In the Matter of the Termination of the Parent-Child Relationship of N.H. and K.M. (Children) and: A.M. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Jun 16 2020, 11:41 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose CLERK
Indiana Supreme Court
of establishing the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven R. Knecht Robert J. Henke
Vonderheide & Knecht Marjorie Lawyer-Smith
Lafayette, Indiana Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 16, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of N.H. and K.M. (Children) 19A-JT-3004
and: Appeal from the Tippecanoe Superior
Court
A.M. (Mother),
The Honorable Matthew Boulac,
Appellant-Respondent, Judge Pro Tempore
Trial Court Cause No.
v. 79D03-1812-JT-163 & 79D03-1812-
JT-164
Indiana Department of Child
Services,
Appellee-Petitioner.
Riley, Judge.
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STATEMENT OF THE CASE
Appellant-Respondent, A.M. (Mother), appeals the trial court’s termination of
her parental rights to her minor children, N.H. and K.M. (Children).
We affirm.
ISSUE
Mother presents one issue on appeal, which we restate as: Whether the trial
court’s Order terminating Mother’s parental rights was supported by clear and
convincing evidence.
FACTS AND PROCEDURAL HISTORY
N.H. was born in August 2015 and K.M. was born in April 2017. 1 Mother
received no prenatal care while pregnant with K.M. K.M. was then born
prematurely and immediately admitted into the NICU. On May 5, 2017, the
Tippecanoe County Department of Child Services (DCS) responded to a report
that Mother was inadequately caring for K.M. On the same day, DCS visited
Mother’s home. During the visit, DCS observed Mother holding K.M.
inappropriately. Mother also told DCS that a week prior to the report, mother’s
1
K.M.’s biological father’s parental rights were terminated, and he does not participate in this appeal.
N.H.’s biological father remains unknown.
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mother, Grandmother, had to revive K.M. after he stopped breathing and
turned blue and limp. Mother did not seek medical attention until the next day.
Mother admitted having been diagnosed with bipolar disorder, multiple
personality disorder, schizophrenia, ADHD, depression, and mild mental
retardation. Mother reported that her mental disorders, except schizophrenia,
were diagnosed when she was five years old, and that her schizophrenia was
attributed to the fact that she was a recovering drug addict. Mother added that
she also experiences visual hallucinations such as seeing spiders and faces, and
that the last episode was a month prior to the DCS report. Mother claimed that
she did not “need psychological counseling, or medication[],” and that her
disorders could be controlled within her mind and medications were not
necessary. (Exh. Vol. I, p. 11). Mother also admitted using alcohol, marijuana,
pills, and cocaine as well as experimenting with methamphetamine and heroin
in the past.
Following the visit, DCS removed the Children from Mother’s home and
placed them in foster care. On May 7, 2017, DCS filed petitions alleging the
Children were Children in Need of Services (CHINS) due to allegations of
neglect or abuse. On June 21, 2017, the trial court adjudicated Children to be
CHINS. A dispositional order was issued on July 19, 2017, where Mother was
ordered to participate in case management, random drug screens, a mental
health assessment, a substance abuse assessment, a psychological assessment,
and supervised visits with Children.
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Both Children have special needs. N.H. has problems with aggression,
developmental delays, and possible fetal alcohol syndrome. N.H. also attends
speech, feeding, and behavioral therapy. As for K.M., he was diagnosed with
failure to thrive and struggled to gain weight. K.M. underwent surgery and a
“G-Tube” was inserted in abdomen to ensure that he was receiving enough
calories. (Appellant’s App. Vol. II, p. 28). Due to the G-Tube, K.M. had
dietary restrictions, and Mother was required to participate in training on how
to feed K.M. Mother did not understand or retain enough information from
those training sessions to properly feed K.M. On other occasions, Mother
disregarded K.M.’s dietary restrictions and would try to feed him solids,
insisting “that’s what he needed at the time.” (Transcript Vol. II p, 133).
In September 2017, Mother underwent a mental health assessment due to her
untreated mental health conditions. The clinician noted that “it would be
difficult for [Mother] to safely parent her children with untreated mental health
disorders.” (Exh. Vol. I, p. 218). Mother was unsure why the DCS became
involved in the first place, and the clinician noted that Mother appeared to
“parrot” information regarding K.M.’s health condition. (Exh. Vol. I, p. 217).
In November 2017, Mother completed a parenting/family functional
assessment. It was reported that Mother’s mental health issues affected her
ability to parent the Children. The clinician expressed concern that Mother
may always need extra support in parenting the Children and that her mental
health could greatly impact her ability to parent appropriately.
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When the CHINS case began, Mother had secure housing, however, around
February 2018, Mother was threatened with an eviction for having a pet and for
allowing other people to live in her apartment, which were violations of her
subsidized housing rules. Mother’s boyfriend, who had failed a DCS drug
screen, was living in Mother’s home.
Around June 2018, Mother became increasingly confrontational and aggressive
toward her service providers. In July 2018, Mother was discharged from case
management. Mother claimed that she did not need any assistance with
organization despite the clutter in her home. Services were stopped with two
different case management providers because of Mother’s aggressive behavior,
including shouting and cussing at the case managers.
In August 2018, a second visit facilitator for parenting time sessions was added
to ensure adequate supervision during Mother’s supervised visits. After Mother
appeared to struggle with the needs of both Children at the same time, Mother’s
visits were individualized for each child. Even with the separate supervised
visits, Mother struggled to understand the Children’s individual medical
concerns.
In December 2018, Mother completed a psychological assessment. Mother’s
“cognitive and personality testing” were “suggestive of someone who is easily
frustrated and overwhelmed.” (Exh. Vol. I, p. 194). Mother was also found to
have a hard time realistically appraising her strengths and weaknesses and she
lacked sufficient awareness and empathy for the needs of others. Those
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findings were of “potential concern when it comes to her ability to consistently
manage the practical demands of raising two small children while balancing her
own needs with those of the children as well.” (Exh. Vol. I, p. 194).
In December 2018, DCS filed termination petitions and an evidentiary hearing
was conducted on February 20 and May 1, 2019. The Children had been out of
Mother’s care since their initial removal in May 2017. At the time of the
termination hearing, Mother had been discharged from visitation services due
to safety concerns for the Children and her inability to appropriately care for
them. DCS concluded that it was traumatizing for them to continue visits since
Mother disregarded the specific doctor’s orders regarding K.M.’s feedings and
she would try to feed him solids, insisting “that’s what he needed at the time.”
(Tr. Vol. II p, 133). In addition, the Children displayed behavioral issues after
visits with Mother, including N.H. not eating or sleeping and hiding when it
was time for the visits because he did not want to go.
The DCS family case manager Caitlin Jackson (FCM Jackson), testified
although Mother participated in services, she was not able to retain that
information due to her cognitive limitations and was not able to progress to
safely parent the Children. FCM Jackson added that the Children were thriving
in their current placement, and their caregivers were able to properly care for
their medical needs and were willing to adopt them. She ultimately concluded
that the continuation of the parent-child relationship was not in the Children’s
best interest. The court appointed special advocate Brenda Parker (CASA
Parker) testified that Mother had no housing, did not know the extent of the
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Children’s medical needs, and did not follow doctor’s recommendations
regarding the Children’s medical needs. She likewise believed that the
conditions leading to the Children’s removal would not be remedied because
during the two years the Children had been out of the home, Mother
“continually exhibit[ed] the inability to care for the children, either through
unwillingness or through her cognitive disabilities.” (Tr. Vol. II, p. 190). She
added that Mother had been “very combative” during the CHINS case and had
been discharged from many service providers. (Tr. Vol. II, p. 195). CASA
Parker equally testified that termination of parental rights was in the Children’s
best interest, and she indicated that the foster parents were willing to adopt the
Children. On September 23, 2019, the trial court entered its Order, terminating
Mother’s parental rights to the Children.
Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
A. Standard of Review
Mother’s challenge on appeal is limited to the trial court’s decision that the
termination of her parental rights was in the Children’s best interest. The
Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A
parent’s interest in the care, custody, and control of his or her children is
‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.
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Granville, 530 U.S. 57, 65 (2000)). However, parental rights “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. If “parents are unable
or unwilling to meet their parental responsibilities,” termination of parental
rights is appropriate. Id. We recognize that the termination of a parent-child
relationship is “an ‘extreme measure’ and should only be utilized as a ‘last
resort when all other reasonable efforts to protect the integrity of the natural
relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child
Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty.
Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).
Indiana courts rely on a “deferential standard of review in cases concerning the
termination of parental rights” due to the trial court’s “unique position to assess
the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.
dismissed. Our court neither reweighs evidence nor assesses the credibility of
witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.
2013). We consider only the evidence and any reasonable inferences that
support the trial court’s judgment, and we accord deference to the trial court’s
“opportunity to judge the credibility of the witnesses firsthand.” Id.
B. Termination of Parental Rights
In order to terminate a parent’s rights to his or her child, DCS must prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6)
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months under a dispositional decree.
****
(iii) The child has been removed from the parent and has been
under the supervision of a local office . . . 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 [CHINS] . . . ;
(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 [CHINS];
(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). DCS must prove each of the foregoing elements by
clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,
92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
existence of a fact to be highly probable.” Id.
When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester, 839 N.E.2d at 147.
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We determine whether the evidence supports the findings and 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 juvenile court’s decision, we must affirm. In re L.S., 717
N.E.2d 204, 208 (Ind. Ct. App. 1999), cert. denied 534 U.S. 1161, 122 S. Ct.
1197 (2002).
Mother does not challenge the findings, so they stand proven. See Madlem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge
the findings of the trial court, they must be accepted as correct.”). Instead,
Mother’s sole challenge is that the trial court erred by concluding that
termination of her parental rights was in the Children’s best interests.
Pursuant to Indiana Code section 31-35-2-4(b)(2)(C), DCS must provide
sufficient evidence “that termination is in the best interests of the child.” In
determining what is in the best interests of a child, the trial court is required to
look beyond the factors identified by DCS and consider the totality of the
evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the
trial court must subordinate the interests of the parent to those of the child. Id.
The court need not wait until a child is harmed irreversibly before terminating
the parent-child relationship. Id. Recommendations of the case manager and
court-appointed advocate, in addition to evidence that the conditions resulting
in removal will not be remedied, are sufficient to show by clear and convincing
evidence that termination is in the child’s best interests. Id.
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Over the course of the CHINS proceeding, the concerns regarding Mother’s
ability to properly parent and supervise her children became evident. At the
onset of the CHINS case, K.M. was diagnosed with failure to thrive and
required a G-Tube for feeding, which he may need for the rest of his life. Due
to the G-Tube, there were specific instructions on how to feed K.M. and
Mother was trained on how to administer his feedings. Mother did not
understand or retain enough information from those training sessions to
properly feed K.M. On other occasions, Mother disregarded K.M.’s dietary
restrictions and would try to feed him solids, insisting “that’s what he needed at
the time.” (Tr. Vol. II p, 133). Mother also acknowledged that she struggled to
bond with K.M. who was removed from her care soon after he was born. As
for N.H., he increasingly began displaying negative behavior following his visits
with Mother. N.H. was not sleeping well, did not want to attend the visits, and
would cry, scream, and hide when it was time for the next visit. In addition,
N.H., who also struggled with weight gain, refused to eat and he started losing
weight.
CASA Parker stated that Mother’s “cognitive disability” prevented her from
fully understanding the Children’s medical issues, and at times, “she [was]
unwilling to follow doctor’s orders on ways to treat her children.” (Tr. Vol. II,
p. 191). CASA Parker was concerned that the continuation of the parent-child
relationship would be harmful to K.M. since Mother had undergone training on
how to feed K.M., but Mother had never been certified to feed K.M. on her
own and would require a third party to help her feed K.M. FCM Jackson also
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testified that the Children were thriving in their current placement and their
caregivers were able to properly address their medical needs. She ultimately
concluded that the continuation of the parent-child relationship was not in the
Children’s best interests since Mother “hasn’t understood the ability to
appropriately parent her children and . . . the children wouldn’t thrive in her
care without her understanding.” (Tr. Vol. II, p. 157).
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. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92 (Ind. Ct. App.
2014). Although Mother attended nearly all supervised parenting time sessions,
Mother’s parenting skills never improved. Both CASA Parker and FCM
Jackson testified Mother was unable to understand the Children’s medical
needs and provide proper care without continuous intervention, and that it was
in the best interests of the Children to terminate Mother’s parental rights.
Mother was also homeless at the time of the termination hearing, raising
concerns of housing instability. Based on the totality of the evidence, we
cannot say that the trial court’s termination of Mother’s parental rights to the
Children was clearly erroneous. Thus, we decline to set aside the termination
Order.
CONCLUSION
Based on the foregoing we conclude that DCS presented sufficient evidence to
support the trial court’s Order terminating Mother’s parental rights to the
Children.
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Affirmed.
Mathias, J. and Tavitas, J. concur
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