In the Matter of the Termination of T.P. & D.P. (Minor children) E.N. (Mother) v. The Ind. Dept. of Child Services (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 19 2015, 9:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill M. Acklin Gregory F. Zoeller
McGrath, LLC Attorney General of Indiana
Carmel, Indiana
Robert J. Henke
David E. Corey
Deputy Attorney Generals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 19, 2015
of T.P. & D.P. (Minor children) Court of Appeals Case No.
49A02-1501-JT-35
E.N. (Mother),
Appeal from the Marion Superior
Appellant-Respondent, Court
Trial Court Cause Nos.
v. 49D09-1406-JT-278
49D09-1406-JT-279
The Indiana Department of Child The Honorable Marilyn A. Moores,
Services, Judge
Appellee-Petitioner. The Honorable Larry Bradley,
Magistrate
Pyle, Judge.
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Statement of Case
[1] E.N. (“Mother”), the mother of T.P. and D.P. (collectively the “Children”),
appeals the involuntary termination of the parent-child relationship between her
and Children. Throughout the Child in Need of Services (“CHINS”)
proceeding, Mother did not comply with the parental participation plan because
she did not consistently take her medication or consistently participate in
treatment or therapy. At the time of the termination hearing, Mother still
refused to admit to having a psychological disorder or admit to its connection
with Children’s trauma. The trial court terminated Mother’s parental rights,
finding both that the conditions and reasons for continued placement outside of
the home that led to Children’s removal from Mother’s care would not be
remedied and that the continuation of the parent-child relationship posed a
threat to the well-being of Children. On appeal Mother argues that the
Department of Child Services (“DCS”) did not present clear and convincing
evidence to support the termination of Mother’s parental rights. We disagree
and affirm the trial court’s decision.
We affirm.
Issue
Whether DCS presented clear and convincing evidence to support
the involuntary termination of Mother’s parental rights to
Children.
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Facts
[2] On June 15, 2013, DCS received a report that Mother had been missing for
twenty-four hours and that Children were at her home without supervision.1 At
that time, T.P. was eight years old and D.P. was seven years old. DCS
discovered that police had incarcerated Mother on charges of trespass and
battery, and DCS filed CHINS Petitions on Children on June 18. DCS then
removed Children from Mother’s care and placed them in relative care with
their paternal aunt. During the initial hearing on July 10, 2013, the court
ordered Children be placed with Mother on a trial home visit. However, on
July 24, 2013, DCS removed Children because Mother was admitted to the
psychiatric unit. She remained hospitalized until July 29, 2013, and, upon her
release from the unit, Mother did not follow through with her treatment,
medication plan, or therapy because she did not believe she had a mental health
issue.
[3] At the fact-finding hearing on August 19, 2013, the court adjudicated Children
as CHINS and also ordered Mother to engage in home-based counseling with
family participation, submit to random drug screens, and complete a mental
health evaluation. For approximately eleven months, Mother was under the
court’s dispositional decree.
1
M.G., the oldest son, then seventeen years old, reported Mother missing. However, M.G. is not a part of
this proceeding.
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[4] In August 2013, Children started therapy with Jessica Ramey (“Ramey”).
Children had been discussing with Ramey the trauma that they experienced
while living with Mother. Ramey summarized Children’s traumatic conditions
that were related to Mother’s mental health issues, as follows:
they didn’t have enough food, that mom would get sick . . . and
she would talk to herself and she would leave for days at a time.
They were never sure when she was going to come back home. It
was very scary for them. They were afraid that she was going to
hurt somebody when she was having these mental health events.
And this had occurred for a period of two years according to [T.P].
[5] (Tr. 97). Ramey diagnosed Children with post-traumatic stress disorder due to
the trauma at home with Mother. Ramey noted that Children would have
“bedwetting, [and] nightmares” after they visited Mother. (Tr. 95). Children
would also have “intrusive thoughts” about traumatic things they had
experienced. (Tr. 97). During therapy, T.P. stated that “there were other [bad]
things that happened” while in Mother’s care that he was not ready to discuss. 2
(App. 62; GAL Ex. XIII).
[6] Dr. Jeffrey Vanderwater-Piercy (“Dr. Vanderwater-Piercy”), a clinical
psychologist, performed an evaluation on Mother in January and February of
2014, and diagnosed her with a “Psychotic disorder . . . not otherwise
2
At the termination hearing, Ramey also testified that there had been some sexual abuse concerns regarding
Children, and the Guardian Ad Litem (“GAL”) testified that there had been allegations that M.G. had
“sexually perpetrated” them. (Tr. 153).
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specified.”3 (Tr. 165). Dr. Vanderwater-Piercy explained that Mother’s denial
of her mental illness affected her risk of relapse and recommended that she
participate in home-based therapy.
[7] In March 2014, Mother had two scheduled visits with Children at Mother’s
home that were supervised by Ramey. Mother participated in both visits but
seemed detached from Children at the second visit. At a scheduled visit on
April 2, 2014, Mother stayed upstairs and did not come down to visit with
Children. The oldest son, M.G., who was still living with her, advised Ramey
that “it would not be good for [Children] for her to participate in the visit that
day.” (Tr. 106).
[8] A few days later, on April 8, 2014, Mother’s therapist and her home-based case
manager went to see Mother at her home, and they reported that “[Mother] was
clearly . . . having some kind of mental health event[.]” (Tr. 108). Soon
thereafter, Mother was hospitalized for a “mental breakdown[.]” (Tr. 49).
Thereafter, the court suspended Mother’s visitation. In June 2014, DCS filed a
petition for termination of parental rights.
[9] On July 25, 2014, Mother went to the aunt’s house and threatened to harm her.
That same day, Mother was hospitalized again due to her mental health issues.
Additionally, the court issued a no-contact order on August 20, 2014 at the
3
At the termination hearing, Dr. Vanderwater-Piercy testified that a psychotic disorder is “a category of . . .
different disorders which are marked by either hallucinations, delusional beliefs or a . . . marked impairment
in thinking such as [an] incoherent thought or speech or grossly disorganized behavior.” (Tr. 165).
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CHINS hearing, ordering Mother not to have contact with Children or the
aunt. On July 21, 2014, during a DCS family meeting, Mother appeared
“extremely agitated” and “seemed very out of touch with reality.” (Tr. 118).
Ramey “observed that [Mother] was talking to herself in a way that was
indicative that she was trying to get a response from someone that wasn’t” there
and “was not responding to the questions that were being asked of her and was
instead responding to some other stimulus . . . that could not [be] see[n].” (Tr.
119).
[10] Prior to the termination hearing, GAL petitioned the court, pursuant to
INDIANA CODE § 31-35-4, to make some of Children’s out of court statements
admissible at the termination hearing and to determine the competency of
Children as witnesses. The statements at issue were some of Children’s
statements made to Ramey during therapy and written down in her therapy
notes. In part, in these statements, Children reported that they felt unsafe
around Mother because of her mental illness and that they did feel safe with the
aunt. After holding a hearing, the trial court granted GAL’s request and found
that “there exists sufficient indications of reliability due to time, content, and
circumstances of the children’s statements.” (App. 74). The trial court further
found that the statements were admissible only if Children testified pursuant to
INDIANA CODE § 31-35-4-3 because “they ha[d] been found to be available as
witnesses by a psychiatrist.” Id. Additionally, DCS petitioned, pursuant
INDIANA CODE § 31-35-5-2, that Children testify through a closed circuit
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testimony at the termination hearing. (App. 78). The trial court granted the
request. (App. 81).
[11] At the termination hearing on December 10, 2014, DCS presented evidence
regarding Mother’s refusal to acknowledge her mental illness and its connection
to Children’s reported trauma. Ramey testified that Children had made
“remarkable progress” in therapy since the court suspended Mother’s visitation.
(Tr. 114). Ramey also stated that Children did not want to return to Mother’s
home because they “fe[lt] safe and secure in their relative placement.” (Tr.
113). Children testified that they both enjoyed living with their aunt and did
not want to go back with Mother.
[12] DCS, GAL, and Ramey all recommended that the court terminate Mother’s
parental rights because it was in Children’s best interest. Specifically, Ramey
testified that:
Even if [Mother] is not actively psychotic today[,] there is
evidence to support that she has been in the past. Psychosis is a
mental health diagnosis that manifests in re-occurrences so I
would be concerned about having a reoccurrence of psychosis in
the future[,] which would be traumatic for the boys.
(Tr. 116).
[13] Mother did not challenge the factual evidence presented at trial by DCS.
However, Mother’s home-based therapist testified on behalf of Mother’s
progress and stated that in the four months preceding the termination hearing,
Mother had shown “steady progress” by working a full-time job and
maintaining a stable mood by consistently taking her medication. (Tr. 194).
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She also testified that Mother had maintained stable housing and had her
driver’s license and a car. The home-based therapist stated that Mother’s
consistency showed that she was capable of being compliant. However, the
trial court was not convinced.
[14] On December 23, 2014, the trial court found, in relevant part, that (1) Mother
would not remedy the conditions of removal and reasons for continued
placement outside the home; and (2) that the continuation of the parent-child
relationship posed a threat to Children’s wellbeing. In regard to the reasons for
continued placement outside the home, the trial court concluded:
There is a reasonable probability that the conditions that resulted
in the children’s removal and continued placement outside the
home will not be remedied by their mother. The children were
placed in the home at one time, visits were placed in the home,
and the children were close to being placed in the home a second
time. However, [Mother’s] mental illness became a barrier and
she continues to deny it is an issue . . . . Termination would allow
[Children] to be adopted into a stable and permanent home where
their needs will be safely met and they can continue to progress in
therapy.
[15] (App. 20). The trial court determined that the permanent termination of
Mother’s parent-child relationship was in the best interest of Children and
terminated Mother’s parental rights. Mother now appeals.
Decision
[16] Mother argues that DCS did not present clear and convincing evidence that she
would not remedy the conditions resulting in the removal or continued
placement of Children outside of her care. Mother also contends that the
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continuation of the parent-child relationship would not pose a threat to
Children’s wellbeing.
[17] “[W]hen seeking to terminate parental rights, DCS must prove its case by ‘clear
and convincing evidence[.]’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting
IND. CODE § 31-37-14-2). This Court will “consider only the evidence and
reasonable inferences therefrom that support the [court’s] judgment”
terminating parental rights. Prince v. Dep’t of Child Services, 861 N.E.2d 1223,
1229 (Ind. Ct. App. 2007). We will not “reweigh the evidence or reassess the
credibility of the witnesses” during our review. Id. Although the “Fourteenth
Amendment to the United States Constitution gives parents the right to
establish a home and raise their children[,]” it “is balanced against the State’s
limited authority to interfere for the protection of the children.” Id.
[18] The State may terminate a parent’s rights if they demonstrate by clear and
convincing evidence, in relevant part, that:
(B) . . . 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.
[19] I.C. § 31-35-2-4. Mother argues that DCS failed to present clear and convincing
evidence of either statutory element. Our supreme court has stated that DCS
need prove only one of the two elements by clear and convincing evidence in
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termination proceedings. Bester v. Lake Cnty. Office of Family and Children, 839
N.E.2d 143, 153 n.5 (Ind. 2005) (holding that if the court finds that the parent
would not remedy the conditions for removal, there is no need to prove the
other element). Therefore, we will address only Mother’s argument regarding
the conditions remedied and reasons for placement outside the home.
[20] In regard to this argument, Mother relies on the testimony of her home-based
therapist and contends that because she has shown significant progress leading
up to the termination hearing by participating in treatment, and maintaining
employment and housing, DCS did not present clear and convincing evidence
that the past conditions and reasons for continued placement outside the home
would not be remedied. (Tr. 211).
[21] In determining whether the reasons for the removal of Children and continued
placement outside the home will be remedied, “[w]e engage in a two-step
analysis.” In re K.T.K, 989 N.E.2d 1225, 1231 (Ind. 2013). We first look at the
conditions “that led to their placement and retention in foster care[,]” and then
“we ‘determine whether there is a reasonable probability that those conditions
will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind.
2010) (additional citation omitted)). “[T]he trial court must consider a parent’s
habitual pattern of conduct to determine whether there is a substantial
probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152. The
trial court also has the discretion “to weigh a parent’s prior history more heavily
than efforts made only shortly before termination.” In re E.M, 4 N.E.3d at 643.
“Requiring trial courts to give due regard to changed conditions does not
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preclude them from finding that parents’ past behavior is the best predictor of
their future behavior.” Id. Therefore, “DCS need not rule out all possibilities
of change; rather, DCS need establish only that there is a reasonable probability
that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
[22] We disagree with Mother’s assertion that DCS has shown no clear and
convincing evidence that Mother would not remedy the conditions or reasons
for continued placement. Although Mother’s home-based therapist testified
that she had shown “steady progress,” evidence showed that DCS removed
Children from Mother’s care after DCS received a report that Mother had been
missing for twenty-four hours and Children were unsupervised. (Tr. 194).
Similarly, during the CHINS proceedings, the trial court suspended Mother’s
visits and issued her a no-contact order because of her hospitalizations and
threatening statements toward the aunt. Evidence also revealed that Mother
refused to follow through with her medication, therapy, and treatment plan
after her initial release from the psychiatric unit, alleging that she did not need
the treatment because she did not have a psychotic disorder. We acknowledge
Mother’s argument that the initial reason for removal of Children from the
home (i.e., Mother’s arrest and leaving Children unsupervised) was remedied.
However, here, there were subsequent reasons such as her denial of her mental
health issues and its effect on Children that required continuous placement.
[23] While Mother may have made some progress just prior to the termination
hearing, the evidence revealed a history for Mother that demonstrated an
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inability or unwillingness to deal with her mental health issues and a failure to
acknowledge its negative effect on Children. Children had been diagnosed with
post-traumatic stress disorder due to traumatic experiences while in Mother’s
care. The evidence suggests that if Mother relapsed while Children were in her
care, her relapse could cause long term issues for Children. Therefore,
Mother’s argument amounts to nothing more than a request for this Court to
reweigh the evidence presented, which we will not do. Prince, 861 N.E.2d at
1229. We conclude that there was clear and convincing evidence to support the
trial court’s decision to terminate Mother’s parental rights to Children.
Affirmed.
Crone, J., and Brown, J., concur.
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