In re the Termination of the Parent-Child Relationship of C.Q. (Minor Child) and K.Q. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Oct 09 2019, 8:22 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathan T. Feavel Curtis T. Hill, Jr.
Feavel & Porter, LLP Attorney General of Indiana
Vincennes, Indiana Monika Prekopa Talbot
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 9, 2019
Parent-Child Relationship of Court of Appeals Case No.
C.Q. (Minor Child) and 19A-JT-666
K.Q. (Mother), Appeal from the Daviess Circuit
Court
Appellant-Respondent,
The Honorable Gregory A. Smith,
v. Judge
Trial Court Cause No.
Indiana Department of Child 14C01-1808-JT-250
Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] K.Q. (“Mother”) appeals the order of the Daviess Circuit Court terminating her
parental rights to her minor child C.Q. (“Daughter”). Mother presents four
issues on appeal, which we consolidate and restate as the following three:
I. Whether the trial court clearly erred in concluding that
there was a reasonable probability that the conditions that
resulted in Daughter’s removal from Mother’s care, or the
reasons for Daughter’s continued placement outside the
home of Mother, would not be remedied;
II. Whether the trial court clearly erred in concluding that
termination of the parent-child relationship was in
Daughter’s best interests; and
III. Whether the Indiana Department of Child Services
(“DCS”)’s failure to continue to provide Mother with
services violated her statutory and constitutional rights.
[2] We affirm.
Facts and Procedural History
[3] Mother is the biological mother of Daughter, born in January 2018. In 2010,
Mother was admitted to a hospital in Vincennes, Indiana, where she was placed
under the care of Dr. Michael Cantwell (“Dr. Cantwell”), the director of the
psychiatric inpatient unit. Dr. Cantwell diagnosed Mother with schizophrenia
and methamphetamine dependency. Mother’s methamphetamine use has
caused her schizophrenia to progress more negatively than it otherwise would
have. As a result of her mental illness, Mother suffers from auditory
hallucinations and often whispers to the voices she hears. She is very guarded
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and preoccupied, she delays in answering questions, and sometimes wholly
ignores questions.
[4] To treat her illness, Dr. Cantwell prescribed Mother a long-acting anti-psychotic
medication, Abilify,1 which is administered by injection once a month. Mother,
who is under the belief that her mental illness is only mild, does not regularly
keep her appointments for her injections. In fact, her most recent admission to
the hospital resulted from a scheduled injection she missed. Dr. Cantwell
described the impact of Mother’s mental illness on her ability to function as
follows:
[W]hen it’s not controlled properly, either because of not being
on the right medicine or having it made worse by drug use, her
preoccupation with her internal stimuli I think would
significantly distract her attention from the more pressing needs
that a child would be—the attention a child would need from the
mother. So I think it would significantly impair her ability to
focus on things in the real world as opposed to her own internal
world.
Tr. p. 14. Dr. Cantwell and his staff have had difficulty maintaining contact
with Mother, and at one point her regular commitment was terminated because
they could not keep track of her.
[5] In 2014, before the initiation of the instant case involving Daughter, DCS
became involved with Mother and her two other children, a nine-year-old and a
1
Abilify is the brand name for the drug Aripiprazole. See Medline Plus, U.S. National Library of Medicine.
Available at: https://medlineplus.gov/druginfo/meds/a603012.html.
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newborn infant. Both children were removed from Mother’s care and
determined to be children in need of services (“CHINS”). DCS provided
services to Mother, but her parental rights to these two children were ultimately
terminated. This court affirmed the termination of Mother’s parental rights on
appeal. See In re R.Q., No. 14A01-1603-JT-524, 2016 WL 6038584 (Ind. Ct.
App. Oct. 14, 2016).
[6] While Mother was pregnant with Daughter, her neighbors called the police
several times reporting that Mother was screaming. In one instance, the police
arrived, and Mother answered the door with a butcher knife in her hand.
Despite being visibly pregnant, Mother denied being pregnant. She eventually
admitted to being pregnant but told the police that the baby’s father was
President Donald Trump.
[7] When she was admitted to the hospital to give birth to Daughter, Mother tested
positive for methamphetamine and amphetamine. After Daughter was born,
Mother experienced auditory hallucinations and stated that she was going to
harm herself or her newborn child. She also indicated that she was planning to
take the baby and leave the hospital. Due to Mother’s behavior, the program
director of the hospital’s behavioral health unit obtained a court order for
Mother’s emergency detention. Daughter was removed from Mother’s care and
placed in foster care.
[8] On January 9, 2018, DCS filed a petition alleging that Daughter was a CHINS.
A detention hearing was held that same day, and the trial court found probable
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cause that Daughter was a CHINS and ordered that she be removed from
Mother’s care. Following a hearing on March 23, 2018, the trial court found
Daughter to be a CHINS. At the subsequent April 5, 2018, dispositional
hearing, the trial court ordered Mother to participate in various services,
including: (1) maintaining contact with the family case manager, (2) enrolling
in recommended programs, (3) submitting to random drug screens, (4)
refraining from the use of illicit substances, (5) finding suitable housing for
herself and Daughter, and (6) meeting with medical/psychiatric personnel, as
directed by the medical/psychiatric personnel, and taking all prescribed
medications as directed. The permanency plan was reunification.
[9] During her supervised visitations with Daughter, Mother did not interact much
with the child, often using her phone, staring at the clock, or speaking with
someone who was not there. During one visitation, Mother was angry with the
auditory hallucination with whom she was talking and began “punching at the
air” while holding the child. Tr. p. 126. Most of the time, Mother simply
whispered in response to her auditory hallucinations. Mother was rough with
Daughter when she changed her diaper, causing the child to cry. She was also
careless when handling the infant, failing to prop up her head and not noticing
when her head dropped. When speaking with the visitation supervisor
regarding feeding the child, Mother stated that the formula needed to be boiling
hot to “soothe [Daughter’s] tummy.” Tr. p. 65.
[10] On March 6, 2018, Mother attended one of Daughter’s well-child checkups
with her pediatrician and loudly claimed that Daughter was being harmed. This
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caused the medical staff to inform Mother that she would have to leave if she
did not calm down. Later, in April of that year, one of Mother’s scheduled
visitations was cut short after Mother threatened to kill the DCS staff. On May
22, 2018, Mother’s visitations with Daughter were suspended due to her failure
to comply with the dispositional decree.
[11] During this time, Mother did not have stable housing and alternately lived with
her boyfriend, another male friend with whom she used drugs, or her alcoholic
father. Mother’s boyfriend was physically abusive to her. In the spring of 2018,
Mother had a black eye when she met with the family case manager and
admitted that her boyfriend had hit her. She had another black eye the
following January. The case manager offered to provide domestic violence
services, which Mother refused. Mother also accused the case manager of living
with Mother’s boyfriend, which was untrue. Mother’s boyfriend also instructed
her to not speak with the home-based therapist.
[12] Mother’s drug use continued unabated following Daughter’s birth and removal
from her care. She tested positive for methamphetamine and amphetamine use
throughout the CHINS proceedings: of the twenty-seven random drug screens
she submitted, Mother tested positive for methamphetamine and amphetamine
use on twenty of the screens. During the termination hearings, Mother admitted
that she used methamphetamine “recreationally” during the weekends. Tr. p.
159. She was of the opinion, however, that her substance abuse did not affect
her ability to parent. She admitted to using methamphetamine the weekend
before the termination hearing.
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[13] Mother also continued to show signs of mental illness during the CHINS
proceedings. Mother’s home-based therapist, Josh Bowers (“Bowers”), who
was familiar with Mother from the prior CHINS case involving her two older
children, was unable to consistently communicate with Mother. Bowers took
Mother to the store to buy supplies for Daughter, but Mother wanted to buy
supplies for much older children. Mother also spoke with Bowers about
random, off-topic subjects and claimed to be married to President Trump.
Mother also threatened to “kick [Bowers’s] ass” when he met her outside her
boyfriend’s residence. Tr. p. 71.
[14] After a hearing on August 2, 2018, the trial court issued an order on August 6
noting that Mother was not complying with services and continued to test
positive for methamphetamine. The trial court also found that Mother had
failed to appear for the monthly injection of her medication in March 2018. The
court therefore changed the permanency plan from reunification to termination
of Mother’s parental rights. Also on August 6, the trial court issued an order
concluding that, under Indiana Code section 31-34-21-5.6, reasonable efforts to
reunify Daughter and Mother were not required because Mother was the
subject of a prior termination case involving her two older children and because
Mother was not in compliance with the dispositional decree.2
2
This statute provides in relevant part:
(a) Except as provided in subsection (c) [which is inapplicable here], a court may make a
finding described in this section at any phase of a child in need of services proceeding.
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[15] On August 24, 2018, DCS filed a petition to terminate Mother’s parental rights
to Daughter. On December 10, 2018, Mother sent a letter to the trial court
claiming that Daughter’s foster parents had assumed false identities, had
received payments from the government, and had participated in a child
pornography ring. Mother’s letter also claimed that she had received training
from the FBI and that the foster parents were involved in a terrorist attack.
[16] The court held evidentiary hearings on the termination petition on January 15
and February 8, 2019. At the hearings, Mother falsely testified that Daughter’s
foster father had a prior conviction for child abuse and that the trial court judge
had presided over this matter. The family case manager testified that she had
investigated Mother’s claims regarding the foster parents and found that they
had no basis in reality. Moreover, the trial court judge noted that he had
presided over no such criminal proceeding against the foster father. On March
(b) Reasonable efforts to reunify a child with the child’s parent, guardian, or custodian or
preserve a child’s family as described in section 5.5 of this chapter are not required if the
court finds any of the following:
***
(4) The parental rights of a parent with respect to a biological or adoptive sibling of a
child who is a child in need of services have been involuntarily terminated by a court
under:
(A) IC 31-35-2 (involuntary termination involving a delinquent child or a child in
need of services);
***
(C) any comparable law described in clause (A) or (B) in any other state, territory,
or country. . . .
Ind. Code § 31-34-21-5.6.
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4, 2019, the trial court issued an order terminating Mother’s parental rights to
Daughter. Mother now appeals.
Termination of Parental Rights
[17] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. Indeed, parental interests must be subordinated to
the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).
[18] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights must allege:
(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.
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[19] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; G.Y., 904 N.E.2d at 1260. But because Indiana Code section
4(b)(2)(B) is written in the disjunctive, the trial court is required to find that only
one prong of subsection 4(b)(2)(B) has been established by clear and convincing
evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
[20] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
Standard of Review
[21] We have long had a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.
2011). We neither reweigh the evidence nor assess witness credibility. Id. We
consider only the evidence and reasonable inferences favorable to the trial
court’s judgment. Id. In deference to the trial court’s unique position to assess
the evidence, we will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. Clear error is that which leaves us
with a definite and firm conviction that a mistake has been made. J.M. v. Marion
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Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.
denied.
I. Conditions That Resulted in Daughter’s Removal
[22] Mother first claims that the trial court clearly erred by concluding that there was
a reasonable probability that the conditions that resulted in Daughter’s removal
from her care, or the reasons for Daughter’s continued placement outside her
home, would not be remedied. When deciding whether there is a reasonable
probability that the conditions resulting in a child’s removal or continued
placement outside of a parent’s care will not be remedied, the trial court must
determine a parent’s fitness to care for the child at the time of the termination
hearing while also taking into consideration evidence of changed
circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57
(Ind. Ct. App. 2013), trans. denied. The trial court may disregard efforts made
only shortly before termination and give more weight to a parent’s history of
conduct prior to those efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).
[23] In the present case, the conditions that resulted in the Daughter’s removal from
Mother’s care and the reasons for her continued placement outside Mother’s
home were Mother’s mental illness and substance abuse. Our courts have long
held that a parent’s mental illness, by itself, is not sufficient grounds to
terminate his or her parental rights. See In re Tucker, 578 N.E.2d 774, 780 (Ind.
Ct. App. 1991) (“Indiana’s termination statute, as interpreted by case law, does
not allow termination simply on the basis of mental illness.”), trans. denied.
Here, the trial court did not base its termination decision simply on the fact that
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Mother suffers from schizophrenia. Instead, the evidence showed that Mother’s
mental illness seriously affected her ability to safely parent her child.
[24] To her detriment, Mother frequently missed the scheduled monthly injections
of her antipsychotic medication. She displayed signs of suffering from auditory
hallucinations during visitations with Daughter; she handled the child roughly
and did not actively pay attention to her; she claimed that her infant daughter
should be given boiling hot formula; she claimed that Daughter’s father was the
President of the United States; she accused the case manager of living with her
boyfriend; she threatened to kill DCS staff; she threatened to beat up one of her
case workers; she accused the foster parents of participating in a child
pornography ring; and she accused the trial court judge of presiding over a
criminal matter involving the foster father, a claim the trial court judge refuted.
[25] In addition to Mother’s mental illness, she continued to use methamphetamine
during the CHINS case. She repeatedly tested positive for methamphetamine,
and she admitted at the termination that she continued to use
methamphetamine on the weekends, although she incredulously claimed that
this did not affect her ability to parent. She even admitted to having used
methamphetamine shortly before the termination hearing. Mother also failed to
maintain safe stable housing. Mother failed to follow through with the services
offered to help her in finding housing.
[26] From this evidence, the trial court properly concluded that there was, at the
very least, a reasonable probability that the conditions that resulted in
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Daughter’s removal from Mother’s care, or the reasons for Daughter’s
continued placement outside Mother’s home, would not be remedied. See In re
A.J., 877 N.E.2d 805, 816 (Ind. Ct. App. 2007) (concluding that trial court did
not clearly err in concluding that conditions that led to children’s removal from
parents would not be remedied where mother suffered from mental health
issues that were not likely to be remedied based on mother’s prior history and
thus there was a risk of future neglect and endangerment of the children), trans.
denied; In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004) (holding that trial
court did not clearly err in concluding that conditions that led to child’s
removal from the mother’s care would not be remedied where there was
evidence of the mother’s continued drug use and her untreated mental illness),
trans. denied.3
II. Best Interests of the Child
[27] Mother next argues that the trial court clearly erred by determining that
termination of the parent-child relationship was in Daughter’s best interests.
When determining what is in the best interests of a child, the trial court must go
beyond the factors identified by DCS and look to the totality of the evidence.
A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the
parent to those of a child, and the court need not wait until a child is
3
To the extent that Mother argues that the trial court erred in determining that there was a reasonable
probability that the continuation of the parent-child relationship posed a threat to Daughter’s well-being, we
need not address such an argument. The trial court was required to find only that one prong of subsection
4(b)(2)(B) had been established. See In re A.K., 924 N.E.2d at 220.
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irreversibly harmed before terminating the parent-child relationship. Id.
Moreover, a recommendation by the case manager or child advocate to
terminate parental rights, in addition to evidence that the conditions resulting in
removal will not be remedied, is sufficient to show by clear and convincing
evidence that termination is in the child’s best interests. Id. at 1158–59.
[28] The evidence presented at the termination hearing clearly established that
Mother suffers from a serious mental illness and uses methamphetamine, which
exacerbates the symptoms of her mental illness. Mother does not appreciate the
seriousness of her mental illness and often misses the scheduled injection of her
medication. Her mental illness manifests itself in dangerous and disturbing
ways, including threats to harm herself, her child, and others. Mother also
continues to abuse methamphetamine. Mother’s interactions during visitation
showed that she had little bond with the child, and she even threatened DCS
staff.
[29] In contrast to Mother’s unstable life, the foster parents have been able to
provide Daughter with a safe and happy home. The foster parents plan to adopt
Daughter, and the family case manager testified that termination of Mother’s
parental rights and adoption were in Daughter’s best interests. The court-
appointed special advocate similarly recommended that Daughter be adopted
by the foster parents. This testimony, combined with evidence that the
conditions that caused the removal of Daughter from Mother’s care would not
be remedied, was sufficient to show by clear and convincing evidence that
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termination of Mother’s parental rights was in Daughter’s best interests. See
A.D.S., 987 N.E.2d at 1158.
III. Failure to Provide Services
[30] Mother correctly notes that the termination statute requires that a petition to
terminate parental rights must allege, and DCS must prove by clear and
convincing evidence,4 that one of the following is true:
(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are not
required, including a description of the court's finding, the date of
the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been
under the supervision of a local office or probation department
for at least fifteen (15) months of the most recent twenty-two (22)
months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need of
services or a delinquent child[.]
Ind. Code § 31-35-2-4(b)(2)(A). During the CHINS case, the trial court found
that reasonable efforts for family preservation or reunification were not
required, and DCS stopped providing Mother with services after four months.
4
See Ind. Code § 31-37-14-2.
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[31] Mother contends that DCS only proved, under subsection 4(b)(2)(A)(ii), that
the trial court entered a finding under Indiana Code section 31-34-21-5.6, that
reasonable efforts for family preservation or reunification were not required.
This, by itself, is without moment, as subsection 4(b)(2)(A) clearly provides that
DCS must prove that only one of the conditions listed in that subsection is true.
[32] In addition, Mother’s contention is incorrect, as the record shows that Daughter
had been removed from Mother for at least six (6) months under a dispositional
decree as set forth in subsection 4(b)(2)(A)(i). “This [c]ourt has previously
explained that ‘[f]or purposes of the element of the involuntary termination
statute requiring a child to have been “removed from the parent for at least six
months under a dispositional decree” before termination may occur, such a
dispositional decree is one that authorizes an out-of-home placement.’” In re D.D., 962
N.E.2d 70, 75 (Ind. Ct. App. 2011) (citation omitted) (emphasis added)
(quoting A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1116
(Ind. Ct. App. 2000), trans. denied). Here, the order that authorized Daughter’s
out-of-home placement was entered on January 9, 2018. Thus, when DCS filed
its termination petition on August 24, 2018, Daughter had been removed from
Mother for over seven months. Accordingly, the conditions of subsection
4(b)(2)(A)(i) were established.
[33] Mother, proceeding under the mistaken presumption that DCS established only
that the trial court had found that reasonable efforts for family preservation or
reunification were not required, argues:
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[T]he elements of Indiana Code 31-35-2-4(b)(2) were met only
through termination of services to the mother. Given the same,
the statute and the due process rights of the mother were
violated, and the termination order of the court was erroneous as
the mother received services pursuant to the Dispositional Order
for less than four (4) months.
Appellant’s Br. at 13.
[34] To the extent that Mother argues that she had a statutory right to services, she is
incorrect. It is well established that DCS is not required to provide services
before commencing termination proceedings. In re B.H., 44 N.E.3d 745, 752 n.3
(Ind. Ct. App. 2015) (citing In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App.
2009)), trans. denied. And to the extent that Mother claims that she had a due
process right to services, we decline to address this argument. First, she did not
present such an argument to the trial court. An appellant may not present an
argument, even one of constitutional dimension, for the first time on appeal.
Hite v. Vanderburgh Cty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct.
App. 2006) (citing McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d
185, 194 (Ind. Ct. App. 2003)). Moreover, Mother fails to develop her one-
sentence argument any further, and she cites no authority to support her
position. Her argument is therefore also waived for failure to make a cogent
argument. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain
the contentions of the appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal relied on[.]”); N.C.
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v. Ind. Dep’t of Child Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016) (“A party
waives an issue where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record.”), trans. denied.
Conclusion
[35] The trial court did not clearly err in concluding that the conditions that resulted
in Daughter’s removal from Mother’s care, or the reasons for Daughter’s
continued placement outside Mother’s home, would not be remedied. Nor did
the trial court clearly err in determining that termination of Mother’s parental
rights was in Daughter’s best interest. Lastly, Mother’s arguments regarding
DCS’s failure to continue to provide services to her are without merit.
Accordingly, we affirm the judgment of the trial court.
[36] Affirmed.
Robb, J., and Pyle, J., concur.
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