In the Matter of the Termination of the Parent-Child Relationship of L.P., Mother, and L.H., Child, L.P. v. Ind. Dept. of Child Services (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 16 2015, 10:00 am
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
Cara Schaefer Wieneke Gregory F. Zoeller
Special Assistant to the State Public Attorney General of Indiana
Defender
Robert J. Henke
Wieneke Law Office, LLC
Deputy Attorney General
Plainfield, Indiana
David Dickmeyer
Graduate Law Clerk
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 16, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of L.P., Mother, and L.H., Child, 01A02-1402-JT-113
Appeal from the
L.P, Adams Circuit Court
Appellant-Respondent, The Honorable Patrick R. Miller,
Special Judge
v.
Cause No. 01C01-1306-JT-2
Indiana Department of Child
Services,
Appellee-Petitioner.
Kirsch, Judge.
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[1] L.P. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child, L.H. (“Child”). She raises the following restated issue on
appeal: whether sufficient evidence was presented to support the termination of
Mother’s parental rights.
[2] We affirm.
Facts and Procedural History
[3] Child was born on August 5, 2008 to Mother and T.H. (“Father”), who were
unmarried, but lived together in Berne, Indiana.1 On April 16, 2012, Family
Case Manager (“FCM”) Julie Foster and Berne Police Department Officer Earl
Hough (“Officer Hough”) conducted an unannounced home visit and
assessment at Mother’s home. FCM Foster took law enforcement with her on
the visit because Mother had made threats against FCM Foster at previous
assessments with the family. Mother, Father, and Child were all in the home at
the time of the visit. Mother was very upset and belligerent during the
assessment. FCM Foster made this visit due to allegations that Mother was
making comments about Casey Anthony and had stated that, if Mother was
Casey Anthony, she could get away with harming her own child. Tr. at 9.
[4] The Department of Child Services (“DCS”) discovered through statements by
Mother and further research that Mother had two children previously removed
1
T.H. voluntarily relinquished his parental rights.
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from her care based on threats that Mother made against their lives. In total,
Mother had her parental rights terminated as to three of her children in
Kentucky in 2005 and 2008 and as to one other child in Ohio in 2002. DCS
had also had two prior assessments with Mother and Child, one when Child
was about nine months old, and one when Child was approximately two years
old. These prior assessments concerned allegations of Mother’s mental health,
her lack of treatment for her mental illness, and incidents outside her apartment
where Mother was overheard and observed being “belligerent” with Child and
making statements “threatening harm to [Child].” Id. at 13.
[5] DCS removed Child on April 17, 2012, the day after the initial assessment.
When Child was removed, Father was very upset. Mother, however, stayed in
bed during the removal and “was very calm.” Id. at 18. Mother did get out of
bed to get clothing for Child and say goodbye, which appeared to FCM Foster
as “a forever goodbye.” Id. On April 19, 2012, DCS filed a Child in Need of
Services (“CHINS”) petition. Within a few days of removal, DCS spoke to
Mother about services and placement for Child. At that time, Mother admitted
that she took more of her medications than was prescribed. Therefore, DCS
requested that Mother participate in medication management and have an
assessment to determine if she was taking the correct medications. DCS also
requested Mother complete a psychological evaluation and begin visitations.
Mother had services until approximately June 2012 when services were
suspended due to Mother’s behavior. Before the services were suspended, the
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DCS caseworker really had to encourage Mother to participate in services
because Mother thought the services were not needed.
[6] In May 2012, Mother had home-based therapy to work on mental health
instability and refraining from acting out in hostile or threatening ways.
Mother explained that she took more medication than the prescribed amount
because it was not effective in the prescribed dosage, and she needed to take
more to calm herself down. During this therapy, Mother did not progress
toward medication management and mental stability, and instead, she declined.
She also “continued to escalate” as to her hostility and “ruminating thoughts.”
Id. at 100.
[7] After Child was removed, DCS referred Mother for home-based services with
Janelle Coates (“Coates”), a caseworker with the Youth Service Bureau of Jay
County, who was to assist Mother with community resources, transportation,
finding housing, and getting prescription assistance and resources for mental
health stability. Coates was not able to accomplish any of her goals with
Mother. Coates also worked with Mother on supervised visitation with Child.
During one of these visits, Mother informed Coates that she did not take her
medication, and Mother proceeded to yell at other children to stay away from
Child on the playground and hover over Child, extending her arms so that other
children would not talk to Child. This visit was terminated early, and when
Child started crying, Mother yelled at Child and told her it was Coates’s fault
they were leaving early and to blame Coates. On another occasion, Coates
transported Mother and Father to a psychological evaluation, and after the
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evaluation, Mother spent twenty minutes in the bathroom alone and could be
heard talking, although it was unclear who she was talking to since she had no
minutes on her phone. After storming out of the bathroom, Mother became
agitated on the way home and stated that “all social workers are gonna . . . have
their heads fucking blown off” and that they “work for the devil.” Id. at 154.
Coates contacted someone from DCS, who called the police. Mother exited the
vehicle and stated she was going to walk home, but another driver picked her
up.
[8] DCS concluded that it could not ensure the safety of its workers, so due to the
volatile nature of the circumstances, on May 24, 2012, visitation and home-
based services were indefinitely suspended. After a hearing in July 2012,
supervised visitation was to occur at a neutral location, and DCS tried to set up
visitation with Mother. Mother only wanted to schedule one visit around the
time of Child’s birthday and told FCM Foster that it would be the “last time”
she would see Child. Id. at 34.
[9] A factfinding hearing for the CHINS petition was set for October 31, 2012, but
after a meeting prior to the hearing with Mother and Father, attorneys, and
DCS, an agreement was reached, in which Mother and Father agreed to admit
that Child was a CHINS, and the parties proceeded to a disposition hearing. In
the disposition order, Mother was, in pertinent part, ordered to participate in:
home-based therapy; home-maker services; supervised visitation twice a month;
and medication review and to follow all recommendation of such review.
Mother was also ordered to maintain stable and suitable housing. On January
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23, 2013, DCS filed a petition to terminate Mother’s parental rights. On
October 30 and 31, 2013, the juvenile court held an evidentiary hearing on the
petition.
[10] During the hearing dates, the following testimony and evidence was presented.
After undergoing a psychological evaluation, Mother was diagnosed with
posttraumatic stress disorder, chronic; parent-child relational problem;
schizophrenia, paranoid type; and paranoid personality disorder. DCS learned
that Mother tended to stay up to the early morning hours and did not have a
regular sleep pattern, which had affected Child when she was in Mother’s care
because Mother was keeping Child up and preventing her from functioning as a
normal child. At the time of her assessment, Mother reported she had been up
for three days and had not showered or bathed in that time, and she stated there
was no need to take care of herself because she no longer had Child. Evidence
was presented that Mother was not taking her medications and acted very
aggressive and hostile toward service providers. When Mother did not take her
medications, she talked very fast, spit when she talked, had a white foam
around her mouth, spoke incoherently and illogically, and would be
argumentative and angry. Other times, Mother took more medications than
prescribed, and one time, she called a doctor’s office multiple times a day,
yelling and wanting more pain medication. Mother recognized that she did not
get along well with people and needed to learn to control her anger; however,
she felt she was not treated fairly in the community because of her belief she
was the “only black person that lives in Adams County.” Id. at 37.
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[11] From October 2012 until May 2013, Mother was provided services, including a
home-based caseworker, a home-based homemaker, and home-based therapy
services. Initially, after the CHINS disposition hearing, Mother was
cooperative with the service providers, and they were able to come to Mother’s
home for services. However, not long after, Mother would tell the service
providers they could come to her home, but that she was “not going to do
anything for them,” which resulted in little progress toward the DCS goals and
work on services. Id. at 29. FCM Foster stated that Mother went through the
motions, but did not implement the information given to her.
[12] Home-based therapy sessions were ended at a certain point in time due in part
to the fact that Mother was receiving services on her own through Park Center.
Because of these duplicate services, progress was very slow with the DCS
providers because Mother did not feel the DCS services were necessary. FCM
Foster attempted to schedule child and family team meetings with Mother, but
Mother cancelled two of these meetings and failed to show up for a third.
There were also times that Mother would state she was willing to work with the
service providers, but when they arrived at her home, she would not answer the
door even though the service providers could hear her inside. At the time of the
termination hearing, Mother was on her sixth therapist; she also refused to sign
anything DCS sent her.
[13] By the time the termination petition was filed, FCM Foster stated that Mother
was at the same point she was at when Child was removed. Even though
Mother sought her own services, she was not compliant with those service
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providers either. According to one of her service providers at Park Center,
Mother was, at times, very upset, yelling, cussing, and screaming for no reason,
and Mother felt she did not need to work on anger management skills. Mother
had switched to Park Center from Meridian Services because her therapist there
told her she was mentally ill and would be better treated in a mental hospital.
This upset Mother because she thought there was “nothing wrong with her.”
Id. at 33. Because of Mother’s lack of improvement and history, among other
issues with Child, DCS requested an order for no reasonable efforts, which is an
order stating that DCS no longer had to work with Mother toward
reunification.
[14] From July 2012 until May 2013, Mother had visitation with Child twice per
month at a neutral location. The visitations were very stressful to Child, and
she had a lot of anxiety before and after the visits. Specifically: (1) Child did
not want to attend the visits; (2) afterwards, Child would ask DCS why they
made her visit with her “mean mommy,” id. at 39; (3) Child consistently stated
she did not want to visit with Mother; (4) Child was not able to identify
anything positive with Mother, only negative interactions and events; and (5)
Child stated she did not want to visit with Mother because of things that
happened before she was removed. At one visitation, Mother told Child that if
she could not have Child back, she was going to send Child to California to live
with a relative, which statement has a negative effect on Child.
[15] Before and after visits, foster mother observed a lot of regression from Child,
including reverting back to asking for a bottle. Child would put food in her
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pocket because she was afraid she would not have more, and Child would not
sleep the night before visitations and acted out more. Foster mother had to
reassure Child that she would be reunited with foster parents after the visits,
which was a big concern of Child. It usually took a few day for Child to stop
being anxious after visitations with Mother, but it would sometimes take up to
two weeks. At a certain point in time, DCS implemented home-based therapy
for Child work on coping skills and work through Child’s anxiety. Child began
to have nightmares and night terrors, involving her biological parents. In
February 2013, DCS recommended that visitation end between Child and
Mother. At the time of the termination hearing, Child was still in therapy, but
had made significant progress.
[16] At the time Child was removed, she was three years old, but was not potty
trained, spoke a lot of baby talk, still used a sippy cup, was more like a toddler
than a preschooler in development, had no sleep pattern and would stay up all
night, and was hesitant toward affection. Child was placed in foster care and
remained in the same home since removal. After a short time in foster care,
Child was potty trained, adjusted to a normal sleep pattern, and began talking
and communicating with foster parents. Child was five years old at the time of
the termination hearing and was very bright, participated in ice skating, tested
above her grade level, and was very friendly and able to make friends easily.
The plan for Child was adoption by foster parents. On January 10, 2014, the
juvenile court issued its findings, conclusions, and judgment terminating
Mother’s parental rights. Mother now appeals.
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Discussion and Decision
[17] We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental
rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When
reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence
and reasonable inferences that are most favorable to the judgment. Id.
Moreover, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child
relationship only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.
[18] Here, in terminating Mother’s parental rights to Child, the juvenile court
entered specific findings and conclusions. When a trial court’s judgment
contains specific findings of fact and conclusions thereon, we apply a two-tiered
standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). First, we determine whether the evidence supports the
findings, and second, we determine 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 trial court’s
decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1156 (Ind. Ct. App. 2013), trans. denied.
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[19] 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 C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are
not absolute and must be subordinated to the child’s interests when determining
the proper disposition of a petition to terminate parental rights. In re J.C., 994
N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, although the right to raise
one’s own child should not be terminated solely because there is a better home
available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities. Id.
[20] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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.
Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).
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Moreover, if the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child relationship.
Ind. Code § 31-35-2-8(a) (emphasis added).
[21] Mother argues that DCS failed to prove the required elements for termination
by sufficient evidence. Specifically, Mother contends that DCS failed to present
sufficient evidence that the conditions that resulted in Child being removed
would not be remedied. She asserts that no evidence was presented that she
could not need Child’s basic needs, that there were any concerns with the
condition of her home, or to support her inability to complete services because
she actively participated in services and even sought out her own services.
Mother also claims that, as to her mental health, she had made significant
improvement with developing interpersonal relationship skills and her anger
management. Mother further alleges that DCS failed to present sufficient
evidence that termination is in the best interest of Child. She argues that,
although Child exhibited anxiety about visits with Mother, there was no
evidence that this was due to Mother and not to the condition under which the
visitations occurred.
[22] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would be
remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions
led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
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not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing a parent’s recent improvements against “‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “We entrust that delicate balance to the trial court, which has
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” Id. Although trial courts are required to give due
regard to changed conditions, this does not preclude them from finding that
parents’ past behavior is the best predictor of their future behavior. Id.
[23] Here, the evidence showed that Child was removed from Mother’s home on the
basis of allegations of Mother making threatening statement about harming
Child and due to Mother’s mental health issues. Mother had two other
children removed from her care due to threats made against their lives, and her
parental rights had previously been terminated to three of her children. In the
prior cases from other states, the cases noted that Mother’s mental health issues
indicated an increased risk of harming the children. Additionally, in prior DCS
involvement in Adams County, Mother was overheard threatening harm to
Child. These circumstances did not change over several years and several
different cases.
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[24] In the present case, Mother’s mental health and medication issues were
consistent problems in the underlying case. When Mother had her initial
psychological evaluation, she admitted to taking more than her prescribed
dosage of her medications. Even after being referred to medication
management, Mother continued to have problems taking her medication
properly, at times, not taking it at all and other times, taking more than
prescribed. Mother’s behavior also caused concern throughout the case. At
times, she was cooperative, but detached, and other times, she was combative
and hostile. At the initial assessment, FCM Foster had the police escort her
due to prior threats by Mother that she would harm DCS caseworkers if they
returned. Mother often treated the service providers with hostility and would
threaten them, which caused DCS to temporarily suspend services for Mother.
[25] Throughout the case, Mother did not realistically address her mental health
issues. After being psychologically evaluated, Mother was diagnosed with
posttraumatic stress disorder, chronic; parent-child relational problem;
schizophrenia, paranoid type; and paranoid personality disorder. However, she
denied being schizophrenic and insisted that nothing was wrong with her. For
the most part, throughout the underlying case, Mother failed to acknowledge
the need to change and, therefore, did not demonstrate any change toward
medication management and mental stability.
[26] The evidence clearly showed that Mother did not make any progress with the
service providers. She consistently told them they could come to her house, but
that she would not do anything for them. She just went through the motions
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and did not implement any of the instruction given to her. Mother was
uncooperative, did not show the ability to apply what she learned, and did not
benefit from the services provided to her. Based on the evidence presented, we
conclude that the juvenile court did not err in finding that there was a
reasonable probability that the conditions that resulted in the removal and the
reasons for continued placement of Child outside Mother’s home would not be
remedied.
[27] Mother next argues that insufficient evidence was presented to prove that
termination is in the best interest of Child. In determining what is in the best
interests of the child, the trial court is required to look at the totality of the
evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re
D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must
subordinate the interests of the parents to those of the child involved. Id.
Termination of a parent-child relationship is proper where the child’s emotional
and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,
930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the
child is irreversibly harmed such that his or her physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id. Additionally, a child’s need for permanency is an important
consideration in determining the best interests of a child, and the testimony of
the service providers may support a finding that termination is in the child’s
best interests. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798
N.E.2d 185, 203 (Ind. Ct. App. 2003)).
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[28] In the present case, the evidence presented showed that Child experienced
severe anxiety both before and after visitations with Mother. Child did not
want to go to the visits, and after the visits, she would ask DCS why she was
made to visit with her “mean mommy.” Tr. at 39. Child consistently stated
she did not want to visit with Mother, was unable to identify anything positive
about her biological parents, could remember only negative interactions and
events, and did not want to visit with Mother due to things that happened prior
to removal. Child would exhibit a lot of regression after visits with Mother and
would not sleep the night before visitations. It would generally take several
days for Child to settle down after a visit. However, when the visitations were
stopped, Child’s behavior improved. Based on the above, we conclude that
sufficient evidence was presented to prove that termination was in the best
interest of Child.
[29] 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.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)
(quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record
before us, we cannot say that the juvenile court’s termination of Mother’s
parental rights to Child was clearly erroneous. Further, Mother’s arguments
are merely a request for us to reweigh the evidence and judge the credibility of
the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.
We therefore affirm the juvenile court’s judgment.
[30] Affirmed.
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Friedlander, J., and Crone, J., concur.
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