In the Matter of the Termination of the Parent-Child Relationship of: L.B. (Minor Child) and B.B. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Nov 06 2019, 8:59 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 6, 2019
of the Parent–Child Relationship Court of Appeals Case No.
of: L.B. (Minor Child) 19A-JT-1270
and Appeal from the Montgomery
Superior Court
B.B. (Mother),
The Hon. Heather L. Barajas,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 54D01-1807-JT-215
The Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] L.B. (“Child”) was born to B.B. (“Mother”) and L.B. (“Father”)1 (collectively,
“Parents”)2 in November of 2016 and was removed from Parents’ care when he
was approximately one month old. The Indiana Department of Child Services
(“DCS”) removed Child due to concerns about Parents’ drug use and missed
doctor’s appointments for Child, who was born with a heart defect. Over the
course of the next two years, Mother did not progress in her court-ordered
services, obtain stable housing or employment, or demonstrate that she had the
ability to satisfy Child’s considerable medical needs. In July of 2018, DCS
petitioned for the termination of Mother’s parental rights to Child (“TPR
Petition”). In May of 2019, the juvenile court granted DCS’s TPR Petition.
Mother contends that the juvenile court erred in concluding that there is a
reasonable probability that the conditions that led to Child’s removal from her
care will not be remedied. Because we disagree, we affirm.
Facts and Procedural History
[2] Child was born on November 29, 2016, with tetralogy of Fallot, a condition
involving a hole in his heart that left him susceptible to “tet spell[s,]” during
which he would pass out, turn blue, and stop breathing, requiring special
techniques to revive him. Tr. Vol. II p. 159. Having received allegations of
1
Father relinquished his parental rights to Child on January 17, 2019, and does not participate in this
appeal.
2
Parents had a second child together on January 2, 2019, who is not involved in this case.
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drug use by Parents, DCS became involved and Family Case Manager
(“FCM”) Bethany Line spoke with Parents on December 9, 2016. Samples
were collected, and Mother tested positive for marijuana. Around December
16, 2016, DCS received a report that Parents had failed to take Child to two
doctor’s appointments. Meanwhile, drug screens were collected on December
15 and 21, 2016, and Mother again tested positive for marijuana in both.
[3] On January 9, 2017, as a result of positive drug screens and missed medical
appointments, the State alleged Child to be a child in need of services
(“CHINS”). DCS removed Child from Parents’ care on January 11, 2017, and
placed him in foster care. In February of 2017, FCM Andrea Long took over
the case. On February 28, 2017, following a hearing, the juvenile court found
Child to be a CHINS and issued a dispositional order and a parental-
participation order (“PPO”) in which Mother was ordered to participate in
several services. FCM Long later indicated that Mother never made the
required progress in her services.
[4] Jane Sue Hortin, a life-skills specialist working for Cummins Behavioral
Health, supervised Mother’s visits with Child. Initially, Mother had two visits
per week, which were increased to three when Hortin’s schedule allowed, but
were eventually decreased to two per week due to Mother’s poor attendance.
Hortin attempted to help Mother with parenting skills, such as not letting Child
stand in a rocking chair, pull cords, take big bites, or destroy the property of
others. As it happened, Mother never had unsupervised visitation with Child
because she did not make sufficient progress with her parenting skills. Mother
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provided inappropriate food for Child at his age and always had to be directed
on how to feed him. Mother admitted that she had taken McDonald’s food to
Child several times and had continued to do so even after her home-based
caseworker had told her that such meals were inappropriate. During the visits,
Mother was frequently on her mobile telephone even though Hortin had told
her not to use it. Hortin also attempted to help Mother with basic living skills
such as hygiene, budgeting, medicine management, emotion regulation, healthy
relationships, communication skills, coping skills, and relapse prevention.
[5] Hortin also set some goals for Mother that, if achieved, were intended to
improve her situation, such as obtaining a driver’s license and a GED. Mother,
however, did not obtain a driver’s license or even a learner’s permit. Mother
testified that she had taken the written driver’s test four or five times but had
not passed even though she had read through the driver’s manual. Mother also
failed to obtain a GED, even though she knew that not having her GED was a
violation of her PPO.
[6] After Child was removed, Mother attempted to make it to most of the doctor’s
appointments, and her home-based worker provided transportation. However,
during the appointments, Mother was often on her mobile telephone, even
while the cardiologist was talking. In the foster mother’s opinion, Mother did
not fully appreciate, or have the experience and support from family and friends
to handle, Child’s medical condition.
[7] As for addressing any of her mental-health issues, Mother began seeing a
psychiatrist in March of 2017. Mother also began to attend individual therapy
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but was discharged because she was unable to “cognitively process for therapy
purposes.” Tr. Vol. II p. 140. Mother underwent a psychological evaluation in
February and March of 2018. Mother told the evaluator that she suffered from
ADHD, PTSD, and severe depression, the latter two as a result of witnessing a
friend get shot to death, being raped at the age of fifteen, and losing an aunt to
suicide. According to the evaluation, Mother’s overall cognitive ability falls
between “well below average” to “low” range of intellectual functioning. Ex.
Vol. p. 247. Mother was diagnosed with PTSD in partial remission. A letter
written on January 17, 2019, by a psychologist and a licensed mental-health
counselor states that Mother participated in therapy sessions on four occasions,
failed to attend a scheduled session on one occasion, and cancelled her sessions
on two occasions. The letter also states that Mother did not progress during the
therapy sessions and that Mother’s IQ was 72, which is in the third percentile.
Because of Mother’s lack of progress and low IQ, the therapy team decided that
Mother “was inappropriate for insight based therapy.” Ex. Vol. p. 250.
[8] Meanwhile, Mother and Father were in an on-and-off relationship during the
CHINS case. Although Mother told FCM Long that she and Father were just
friends, in May of 2018 she moved into a residence where Father also resided.
(Tr. 141). As far as Hortin knew, as of December 20, 2018, Parents were still
romantically involved, and they had a second child on January 2, 2019. Father
stayed with Mother and their second child for at least two weeks following the
birth, during which Mother remained hospitalized. Moreover, both Mother
and Father threatened FCM Long during the pendency of the case. Mother
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said that she was angry with FCM Long and that that “things were going to
happen to [FCM Long.]” Tr. Vol. II p. 142. Father threatened to kill FCM
Long, the foster parent, the home-based case manager, the baby, and everyone
working with Parents on the case.
[9] Mother’s housing situation was unsettled during the pendency of this case.
When Mother was pregnant with Child in 2016, she lived in Father’s mother’s
house. A few months after Child was born, Mother moved in with her own
mother. Mother’s mother had used illegal drugs for years, and her residence
was not appropriate for Child. In fact, Mother’s mother was on probation
during most of the pendency of this case. Although DCS told Mother about
housing through Pam’s Promise, Mother refused to apply. A couple of days
before her second child with Father was born on January 2, 2019, Mother
moved in with her aunt. Mother does not have her own bedroom at her aunt’s
trailer; she sleeps on the floor or in a rocking chair. Hortin helped Mother fill
out applications for government-assisted housing, but, although Mother was
approved, she did not have a job, a down payment, or the money for utilities.
[10] As for Mother’s employment history, it is sporadic. Mother testified that she
was employed at Best Western for “[a] month or two” in 2017 and at LSC
Communications and Taco Bell in 2018, with a three-month gap between those
two jobs. Tr. Vol. II p. 59. Mother left LSC Communications because she was
pregnant with her second child and was expected to lift over fifty pounds, which
she was unable to do. After the three-month gap, Mother only worked at Taco
Bell for about three weeks before leaving. All of Mother’s jobs have been part-
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time jobs, and her wages were $10 per hour at each. Mother told FCM Long
that her paycheck was $400 per month but provided no verification. Even so,
Mother’s employment would not have provided for her and Child’s needs. As
of January 17, 2019, Mother was still hospitalized while recovering from the
Caesarian-section birth of her second child and not employed, indicating that
her doctor had told her not to work.
[11] Mother’s compliance with orders and services intended to address her substance
abuse was also sporadic but generally positive. Initially, FCM Long
occasionally had to “chase [Mother] down” to perform a drug screen. Tr. Vol.
II p. 137. However, after initially denying it, Mother eventually admitted that
she had indeed used marijuana before Child was removed and that she had
received it from Father’s friend. Mother underwent drug testing between
December of 2016 and December of 2018. On several occasions in 2017,
Mother tested positive for low levels of delta nine tetrahydrocannabinol a/k/a
“parent THC” and once for methamphetamine. Tr. Vol. II p. 39. Mother had
no positive drug screens in 2018.
[12] Meanwhile, on April 24, 2017, Child underwent open-heart surgery to correct
his heart condition. Hospital personnel told Child’s foster parents that Child
was not going to have tet spells after the surgery. Child, however, did have a
seizure one night, and when he was taken to Riley Children’s Hospital in
Indianapolis, the foster parents learned that he had epilepsy. Child is currently
on medication for epilepsy, and the dosage will constantly have to be adjusted
as he grows. Child’s foster mother received training regarding Child’s epilepsy
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at Riley, and while Child lived with them, Child’s foster parents were in
constant communication with a neurologist.
[13] More recently, Child has moved to his pre-adoptive home. Child’s prospective
adoptive parents have a three-bedroom house and are a good fit for Child.
Prospective adoptive mother and Child have developed a bond, and she has
received training regarding children with seizures. Prospective adoptive parents
have been married for seven years and wish to adopt Child despite his health
issues.
[14] On July 27, 2018, DCS filed the TPR Petition. On October 30, 2018, and
January 17 and 18, 2019, the juvenile court conducted an evidentiary hearing
on the TPR Petition, with all of the substantive evidence admitted on January
17 and 18, 2019. Although Mother testified that she was no longer, and did not
intend to be, in a relationship with Father, she had said the same thing to an
FCM before the conception of their second child together. Indeed, Mother
testified that she had ended her romantic relationship with Father before the
birth of their second child but also testified that Father was at the hospital with
her for the two weeks she stayed at the hospital after the birth.
[15] As for addressing her substance-abuse issues, Mother testified that she had
attended substance abuse classes for a couple of weeks but stopped going
because she did not like being around others. Mother testified that she had
known that pursuant to the PPO she was not to use any illegal substances but
also testified that she did not know her marijuana consumption would be a
violation of that order. Mother also testified that when she tested positive for
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methamphetamine it was because she had been exposed to Father’s
methamphetamine use.
[16] Hortin testified that she did not observe much bonding between Mother and
Child, Child did not want to take his toys to Mother, and Child became upset
when Hortin walked him to Mother during visitation. Child, however, would
take toys to Hortin and Kate Doty, the court appointed special advocate
(“CASA”). Hortin testified that she had not seen any marked improvements in
Mother’s parenting skills and was concerned about Mother’s abilities to provide
care for Child. CASA Doty testified that it was in Child’s best interests for
Mother’s parental rights to be terminated. In CASA Doty’s opinion, Mother
had not progressed through services and “there has not been any substantial
stability obtained for her to be able to care for [Child.]” Tr. Vol. II p. 225.
[17] On May 20, 2019, the juvenile court granted DCS’s TPR Petition in an order
that provides, in part, as follows:
31. The DCS has proven by clear and convincing
evidence that the child has been outside of [Parents’] home under
a dispositional decree for at least six months, and that [Child] has
been removed from [Parents] and has been under the supervision
of the DCS for at least 15 months of the most recent 22 months
after the date of removal.
32. The DCS has proven by clear and convincing
evidence that there is a reasonable probability that the conditions
that resulted in [Child’s] removal or the reasons for placement
outside the home of [Parents] will not be remedied. [Child] was
removed from [Parents] on January 9, 2017. The DCS has
offered reunification services to [Parents] but neither parent was
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able to participate in these services in order to overcome their
parenting deficits.
33. The DCS has proven by clear and convincing
evidence that there is a reasonable probability that continuation
of the parent-child relationship poses a threat to the well-being of
[Child].
34. The DCS has proven by clear and convincing
evidence that termination is in the best interests of [Child].
Neither parent is in any better position to provide [Child] with
appropriate care, supervision or a safe, nurturing and stable
home than they were at the beginning of DCS’[s] involvement
with the family. Neither parent can meet [Child’s] needs.
[Child] needs a stable and nurturing home to meet his many
needs. In addition, [Child] has specific medical needs that require
a heightened level of parenting, which Mother cannot provide.
Both the DCS case manager and the CASA believe that
termination is in the best interest of [Child].
35. The DCS has proven by clear and convincing
evidence that there is a satisfactory plan for [Child] post-
termination and that is adoption.
Order pp. 6–7.
Discussion and Decision
[18] 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 Cty. Off. of Fam. & Child., 839 N.E.2d 143, 145 (Ind. 2005). Further, we
acknowledge that the parent–child relationship is “one of the most valued
relationships of our culture.” Id. However, although parental rights are of a
constitutional dimension, the law allows for the termination of those rights
when parents are unable or unwilling to meet their responsibilities as parents.
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In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to the children’s
interest in determining the appropriate disposition of a petition to terminate the
parent–child relationship. Id.[19] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental
Rts. of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the
evidence that supports the juvenile court’s decision and reasonable inferences
drawn therefrom. Id. Where, as here, the juvenile court includes findings of
fact and conclusions thereon in its order terminating parental rights, our
standard of review is two-tiered. Id. First, we must determine whether the
evidence supports the findings, and, second, whether the findings support the
legal conclusions. Id. In deference to the juvenile court’s unique position to
assess the evidence, we set aside the juvenile court’s findings and judgment
terminating a parent–child relationship only if they are clearly erroneous. Id. A
finding of fact is clearly erroneous when there are no facts or inferences drawn
therefrom to support it. Id. A judgment is clearly erroneous only if the legal
conclusions made by the juvenile court are not supported by its findings of fact
or the conclusions do not support the judgment. Id.[20] Indiana Code section 31-35-2-4(b) governs what DCS must allege and establish
to support a termination of parental rights. Of relevance to this case, DCS was
required to establish, by clear and convincing evidence,
(A) that […] the following is true:
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(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.
[…]
(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).
[21] Mother does not dispute the juvenile court’s findings that Child was removed
for at least six months pursuant to a dispositional decree, termination is in
Child’s best interests, or DCS has a satisfactory plan for the care and treatment
of Child. Mother contends, however, that DCS has failed to establish that there
is a reasonable probability that the conditions that resulted in Child’s removal
would not be remedied.
Indiana Code Section 31-35-2-4(b)(2)(B)
[22] Mother contends only that the record does not establish that there is a
reasonable probability that the reasons for Child’s continued removal would not
be remedied. The juvenile court, however, also found that there is a reasonable
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probability that the continuation of the parent–child relationship poses a threat
to the well-being of Child. Because Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive, DCS need only establish one of these circumstances.
See Ind. Code § 31-35-2-4(b)(2)(B) (providing that DCS must establish that one
of the following is true: “[t]here 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[, t]here is a reasonable probability that
the continuation of the parent–child relationship poses a threat to the well-being
of the child[, or t]he child has, on two (2) separate occasions, been adjudicated
a child in need of services”). Because Mother does not challenge both of the
above findings, her argument, even if meritorious, cannot prevail.
[23] That said, we nonetheless choose to address the merits of Mother’s contention
that DCS has failed to establish a reasonable probability that the reasons for
Child’s continued removal would not be remedied. In making such a
determination, a juvenile court engages in a two-step inquiry. First, the juvenile
court must “ascertain what conditions led to their placement and retention in
foster care.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind.
2013). After identifying these initial conditions, the juvenile court must
determine whether a reasonable probability exists that the conditions justifying
a child’s continued “placement outside the home will not be remedied.” In re
D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004) (citation omitted). The statute
focuses not only on the initial reasons for removal “but also those bases
resulting in continued placement outside the home.” In re A.I., 825 N.E.2d 798,
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806 (Ind. Ct. App. 2005), trans. denied. In making this second determination,
the juvenile court must judge a parent’s fitness to care for her child at the time
of the termination hearing, taking into consideration evidence of changed
conditions. In re D.D., 804 N.E.2d at 266. DCS need not rule out all
possibilities of change; rather, it must establish that there is a reasonable
probability that the parent’s behavior will not change. In re B.J., 879 N.E.2d 7,
18–19 (Ind. Ct. App. 2008), trans. denied.
[24] Here, Child was removed because of Parents’ substance abuse and concerns
about their ability to care for him. Within a month of Child’s birth, Mother had
tested positive for marijuana three times. Of greater concern, Child was born
with a congenital heart defect that left him susceptible to tet spells until the
condition was surgically corrected some months later. Neither Mother nor
Father demonstrated at the time that they were equipped to address Child’s
medical needs.
[25] As for whether the conditions that led to removal are likely to be remedied,
Child will still need considerable medical care in the years to come, as he has
now been diagnosed with epilepsy that will require the ability to (1) deal with
possible seizures and (2) administer medication, the dosage of which will
frequently have to be adjusted as he grows. In light of this, Mother’s
demonstrated lack of appreciation of Child’s medical needs is of great concern.
Mother failed to deliver Child to multiple doctor’s appointments in his first
month and would look at her mobile telephone during appointments with his
cardiologist. Even now, Mother does not seem to grasp the seriousness of
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Child’s medical condition, has not gone through the specialized training
required to manage it, and will be therefore unable to help Child when needed.
Indeed, Mother has not demonstrated that she is even able to appropriately feed
Child, nor has she obtained her driver’s license.
[26] As for Mother’s progress in other areas, multiple witnesses testified that she had
not progressed in her court-ordered services. Although Mother’s recent drug
screens have been clean, concern over substance abuse has not been completely
alleviated, because Father is a drug user and Parents’ relationship appears to be
ongoing. Although Mother has claimed in the past that her romantic
relationship with Father is over, their second child was born some two weeks
before the evidentiary hearing, Father spent those two weeks in the hospital
with Mother and their second child, and there was testimony that they had still
been together the month before that. Mother has also not resolved her housing
or employment issues, which relate directly to her ability to care for Child. As
of the date of the termination hearing, Mother was staying in her aunt’s trailer,
sleeping on the floor or on a rocking chair in the common area, and was
unemployed. Although Mother testified that she was under doctor’s orders not
to work at the time of the evidentiary hearing, her work history in general has
been sporadic at best. Mother has had several jobs since 2017, seldom staying
for very long and never making more than $10 per hour. In summary, Mother
has not demonstrated that she is no longer in her toxic relationship with Father
or that she has the ability or wherewithal to adequately care for Child. Put
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another way, not much has changed in the two years following Child’s removal
from Mother’s care.
[27] While we recognize that some of this may be a result of Mother’s low
intellectual functioning, an inability to adequately care for Child could threaten
his life, whatever the root cause of that inability. The Indiana Supreme Court
has made clear that the “purpose of terminating parental rights is not to punish
parents, but to protect the children.” Egly v. Blackford Cty. Dep’t. of Pub. Welfare,
592 N.E.2d 1232, 1234–35 (Ind. 1992). The Egly Court also explained that
“[a]1though parental rights are of a constitutional dimension, the law allows for
the termination of those rights when parents are unable or unwilling to meet
their responsibilities as parents.” Id. at 1234. Put another way, the goal is to fix
the problem, not the blame. Under the circumstances, the juvenile court did
not err in finding that there was a reasonable probability that the conditions that
had led to Child’s removal would not be remedied.
[28] The judgment of the juvenile court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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