In the Termation of the Parent-Child Relationship of: A.P. and T.P. (Minor Children), and J.P. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), 09/12/2017, 10:59 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jacob P. Wahl Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- September 12, 2017
Child Relationship of: Court of Appeals Case No.
26A01-1702-JT-424
A.P. and T.P. (Minor Children), Appeal from the Gibson Circuit
Court
and, The Honorable Jeffrey Fowler
Meade, Judge
J.P. (Mother), Trial Court Cause No.
26C01-1608-JT-208
Appellant-Respondent, 26C01-1608-JT-209
v.
Indiana Department of Child
Services,
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Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] J.P. (“Mother”) appeals the termination of her parental rights to her children,
A.P. and T.P. We affirm.
Issue
[2] The sole restated issue before us is whether there is sufficient evidence to
support the termination of Mother’s parental rights.
Facts
[3] T.P. was born in 2002, and A.P. was born in 2003. Mother, unfortunately,
suffers from mental illness. In January 2015, she began being receiving
treatment from psychiatrist Dr. Greg Unfried. Mother previously had received
treatment through the facility where Dr. Unfried worked. At Mother’s first visit
with Dr. Unfried, she was “[n]ot [doing] very well.” Tr. Vol. I p. 14. Dr.
Unfried had difficulty obtaining useful information from her because she would
not directly answer his questions. Based on Mother’s prior visits to the facility,
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she was diagnosed with major depression, generalized anxiety disorder, and
attention deficit hyperactivity disorder (“ADHD”). Later, Dr. Unfried
amended the diagnosis to include borderline personality disorder and post-
traumatic stress disorder (“PTSD”). A person with borderline personality
disorder has difficulty maintaining stable relationships. Dr. Unfried continued
Mother on prescriptions for Abilify, Adderall, and Viibryd. Mother also was
prescribed Klonopin from a pain doctor. Abilify is an antipsychotic mood
stabilizer; Viibryd is an antidepressant; Klonopin is an anti-anxiety tranquilizer;
and Adderall is a stimulant used to treat ADHD. Klonopin and Adderall are
both addictive and have a potential for abuse.
[4] The next time Dr. Unfried saw Mother was in February 2015. At that time she
was being hospitalized for mental health issues. She informed Dr. Unfried that
she was suffering from oleander poisoning. After Mother was hospitalized, the
Vanderburgh County Office of the Department of Child Services (“DCS”)
received a report regarding the hospitalization. After receiving the report, DCS
caseworker Robyn Parkhill went to Mother’s home and found the children
being cared for by Mother’s boyfriend, Richard Springs. The home was very
cluttered, with boxes and clothes strewn about and a pathway made between
the living and dining rooms. Springs took the children to the home of Mother’s
parents after Parkhill’s visit. Parkhill also went to speak with Mother at the
hospital, but she was unable to do so for three or four days because of Mother’s
mental state. Parkhill later learned that Mother had ceased taking her
prescribed medication. Additionally, Parkhill learned that Mother frequently
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visited emergency rooms, seeking narcotic pain medication and then leaving
against medical advice if she did not receive it.
[5] DCS filed a petition alleging T.P. and A.P. were CHINS. Mother was released
from the hospital in early March 2015, after a ten-day stay. On May 26, 2015,
the trial court held a fact-finding hearing on the CHINS petition. Mother
apparently left the courtroom during the hearing and before presenting evidence
on her behalf. The trial court then entered a default judgment against Mother
on the CHINS petition. At that time, the trial court also ordered that the
children be removed from the maternal grandparents’ care and placed in foster
care after the grandparents advised the court they could no longer care for the
children. Springs, as the children’s previous custodian, also was ordered to
participate in CHINS services.
[6] In the summer of 2015, Dr. Unfried decided to try prescribing Mother a higher
dosage of Adderall and Klonopin. For a couple of months this treatment
seemed to work, and Mother appeared calmer. However, in September 2015,
Mother again was hospitalized for mental health treatment. Dr. Unfried then
ceased Mother’s Adderall and Klonopin prescriptions, which displeased
Mother, and Mother’s behavior regressed to what Dr. Unfried had originally
observed when he first began treating her. Dr. Unfried was concerned about
Mother’s ability to control her behavior and care for children, given that she
was unable to control her behavior within the structured environment of his
office. Mother “fired” Dr. Unfried as her psychiatrist in October 2015 because
she believed he was “nasty” and lying to her. Id. at 35. Dr. Unfried thought it
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was unlikely there was any additional treatment that could dramatically benefit
Mother that he had not already tried. Mother then began seeing Dr. Williard
Whitehead, another doctor in the practice where Dr. Unfried worked.
[7] After their removal from Mother’s care, it was determined the children needed
counseling services. A.P. initially presented with an adjustment disorder with
anxiety features, but was later believed to have PTSD. T.P. was more guarded
with the counselor and had difficulty expressing emotions, which also is
common in traumatized children. The children’s counselor believed the PTSD
resulted from neglect by Mother, not because of their removal from Mother.
A.P., in particular, described Mother’s behavior as being very erratic and out of
control, including Mother’s waking A.P. up in the middle of the night when
Mother wanted to find drugs to use. A.P. also discussed fights between Mother
and Springs that included Mother physically assaulting Springs; during these
incidents, A.P. would either hide in her closet or go to a neighbor’s house. A.P.
also described marijuana use and prescription pill abuse by Mother. Mother
denied such drug usage, but Springs admitted to past methamphetamine and
marijuana use and tested positive for methamphetamine in January 2016,
which violated his probation for a burglary conviction. Also during the
pendency of the CHINS case, Mother was arrested for operating a vehicle while
intoxicated (“OWI”), and she pled guilty to that charge.
[8] The trial court appointed a court-appointed special advocate (“CASA”). The
CASA went to Mother’s home at least ten times, beginning in September 2015.
She observed the same extremely-cluttered conditions that Parkhill had seen six
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months previously. On her second visit to the home, she advised Mother that it
was “a fire waiting to happen.” Id. at 144-45. The CASA also frequently saw
insects crawling up the wall behind the couch. The CASA did not believe the
home was a safe environment for children, but Mother refused to acknowledge
that there was anything wrong with the condition of the house and its condition
never improved during the course of the CHINS proceedings. Additionally,
although Mother was required to participate in parent aide services, she never
acknowledged that she had any problem parenting the children and never
showed any progress in such services.
[9] Regarding visitation, supervised visits initially were approved at the end of
March 2015, but Mother did not start having visits until August 2015. After
Mother began visitation, she canceled four or five visits and then started
attending regularly. The last visitation occurred in May 2016. The children’s
biological father and older sister also came to the visit, but they were not
allowed to come into the room. During the visit, Mother gave the children a
card that she refused to show to the visitation supervisor. After reading it, A.P.
began crying and saying “I do not want to go with them to Florida.” Ex. Vol.
IA p. 37. T.P. said, “I don’t know them and I’m not comfortable with them.”
The card read in part, “I hope that understand [sic] why I’m doing this for you
and me. I don’t have any choice, but to send you with your sister . . . for a few
months. It was either that or never hear or see from you again.” Id. at 35. The
visitation supervisor attempted to end the visit, but Mother grabbed T.P. in her
arms and refused to let him go. Eventually, the visit ended after Mother yelled
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“f*** you” in the visitation supervisor’s face. Id. at 37. The children were upset
after this visit, and visitation thereafter was terminated.
[10] The DCS filed a petition to terminate Mother’s parental rights on August 9,
2016. The trial court held hearings on August 22, October 18, and December
13, 2016.1 At the time of the hearing(s), the children both had demonstrated
significant progress in therapy, with T.P. opening up more and A.P.’s anxiety
and sleep problems decreasing. The CASA also believed there was a “daylight
and dark” in how the children had progressed while in foster care, with both
children being much more social than before. Tr. Vol. I p. 150. The CASA
also saw academic improvements in both children. T.P., in particular, had been
a year behind in his grade level but had subsequently been allowed to skip sixth
grade and move directly into seventh grade. Both children were happy in their
foster care home, and the foster parents wished to adopt both of them.
[11] Dr. Whitehead testified at the December 2016 regarding his opinion of the
current state of Mother’s mental health. He believed Mother currently had
ADHD and an adjustment disorder; he also believed Mother had major
depression but that it was being adequately treated. Dr. Whitehead explained
that persons with ADHD can be impulsive, noncooperative, and oppositional.
1
Initially, the court reporter only filed transcripts containing the evidence presented at the October and
December 2016 hearings. After Mother’s brief was filed with this court but before DCS’s brief was due, the
trial court clerk filed with this court a supplemental transcript containing the hearing from August 22, 2016,
at which two witnesses for the State testified. Because this transcript was not available when Mother
prepared her brief, and because DCS does not refer to it in its brief, we will disregard the supplemental
transcript.
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He also said that Mother believed DCS was involved in some sort of conspiracy
against her, although he did not necessarily think she was delusional in a
mental illness sense. Furthermore, Dr. Whitehead did not think Mother was
yet in the best possible psychiatric shape, and he wanted to try different
treatments for her. He stated that Mother’s ADHD would impact all areas of
her life, and he did not know whether someone with her degree of ADHD and
children could function well enough to avoid DCS involvement and whether it
would make raising children more difficult.
[12] Mother also testified at the December hearing. Much of her testimony was in
the form of long, rambling, hard-to-follow narratives. Before testifying, Mother
said she had contracted MRSA from A.P. at their last visitation, though later
she said she got it from an ex. She also discussed her first attempt to visit the
children, said that immediately beforehand somebody slashed her tire with a
knife, and then said she was given incorrect directions to the visitation site,
which caused her to miss the visit. She generally accused various caseworkers
and service providers of being corrupt or lying. She suggested that her blood
sample after being arrested for OWI in June 2015 was tampered with by
hospital employees. She accused a magistrate of throwing paperwork in her
face. She admitted setting up websites to raise money for cancer treatment for
both A.P. and T.P., although neither has cancer, out of purported fear they may
develop cancer in the future. She stated that her case was “all a Title IV-D and
a Medicaid fraud” and that it was a conspiracy similar to what is “going on all
over the United States.” Id. at 230.
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[13] On January 27, 2017, the trial court entered its order terminating Mother’s
parental rights to A.P. and T.P., accompanied by findings of fact and
conclusions thereon. Mother now appeals.2
Analysis
[14] Mother contends there is insufficient evidence to support 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. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “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,
120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the
most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize that
parental interests are not absolute and must be subordinated to the child’s
interests when determining the proper disposition of a petition to terminate
2
Mother filed a sixteen-volume appendix with this court. DCS filed a motion to require Mother to file a
conforming, much-smaller appendix, noting that the sixteen-volume appendix largely contains material
outside the record and never presented during the termination hearings. In response, Mother contended the
appendix contained the entire record as provided to her by the trial court clerk. It appears that if the trial
court clerk did indeed indicate that all of the material in the sixteen-volume appendix was part of the
termination record, it erroneously did so. Additionally, under Indiana Appellate Rule 50(A), an appellant is
required to include in an appendix only relevant material from the record needed to decide the issues
presented on appeal and certain other expressly-designated items, such as the CCS, rather than the entire
record. We agree with DCS that Mother’s appendix does not conform with Appellate Rule 50(A). However,
because Mother did not cite any parts of the appendix in her brief that DCS claims was improper, and in the
interest of expeditiously resolving this child case, we have by separate order elected to strike the improper
parts of Mother’s appendix rather than requiring her to file a conforming appendix.
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parental rights. Id. Thus, “‘[p]arental rights may be terminated when the
parents are unable or unwilling to meet their parental responsibilities.’” Id.(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).
Courts need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his or her physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Castro v. State Office
of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006), trans. denied.
“Rather, when the evidence shows that the emotional and physical
development of a child in need of services is threatened, termination of the
parent-child relationship is appropriate.”3 Id.[15] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re I.A., 934 N.E.2d at 1132. We
consider only the evidence and reasonable inferences that are most favorable to
the judgment. Id. We must also give “due regard” to the trial court’s unique
opportunity to judge the credibility of the witnesses. Id. (quoting Ind. Trial
Rule 52(A)). Here, the trial court entered findings of fact and conclusions
thereon in granting DCS’s petition to terminate Mother’s parental rights. When
reviewing findings of fact and conclusions thereon entered in a case involving a
termination of parental rights, we apply a two-tiered standard of review. First,
3
Mother argues in part that DCS was required to prove that her having custody of the children was “wholly
inadequate for their very survival,” quoting Matter of Meidl, 425 N.E.2d 137, 141 (Ind. 1981). Our supreme
court later disavowed this statement in Meidl as being inaccurate dicta. Egly v. Blackford County Dep’t of Pub.
Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
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we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. We will set aside the
trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.[16] Indiana Code Section 31-35-2-8(a) provides that, “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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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DCS must establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
[17] Mother does not direct us to any particular findings of the trial court that she
believes are clearly erroneous. Rather, she more generally argues that DCS
failed to prove the necessary elements of the termination statute by clear and
convincing evidence. We disagree.
[18] We first address whether there is sufficient evidence of a reasonable probability
that the conditions that resulted in the children’s removal from Mother’s care or
the reasons for placement outside Mother’s home will not be remedied. 4 When
analyzing this issue, courts may consider not only the basis for the initial
removal of the children, but also reasons for the continued placement of the
children outside the home thereafter. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct.
App. 2005), trans. denied. Courts must judge a parent’s fitness to care for his or
her child at the time of the termination hearing, taking into consideration
evidence of changed circumstances. A.D.S. v. Indiana Dep’t of Child Servs., 987
N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The parent’s habitual
patterns of conduct should be evaluated to determine the probability of future
neglect or deprivation of the child. Id. Factors to consider include a parent’s
4
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only
one of the requirements of subsection (B). We conclude there is sufficient evidence of a reasonable
probability that the conditions resulting in the children’s removal from Mother’s care would not be remedied,
and we need not address whether there is sufficient evidence that continuation of the parent-child
relationship posed a threat to A.P. and T.P.
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prior criminal history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment. Id. Courts
also may consider services offered to the parent by DCS and the parent’s
responses to those services. Id. DCS is not required to prove a parent has no
possibility of changing; it need only establish a reasonable probability that no
change will occur. Id.[19] The original reason for the children’s removal from Mother’s care was that she
was hospitalized for mental health reasons. The condition of the home also
was found to be inadequate for children due to the extreme amount of clutter,
as well as an insect infestation. After the children’s removal, it was discovered
that they required therapy. Although there was not a precise diagnosis for T.P.,
because he was more guarded with the counselor, A.P. was diagnosed with
anxiety and PTSD resulting from Mother’s neglect. A.P. related erratic and
out-of-control behavior by Mother, including fights between Mother and
Springs and being awakened in the middle of the night when Mother wanted to
find drugs.
[20] During the CHINS proceeding, Mother showed little or no willingness to
cooperate with DCS caseworkers and other service providers. Instead, she
believed they were engaged in some sort of conspiracy against her. Mother
refused to acknowledge that there was anything wrong with her parenting.
Additionally, the condition of the home had not improved at all by the time of
the termination hearings. Supervised visitation was at first sporadic or non-
existent and then was terminated after an episode in which Mother attempted
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to convince the children to leave with their biological father and sister for
Florida against their wishes, which greatly upset the children. Mother still was
involved with Springs at the time of the last termination hearing, and her
frequent conflicts with him were one of the issues that caused A.P. to develop
PTSD; Springs also had a clear history of illegal drug use, both before and
during the CHINS proceedings.
[21] With respect to Mother’s mental health, Dr. Whitehead seemed to present a
relatively more upbeat prognosis for Mother than Dr. Unfried. However, even
Dr. Whitehead acknowledged the difficulties that Mother’s severe ADHD
presents in her life and that she still had a ways to go in successfully treating it.
Dr. Whitehead also did not give any opinion about Mother’s ability to parent in
her current condition. Dr. Unfried did, however, and he was concerned about
Mother’s ability to control her behavior and care for children, given that she
was unable to control her behavior within the structured environment of his
office. Mother also was re-hospitalized in September 2015 and also was
arrested for and pled guilty to OWI during the CHINS proceedings. Mother’s
tendency for unfocused and paranoid, untrusting thinking, with little or no
regard for how her behavior and actions impacted the children, unfortunately
was on display at the December 2016 termination hearing. The evidence in this
case and the trial court’s findings are adequate to support the conclusion that
there is a reasonable probability the reasons for the children’s initial removal
from Mother’s care and continued placement outside her home would not
remedied.
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[22] Next, we consider whether there is sufficient evidence that termination of
Mother’s parental rights was in the best interests of A.P. and T.P. In
determining whether termination is in a child’s best interests, courts should look
beyond the factors identified by DCS and consider the totality of the evidence.
In re I.A., 903 N.E.2d 146, 155 (Ind. Ct. App. 2009). Recommendations of a
DCS caseworker and child advocate to terminate parental rights, combined
with evidence that the conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. Id.[23] Here, the DCS caseworker and CASA both testified unequivocally that they
believed termination was in the children’s best interests. Their testimony was
bolstered by evidence of the dramatic improvement in both children’s
emotional health, sociability, and educational achievement (especially with
respect to T.P.) while they were in the care of the foster parents. By contrast,
Mother’s last interaction with the children, when she attempted to convince
them to leave their foster parents and move to Florida, was deeply upsetting to
the children, who wished to remain in the stable environment provided by the
foster parents. The foster parents also want to adopt the children.
[24] Mother suggests that termination is premature and that she should be allowed
to continue addressing her mental health issues and work toward eventual
reunification with A.P. and T.P. However, a child’s need for permanency and
stability is a central consideration in determining a child’s best interests. In re
E.M., 4 N.E.3d 636, 647-48 (Ind. 2014). “Simply stated, children cannot wait
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indefinitely for their parents to work toward preservation or reunification—and
courts ‘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.’” Id. at 648 (quoting K.T.K. v. Indiana
Dep’t of Child Servs., 989 N.E.2d 1225, 1235 (Ind. 2013)). By the time of the
final termination hearing in this case, the children had been apart from Mother
for almost two years, during which time she showed little to no improvement in
her ability to adequately care for the children—indeed, she appeared to show no
indication that she needed or wanted to improve, instead choosing to blame her
difficulties on allegedly corrupt DCS workers and service providers. The
children need not wait any longer for stability and permanency in their lives. In
sum, there is sufficient evidence that termination of Mother’s parental rights
was in the best interests of A.P. and T.P.
[25] Finally, we are cognizant that many of the issues in this case can be directly
traced to Mother’s mental health problems and that she was receiving
psychiatric treatment throughout the CHINS proceedings and even before to
attempt to address those problems. However, although a parent’s mental health
problems standing alone cannot support a termination of parental rights, neither
do such problems prohibit termination. See T.B. v. Indiana Dep’t of Child Servs.,
971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied. A parent’s mental
illness may be considered in a termination case if the parent is unable or
unwilling to fulfill his or her legal obligations in caring for his or her children.
Egly, 592 N.E.2d at 1234. Even if there is some link between a parent’s mental
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illness and a failure to progress in services or to adequately care for his or her
child, such illness or mental deficits do not excuse such failures or allow the
parent to keep his or her children “regardless of the danger to their health and
well-being.” In re A.S., 905 N.E.2d 47, 50 (Ind. Ct. App. 2009). Mother’s
mental illness or illnesses were not a barrier to the termination of her parental
rights.5
Conclusion
[26] There is sufficient evidence to support the termination of Mother’s parental
rights to A.P. and T.P. We affirm.
[27] Affirmed.
May, J., and Bradford, J., concur.
5
Mother also briefly argues that DCS did not have an adequate plan for A.P. and T.P. following
termination. However, this argument was dependent on her argument that termination is premature, which
we already have rejected.
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