In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.O. (Minor Child) T.G. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 12 2019, 7:34 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary June 12, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of E.O. (Minor 18A-JT-2864
Child); Appeal from the Marion Superior
T.G. (Mother), Court
The Honorable Marilyn Moores,
Appellant-Respondent,
Judge
v. The Honorable Scott Stowers,
Magistrate
Indiana Department of Child
Services, Trial Court Cause No.
49D09-1804-JT-465
Appellee-Petitioner,
and
Child Advocates, Inc.,
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Appellee-Guardian Ad Litem
Pyle, Judge.
Statement of the Case
[1] T.G. (“Mother”) appeals the termination of the parent-child relationship with
her son, E.O., (“E.O.”), claiming that: (1) the trial court abused its discretion
when it denied her motion for a continuance; and (2) there is insufficient
evidence to support the termination. Finding no abuse of the trial court’s
discretion and sufficient evidence to support the termination, we affirm the trial
court’s judgment.1
[2] We affirm.
Issue
1. Whether the trial court abused its discretion when it
denied Mother’s motion for a continuance.
2. Whether there is sufficient evidence to support the
termination of the parent-child relationship.
1
The trial court also terminated D.O.’s (“Father”) parental relationship with E.O. Father is not a party to
this appeal.
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Facts
[3] The evidence and reasonable inferences that support the judgment reveal that
E.O. was born in March 2017. Less than a week later, DCS filed a petition
alleging that E.O. was a Child in Need of Services (“CHINS”). The petition
alleged that Mother had “displayed paranoid and combative behavior at the
hospital shortly after [E.O.] was born.” Exhibits at 43. The petition further
alleged that Mother had been diagnosed with a paranoid personality disorder
and had not received treatment for the disorder. She also had an extensive
history with DCS, including an open CHINS case with E.O.’s one-year-old
biological sibling where she had failed to engage in any services to address her
mental health issues. The petition further alleged that Mother’s mental health
issues hindered her ability to appropriately care for E.O.
[4] E.O. was removed from Mother and placed in foster care with his sibling. In
July 2017, Mother admitted that E.O. was a CHINS. Following a dispositional
hearing, the trial court ordered Mother to continue her mental health treatment
at Eskenazi and to sign any necessary releases of information.
[5] In April 2018, DCS filed a petition to terminate Mother’s parental rights. At
the beginning of the termination hearing, Mother’s counsel asked the trial court
to continue the hearing because Mother was not present. Counsel did not know
where Mother was and why she was not present. Mother was not incarcerated.
The State objected to the motion. Specifically, the State explained that it had
provided notice of the hearing to Mother, the case was a year old, and the
State’s witnesses were present and ready to testify. The trial court denied
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Mother’s motion for a continuance. Also at the beginning of the hearing, the
parties discussed the possibility that the hearing might take two days.
[6] Testimony at the hearing revealed that Mother suffered from a paranoid
personality disorder and “presented with a significant amount of paranoia and
delusions . . . specific to DCS.” (Tr. at 45). Specifically, Mother had written
letters to then-President Obama and then-Governor Pence about her case.
Mother did not complete mental health services at Eskenazi and refused to sign
releases of information because she insisted that she did not need mental health
treatment. A social worker at Midtown Mental Health Center also assessed
Mother, but Mother’s case was closed within three months because of her
numerous cancellations and no-shows.
[7] DCS Family Case Manager Alicia Walker (“FCM Walker”) testified that she
had been working on cases with Mother’s other children for three and one-half
years. Mother had told the case manager that her mental health was her
personal business. Mother had also denied having any mental health issues and
had accused FCM Walker of falsifying documents regarding the children.
Mother had contacted the FBI with these allegations.
[8] FCM Walker further testified that E.O. had issues with his vision and that
Mother lacked an understanding of her son’s needs. According to the
caseworker, Mother believed that DCS had killed E.O. at birth and had brought
him back to life and that his vision issues resulted from physical abuse in his
foster home. FCM Walker testified that the reasons that DCS had become
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involved with the case had not been remedied because Mother had failed to
address her mental health issues. FCM Walker testified that termination was in
E.O.’s best interest. The guardian ad litem also testified that termination was in
E.O.’s best interest.
[9] E.O.’s foster mother (“Foster Mother”) testified that E.O. had undergone eye
surgery at Riley Hospital and continues to see an ophthalmologist. He also
receives occupational therapy, developmental therapy, and vision therapy
through First Steps. Foster Mother further testified that E.O. was thriving and
that she and her husband planned to adopt him and his biological sister.
[10] After DCS rested its case, Mother’s counsel told the trial court that she did not
need the second hearing day. In October 2018, the trial court issued an order
terminating Mother’s parental rights. Mother now appeals.
Decision
[11] Mother argues that the trial court abused its discretion in denying her motion
for a continuance and that there is insufficient evidence to support the
termination. We address each of her contentions in turn.
1. Denial of Mother’s Motion for a Continuance
[12] Mother first argues that the trial court abused its discretion in denying her
motion for a continuance. The decision to grant or deny a continuance rests
within the sound discretion of the trial court. In re K.W., 12 N.E.3d 241, 243-44
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(Ind. Ct. App. 2014). An abuse of discretion occurs when the party requesting
the continuance has shown good cause for granting the motion and the trial
court denies it. Id. at 244. No abuse of discretion will be found when the
moving party is not prejudiced by the denial of its motion. Id.
[13] Mother specifically argues that the trial court abused its discretion in denying
her motion for a continuance because she was not present at trial. In support of
her argument, Mother directs us to In re K.W., 12 N.E.3d 241, 243 (Ind. 2014),
wherein the Indiana Supreme Court reversed the involuntary termination of the
parent-child relationship between K.W. and his mother. The Indiana Supreme
Court specifically concluded that the trial court had abused its discretion in
denying mother’s motion for a continuance where she was incarcerated and her
release from prison was imminent. Id. at 249.
[14] However, the facts in K.W. are distinguishable from the facts of this case. Here,
Mother was not incarcerated. Although she had the opportunity to attend the
hearing and demonstrate her ability to assume her parental duties, she chose
not to do so. Mother has failed to show good cause for granting the motion,
and the trial court did not abuse its discretion in denying it.
2. Sufficiency of the Evidence
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[15] Mother also argues that there is insufficient evidence to support the
termination. The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their
children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law
provides for termination of that right when parents are unwilling or unable to
meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.
2005). The purpose of terminating parental rights is not to punish the parents
but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied.
[16] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[17] A petition to terminate parental rights must allege:
(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
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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.
IND. CODE § 31-35-2-4(B)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[18] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she first contends that the
evidence is insufficient to show that there is a reasonable probability that: (1)
the conditions that resulted in E.O.’s removal or the reasons for placement
outside the parent’s home will not be remedied; and (2) a continuation of the
parent-child relationships poses a threat to E.O.’s well-being.
[19] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in E.O.’s removal or
the reasons for his placement outside the home will not be remedied.
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[20] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. The trial court may also consider services offered to the parent by
DCS and the parent’s response to those services as evidence of whether
conditions will be remedied. Id. Requiring trial courts to give due regard to
changed conditions does not preclude them from finding that a parent’s past
behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.
[21] Here, our review of the evidence reveals that E.O. was adjudicated to be a
CHINS in July 2017 because of Mother’s untreated mental health issues.
Nearly a year later, Mother still had not successfully completed treatment for
these issues and she continued to exhibit symptoms of mental illness. For
example, she blamed DCS for her loss of E.O. She had contacted public figures
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and the FBI with her allegations about the case. Mother had further alleged
that DCS had killed E.O. at birth and had subsequently brought him back to life
and that his vision issues resulted from physical abuse in his foster home.
Mother had also alleged that FCM Walker had falsified paperwork about the
case. This evidence supports the trial court’s conclusion that there was a
reasonable probability that the conditions that resulted in E.O.’s placement
outside the home would not be remedied. We find no error.
[22] Mother also argues that there is insufficient evidence that the termination was
in E.O.’s best interests. In determining whether termination of parental rights is
in the best interests of a child, the trial court is required to look at the totality of
the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied. In so doing, the court must subordinate the interests of the parents to
those of the child involved. Id. Termination of the parent-child relationship is
proper where the child’s emotional and physical development is threatened. In
re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s
historical inability to provide adequate housing, stability and supervision
coupled with a current inability to provide the same will support a finding that
continuation of the parent-child relationship is contrary to the child’s best
interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting
Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.
denied, superseded by rule on other grounds). Further, the testimony of the service
providers may support a finding that termination is in the child’s best interests.
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McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.
Ct. App. 2003).
[23] Here, both FCM Walker and the guardian ad litem testified that termination
was in E.O.’s best interests. The testimony of these service providers, as well as
the other evidence previously discussed, supports the trial court’s conclusion
that termination was in E.O.’s best interests. 2
[24] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[25] Affirmed.
Riley, J., and Bailey, J., concur.
2
[1] Mother also argues that her hearing was fundamentally unfair because her counsel told the trial court that she did
not need the second hearing day. The Indiana Supreme Court has explained that where a parent whose rights were
terminated claims on appeal that her counsel underperformed, the focus of the inquiry is whether it appears that the
parent received a fundamentally fair trial whose facts demonstrate an accurate determination. Baker v. Marion
County Office of Family and Children, 810 N.E.2d 1035, 1041 (Ind. 2014). The question is not whether counsel might
have objected to this or to that, but whether counsel’s overall performance was so defective that we cannot say with
confidence that the conditions leading to the removal of the child from his mother’s care are unlikely to be
remedied and that termination is in the child’s best interest. Id. Here, our review of the evidence reveals nothing to
suggest that Mother’s counsel declining the second hearing day led to an unfair trial. Rather, our review reveals
that Mother received a fundamentally fair trial whose facts demonstrate an accurate determination. We can also
say with confidence that the conditions leading to E.O.’s removal from his Mother’s care are unlikely to be
remedied and that termination is in E.O.’s best interest. We find no error.
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