In the Term. of the Parent-Child Relationship of: M.M. (Minor Child), and S.M. (Mother) v. The Ind. Dept. of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 22 2016, 8:41 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
James D. Boyer
Attorneys General of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- December 22, 2016
Child Relationship of: Court of Appeals Case No.
49A02-1605-JT-1028
M.M. (Minor Child),
Appeal from the Marion Superior
and Court
S.M. (Mother), The Honorable Marilyn A.
Appellant-Respondent, Moores, Judge
The Honorable Larry E. Bradley,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 49D09-1507-JT-467
Child Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issues
[1] S.M. (“Mother”) appeals the juvenile court’s termination of her parental rights
to her two-year-old son, M.M, raising a sole restated issue: whether the
juvenile court’s termination order is supported by clear and convincing
evidence. Concluding the termination order is not clearly erroneous, we affirm.
Facts and Procedural History
[2] Mother has two children: T.B. and M.M. Prior to M.M.’s birth, the Indiana
Department of Child Services (“DCS”) received a report of domestic violence
between Mother and T.B.’s father and filed a petition alleging T.B. was a child
in need of services (“CHINS”). During this CHINS proceeding, Mother
informed her therapist she was “thinking about harming [T.B.] as she felt her
life would be significantly easier if she did not have to deal with her daughter[,]
[T.B.]” DCS Exhibit 20. In February 2013, DCS referred Mother to
psychologist Danielle Nance for a psychological evaluation.1 Nance concluded
Mother suffers from cognitive delay due to a low intelligence quotient, post-
traumatic stress disorder, and depression.2 Nance recommended Mother
manage her depression symptoms through medication and counseling, but
warned
1
In October 2012, Mother was hospitalized for depression for seventy-two hours.
2
Given Mother’s cognitive delay, Nance concluded Mother will struggle to manage her own mental health
issues, her ability to parent, and will require some assistance and supervision in her day-to-day living.
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[Mother] is an individual with developmental and cognitive
delays that continue to present as risk variables to her safe day to
day living. There are certainly parenting risks present due to her
cognitive delays. While individuals with mild cognitive
handicaps can be in a parenting role, this is very difficult and
may not be safe without direct support, oversight and assistance.
Id. Mother also became pregnant with M.M. shortly after her psychological
evaluation and DCS worked with Mother in preparation for M.M.’s birth.
[3] In December 2013 and shortly before the birth of M.M., DCS became
concerned with whether Mother was prepared for the birth of M.M. due to
reports of domestic violence between Mother and M.M.’s father (“Father”) and
Mother’s inability to find suitable housing. Following M.M.’s birth, DCS filed
a petition alleging M.M. was a CHINS. Thereafter, Mother and Father entered
into a safety plan under which M.M. was to remain in Mother’s care and
Father was to receive supervised visitation. In March 2014, the juvenile court
adjudicated M.M. as a CHINS, citing T.B.’s CHINS adjudication,3 instances of
domestic violence, and Mother’s mental health issues. Further, the juvenile
court ordered Mother to participate in reunification services; Mother was to
participate in a homebased counseling program, complete a psychological
evaluation and follow any recommendations, and complete a domestic violence
assessment and follow any recommendations. At some point, Mother violated
the safety plan by allowing Father to have unsupervised visitation with M.M.
3
Ultimately, the juvenile court adjudicated T.B. as a CHINS and awarded custody to T.B.’s father.
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On July 15, 2014, DCS removed M.M. from Mother due to Mother violating
the safety plan and the dirty condition of her residence.
[4] Following M.M.’s removal, Mother had supervised visitation with M.M.
During these visits, Mother struggled to interact with M.M. In addition,
Mother was inattentive and was often on her cell phone to the extent she was
not able to fully supervise M.M. nor take “full advantage” of the visitation time.
Transcript at 19. Mother sometimes did not have food to feed M.M. during
visits, forcing Mother to contact family members or friends to provide money to
purchase food for M.M. Outside of visitation, Mother moved residences on at
least seven different occasions, and at times, found herself homeless. When
Mother did have housing, the housing was “often very dirty, trash on the floor,
trash in the kitchen, food on the floor, on surfaces . . . sex items out for general
viewing.” Id. at 76.
[5] On July 8, 2015, DCS filed a petition to terminate Mother’s parental rights and
the juvenile court scheduled an evidentiary hearing. At the hearing, DCS
Family Case Manager Sonja Parker testified Mother has lived in many different
residences in a short period of time and most of those homes were not suitable
to raise a child. Parker did opine M.M.’s uncle’s two-bedroom apartment,
where Mother currently resides, is cleaner than Mother’s previous residences,
but noted concern there was only a six-month lease on the apartment and
approximately twelve people live in the apartment. As to Mother’s financial
stability, Parker testified Mother does not have a job and is limited to her social
security income. Even after DCS removed M.M. from Mother’s care, Mother
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struggled to make do, “leaving her without food and . . . times without being
able to pay her portion of the rent that she has with her roommates.” Id. at 24.
Despite DCS encouraging Mother to seek employment, Mother did not intend
to seek employment, claiming her social security income was sufficient. Parker
concluded Mother would further struggle with the added expenses of caring for
M.M. and opined Mother’s parental rights should be terminated. On cross-
examination, Parker emphasized Mother’s instability, inability to financially
secure and care for herself, and dependency on others were all major concerns
DCS has had with Mother “for the entire life of the case.” Id. at 43.
[6] Ashley Douthitt, Mother’s home-based case manager, opined Mother has not
made enough progress to be unified with M.M. Douthitt opined Mother’s
residence was not suitable for M.M. given the fact the home only has two
bedrooms and “about twelve people” live in the home. Id. at 54. As to
Mother’s financial instability, Douthitt stated Mother “does struggle with kind
of providing for just basic needs for herself sometimes[,]” explaining Mother
struggles to manage money and often relies on others to provide financial
assistance. Id. at 55. Lastly, Douthitt noted she has encouraged Mother to take
medication to treat her mental health issues, but Mother has not done so.
[7] Erika Forslund, also Mother’s home-based case manager for some time,
testified she worked with Mother in an attempt to stabilize Mother’s financial
and housing issues. Due to Mother’s low income and a previous eviction,
Mother struggled to find a residence. Forslund encouraged Mother to budget in
order to save money so Mother could pay a deposit on a new residence, but
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Mother was “often untruthful about where her money was going or unable to
say where it was going so budgeting really never panned out in order to find
somewhere.” Id. at 77. Given Mother’s inability to budget, find suitable
housing, and feed herself, Forslund opined Mother had not shown she could
care for herself nor M.M.
[8] Sara Bucksten, Mother’s home-based case therapist, met with Mother and
diagnosed her with “major” depression. Id. at 97. Bucksten testified Mother’s
depression impedes her daily functioning, her ability to finish tasks, and her
ability to parent a child. Specifically, Bucksten explained Mother struggles to
care for herself, let alone a child. Bucksten also noted Mother is not taking
necessary steps to treat her depression and recommended M.M. not return to
Mother’s care, claiming Mother has made only “minimal progress.” Id. at 104.
[9] Following the evidentiary hearing, the juvenile court issued an order
terminating Mother’s parental rights, finding in relevant part,
2. The parental rights of [M.M.’s] father were terminated on
November 20, 2015.
***
4. At the time [M.M.’s] CHINS case was filed, [Mother] was
involved [in] another CHINS case with her daughter [T.B.] that
had been pending since October 2012. That case was closed on
February 2, 2016, with custody of [T.B.] being awarded to the
child’s father.
5. On March 4, 2014, [M.M.] was found to be in need of services
after [Mother] admitted to there being a pending CHINS case on
[M.M.’s] half-sibling, and that there is a history of domestic
violence and mental health issues for which she was undergoing
ongoing treatment.
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***
7. In July 2014, [M.M.] was detained outside the home after his
safety plan was violated.
***
10. Due to having minimal Social Security Supplemental
Income of $733.00, [Mother] had a hard time meeting her basic
needs of stable housing and food.
11. [Mother] relies on others, mainly her mother, as a support
system to help meet her needs.
12. [Mother] has no intention of obtaining employment to
supplement her disability.
13. [Mother] lived at several addresses during the CHINS case,
living with friends and relatives and was sometimes homeless.
14. Making it harder to obtain appropriate housing was
[Mother’s] lack of budgeting for a deposit and having evictions
on her records.
15. [Mother] currently lives in a two bedroom home with her
brother and his girlfriend. This home is inappropriate for a small
child because of the ten to twelve other people who reside there.
16. Past residences where [Mother] lived by herself where [sic]
found to be cluttered, dirty, and trashy.
17. Home based case management was referred to address
housing, income, and budgeting issues. Although [Mother]
participated in case management services from September 2014
to the time of this trial, she has not made enough progress to
reunify with [M.M.]
18. A major concern for [Mother’s] ability to safely parent is her
failure to follow up on recommendations to treat her major
depression diagnosis. [Mother] refuses to take medication as
[she] did not like the way prior depression medication made her
feel.
19. [Mother] has also been diagnosed with Post Traumatic Stress
Disorder and anxiety.
20. [Mother] is functioning within the extremely low range of
intelligence. Most people in this range of cognitive delay need
assistance and supervision in their daily life and parenting
responsibilities.
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21. Depressive symptoms experienced by [Mother] includes [sic]
having no energy or motivation, sleeping a lot, and feeling a lack
of worth or having a purpose.
22. Due to her daily struggle with self-care, the home based
therapist who has seen [Mother] since November 2014 cannot
recommend [M.M.] be returned to her care, feeling [Mother] has
made minimal progress.
23. Participation in services is not the issue here, but that
[Mother] has struggled from the beginning to care for herself.
24. [Mother] has made progress with parenting skills since
parenting time began which was then strained and stressful for
[M.M.] and his mother. However, [M.M.] is still resistant to his
mother’s affection and will not allow her to pick him up.
***
26. Continuation of the parent-child relationship poses a threat
to [M.M.’s] well-being. Without successfully addressing safety
and neglect issues of instability and untreated mental health,
[Mother] cannot provide a safe and stable home. Service
providers and the family case manager all see [Mother] struggling
to meet her own needs. She would not be able to meet [M.M.’s]
needs.
27. There is a reasonable probability that the conditions that
resulted in [M.M.’s] removal and continued placement outside
the home will not be remedied by his mother. [Mother] has been
involved in services in [M.M.’s] case alone for two years and she
has not progressed to the point where she has unsupervised
parenting time. Given her refusal to supplement income,
adequately treat her depression, and be able to overcome
cognitive delays, [Mother] will not be able to overcome
conditions.
Appellant’s Appendix at 19-20. Mother now appeals.
Discussion and Decision
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I. Standard of Review
[10] When we review a termination of parental rights, we neither weigh the
evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.
2011), and we consider only the evidence and reasonable inferences most
favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,
1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered
findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore
apply a two-tiered standard of review: we first determine whether the evidence
supports the findings and then determine whether the findings support the
judgment. In re C.G., 954 N.E.2d at 923. “We will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Clear error is that which leaves us with a definite and firm conviction that a
mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted)
II. Termination Order
[11] Mother contends the juvenile court’s termination order is clearly erroneous.4
Specifically, she claims DCS failed to present clear and convincing evidence to
establish there is a reasonable probability the conditions resulting in M.M.’s
removal will not be remedied and there is a reasonable probability the
4
Except for finding number twenty-seven, we note Mother does not challenge any findings of fact and we
therefore accept those as true. See In re B.R.., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.
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continuation of the parent-child relationship poses a threat to M.M’s well-being.
We disagree.
[12] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
(citation omitted). Indiana Code section 31-35-2-4(b)(2) sets forth what must be
proven in order to terminate parental rights, which we quote in relevant part:
(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.
The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile
court determines that the allegations of the petition are true, then the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[13] “In determining whether the conditions that led to a child’s removal will not be
remedied,” the juvenile court “must judge a parent’s fitness to care for her child
at the time of the termination hearing and take into consideration evidence of
changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
“[I]t is not just the basis for the initial removal of the child that may be
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considered for purposes of determining whether a parent’s rights should be
terminated, but also those bases resulting in the continued placement outside of
the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
The juvenile court must also “evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of the child.” In re
A.B., 924 N.E.2d at 670 (citation omitted). The juvenile court may also
consider the services the State offered to the parent and the parent’s response to
such services. Id.[14] The record establishes DCS initially became concerned for M.M.’s well-being
due to Mother’s lack of appropriate housing, Mother’s untreated mental health
issues, and instances of domestic violence. The record further establishes M.M.
was initially removed from Mother’s care because Mother violated the safety
plan and could not keep her home safe and clean. The juvenile court then
continued M.M.’s removal as DCS continued to be concerned with Mother’s
housing instability, inability to financially secure and care for herself, and her
dependency on others. In maintaining DCS did not meet its burden, Mother
argues the juvenile court’s findings as to her income, mental health issues, and
cognitive delay—each viewed independently—do not support the conclusion
there is a reasonable probability the conditions leading to M.M.’s removal will
not be remedied. Although Mother may be correct the juvenile court’s findings
as to her income, for example, are alone insufficient to support terminating her
parental rights, we note the record speaks to much more than her financial
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instability and inability to properly budget. 5 Specifically, the record establishes
Mother made minimal progress in therapy, Mother did not oblige numerous
requests she appropriately address her mental health issues, Mother ignored
DCS’ request to seek employment, and Mother could not secure suitable and
safe housing for M.M. In taking all of the juvenile court’s findings under
consideration, the findings establish Mother has failed to take necessary steps to
care for herself—a concern DCS has had “for the entire life of the case”—and
remedy the conditions leading to M.M.’s removal. Tr. at 43. We conclude
DCS presented sufficient evidence to show a reasonable probability the
conditions leading to M.M.’s removal or to his continued placement outside the
home will not be remedied.6
Conclusion
5
To the extent Mother argues the evidence does not support the juvenile court’s finding number twenty-
seven, we note such an argument invites us to reweigh the evidence and reassess witness credibility, which
we will not do. In re G.Y., 904 N.E.2d at 1260. We note, however, Mother seems to argue DCS did not
present evidence Mother could even seek employment in light of her mental health issues and cognitive
delay. Even assuming Mother was in a condition to be employed, Mother’s ability to budget would be
essential to her own, and M.M.’s, well-being and DCS presented evidence of Mother’s inability to properly
budget.
6
Mother also contends the juvenile court erred in finding continuation of the parent-child relationship
posed a threat to M.M.’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written in
the disjunctive and requires only one element in that subsection be proven to support termination of
parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the
evidence is sufficient to show a reasonable probability the conditions resulting in M.M.’s removal will
not be remedied, we need not also determine whether the juvenile court erred in concluding
continuation of the parent-child relationship posed a threat to M.M.’s well-being.
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[15] DCS established by clear and convincing evidence the elements necessary to
support the termination of Mother’s parental rights. The judgment of the
juvenile court terminating Mother’s parental rights is affirmed.
[16] Affirmed.
Mathias, J., and Brown, J., concur.
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