Peterson v. Marion County Office of Family & Children

804 N.E.2d 258, 2004 Ind. App. LEXIS 331

• Court: Indiana Court of Appeals
• Decided: March 4, 2004
• Docket: No. 49A02-0306-JV-461
• Status: Published

Opinions

OPINION

SHARPNACK, Judge.

Anna Peterson ("Mother") appeals the trial court's termination of her parental rights to her minor son, D.D. Mother raises five issues, which we consolidate and restate as whether the trial court's order terminating Mother's parental rights to D.D. is clearly erroneous. We affirm.

The relevant facts follow. Mother and Keith Doverspike lived together with their two children, G.D. and A.D., and Mother's son from a prior relationship, D.D., who was born in 1998 (collectively, the "Children").¹ In October 2000, the trial court granted a petition filed by the Marion County Office of Family and Children ("MCOFC"), which alleged that D.D., G.D., and A.D. were children in need of services ("CHINS"). The petition alleged that D.D. had been physically abused by Dover-spike and that Mother had failed to protect the Children and had exposed them to an endangering environment. As a result, the Children were removed from the home.

Doverspike filed a protective order, and Mother was ordered to leave the home in December 2000. Subsequently, the Children were returned to Doverspike for an in-home trial visitation. Due to concerns regarding Mother's mental health and substance abuse, the Children were not returned to Mother. The CHINS proceeding was later closed as to G.D. and A.D. However, the CHINS proceeding regarding D.D. continued, and Mother was offered a variety of services.

In August 2001, the MCOFC filed a petition to terminate Mother's parental rights to D.D. The trial court heard evidence on the petition on August 5, 2002, November 20, 2002, February 7, 2003, and March 26, 2008. The trial court then found the following:

7. - [D.D.] was initially removed from the care of [Mother] due to allegations of physical abuse by the stepfather, Keith Doverspike, and [Mother's] inability to protect [D.D.]. The reasons for the continued placement of [D.D.] outside of the care and custody of [Mother] include her misuse of prescription drugs, her mental illness diagnoses and attendant erratic behavior, her failure to follow through with mental health treatment, and her inability to provide a safe consistence nurturing residence and environment for [D.D.], all of which endangers him.

8. Since removal from [Mother], [D.D.] has not been returned to her care and custody.

9. _ [Mother] has been diagnosed with a number of mental health problems, including - borderline - personality disorder, depression, and anxiety.

10. [Mother] has a history of substance abuse, including abuse of prescription drugs, marijuana and alcohol. Because of her history of substance abuse and her self-reported treatment history of two prior referrals for substance abuse treatment, it was recommended by substance abuse professionals at Winona Hospital that [Mother] attend either an Intensive Outpatient Program or an Inpatient Program to deal with issues of substance abuse. However, since initiation of the CHINS case she has attended neither. Substance abuse represents a safety issue to [Mother] in that it can interfere with her compliance with medications prescribed for her mental health issues.

11. The following services have been offered and available to [Mother] since initiation of the CHINS action with regard to her children: a Parenting - Assessment, - Project Safe Families for domestic violence issues, substance abuse evaluation and treatment through Midwest Psychological Center and Winona Hospital, psychiatric evaluations through Psychological Laboratories and Adult and Child, home-based counseling through Midwest Psychological Center, supervised visitation, housing through various shelters and transitional housing facilities, psychiatric care and medications through Gallahue Community Health and Behavioral Care South, urine drug sereens through Valle Vista Hospital, and financial help and counseling through the ACES Project.

12. Home-based counseling services were provided to [Mother] through Midwest Psychological - Center. The treatment goals for [Mother] were to help her address her mental health issues, help her maintain her medications and to maintain visits between [Mother] and [D.D.]. [Mother] was being seen by a psychiatrist at Behavioral Care South during this time. The home-based counselor also set up another appointment with a psychiatrist at Midwest - Psychological - Center. The home-based counselor encouraged [Mother] to take her medications and to attend appointments with her psychiatrist.

183. The home-based counselor made referrals for housing, including apartments and shelters. During the time she received home-based counseling at Midwest, [Mother] did not have stable housing or employment. [Mother] admitted to the home-based counselor that she sometimes took her prescription medications and sometimes took over the counter diet pills, and that she smoked marijuana. The home-based counselor warned her that not only was it dangerous to mix marijuana with her prescription medications, but that use of it would violate a shelter's rules, such that she might be asked to leave. [Mother] also threatened the MCOFC Case Manager in the presence of the home-based counselor. She also made comments that she might have to take [D.D.] away and directed a threat at [Do-verspike], indicating that she had a weapon and might use it.

14. The home-based counselor closed her case as to {Mother] and referred her to the Action Coalition to Ensure Stability ("ACES"), an agency that could help her with more intensive services directed at persons with mental health issues. At the time she closed her case, significant concerns existed regarding [Mother's] ability to safely provide for [D.D.], due to her lack of consistency in taking her medications, her lack of stable residence and employment, and the violent outbursts, suicide attempts and emotional instability demonstrated by [Mother].

15. Susan Gerber of ACES has provided services to [Mother] since early in 2001. In order to be admitted to the ACES program, a client must have mental health issues, a substance use or abuse disorder, and be homeless or at risk for becoming homeless. [Mother] met the criteria for the program. ACES is designed to provide a link to necessary services for its clients.

16. Susan Gerber and [Mother] developed a Resource Coordination Plan, which identified the following treatment goals: working on [Mother's] "hidden" issues, establishing and maintaining suitable housing, and remaining free of mind and mood-altering substances, such as opiates and alcohol. Another goal was mental health stability.

17. When she began working with ACES, [Mother] was receiving her psychiatric care through Behavior Care South and Midwest Psychological Services. Susan Gerber was aware of [Mother's] psychiatric diagnoses, and had training and experience in recognizing the symptoms of these.

18. Susan Gerber told [Mother] that compliance with her prescribed medications was very important to obtaining and maintaining mental health stability and encouraged her on numerous occasions to take her medications as prescribed. However, [Mother] reported a pattern of mixed compliance and non-compliance with her prescribed medications. Ms. Gerber counseled her that she was likely to experience symptom exacerbations if she did not take her medications.

19. The symptoms of [Mother's] mental illness included extreme sadness, boundary issues, intense, hostile and dependent relationships with person, isolation from others, distrust of persons who might help her, a cycle of unrealistic valuing and devaluing of people, manipulations of others and screaming outbursts. Her symptoms are exacerbated when she is not medically compliant.

20. [Mother's] symptoms interfere with her day to day functioning. She has had a hard time maintaining employment and suitable residences.

21. Becoming depressed and isolated, failing to maintain healthy relationships, failing to trust people, and failing to utilize available supports and medications, to the extent demonstrated by [Mother], interferes with appropriate parenting of a child and poses a significant risk to the child's healthy emotional development.

22. [Mother] has also in the past been involved in a physically abusive relationship with a boyfriend, which would put a child placed with her at risk.

28. Ms. Gerber provided advocacy and encouragement to [Mother] to help with finding and maintaining appropriate housing. ACES has also been available to provide financial assistance with housing. Despite this assistance, since involvement with ACES, [Mother] has resided in two shelters for brief periods of time, leaving due to conflicts with the facilities and their rules, lived in Transitional Housing at Safe Haven for a brief period of time, lived in a motel room that would not be appropriate for a child due to drug trafficking at the facility, and lived temporarily with various friends. [Mother] then obtained housing at the Blue Triangle, a facility where she has a room but shares a kitchen and bathroom, and which does not allow children. ACES has assisted her with rent payments there.

24. At the time of the March 2008 trial date, [Mother] had remarried and was living in a residence with her husband. She and her husband were married in January of 2008. He is employed, but as of March 2003 [Mother] was not employed.

25. During the course of time she has been involved with ACES, [Mother] has worked at several different jobs for three to six months each, and has also had periods of unemployment. ACES has provided her with some financial assistance for clothes, transportation, and food, although not on a regular basis.

26. [Mother] has been evaluated by Dr. Sato, a psychiatrist with Adult and Child. Symptoms of borderline personality disorder exhibited by [Mother] include labile mood, inconsistency in her presentation, and instability in relationships. She also exhibits diminished self-esteem, sleep problems, feelings of depression and significant anxiety. She demonstrates behavior, thinking, and emotions that are both disturbed and would impact others in a negative disturbing manner. As a result of her psychiatric impairment and failure to consistently follow through with treatment recommendations, it is highly unlikely that she is capable of providing the minimum requirements of a safe, secure and nurturing home environment for [D.D.]. He would be at risk for developing a whole spectrum of psychological, emotional and behavioral problems if left in her care.

27. In order to address her mental health problems, [Mother] needs to be consistent in her compliance with prescribed medications, attend ongoing cognitive therapy on a consistent basis, learn to utilize the resources available to her, and undergo treatment for her substance abuse. [Mother] has not since the time of [D.D.'s] removal demonstrated the ability to consistently follow through with these.

28. Mary Jo Sparke, a therapist with a Master of Social Work in Mental Health, has provided therapeutic visitation to [D.D.] and [Mother]. [D.D.] has been exhibiting anxiety-related behavioral problems at home and in school. During the visitations, [Mother] often placed [D.D.] in an adult role, relying upon him for support and made inappropriate comments. Placing [D.D.] in such an adult role is detrimental in that it places an undue burden on a child's limited capacity at his developmental stage and can cause very confusing emotions, which interfere with his normal development as a child. When [D.D.] sees [Mother], he is prone to anxiety attacks and anger. Such emotions can cause a child to make bad decisions [and] lead to trouble in school, home and the community.

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41. The Guardian ad Litem for [D.D.] has been assigned to [D.D.'s] case since April of 2001. She has investigated his case by interviewing Keith Doverspike, the current foster parents, the MCOFC Case Manager, Susan Gerber, and other service providers. She has also visited [D.D.] at the home of Keith Doverspike, at the home of the current foster parents, and at school. She has attended meetings for planning for [D.D.] and attended the entire termination of parental rights trial.

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44. The Guardian ad Litem's recommendation for the best interest of [D.D.] is termination of the parental rights of both parents and adoption.

45. [D.D.'s] placement with Keith Do-verspike did not work out and Keith asked to have [D.D.] removed, believing he could not provide sufficiently for [D.D.'s] emotional needs.

46. [D.D.] has been placed in his current therapeutic foster home through the Adult and Child Agency since December 5, 2002. He has had some adjustment problems, as could be expected. The involved agencies, which include Adult and Child Mental and the [MCOFC] are working diligently to provide support services for [D.D.] and the foster family so that his needs will be met and the placement can become permanent. The foster family is committed to making [D.D.] a part of their family, and is interested in adoption, although not ready to make a final decision about adoption at this point.

47. The plan of eare for [D.D.] if parental rights are terminated is to continue in his therapeutic foster care placement, which supportive services, and for him to be adopted, either by the current foster family or another family.

Appellant's Appendix at 8-18, 17-18. The trial court then found that D.D. had been removed from Mother's care under a dis-positional decree for more than six months. The trial court concluded that there was "a reasonable probability, based upon the past pattern of conduct of [Moth-erj, both prior to and during the CHINS case, and her continuing conduct during the course of the termination trial, that the reasons for removal and the reasons for placement outside of [Mother's] home, are likely to continue." Id. at 21. The trial court further concluded that the "continuation of the parent-child relationship between [D.D.] and [Mother] under the circumstances demonstrated by the evidence at trial, poses a threat to his healthy emotional and physical development." Id. at 22. Specifically, the trial court found that despite "the provision of numerous and intensive services to [Mother], she has not demonstrated the ability to consistently follow through with treatment for her mental illness, to maintain employment or an appropriate residence, or to meet [D.D.'s] emotional needs." Id. Lastly, the trial court found that termination of Mother's parental rights was in D.D.'s best interests, and the MCOFC had a suitable plan for D.D.'s future care. Consequently, the trial court ordered that Mother's parental rights to D.D. be terminated.

The sole issue is whether the trial court's order terminating Mother's parental rights to D.D. is clearly erroneous. "The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." In re M.B., 666 N.E.2d 73, 76 (Ind.Ct.App.1996), trans. denied. However, these parental interests 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. Parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), reh'g denied, trans. denied, cert. denied, 534 U.S. 1161, 122 S.Ct. 1197, 152 L.Ed.2d 136 (2002). The purpose of terminating parental rights is not to punish parents but to protect children. Id.

When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Doe v. Daviess County Div. of Children & Family Servs., 669 N.E.2d 192, 194 (Ind.Ct.App.1996), trans. denied. We will consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Here, the trial court made findings in granting the termination of Mother's parental rights. Where the trial court has entered findings of fact, we first determine whether the evidence supports the findings. Id. Then, we determine whether the findings support the judgment. Id. The trial court's findings and judgment will be set aside only if they are clearly erroneous. Id. A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it. In re D.G., 702 N.E.2d 777, 780 (Ind.Ct.App.1998). A judgment is clearly erroneous only if the findings of fact do not support the trial court's conclusions thereon, or the conclusions thereon do not support the judgment. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996).

Ind.Code § 31-35-2-4(b)(2) (Supp. 2008) provides that a petition to terminate a parent-child relationship involving a child in need of services must allege that:

(A) one (1) of the following exists:

(1) the child has been removed from the parent for at least six (6) months under a dispositional decree;

(@) a court has entered a finding under Ind.Code § 81-84-21-5.6 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; or

(i) after July 1, 1999, the child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months;

(B) there is a reasonable probability that:

(1) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or

(i) the continuation of the parent-child relationship poses a threat to the well-being of the child;

(C) termination is in the best interests of the child; and

(D) there is a satisfactory plan for the care and treatment of the child.

The State must establish these allegations by clear and convincing evidence. Egly v. Blackford County Dep't. of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind.1992); Doe, 669 N.E.2d at 194.

Mother does not challenge the trial court's finding that D.D. has been removed for more than six months under a disposi-tional decree. Rather, Mother argues that the following findings by the trial court are clearly erroneous: (1) there was a reasonable probability that the conditions that resulted in D.D.'s removal or the reasons for placement outside of Mother's home would not be remedied;² (2) the termination was in D.D.'s best interests; and (8) the MCOFC had a satisfactory plan for the care and treatment of D.D. We address each argument separately.

A.

Mother argues that the trial court erred by concluding that there is a reasonable probability that the reasons for D.D.'s continued placement outside of Mother's home will not be remedied.³ Specifically, the trial court found that "[tlhere is a reasonable probability, based upon the past pattern of conduct of [Mother], both prior to and during the CHINS case, and her continuing conduct during the course of the termination trial, that the ... reasons for placement outside of [Mother's] home, are likely to continue." Appellant's Appendix at 21. Mother argues that the trial court did not take into account evidence of changed conditions that were presented during the termination hearings.

To determine whether a reasonable probability exists that the conditions justifying a child's continued placement outside the home will not be remedied, the trial court must judge a parent's fitness to care for her children at the time of the termination hearing and take into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App.2001), trans. denied. However, the trial court must also "evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child." Id.

Mother's alleged changed conditions included her recent marriage, residence in a two-bedroom apartment, weekly visits with a counselor, biweekly visits with a therapist, compliance with her medication, participation in a parenting program, attendance at four Narcotics Anonymous meetings each week, participation in Sober Life meetings, and enrollment in classes to be a social worker. However, these alleged changed conditions are based solely upon the testimony of Mother and her current husband. Mother introduced no additional documentation or other evidence in support of these changed conditions. On the other hand, the guardian ad litem testified that she had asked Mother for releases and information on the services that she was completing but that she never received the information from Mother. Further, the MCOFC introduced evidence that Mother had tested positive for marijuana use as late as January 2008, four months before the judgment was entered.

The trial court was permitted to judge Mother's and her husband's eredibility and weigh their testimony against the significant testimony demonstrating Mother's habitual patterns of conduct in failing to address her mental health problems, be consistent in taking her medication, address her addiction problems, and provide a safe consistent nurturing residence and environment for D.D.⁴ On appeal, we cannot reweigh the evidence or judge the credibility of the witnesses. We cannot say that the trial court's finding that Mother's habitual pattern of conduct indicates that there is a reasonable probability that reasons for D.D.'s. continued placement outside of Mother's home are likely to continue is clearly erroneous. See, e.g., In re D.J., 755 N.E.2d 679, 685 (Ind.Ct.App.2001) (holding that the mother's pattern of conduct both before and during the termination proceedings supported the trial court's determination that the conditions that resulted in removal would not be remedied), reh'g denied, trans. denied.

B.

Mother also argues that the trial court's finding that termination was in D.D.'s best interests is clearly erroneous. In determining what is in the best interests of the children, the trial court is required, to look at the totality of the evidence. A.F. v. Marion County Office of Family & Children, 762 N.E.2d 1244, 1253 (Ind.Ct.App.2002), trans. denied. In doing so, the trial court must subordinate the interests of the parents to those of the children involved. Id.

Here, the evidence demonstrated that Mother has a history of substance abuse and a number of mental health problems. Despite extensive services offered to Mother since D.D. was removed in late 2000, including substance abuse treatment, psychiatric evaluations, psychiatric care, medications, counseling, housing, and financial assistance, Mother failed to adequately demonstrate a change in the conditions that necessitated D.D.'s continued removal. Moreover, during therapeutic visitations between D.D. and Mother, D.D.'s counselor had concerns that Mother placed D.D. in an adult role and made inappropriate comments in front of D.D. Further, the guardian ad litem assigned to this case since April 2001 recommended that termination of Mother's parental rights was in D.D.'s best interests. Based upon the totality of the evidence, we cannot say that the trial court's finding that termination was in D.D.'s best interest was clearly erroneous. See, eg., id. (holding that the trial court's conclusion that termination would be in the best interests of the children was not clearly erroneous), trans. denied.

C.

Lastly, Mother argues that the trial court's finding that the MCOFC has a suitable plan for D.D.'s care is clearly erroneous. 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 B.D.J., 728 N.E.2d 195, 204 (Ind.Ct.App.2000). This plan need not be detailed, so long as it offers a general sense of the direction in which the child will be going after the parent-child relationship is terminated. Id. Here, D.D. was residing in a foster home, and the foster parents were interested in adoption but were not ready to make a final decision. The MCOFC's plan was for D.D. to be adopted, either by the current foster family or another family. The MCOFC offered a plan that gave a general sense of direction for D.D.'s care and treatment. The trial court's finding that the MCOFC has a suitable plan for D.D.'s future care is not clearly erroneous. See, eg., id. (holding that "sufficient evidence exists supporting the trial court's conclusion that a satisfactory plan exists for the care and treatment of the children").

For the foregoing reasons, we affirm the trial court's termination of Mother's parental rights to D.D.

Affirmed.

BAKER, J., concurs. BROOK, C.J., dissents with separate opinion.

1 . Troy Delozier is D.D.'s father. The trial court terminated Delozier's parental rights to D.D., and Delozier does not appeal that determination.

2 . Mother also argues that the trial court's finding that the continuation of Mother's parental relationship poses a threat to D.D. is clearly erroneous. Ind.Code § 31-35-2-4(b)(2) required the MCOFC to demonstrate by clear and convincing evidence a reasonable probability that either: (1) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the child. The trial court specifically found that there was a reasonable probability that the conditions that resulted in D.D.'s continued placement outside Mother's home would not be remedied, and this finding is not clearly erroneous. See infra Part A. Consequently, we need not address Mother's argument regard'ing the finding that her parental relationship poses a threat to D.D. See, e.g., In re T.F., 743 N.E.2d 766, 774 (Ind.Ct.App.2001), trans. denied.

3 . Mother also argues that the trial court's finding that the reasons for D.D.'s removal were likely to continue is clearly erroneous. Specifically, Mother argues that D.D. was removed because of abuse by Doverspike and that situation was apparently remedied. While we agree that the evidence does not support a finding that the reasons for D.D.'s removal were likely to continue, the statute requires a finding that a reasonable probability exists "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." Ind.Code § 31-35-2-4 (emphasis added). The trial court also found a reasonable probability that the reasons for continued placement outside of Mother's home would not be remedied, and this finding is not clearly erroneous. See infra Part A.

4 . The dissent argues that these habitual patterns of conduct are outweighed in part because Mother "provided D.D. with adequate food, good hygiene, a clean home, proper clothing, appropriate medical care, and love and affection, despite her mental afflictions" for seven years prior to D.D.'s removal. Dissent at 7. However, the evidence also indicates that between April 1999 and December 2000 Doverspike would sometimes come home to Mother "passed out on the couch" because of the drugs that she was taking, leaving the Children with no supervision and the house a "mess." Transcript at 378. Mother also attempted to commit suicide in the kitchen while the Children were sleeping in the residence. -