In the Matter of the Termination of the Parent-Child Relationship of: L.G., a Child, and M.S. (Mother) v. Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 01 2018, 8:07 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
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 1, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of: L.G., a Child, and 79A02-1709-JT-2152
M.S. (Mother), Appeal from the Tippecanoe
Superior Court
Appellant-Respondent,
The Honorable Faith A. Graham,
v. Judge
Trial Court Cause No.
Department of Child Services, 79D03-1703-JT-23
Appellee-Petitioner.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, M.S. (Mother), appeals the trial court’s Order for
Involuntary Termination of Parental Rights to her minor child, L.G. (Child).
[2] We affirm.
ISSUE
[3] Mother raises one issue on appeal, which we restate as: Whether the Indiana
Department of Child Services (DCS) presented clear and convincing evidence
to support the termination of Mother’s parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Mother and C.G. (Father) 1 are the biological parents of the Child, born on
March 7, 2014; and B.G., born on March 17, 2015. Both children were born
premature, and both children had positive meconium screens for marijuana.
The children’s positive drug screens were reported to DCS, and DCS
investigated but found no basis to intervene at those times.
[5] On Monday, November 16, 2015, the Tippecanoe County office of DCS
received a report alleging that the Child and B.G. were victims of neglect.
Earlier that day, Father and his sister, L.G., had taken eight-month-old B.G. to
the emergency room at St. Elizabeth East Hospital in Lafayette, Tippecanoe
1
Father’s parental rights to the Child were terminated on August 24, 2017. Father does not participate in
this appeal.
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County, Indiana. Father reported that he had discovered B.G. not breathing
when he checked on her that morning. Neither Father nor Mother called 9-1-1.
B.G. was pronounced dead upon arrival, and the hospital contacted DCS. The
emergency room physician observed that B.G. had already begun to decompose
and undergo the rigor mortis process, estimating that she had been deceased for
at least twenty-four hours prior to being presented in the emergency room. The
coroner estimated B.G. had been deceased between twenty-four and thirty-six
hours. The physician also observed that B.G. was noticeably malnourished and
that she had bruising near her anus and vagina, which resulted in the
completion of a rape kit. The DCS assessor described B.G.’s body as
(1) very small for her age, (2) underweight, (3) her head
disproportionately larger than her body, (4) sunken eyes, (5) her
skin already becoming a different color, (6) her body starting to
lose rigor, (7) a flat spot on the back of her head with hair falling
out, (8) her stomach bloated, (9) her skin appeared loose, and
(10) there appeared to be no body fat.
(DCS Exh. 3, p. 35). At this time, Mother’s whereabouts were unknown,
although it was later discovered that she had taken the Child to the home of a
maternal uncle.
[6] The Lafayette Police Department interviewed Father and Mother regarding
B.G.’s death. Initially, both parents reported that B.G. had been fed at 8:00
p.m. on Sunday night and was found not breathing on Monday morning.
Mother later altered her version of events to indicate that she knew B.G. was
not breathing at 12:30 a.m. on Sunday but was not ready to “let her go just
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yet.” (DCS Exh. 2, p. 8). Mother indicated that she and Father intended to
deliver B.G. to the hospital on Sunday evening, so they drove to L.G.’s home in
order for L.G. to babysit the Child while they took B.G. to the hospital.
Instead, they visited with L.G. for an hour, leaving B.G.’s body in the car, and
ultimately decided not to go to the hospital until the next day. The Lafayette
Police Department searched the family’s home and observed that it was clean
but had minimal food for the children and smelled of marijuana. The police
officers specifically noted their suspicion that “the home is [not] typically as
clean and well kept as it was found.” (DCS Exh. 2, p. 9). Following the
parents’ interviews, DCS removed the Child from their custody and placed her
in foster care. At the time, the Child appeared to be underweight but was
otherwise generally healthy and did not exhibit any injuries.
[7] On November 18, 2015, the trial court conducted an initial hearing and a
detention hearing. The same day, DCS filed a petition alleging the Child to be
a Child in Need of Services (CHINS). DCS argued that the Child’s physical or
mental condition was seriously impaired or endangered as a result of the
inability, refusal, or neglect of Father and Mother to provide for the Child’s
necessary care and safety. DCS primarily relied on B.G.’s death and the
surrounding circumstances, specifically the fact that Father and Mother waited
so long to take B.G. to the hospital after discovering that she had died. DCS
discussed that B.G.’s cause of death was pending but that she was nevertheless
“visibly underweight” and “also had visible injuries” at the time of death.
(DCS Exh. 2, p. 4). Furthermore, DCS noted that both Father and Mother
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“presented oddly” during interviews surrounding B.G.’s death. (DCS Exh. 2,
p. 5). “Father was unemotional and never acknowledged [that B.G.] died
before arriving at the hospital. Mother showed an appropriate emotional
response to her child’s death but could not explain how [B.G.] died and offered
odd explanations for how [B.G.] was treated and fed, including giving [eight-
month-old B.G.] pizza rolls.” (DCS Exh. 2, p. 5). DCS argued that the Child
“is too young to express to others if she is in danger or has been harmed.”
(DCS Exh. 2, p. 5).
[8] DCS also filed a petition for parental participation in order for Father and
Mother to initiate services designed to assist “in fulfilling their [parental]
obligations.” (DCS Exh. 2, p. 6). Father and Mother immediately began
having supervised visits with the Child, and parents reportedly had consistent
attendance and interacted well with the Child and provided for all of her needs
during the visits. In addition, DCS made referrals for substance abuse
assessments, therapy, and home-based case management. The parents, who
had lived together for a number of years, actively worked with their home-based
case manager to establish and maintain a budget. At the time, Father was
employed full-time at McDonald’s, and Mother, who had never worked more
than a week or two in her life, indicated that she previously stayed home to care
for the Child and B.G. and had no intention of obtaining employment in the
future. Mother received government-funded housing, utility assistance, and
food stamps. With Father’s income and Mother’s benefits, they demonstrated
to the home-based case manager that they were able to live within their means.
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Both Father and Mother completed a substance abuse assessment; however,
there were concerns that Father and Mother were not forthright about their
substance abuse to ensure that proper recommendations could be made, and
DCS noted that they did not submit to every requested drug screen. While
Mother never submitted any positive drug screens for non-prescribed
substances, Father tested positive for alcohol on one occasion. Both Father and
Mother also attended parenting classes at the YWCA but did not submit
documentation indicating that they successfully completed the program. As to
therapy, both parents delayed completing intake appointments for six months
after the referral and exhibited reluctance to participate. According to Mother,
they had been advised by attorneys in their respective criminal cases not to
discuss the circumstances of B.G.’s death with anyone. DCS advised Mother to
nevertheless attend therapy appointments to address grief and other issues
without discussing matters of an incriminatory nature, but Mother did not do
so. Eventually, in May or June of 2016, Mother attended one therapy session
but missed the next three scheduled sessions. Father began consistently
attending therapy in August of 2016, but the therapist indicated that Father’s
therapy had “reached a plateau” by December of 2016. (DCS Exh. 4, p. 25).
[9] On January 7 and February 15, 2016, the trial court held a fact-finding hearing.
On May 17, 2016, the trial court adjudicated the Child to be a CHINS. 2
2
Father and Mother subsequently appealed the trial court’s CHINS adjudication, and on February 17, 2017,
this court affirmed the trial court in a memorandum decision. Matter of L.G. v. Ind. Dep’t of Child Servs., No.
79A05-1607-JC-1558, 2017 WL 655870 (Ind. Ct. App. Feb. 17, 2017).
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Relying on B.G.’s undetermined cause of death, malnourished state at the time
of death, the ongoing criminal investigation related to B.G.’s death, and the
parents’ delay in seeking medical treatment, the trial court noted that it was
“not required to wait until [the Child] suffers a similar harm [as B.G.] before
intervening.” (DCS Exh. 3, p. 37).
[10] At some point, the pathologist, who conducted B.G.’s autopsy on November
17, 2015, provided a final autopsy report. At the time of autopsy, eight-month-
old B.G. weighed eleven pounds. The cause of death was determined to be
“positional asphyxia/suffocation” with no evidence of strangulation. (DCS
Exh. 3, p. 36). The pathologist noted that B.G. “was underdeveloped, poorly
nourished, and dehydrated with wasting muscle and a fatty, widened facial
appearance.” (DCS Exh. 3, p. 35). The dehydration and condition of B.G.’s
lower intestine indicated that B.G. “had been fed within two (2) to three (3)
days prior to death.” (DCS Exh. 3, p. 35). The pathologist “opined that
[B.G.’s] condition could be the result of growth retardation due to poor feeding
or due to poor care suggesting that a review of medical records would provide
necessary insight.” (DCS Exh. 3, p. 35). Medical records indicated that while
pregnant with B.G., Mother received inadequate prenatal care. B.G. was born
five weeks early and weighed slightly over three pounds; she was released from
the NICU when she reached six pounds, several weeks after birth. B.G. missed
her six-month well-check appointment and had not seen a physician since May
of 2015—i.e., six months prior to death. The pathologist “stated that being
underweight, malnourished, and/or dehydrated is not necessarily indicative of
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abuse but may increase the risk of secondary medical problems.” (DCS Exh. 3,
p. 36). Furthermore, B.G.’s “condition at the time of death should have alerted
a reasonably prudent caregiver that something was wrong.” (DCS Exh. 3, p.
36). As to the bruising near her vagina and anus, the pathologist saw no
evidence of semen and noted that the bruising “did not necessarily indicate
abusive trauma.” (DCS Exh. 3, p. 35). The pathologist concluded that B.G.
had died “up to [two and one-half] days” before the autopsy. (DCS Exh. 3, p.
36).
[11] On June 16, 2016, Mother and Father were arrested in connection with B.G.’s
death. Mother was charged with neglect of a dependent resulting in death, a
Level 1 felony; neglect of a dependent resulting in serious bodily injury, a Level
3 felony; neglect of a dependent resulting in bodily injury, a Level 5 felony;
neglect of a dependent, a Level 6 felony; false informing, a Class A
misdemeanor; failure to report a dead body, a Class A misdemeanor; two
Counts of perjury, Level 6 felonies; and obstruction of justice, a Level 6 felony.
Father was similarly charged—but with only one Count of perjury instead of
two.
[12] On June 21, 2016, the trial court issued a Disposition Order, finding that the
Child should remain in foster care and granting wardship of the Child to DCS.
That day, the trial court also entered a Parental Participation Decree, essentially
memorializing the participation plan that had been implemented shortly after
the Child’s removal. Specifically, the trial court ordered both Father and
Mother to, in part: remain in contact with DCS; obtain and maintain safe
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housing suitable for children; refrain from consuming or possessing alcohol or
non-prescribed controlled substances; submit to random drug screens; obtain
and maintain a legal and stable source of income adequate to support the
household; enroll in any services referred by DCS within ten days of referral;
“[b]e honest with DCS, [service providers], [and] the [c]ourt”; and obey the
law. (DCS Exh. 3, p. 41). Father and Mother were further ordered to
participate in supervised visits with the Child; participate in home-based case
management and follow all recommendations; participate in individual therapy
and follow recommendations; and participate in a parent education class at the
YWCA or other community program.
[13] A few days after the Disposition Order was issued, Father posted bond and was
released from jail. He resumed regular parenting time with the Child. Mother,
on the other hand, was unable to post the $50,000 surety/$5,000 cash bond and
remained incarcerated in the Tippecanoe County Jail. On August 10, 2016,
DCS moved to modify the Disposition Order, requesting that Mother’s
visitation be suspended during her incarceration and that Father’s visitation be
reduced due to his lack of engagement in services. On August 15, 2016, the
trial court held a hearing and granted DCS’s request for modification.
Specifically, the trial court suspended parenting time during Mother’s
incarceration and ordered no telephone contact between the parents and Child
due to the Child’s age. The trial court stated that the parents could exchange
letters, drawings, or photos with the Child through DCS. The trial court
ordered that Father could have parenting time with the Child at least two times
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per week, fully supervised and contingent upon Father’s compliance with the
terms of his pre-trial release and Father’s consistent participation in therapy.
[14] In August of 2016, the Child began individual therapy to address anxiety and
certain behaviors that she had exhibited in her foster home—specifically,
nightmares, angry tantrums, smearing fecal matter, and seemingly sexual
displays in her play and behavior. The Child’s therapist diagnosed her with
post-traumatic stress disorder and opined that the root of the Child’s trauma
was the removal from her home and the loss of her sibling. In her foster home,
the Child had displayed caretaking behaviors toward her young foster brother,
“indicative of that she was aware of [w]hat was happening and what was going
on [with B.G.], but not sure what to do about it.” (Tr. Vol. II, p. 14). The
therapist further noted that the Child would be at risk for reactive attachment
disorder—where “relationship boundaries . . . get a little skewed when we don’t
have a normal pattern of relationships”—if she were removed from her foster
parents, with whom she had established a bond. (Tr. Vol. II, p. 17). Although
Mother had written letters to the Child and provided them to DCS, the
therapist determined that it would be “counter-productive” and “confusing” for
the Child to receive the letters until she is older. (Tr. Vol. II, pp. 22-23).
[15] On January 6, 2017, Father entered into a plea agreement, pleading guilty to
neglect of a dependent resulting in death, a Level 1 felony; failure to report a
dead body, a Class A misdemeanor; perjury, a Level 6 felony; and obstruction
of justice, a Level 6 felony. The remaining charges were dismissed. On March
9, 2017, Father was sentenced to an aggregate term of thirty-five years, with
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thirty-four years executed in the Indiana Department of Correction and one
year suspended to probation. Father subsequently filed an appeal to challenge
his sentence, which remains pending. Currently, Father’s earliest possible
release date is December 29, 2041.
[16] On March 14, 2017, DCS filed a petition to involuntarily terminate the parental
rights of Father and Mother. On May 31, 2017, the trial court conducted a
hearing on DCS’s termination petition. At the time of the termination hearing,
Mother remained incarcerated and did not plan on posting bond. She had not
seen or spoken with the Child since her arrest in June of 2016. Her criminal
jury trial was scheduled for September 19, 2017. 3 On August 24, 2017, the trial
court issued its Order, terminating Father’s and Mother’s parental rights to the
Child. The trial court concluded, in pertinent part, that there is a reasonable
probability that the conditions resulting in the Child’s removal and continued
placement outside the parents’ home will not be remedied; there is a reasonable
probability that the continuation of the parent-child relationship poses a threat
to the Child’s well-being; it is in the Child’s best interests that the parent-child
3
A review of Mother’s criminal docket in Odyssey establishes that, on September 21, 2017, a jury found her
guilty of neglect of a dependent resulting in death, a Level 1 felony; neglect of a dependent resulting in
serious bodily injury, a Level 3 felony; neglect of a dependent resulting in bodily injury, a Level 5 felony;
neglect of a dependent, a Level 6 felony; false informing, a Class A misdemeanor; failure to report a dead
body, a Class A misdemeanor; and obstruction of justice, a Level 6 felony. In addition, Mother pled guilty to
both Counts of perjury, Level 6 felonies. On November 8, 2017, Mother was sentenced to an aggregate term
of forty-four years, with forty years executed in the Indiana Department of Correction and four years
suspended to probation. On December 6, 2017, Mother filed an appeal to challenge her conviction, which
remains pending.
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relationship be terminated; and DCS has established a satisfactory plan for the
Child’s care and treatment going forward.
[17] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[18] Mother challenges the termination of her parental rights. 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). In fact, “[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. Granville, 530
U.S. 57, 65 (2000)). Nevertheless, 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. When “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) (internal quotation marks omitted).
[19] Indiana courts have a firmly established “deferential standard of review in cases
concerning the termination of parental rights” due to the trial court’s “unique
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position to assess the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App.
2010), trans. dismissed. Thus, on appeal, we nether reweigh evidence nor assess
the credibility of witnesses. Bester, 839 N.E.2d at 147. We will “consider only
the evidence and reasonable inferences that are most favorable to the
judgment.” Id. Furthermore, because the trial court entered special findings of
fact and conclusions thereon, we rely on the standard set forth in Indiana Trial
Rule 52(A): we “shall not set aside the findings or judgment unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” In applying this two-tiered standard, we
must first determine whether the evidence supports the trial court’s findings;
second, we consider whether the findings support the judgment. Id. We will
find a judgment to be clearly erroneous “if the findings do not support the trial
court’s conclusions or the conclusions do not support the judgment.” Id.
II. Termination of Parental Rights Statute
[20] 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)
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 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:
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(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.[21] In this case, Mother concedes that the Child has been removed from the home
for the requisite period of time pursuant to Indiana Code section 31-35-2-
4(b)(2)(A). However, she argues that DCS failed to establish the remaining
three elements: (1) that there is a reasonable probability either that the
conditions resulting in the Child’s removal or continued placement out of the
home will not be remedied or that the continuation of the parent-child
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relationship poses a threat to the Child’s well-being 4; (2) that termination is in
the Child’s best interests; and (3) that there is a satisfactory plan for the Child’s
care and treatment. We will address each element in turn.
A. Threat to the Child’s Well-Being
[22] Indiana Code section 31-35-2-4(b)(2)(B) requires DCS to prove only one of
three listed elements. See In re A.K., 924 N.E.2d at 220-21. The two relevant
inquiries in this case are whether there is a reasonable probability that the
conditions resulting in the Child’s removal and continued placement outside of
the home will not be remedied or whether there is a reasonable probability that
the continuation of the parent-child relationship poses a threat to the Child’s
well-being. Here, we elect to dispose of this statutory element by reliance on
the latter prong.
[23] Mother claims that the trial court erred in determining that there is a reasonable
probability that the continuation of the parent-child relationship poses a threat
to the Child’s well-being. In making such a determination, “a trial court should
consider a parent’s habitual pattern of conduct to determine whether there is a
substantial probability of future neglect or deprivation.” In re A.P., 981 N.E.2d
75, 81 (Ind. Ct. App. 2012). The trial court must also judge the “parent’s fitness
4
DCS did not allege that the Child had twice previously been adjudicated a CHINS to satisfy Indiana Code
section 31-35-2-4(b)(2)(B).
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to care for her child as of the time of the termination proceedings, taking into
consideration evidence of changed conditions.” Id.[24] Mother does not specifically challenge any of the trial court’s findings, instead
generally contending that the evidence as a whole is insufficient to support the
trial court’s conclusion. Mother argues that “[t]o the extent she was able and
her participation did not result in her self-incrimination, Mother was compliant
with her services, attended parenting classes, and passed her drug screens. She
also attended her appointments and all of her [c]ourt dates.” (Appellant’s Br. p.
33). Mother also relies on the positive reports from the visitation supervisor,
who observed no safety issues and who noted a loving bond between Mother
and the Child. Mother contends that she is not a substance abuser and that she
“demonstrated a desire to provide a healthy and drug free environment.”
(Appellant’s Br. p. 33). Interestingly, Mother also claims that she could not be
a threat to the Child’s well-being by virtue of the fact that “she was incarcerated
at the time of the termination hearing, which eliminated any concern regarding
Mother’s neglect toward the Child.” (Appellant’s Br. p. 33).
[25] Clear and convincing evidence need not show that “‘the continued custody of
the parents is wholly inadequate for the child’s very survival.’ Rather, it is
sufficient to show by clear and convincing evidence that ‘the child’s emotional
and physical development are threatened’ by the respondent parent’s custody.”
Bester, 839 N.E.2d at 148 (internal citation omitted) (quoting Egly v. Blackford
Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992)). In assessing a
“child’s physical, emotional and mental well-being, the trial court may consider
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a myriad of factors.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1235
(Ind. 2013). In this case, the trial court determined that continuation of the
parent-child relationship poses a threat to the Child’s well-being because
[t]he [C]hild needs stability in life. The [C]hild needs parents
with whom the [C]hild can form a permanent and lasting bond to
provide for the [C]hild’s emotional and psychological as well as
physical well-being. The [C]hild’s well-being would be
threatened by keeping the [C]hild in [a] parent-child relationship
with either parent whose own choices and actions have resulted
in substantiated neglect and criminal charges related to neglect
causing the death of the [C]hild’s younger sibling.
(Appellant’s App. Vol. II, p. 29).
[26] We cannot find error in the trial court’s decision. We do acknowledge that
Mother’s incarceration in a county jail limited her opportunity to engage in
reunification services and that she had, prior to her arrest, participated in
visitation with the Child and was working on other aspects of her case plan.
Nevertheless, it cannot be ignored that, notwithstanding that Mother had not
yet been convicted by the time of the termination hearing, she was awaiting
trial on very serious charges connected to B.G.’s death. Father had already
pled guilty to the same charges, establishing that there was a serious level of
neglect present in their shared home.
[27] During the termination hearing, the evidence was limited as Father and Mother
invoked their rights against self-incrimination. Nevertheless, the pathologist’s
autopsy findings provided insight into the type of treatment that both B.G. and
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the Child were exposed to in the parents’ home. At the time of death, B.G. was
malnourished and dehydrated, which made her more susceptible to other
medical conditions. The autopsy report alleged the possibility of “poor feeding
or . . . poor care” as the cause of B.G.’s “growth retardation.” (DCS Exh. 3, p.
35). However, even if her physical condition was “not necessarily indicative of
abuse,” both Father and Mother utterly failed to even attain the minimal
benchmark for parental fitness by acting as “reasonably prudent caregiver[s]”
who should have obtained medical help for their child’s dire condition. (DCS
Exh. 3, p. 36). Just as concerning is the parents’ conduct in the wake of
discovering that B.G. had died. Father and Mother never contacted emergency
services upon discovering that B.G. was unresponsive; instead, they personally
determined that she was dead and then waited more than a day to take further
action. At one point, they even left B.G.’s lifeless body in their vehicle while
they visited with Father’s sister. Although the Child, unlike B.G., survived
infancy, she was noticeably underweight at the time of removal.
[28] We are unpersuaded by Mother’s insistence that the Child was not at risk of
neglect based on the fact that there were no safety concerns observed during the
fully supervised visits that occurred before her arrest, and that she consistently
provided food and diapers for the visits. Throughout the case and even during
the termination hearing, both parents continued to deny that they had neglected
the needs of either of their children. In fact, the social worker who completed
Mother’s initial intake assessment at Wabash Valley Alliance indicated that
Mother “appeared to portray herself in a positive light and as the victim”—
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particularly blaming “DCS and law enforcement perceptions.” (DCS Exh. 5, p.
6). Mother “significantly focus[ed] more on her emotions as a parent and
victimization than the trauma her children have endured. [Mother] also
appeared to have a sense of entitlement as evidenced by her extensive history of
unemployment and refusal to obtain employment and reliance on government
resources despite her ability to work.” (DCS Exh. 5, p. 6). Furthermore,
Mother “exhibits Narcissistic Personality traits as evidenced by her verbalizing
a grandiose sense of self-importance, preoccupation with perceived optimal
parenting, sought excessive admiration and demonstrates a sense of
entitlement.” (DCS Exh. 5, p. 7). Throughout the case, both parents provided
inconsistent information to service providers and were explicitly dishonest—
such as Mother’s denial of ever having used marijuana despite its presence in
the meconium of both the Child and B.G.
[29] In addition to the physical threat posed, there is ample evidence that the Child’s
mental and emotional well-being would be threatened by the continuation of
the parent-child relationship. DCS, the Child’s court-appointed special
advocate (CASA), and the Child’s therapist all testified in favor of terminating
Mother’s parental rights in order to allow the Child to achieve permanency and
stability. Our courts have previously held that “termination should not result
‘solely because there is a better home available for the children.” K.E., 39
N.E.3d at 649. Here, however, the Child’s therapist confirmed that the Child’s
uncertainty in her placement was causing trauma. In addition to the Child’s
removal from her parents, the therapist further identified B.G.’s death as a
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source of trauma. Certain behaviors displayed by the Child—such as her
caretaking role when there was a younger foster brother in the home—
demonstrated that “she was aware of [w]hat was happening and what was
going on [with B.G.], but not sure what to do about it.” (Tr. Vol. II, p. 14).
The therapist stated that the Child needed to process these traumatic events and
“get[] a sense of control over a situation she had no control over.” (Tr. Vol. II,
pp. 14-15). The therapist diagnosed the Child with post-traumatic stress
disorder and stated her concern that the Child would be at risk for reactive
attachment disorder if she were to be removed from her foster home. The Child
had established a bond with her foster parents and felt safe; by disrupting that,
the therapist opined that the Child would experience trouble with relationship
boundaries in the future. Accordingly, we find that DCS presented sufficient
evidence to support the trial court’s determination that there is a reasonable
probability that the continuation of the parent-child relationship poses a threat
to the Child’s well-being.
B. Best Interests of the Child
[30] Mother also claims that the trial court erred in determining that termination of
her parental rights was in the Child’s best interests. The parent-child
relationship is undoubtedly “one of the most valued relationships in our
culture.” Bester, 839 N.E.2d at 147 (quoting Neal v. DeKalb Cnty. Div of Family &
Children, 796 N.E.2d 280, 285 (Ind. 2003)). Thus, the purpose of terminating a
parent-child relationship is to protect the child, not to punish the parent. In re
C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied. When
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considering whether termination would be in a child’s best interests, the trial
court must “look beyond the factors identified by [DCS] and . . . look to the
totality of the evidence.” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1158 (Ind. Ct. App. 2013), trans. denied. “The trial court need not wait until the
child is irreversibly harmed such that the child’s physical, mental and social
development is permanently impaired before terminating the parent-child
relationship.” K.T.K., 989 N.E.2d at 1235. It is well established that
“[p]ermanency is a central consideration in determining the [child’s] best
interests.” Id. (alterations in original) (quoting In re G.Y., 904 N.E.2d 1257,
1265 (Ind. 2009)).
[31] As with the prior issue, Mother again relies on her participation in some
services prior to her arrest, her positive visits with the Child, and her
“willingness” “to turn her life around for the sake of herself and the Child” as
evidence that termination was not warranted. (Appellant’s Br. p. 27). On the
other hand, DCS, the Child’s CASA, and the Child’s therapist all advocated for
termination as being in the Child’s best interests. See McBride v. Monroe Cnty.
Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003) (discussing
that the testimony of the DCS caseworker and the guardian ad litem “alone is
sufficient to support the court’s conclusion that termination is in the children’s
best interests”). Here, in addition to the therapist’s testimony regarding the
Child’s need for stability, the Child’s CASA reported that the Child was
thriving in her foster care placement, and DCS added that “it would be a
traumatic experience for [the Child] . . . to be removed from who she believes
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and who she knows to be her parents at this stage in her young life.” (Tr. Vol.
II, p. 65). It was incumbent upon the trial court to weigh the evidence and
make credibility determinations, and it was well within the trial court’s
discretion to rely on the opinions of the professionals who have been working
with the Child throughout the case.
[32] Moreover, it is well established that “[a] parent’s historical inability to provide a
suitable environment along with the parent’s current inability to do the same
supports a finding that termination of parental rights is in the best interests of
the children.” In re A.P., 981 N.E.2d at 82 (emphasis added). Although Mother
was still awaiting trial at the time of the termination hearing, she acknowledges
in her appellate brief that she has since been convicted. Absent a successful
criminal appeal, Mother is not expected to be released from prison until well
after the Child reaches the age of majority and is currently in no position to care
for the Child. Yet, Mother has pursued this appeal, willing to upset the Child’s
stability on the gamble that her criminal appeal will succeed. We respect
Mother’s exercise of her right to appeal, but the social worker’s assessment of
Mother as someone who focuses on her own emotions and perceived
victimization rather than “the trauma her children have endured” resonates.
(DCS Exh. 5, p. 6). We conclude that the totality of the evidence supports the
trial court’s determination that termination of Mother’s parental rights is in the
Child’s best interests.
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C. Satisfactory Plan for Child’s Care
[33] Although she lumps it in with her other arguments and does not raise it as an
independent issue, Mother has challenged the Child’s foster care placement,
which essentially amounts to a claim that DCS failed to establish a satisfactory
plan for the care and treatment of the Child pursuant to Indiana Code section
31-35-2-4(b)(2)(D). In particular, Mother contends that she had requested that
her mother “be considered for purposes of permanent placement, such as
guardianship or adoption,” but “DCS failed to provide any evidence that the
Child’s maternal grandmother had been considered accordingly.” (Appellant’s
Br. p. 34). As there was “no evidence that the Child’s maternal grandmother’s
home was unsuitable or that maternal grandmother had anything to do with
B.G.’s death,” Mother insists that the maternal grandmother “should have been
considered for guardianship or adoption, [and] the trial court’s termination
should be vacated and set aside.” (Appellant’s Br. p. 34). At the outset, we
note that Mother has waived her argument by failing to cite any authority in
support of her position. See Ind. Appellate Rule 46(A)(8)(a). We elect to
address this issue notwithstanding her waiver.
[34] “For a plan to be ‘satisfactory,’ for purposes of the statute, it ‘need not be
detailed, so long as it offers a general sense of the direction in which the child
will be going after the parent-child relationship is terminated.’” Lang v. Starke
Cnty. Office of Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007),
trans. denied. In this case, the trial court found, and the evidence supports, that
DCS’s plan for the Child is to be adopted by her current foster parents. This is
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a satisfactory plan for purposes of the termination statute. See id. As to
Mother’s belief that the maternal grandmother should have been given priority
placement status, it appears that the maternal grandmother submitted forms for
a DCS background check on October 24, 2016, and DCS observed no safety
concerns when a home visit was conducted on December 9, 2016 (as the
maternal grandmother did not want to schedule the home visit during DCS’s
available time in November). No additional evidence was provided as to any
further consideration of the maternal grandmother from that point; nor is there
any indication in the record that Mother or the maternal grandmother pursued
this placement option. Nonetheless, by the time of the maternal grandmother’s
home inspection, the Child had been placed with the foster parents for more
than a year and was involved in therapy to address concerns stemming from a
lack of stability. Understandably, DCS would be reluctant to withdraw the
Child from a foster home where she felt safe and had established a bond. We
find no error in the trial court’s determination that DCS established a
satisfactory plan for the Child’s care.
CONCLUSION
[35] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the trial court’s termination of Mother’s parental rights to
the Child.
[36] Affirmed.
[37] Baker, J. and Brown, J. concur
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