In the Matter of the Termination of the Parent-Child Relationship of M.K., Minor Child, and K.K., Mother, K.K. v. Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 17 2016, 8:16 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
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
Marianne Woolbert Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 17, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of M.K., Minor Child, and K.K., 48A04-1602-JT-453
Mother, Appeal from the
K.K., Madison Circuit Court
The Honorable
Appellant-Respondent,
G. George Pancol, Judge
v. Trial Court Cause No.
48C02-1505-JT-50
Indiana Department of
Child Services,
Appellee-Petitioner.
Kirsch, Judge.
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[1] K.K. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to M.K. (“Child”), contending that the evidence was insufficient to
support the termination of her parental rights.1
[2] We affirm.2
Facts and Procedural History3
[3] Mother and R.M. are the biological parents of Child, who was born on August
2, 2013.4 On September 23, 2013, Indiana Department of Child Services
(“DCS”) received a report that Child was at Community Hospital Anderson
(“Community Hospital”). DCS learned that Child was intubated and, due to
seizure activity, was being transferred to Riley Hospital for Children (“Riley
Hospital”) in Indianapolis. Appellee’s Br. at 8. DCS went to Riley Hospital but
no additional medical information was available at that time.
[4] Two days later, DCS learned that Child, who was less than two months old at
the time, needed surgery because he had “two large spots of subdural blood on
1
Mother also contends that she was not given a sufficient opportunity to participate in services after her
release from the Indiana Department of Correction. Mother has made no separate argument on this issue in
her brief. Accordingly, we discuss that issue only as it pertains to Mother’s claim that the evidence was
insufficient to support the termination of her parental rights.
2
We commend the juvenile court on its thorough findings and conclusions thereon, which greatly facilitated
our appellate review.
3
The court also terminated the parental rights of Child’s father, R.M.; however, R.M. does not participate in
this appeal. Therefore, we set forth only those facts pertinent to Mother’s appeal.
4
During the termination hearing, a DCS case manager testified that Child was born August 2, 2013. TPR
Tr. at 10. The juvenile court’s termination order appears to have a scrivener’s error in that it shows the
month of Child’s birth as September. Appellant’s App. at 35.
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[his] brain.” Appellant’s App. at 50. A doctor from Riley Hospital Child
Protection Program indicated that Child’s injuries were “very straight forward,
abusive head trauma.” Id. Child also had “two possible healing fractures, one
in the right femur and one in the left foot.” Id.
[5] When interviewed by law enforcement on September 25, 2013, Mother
admitted that she and Child had been living with her boyfriend (“Boyfriend”)
for about three weeks and that the previous weekend, September 20 through 22,
she had used large amounts of intravenous drugs. Id. Mother later disclosed
that, on Saturday, September 21, she had observed Boyfriend “shaking and
screaming at the baby to be quiet.” Id. Mother explained that Child had
seizures on the night of September 22, 2013, and “had been having symptoms
for several hours prior to Mother seeking treatment.” Id. When Mother took
Child to Community Hospital, more than twenty-four hours had passed since
Child had been shaken. Mother and Boyfriend were arrested and charged in
connection with this incident.
[6] Mother subsequently pleaded guilty to Count I, Class D felony neglect of a
dependent; Count II, Class D felony maintaining a common nuisance; and
Count III, Class B felony neglect of a dependent resulting in serious bodily
injury.5 Count I was merged into Count III, and Mother was sentenced to eight
5
We note that, effective July 1, 2014, our criminal code was amended to, in part, categorize crimes as Levels
instead of Classes of felonies. Because Mother committed her crimes prior to July 1, 2014, she was charged
according to the statutes in effect at the time she committed her crimes.
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years on Count III and three years on Count II. These sentences were ordered
to run concurrently, but consecutive to prior convictions for possession of a
syringe and neglect of a dependent, that being one of Mother’s other two
children. Of the eight years, eighteen months were ordered executed in the
Indiana Department of Correction (“the DOC”), twelve months served on in-
home detention, and six months suspended to probation. DCS Ex. 3D at 1.
When Mother did not timely register for in-home detention, that privilege was
revoked, and the trial court ordered that time to be served on work release.
CHINS Proceedings
[7] DCS filed a petition alleging Child was a child in need of services (“CHINS”),
and on October 4, 2013, the CHINS court detained and removed Child from
Mother’s care. Two weeks later, during an initial hearing on the CHINS
petition, Mother admitted to the CHINS allegations, the following of which are
pertinent to this appeal:
2. On or about September 22, 2013, Mother brought Child to
Community Hospital emergency room with seizure-like
symptoms.
3. Child was transported to Riley Children’s Hospital and had to
be intubated.
4. An MRI determined that Child had two large brain bleeds that
were the result of abusive head trauma.
5. Mother admits to observing [Boyfriend] shaking Child on
September 21, 2013.
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6. Mother failed to seek treatment for Child until approximately
10:45 p.m. on September 22, 2013.
7. Mother admitted to a large amount of intravenous drug use
during the entire weekend of injury to Child.
8. Both Mother and [Boyfriend] have been arrested in regards to
this incident involving Child.
DCS Ex. 1D at 1. Child was determined to be a CHINS.
[8] Following a November 27, 2013 dispositional hearing, the CHINS court
determined that Child should be a ward of DCS and remain in his foster care
placement. The CHINS court found that Child required ongoing medical care
and evaluation, including neurological care and treatment due to Child’s
injuries. DCS Ex. 1F at 1-2. Mother was ordered to comply with a Parental
Participation Order, which ordered her to: (1) participate in parenting,
substance abuse, and mental health assessments and follow all
recommendations; (2) participate in home-based services and follow all
recommendations; (3) execute all necessary releases of information for DCS to
monitor her progress in services; (4) obtain and maintain adequate housing and
a legal source of support or income sufficient for the safe and appropriate
upbringing of Child; (5) submit to random drug screens; (6) participate in
supervised visitation with Child; (7) notify DCS of any changes in living
situation, including household composition, address, and telephone number,
within 48 hours of any such change; (8) seek the establishment of paternity for
Child; and (9) pay child support in the amount of $43.00 per week. Id. at 2-3.
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The CHINS court determined that: (1) continuation of Child’s residence in the
home and care of Mother would be contrary to Child’s welfare; and (2) it was
in Child’s best interests to be removed from the home environment. Id. at 3.
[9] In March 2014, DCS filed a Progress Report. Following a hearing, the CHINS
court entered an order finding, in part, that during the November 27, 2013 to
March 13, 2014 review period, Mother had complied with Child’s case plan,
had enhanced her ability to fulfill her parental obligations, had cooperated with
DCS, and had visited with Child. DCS Ex.1G at 1. Mother had also
participated in case planning, periodic case reviews, dispositional reviews, and
placement and visitation of Child. Id. at 2. Mother had participated in home-
based services, taken requested drug screens, completed a substance abuse
assessment, and participated in many of the recommended treatment classes.
Id. Prior to the March 2014 hearing, Mother had been placed on in-home
detention for two offenses committed on March 20, 2013—neglect of a
dependent (involving one of her other two children) and unlawful possession of
a syringe. Those charges were pending when DCS first became involved.
[10] The CHINS court conducted a permanency hearing on September 3, 2014. As
part of its order, the CHINS court found that Child had spent the previous five
months in the same foster home and was progressing well. DCS Ex. 1H at 1.
Mother had been discharged from home-based services due to “no-show and
missed appointments,” thus requiring DCS to issue a second referral. Id. at 2.
Mother had completed a treatment recovery group, a mental health evaluation,
and a parenting assessment and was participating in individual therapy. Id. At
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that point in time, the CHINS court found that, of the available permanency
plans, Child’s reunification with one of his parents was most appropriate. Id.
[11] About six months later, the CHINS court held a review hearing and found that
Mother had not complied with the case plan, was incarcerated and had not
visited Child, had not enhanced her ability to fulfill her parental obligations,
and had not cooperated with DCS. DCS Ex. 1I at 1. On March 18, the CHINS
court approved the concurrent pursuit of a plan for Child’s adoption and one
for his reunification. DCS Ex. 1J.
[12] On May 26, 2015, DCS filed its “Motion to Modify CHINS Dispositional
Decree,” requesting the CHINS court to suspend services, including visitation,
on the basis that such would be unnecessary because DCS had initiated
termination proceedings. Appellant’s App. at 101. Following a hearing, that
motion was granted in an order dated July 2, 2015. DCS Ex. 1K. Mother was
released from the DOC that same day. Tr. at 70. At the September 2, 2015
permanency hearing, the court approved termination of Mother’s parental
rights and adoption of Child as the permanency plan, finding: (1) Child had
been in the same licensed foster care for the previous seventeen months and was
progressing well; (2) Mother had been released from DOC in July 2015 after ten
months of incarceration; (3) Mother was not in compliance with Child’s case
plan, nor had she enhanced her ability to fulfill her parental responsibilities; and
(4) of the available permanency plans, adoption of Child is most appropriate
and consistent with Child’s best interests. DCS Ex. 1L at 2.
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Termination Proceedings
[13] Meanwhile, DCS filed its petition to terminate Mother’s parental rights on May
26, 2015, and the juvenile court held an evidentiary hearing on October 20,
2015. As support for its petition to terminate Mother’s parental rights, DCS
presented the testimony of three witnesses, one of whom was Mother. The first
witness, DCS Family Case Manager Brandi Murphy (“FCM Murphy”),
testified that she had been involved in Mother and Child’s case since September
2013, “even before the admission and the adjudication of CHINS on [C]hild.”
Tr. at 10. Therefore, she knew that Child “had hemorrhaging [in his brain] and
needed to receive surgery . . . from possibly being shaken.” Id. FCM Murphy
was aware that Mother and Boyfriend had been using drugs during the
weekend when Child suffered injuries, and that Mother had observed Boyfriend
shaking Child more than twenty-four hours before she took Child to
Community Hospital.
[14] FCM Murphy testified that Child’s injuries continued to impact some of his
milestones, such as walking and talking. Id. at 12. She described that Child,
who was two years old, could not yet walk. He was able to roll over and lift
himself up, but had only recently started to crawl. Id. He received treatment
four times a week, including physical therapy, occupational therapy, and speech
therapy. Developmental therapy was also being considered because Child had
troubles with feeding and struggled with movement on the right side of his
body. Id. FCM Murphy explained that most two year olds can walk, are
mobile and verbal and, usually, can use utensils. Id.
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[15] FCM Murphy spoke of Mother’s progress with services prior to September
2014. While Mother had been incarcerated at the commencement of the
CHINS case, once released, she started services and was able to complete
mental health, substance abuse, and parenting programs. However, Mother
was unable to complete visitation or home-based therapy because she was
closed out due to her inconsistency.6 In September 2014, Mother was ordered
to serve her sentence at DOC for the crimes that formed the basis for this
CHINS. She was released in July 2015 to in-home detention. FCM Murphy
testified that, a few weeks before the October 20, 2015 termination hearing, a
warrant was issued for Mother’s arrest because she had failed to timely sign up
for in-home detention. When Mother was arrested, the trial court revoked her
in-home detention based on Mother’s admission to having violated the terms.
The trial court sentenced Mother to one year on work release, and she was
ordered to jail to await an open spot in the work release program. Appellant’s
Br. at 11. FCM Murphy testified that, at the time of the termination hearing,
Mother was still in jail awaiting that spot. Tr. at 32.
[16] FCM Murphy testified that Mother’s inability to successfully complete the
visitation necessary to reunite with Child was of particular importance because
that would have allowed DCS to determine whether Mother could take care of
Child, who had special needs. Id. It was FCM Murphy’s opinion that Mother
6
The Children’s Bureau closed out Mother’s visitation in June 2014, and Lifeline restarted it for Mother
around that same month. Tr. at 19-20. However, the record before us does not state whether Mother
consistently attended the Lifeline visitations.
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could not comply with any attempted services “in her current state.”7 Id. at 34.
Child had been in the same foster care placement for over a year and was doing
well. Id. at 37. FCM Murphy testified that she had visited Child at least once a
month and had noted that Child is very attached to and responds to his foster
mother (“A.R.”). Child will climb up to A.R. and smile. Id. at 38. He reaches
out to her when anyone else comes into the room and he is “very comfortable
in his environment.” Id. In turn, A.R. is very attentive to Child and his needs,
and she makes sure that he attends all of his appointments with doctors and
First Steps. Id. A.R. has learned techniques for Child’s care from First Steps,
“and she reiterates those when [service providers] come to visit.” Id. Also,
since Child has challenges with language, A.R. is “trying [to] teach him sign
language.” Id. at 39. FCM Murphy testified that Child would be a good fit
with A.R., and A.R. wants to adopt Child; it was in Child’s best interest to live
in a stable environment, where his medical, mental, and educational needs can
be met, and A.R.’s home is such a place. Id. at 41.
[17] Child’s court appointed special advocate (“the CASA”) testified during the
termination hearing that she had visited Child at A.R.’s home once a month for
more than a year, and that in this placement, Child was doing “better than what
the Doctors said he would do.” Id. at 53. The CASA confirmed that A.R.
7
It is unclear from the record exactly what FCM Murphy was referring to by using the phrase, “in her
current state.” Tr. at 34. FCM Murphy testified regarding her concern about Mother’s IQ; however, in
response to Mother’s objection that this information was hearsay, nothing further was said on the topic. Id.
at 33.
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shows love and affection to Child and gives Child freedom so he can explore his
surroundings. At two years old, Child is very much still a baby; he crawls fast,
gets into things, climbs, can sit up alone, and can roll over. In regards to
children his own age, Child is limited in his speech and his mobility. Child
currently attends appointments for speech and with First Steps, and those
services must continue in the future.
[18] The CASA testified that she had seen Mother during five different visitations
with Child, but Mother did not appear to understand what had to be done to
care for Child. Id. at 56. Mother seemed unable to understand what the care
providers were explaining to her about Child. Id. Although Child was
paralyzed on his right side, Mother “saw [Child] as normal and healthy and
couldn’t get the grasp of what had to be done for him.” Id. at 56-57. The
CASA stated that stability was an important part of Child’s care and his
caregiver has to understand his medical conditions and be available for him full
time. Id. at 58.
[19] The CASA also expressed concern about Mother’s criminal history, the most
recent of which was a charge for theft in September 2015.8 Of particular
concern, however, were Mother’s convictions for neglect of a dependent on two
separate occasions with regard to two of her children. The CASA testified that
8
Mother was involved in three criminal incidents: (1) one prior to DCS involvement, involving neglect of a
dependent and possession of a syringe; (2) one that led to DCS involvement, involving neglect of a dependent
resulting in serious bodily injury and maintaining a common nuisance; and (3) one in the months just prior to
the termination hearing, involving theft. Appellee’s Br. at 11.
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Child cannot “take any more abuse or neglect and [still] thrive.” Id. The
CASA opined that termination of Mother’s parental rights and adoption was in
Child’s best interests. Id. at 61.
[20] Mother testified that she completed services pertaining to substance abuse and
participated in a sixteen-week program in a wellness and recovery group. Id. at
66. Mother maintained that she was visiting with Child twice a week, once
with Child alone and the other time with all three of her children. Mother
completed only one class that was specifically designed for the care of Child—a
class pertaining to seizures, which Mother completed while Child was in Riley
Hospital. Id. at 67. Mother insisted that she was complying with services from
November 2013 until September 2014, including visitation with Child, getting
clean drug screens, and meeting with home-based services. She also stated that
she participated in individual counseling. Id. at 68. In September 2014, Mother
was sentenced on the criminal charges pertaining to Child and served ten
months with DOC. Id. at 68-69. While incarcerated, Mother completed a
parenting class and a program called Mothers Against Meth. Id. at 69. Mother
explained that the parenting class entailed reading a pamphlet and answering
questions in a group. Id. Mother did not participate in any other programs
“that had to do with children.” Id.
[21] Mother was released from DOC on July 2, 2015. Upon contacting FCM
Murphy, Mother learned that her visitation with Child was suspended because
DCS had filed a petition to terminate her parental rights; Mother admitted that
she had received a copy of the TPR petition while incarcerated. Id. at 70-71.
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At the time of the termination hearing, Mother was again incarcerated. Id. at
71. She explained, “I was staying with a guy I was gonna hook-up to house
arrest and uh stuff went wrong and he went to jail so I couldn’t do it there[,] I
asked for an extension and I guess I got a court date[,] but it went to my old
address . . . so I uh got a warrant for that[,] I went to jail for a day over it and I
got out and now they are putting me on work release.” Id. at 71-72.
[22] During the termination hearing, Mother admitted that she has two other
children, who live with her mother (“Grandmother”). Mother gave
Grandmother temporary custody of the two older children when she “was
doing pretty bad about four years ago,” and “didn’t want them to get taken
[into] the system.” Id. at 76. Grandmother’s temporary custody ultimately
changed to permanent custody. Id. Mother testified that she believed that she
could care for Child and all of his special needs. Id. at 77. Mother conceded
that Child was in “a good place,” but argued that her home could also be a
good place for Child, because then Child could also see his siblings.
[23] On December 1, 2015, the juvenile court entered its order terminating Mother’s
parental rights. Mother now appeals.
Discussion and Decision
[24] “Decisions to terminate parental rights are among the most difficult our trial
courts are called upon to make. They are also among the most fact-sensitive—
so we review them with great deference to the trial courts[.]” In re E.M., 4
N.E.3d 636, 640 (Ind. 2014). While the Fourteenth Amendment to the United
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States Constitution protects the traditional right of a parent to establish a home
and raise her child, and thus parental rights are of a constitutional dimension,
the law allows for the termination of those rights when a parent is unable or
unwilling to meet her responsibility as a parent. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Stated differently, a
juvenile court must subordinate the interests of the parents to those of the child
when evaluating the circumstances surrounding a termination. In re J.W., Jr.,
27 N.E.3d 1185, 1188 (Ind. Ct. App. 2015), trans. denied.
[25] When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. Moreover,
in deference to the trial court’s unique position to assess the evidence, we will
set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. at 148-49. Here, in terminating Mother’s parental rights
to Child, the juvenile court entered specific findings and conclusions. When a
trial court’s judgment contains specific findings of fact and conclusions thereon,
we apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.
App. 2008), trans. denied. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment.
Id. A finding is clearly erroneous only when the record contains no facts or
inferences drawn therefrom that support it. Id. If the evidence and inferences
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support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
[26] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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.
....
(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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Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added). A
judgment will be reversed as clearly erroneous if upon review of the record
there is “a firm conviction that a mistake has been made.” In Re J.W., 779
N.E.2d 954, 959 (Ind. Ct. App. 2002), trans. denied.
[27] Mother does not contest the juvenile court’s conclusions that Child has been
out of her care for more than six months or that DCS deems adoption to be a
satisfactory plan for the care and treatment of Child. Instead, Mother argues
that DCS failed to prove by clear and convincing evidence that conditions that
resulted in the removal of Child will not be remedied, that the continuation of
the parent-child relationship with Mother poses a threat to Child, and that
termination of Mother’s parental rights is in Child’s best interest.
Whether Conditions will be Remedied
[28] Mother first argues that DCS did not meet its burden of proving two of the
elements under Indiana Code Section 31-35-2-4(b)(2)(B). It is well-settled that
because Indiana Code section 31-5-2-4(b)(2)(B) is written in the disjunctive, the
juvenile court need only find that (1) the conditions resulting in removal from
or continued placement outside the parent’s home will not be remedied, (2) the
continuation of the parent-child relationship poses a threat to the child, or (3)
the child has been adjudicated CHINS on two separate occasions. See In re
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C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003) (emphasis added), trans. denied.
Therefore, where the juvenile court determines one of the above-mentioned
factors has been proven and there is sufficient evidence in the record supporting
the juvenile court’s determination, it is not necessary for DCS to prove, or for
the juvenile court to find, any of the other factors listed in Indiana Code section
31-5-2-4(b)(2)(B). In re S.P.H., 806 N.E.2d 874, 882 (Ind. Ct. App. 2004).
[29] In determining whether the conditions that resulted in Child’s removal will not
be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at 642-43
(quoting another source). First, we identify the conditions that led to removal;
and second, we determine whether there is a reasonable probability that those
conditions will not be remedied. Id. at 643 (quoting another source). “In the
second step, the trial court must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions,” Bester, 839 N.E.2d at 152—balancing a parent’s recent
improvements against “habitual pattern[s] of conduct to determine whether
there is a substantial probability of future neglect or deprivation.” Id. (quoting
another source). “We entrust that delicate balance to the trial court, which has
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” Id. (citing another source). “Requiring trial courts
to give due regard to changed conditions does not preclude them from finding
that parents' past behavior is the best predictor of their future behavior.” Id.
[30] Mother acknowledges that Child was removed from her care after he was
admitted to Riley Hospital with bleeding on the brain, injuries described by a
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doctor as “very straight forward, abusive head trauma.” Appellant’s App. at 50.
Mother admitted that she saw Boyfriend shaking and yelling at seven-week-old
Child, but waited more than twenty-four hours before taking him to the
hospital. Tr. at 10-11. Even so, Mother contends that the evidence does not
support the juvenile court’s finding that the conditions resulting in Child’s
removal from or continued placement outside the parent’s home will not be
remedied. As support for her position, Mother argues that she participated in
services such as substance abuse assessment, she took part in visitation with
Child, and she completed a program for wellness and recovery. Appellant’s Br.
at 12, 13. She also asserts that she participated in home-based services, which
consisted of counseling. Id. Further, Mother offers that she was “compliant”
with services until she was sentenced and incarcerated for the charges
pertaining to Child. Mother concedes that, once released from DOC, she failed
to timely sign up for in-home detention and was again incarcerated, where she
remained while awaiting an open spot in the work release program. Mother
offers, however, that she has a plan to “serve approximately 6 months with the
chance to modify to 3 months . . . . [She will] get housing with her aunt and
continue her job cleaning houses.” Id. at 12. Mother testified she understood
that Child has special needs and “disagreed with testimony that she did [not]
see his condition as serious.” Id. This evidence, Mother claims, demonstrates
that “she is not unwilling to cooperate with [DCS], and as such, termination of
her rights would be inappropriate based on all of the evidence before the
[juvenile c]ourt at the time of the termination hearing.” Id. at 13. We disagree.
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[31] The juvenile court found that Mother was first arrested for neglect of a
dependent and possession of a syringe in March 2013. Appellant’s App. at 38.
At that time, she was injecting controlled substances into her body despite the
fact that she was four months pregnant with Child. Id. One of Child’s older
siblings was present and within reach of syringes used for injecting drugs,
including at least one syringe that was “loaded” with liquified pills. Id. From
Mother’s conduct, the juvenile court found that she demonstrated “a
fundamental inability to understand the basic safety needs of a minor child, or
to comport her actions to any recognizable standard of safety for her children.”
Id. The court also found that the “purposeful use” of illegal substances while
knowing she was pregnant with Child, demonstrated a willingness to elevate
her own interests over those of her children, and to do so in such a way that
severely jeopardized the life and health of Child. Id. at 38-39.
[32] Mother’s second arrest was prompted by the offenses connected to the
termination of her parental rights. The juvenile court found that Mother
witnessed Boyfriend violently shaking seven-week old Child, yet did not seek
medical care until the next day, despite seeing seizure-like symptoms. “This
delay exacerbated [Child’s] medical condition.” Id. at 39. Mother was
sentenced to eight years, but ordered to serve only two years—eighteen months
in DOC, twelve months on in-home detention, and six months on probation.
Once released from DOC, Mother failed to timely establish in-home detention,
causing the revocation of that privilege, and Mother again being incarcerated to
await a spot in work-release.
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[33] On September 11, 2015, Mother was charged with Class A misdemeanor theft,
for stealing property from Walmart. Id. at 40. This criminal act occurred five
weeks after Mother had failed to comply with in-home detention and mere
weeks before the juvenile court’s scheduled hearing on the termination of
Mother’s parental rights to Child. Id.
[34] The juvenile court set forth extensive findings regarding Mother’s criminal
history, use of drugs in the presence of one of her older children, use of drugs all
weekend while Child was in her care, failure to timely obtain necessary medical
care for Child, and amount of time she was incarcerated during Child’s first two
years of life. The juvenile court also noted the services Mother completed and
her failure to complete visitation. Mother does not challenge the juvenile
court’s findings. Instead, she argues that the juvenile court erred because: (1)
Mother has demonstrated that she is willing to cooperate with DCS; (2) she
participated in some services; (3) her incarceration should extend the time that
she has to complete services; and (4) the evidence “would not necessarily reflect
probabilities of future neglect or abuse.” Appellant’s Br. at 13.
[35] As part of the termination order, the juvenile court concluded:
Despite the certain knowledge that her good conduct was critical
to maintaining a legal as well as physical relationship with
[Child], [Mother] was unable to remain in an in-home sentence
for more than sixteen days before revocation of that privilege.
Mother’s inability to comport her conduct to legal standards
despite the risk of further and more restricted incarceration
and/or loss of a legal relationship to [Child] demonstrates the
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risk to the health and safety of [Child] posed by maintaining the
parent-child relationship.
Mother’s inability to maintain good conduct despite the risks of
failing to do so also demonstrates the likelihood that the
conditions resulting in the ongoing removal of [Child] from
[M]other’s care will not be remedied.
....
Mother’s criminal conduct demonstrates that any progress or
participation in services while at liberty has had no effect in
remedying her tendency to commit crime or lose her liberty, or to
enable her to fulfill her parental responsibilities to [Child]. She
cannot even fulfill the general obligation to refrain from
committing criminal acts despite the risk of long-term criminal
incarceration or the loss of a legal relationship to [Child].
Appellant’s App. at 40. Mother offers many of the same arguments on appeal
that she offered to the juvenile court. To this extent, Mother’s appeal is a
request that we reweigh the evidence, which we will not do. In re E.M., 4
N.E.3d at 642. Here, the unchallenged findings support the juvenile court’s
determination that the conditions resulting in the ongoing removal of Child
from Mother’s care will not be remedied. Having found conditions will not be
remedied we need not reach Mother’s claim that the continuation of the parent-
child relationship poses a threat to Child. In re S.P.H., 806 N.E.2d at 882.
Best Interests of Child
[36] Mother asserts that DCS failed to prove by clear and convincing evidence that
termination of Mother’s parental rights is in Child’s best interests. Mother
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offers that the juvenile court failed to look to the totality of the circumstances,
and instead, considered only the reasons for Child’s removal. Appellant’s Br. at
14; see In re A.D.S., 987 N.E.2d at 1158 (in determining child’s best interests,
trial court must look to totality of evidence, and not just factors identified by
DCS). Mother recognizes that “permanency is a central consideration in
determining the best interest of a child,” but contends there is no evidence that
permanency through adoption would be beneficial to child or that remaining in
foster care or with relatives would be harmful. Id.
[37] The juvenile court found that Child requires ongoing medical care and
evaluation, including neurological care and treatment due to the injuries Child
sustained. Appellant’s App. at 35. Child’s right side is paralyzed and, at the age
of two, he still suffers from developmental issues related to the physical abuse
he suffered. Id. at 41, 42. He is developmentally behind others of his same age;
he cannot walk, he requires physical, occupational, and speech therapies, and
he should receive developmental therapy. Id. at 41. Mother does not have a
realistic understanding of Child’s limitations or needs. Id. at 42. Further,
Mother has not taken advantage of opportunities, like in-home detention, to
make herself available for Child. Id. at 41. Even after her in-home detention
was revoked, Mother stole property from Walmart. Id.
[38] Child was taken out of Mother’s care at seven weeks of age and has lived with
A.R. for about twenty-five consecutive months. In that home, Child has
progressed well and “received extensive and loving care” from A.R., who wants
to adopt him. Id. The juvenile court agreed with Mother’s self-assessment that
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her conduct was “not that of a person serious about being a parent.” Id. at 43.
The juvenile court agreed with the opinions of FCM Murphy and the CASA
and found that termination of the parent-child relationship and adoption of
Child are in his best interest. Id. at 45. We cannot say that the juvenile court
erred in giving credence to the professionals’ opinions that termination and
adoption are in Child’s best interests. In sum, Mother has failed to establish
that the juvenile court clearly erred in concluding that termination of the parent-
child relationship and adoption are in Child’s best interests.
[39] Affirmed.
May, J., and Crone, J., concur.
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