and convincing evidence[.]’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting

IND. CODE § 31-37-14-2). This Court will “consider only the evidence and

reasonable inferences therefrom that support the [court’s] judgment”

terminating parental rights. Prince v. Dep’t of Child Services, 861 N.E.2d 1223,

1229 (Ind. Ct. App. 2007). We will not “reweigh the evidence or reassess the

credibility of the witnesses” during our review. Id. Although the “Fourteenth

Amendment to the United States Constitution gives parents the right to

establish a home and raise their children[,]” it “is balanced against the State’s

limited authority to interfere for the protection of the children.” Id.

[18] The State may terminate a parent’s rights if they demonstrate by clear and

convincing evidence, in relevant part, that:

(B) . . . 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.

[19] I.C. § 31-35-2-4. Mother argues that DCS failed to present clear and convincing

evidence of either statutory element. Our supreme court has stated that DCS

need prove only one of the two elements by clear and convincing evidence in

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 9 of 12 termination proceedings. Bester v. Lake Cnty. Office of Family and Children, 839

N.E.2d 143, 153 n.5 (Ind. 2005) (holding that if the court finds that the parent

would not remedy the conditions for removal, there is no need to prove the

other element). Therefore, we will address only Mother’s argument regarding

the conditions remedied and reasons for placement outside the home.

[20] In regard to this argument, Mother relies on the testimony of her home-based

therapist and contends that because she has shown significant progress leading

up to the termination hearing by participating in treatment, and maintaining

employment and housing, DCS did not present clear and convincing evidence

that the past conditions and reasons for continued placement outside the home

would not be remedied. (Tr. 211).

[21] In determining whether the reasons for the removal of Children and continued

placement outside the home will be remedied, “[w]e engage in a two-step

analysis.” In re K.T.K, 989 N.E.2d 1225, 1231 (Ind. 2013). We first look at the

conditions “that led to their placement and retention in foster care[,]” and then

“we ‘determine whether there is a reasonable probability that those conditions

will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind.

2010) (additional citation omitted)). “[T]he trial court must consider a parent’s

habitual pattern of conduct to determine whether there is a substantial

probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152. The

trial court also has the discretion “to weigh a parent’s prior history more heavily

than efforts made only shortly before termination.” In re E.M, 4 N.E.3d at 643.

“Requiring trial courts to give due regard to changed conditions does not

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 10 of 12 preclude them from finding that parents’ past behavior is the best predictor of

their future behavior.” Id. Therefore, “DCS need not rule out all possibilities

of change; rather, DCS need establish only that there is a reasonable probability

that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242

(Ind. Ct. App. 2007).

[22] We disagree with Mother’s assertion that DCS has shown no clear and

convincing evidence that Mother would not remedy the conditions or reasons

for continued placement. Although Mother’s home-based therapist testified

that she had shown “steady progress,” evidence showed that DCS removed

Children from Mother’s care after DCS received a report that Mother had been

missing for twenty-four hours and Children were unsupervised. (Tr. 194).

Similarly, during the CHINS proceedings, the trial court suspended Mother’s

visits and issued her a no-contact order because of her hospitalizations and

threatening statements toward the aunt. Evidence also revealed that Mother

refused to follow through with her medication, therapy, and treatment plan

after her initial release from the psychiatric unit, alleging that she did not need

the treatment because she did not have a psychotic disorder. We acknowledge

Mother’s argument that the initial reason for removal of Children from the

home (i.e., Mother’s arrest and leaving Children unsupervised) was remedied.

However, here, there were subsequent reasons such as her denial of her mental

health issues and its effect on Children that required continuous placement.

[23] While Mother may have made some progress just prior to the termination

hearing, the evidence revealed a history for Mother that demonstrated an

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 11 of 12 inability or unwillingness to deal with her mental health issues and a failure to

acknowledge its negative effect on Children. Children had been diagnosed with

post-traumatic stress disorder due to traumatic experiences while in Mother’s

care. The evidence suggests that if Mother relapsed while Children were in her

care, her relapse could cause long term issues for Children. Therefore,

Mother’s argument amounts to nothing more than a request for this Court to

reweigh the evidence presented, which we will not do. Prince, 861 N.E.2d at

1229. We conclude that there was clear and convincing evidence to support the

trial court’s decision to terminate Mother’s parental rights to Children.

Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015 Page 12 of 12