In the Matter of the Term. of the Parent-Child Rel. of: L.M. and M.M. v. The Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL B. TROEMEL LUMINITA NODIT
Lafayette, Indiana DCS Local Office in Tippecanoe County
Lafayette, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
FILED
IN THE Feb 25 2013, 9:34 am
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
L.M. (MINOR CHILD) )
AND )
M.M. (MOTHER), )
)
Appellant-Respondent, ) No. 79A02-1208-JT-678
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Loretta Rush, Judge
The Honorable Faith Graham, Magistrate
Cause No. 79D03-1205-JT-56
February 25, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
M.M. (“Mother”) appeals the involuntary termination of her parental rights to her
child, L.M., claiming there is insufficient evidence supporting the trial court’s judgment.
We affirm.
Facts and Procedural History
Mother is the biological mother of L.M., born in June 2011. The facts most
favorable to the trial court’s judgment reveal that in August 2011 the local Tippecanoe
County office of the Indiana Department of Child Services (“TCDCS”) was notified that
L.M. had been “life-lined” to Peyton Manning Children’s Hospital at St. Vincent in
Indianapolis with cerebral hemorrhages and other physical symptoms associated with
Shaken Baby Syndrome. Tr. p. 40. The next day, TCDCS assessment case manager
Melissa Haywood (“Haywood”) traveled to Indianapolis and met with hospital staff, as
well as with Mother and her husband.1
Hospital personnel informed Haywood that L.M. had suffered life-threatening
injuries, including a “right occipital fracture” or “crack at the back of her skull.”
1
For clarification purposes we note that Mother married M.I.M. (“Husband”) when she was
approximately three months pregnant with L.M. Mother and Husband were still married and living
together at the time TCDCS received the referral concerning L.M. Paternity testing later established
W.K. (“Father”) as L.M.’s biological father. Shortly thereafter, Husband was dismissed from the
underlying CHINS case. The parental rights of Father were terminated by the trial court in its July 2012
termination order. Father does not participate in this appeal. We therefore limit our recitation of the facts
to those pertinent solely to Mother’s appeal regarding the termination of her parental rights to L.M.
2
Exhibits, Intake Officer’s Report of Preliminary Inquiry and Investigation, p. 2.2
Haywood also learned that a tube had been inserted into the baby’s skull to drain the
blood, and a feeding tube was required in order to provide the baby nutrition. Other
injuries could not be fully assessed at that time because L.M.’s condition was “too
fragile” to complete all the necessary tests and examinations. Id.
During the next several days, Haywood met with Dr. Courtney Demetris who
provided additional information concerning the extent of L.M.’s injuries. Dr. Demetris
informed Haywood that L.M.’s MRI results indicated the child had suffered a separate,
older injury approximately three to four weeks earlier which was causing bleeding on the
brain. Id. Dr. Demetris further reported that L.M. had been the victim of “at least 2
different incidents of physical abuse,” that the child’s skull fracture was the result of a
“definitive impact,” that L.M. had “multiple areas of stroke in the brain” as a result of
these injuries, and that L.M. had also suffered an “excessive number of hemorrhages in
the eyes.” Id. Dr. Demetris went on to describe L.M.’s eye injuries as “the most severe”
type of eye injuries possible, with “blood in both eyes” and in “all four quadrants and all
three layers.” Id. The doctor further noted that due to the severity of L.M.’s injuries,
there was a risk for blindness and developmental delays.
When questioned at the hospital as to how L.M. had received such severe injuries,
neither Mother nor Husband was able to provide a plausible explanation. Although both
parents initially implicated a neighbor, who allegedly spent fifteen minutes alone with
2
Because the pages of the Volume of Exhibits submitted on appeal are not separately enumerated, we cite
directly to the exhibit.
3
L.M. on one occasion prior to the child’s injuries, it was later determined that the
neighbor had never held nor otherwise interacted with the baby in the past. Both Mother
and Husband later acknowledged that they had been the sole caregivers for L.M. during
the time frame that the injuries occurred. In addition, Mother confided to Haywood that
she would sometimes get “frustrated” with L.M. and had been experiencing “a high
amount of stress while caring for the child.” Id. at 3. Husband likewise confirmed that
Mother would “lose her temper easily,” especially when the baby cried. Id. Both parents
also acknowledged that L.M. had begun vomiting and having diarrhea approximately
three days earlier, but they did not seek medical attention until L.M. “did not look like
herself,” was “pale and whining,” and “didn’t pick up her arms as she normally [did] to
rub her eyes after waking from a nap.” Id.
As a result of its assessment, TCDCS took L.M. into emergency protective
custody prior to the child’s release from the hospital and filed a petition alleging L.M.
was a child in need of services (“CHINS”). L.M. was so adjudicated following a hearing
in September 2011. Meanwhile, Mother was arrested and incarcerated for Class B felony
neglect of a dependent resulting in serious bodily injury.
In November 2011, the trial court issued a dispositional decree, formally removing
L.M. from Mother’s care and custody and granting wardship of the child to TCDCS. The
court’s dispositional order also directed Mother to successfully complete a variety of
tasks and services designed to address her parenting deficiencies and to ensure the safety
of the child. Among other things, Mother was ordered to: (1) notify TCDCS within 48
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hours of her release from jail; (2) complete a psychological evaluation and follow all
resulting recommendations; (3) participate in supervised visitation with L.M. as directed
by TCDCS; (4) participate in a parenting assessment and follow all recommendations; (6)
pay all child support as ordered; and (7) follow the dictates of the safety plan whenever in
the presence of the child and ensure that the child is properly supervised at all times by
someone approved of by TCDCS.
In January 2012, Mother pleaded guilty to the neglect charge. The criminal court
accepted Mother’s plea, and in February 2012 Mother was sentenced to ten years
imprisonment, with eight years to be executed (six years at the Indiana Department of
Correction and two years through a community corrections program) and two years
suspended to probation. In May 2012, TCDCS filed a petition seeking the involuntary
termination of Mother’s parental rights to L.M. An evidentiary hearing on the
termination petition was held in July 2012.
During the termination hearing, TCDCS presented substantial evidence
concerning Mother’s habitual pattern of involvement in physically abusive relationships,
admitted history of alcohol and drug use, and Mother’s admission that she felt she could
easily become addicted to alcohol. TCDCS also established that Mother, who remained
incarcerated, was not scheduled to be released until February 2014. In addition, TCDCS
presented evidence showing Mother had failed to successfully complete all of the trial
court’s dispositional orders, including a psychological evaluation, parenting assessment,
and substance abuse assessment, due in large part to her continuing incarceration. As for
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L.M., TCDCS presented evidence establishing that although the child’s long-term
prognosis remained uncertain, L.M.’s overall physical condition had improved greatly,
the child’s eye-sight had been recovered, and L.M. was thriving in pre-adoptive foster
care.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. Several days later, the trial court entered its judgment terminating Mother’s
parental rights to L.M. This appeal ensued.
Discussion and Decision
We begin our review by acknowledging that when reviewing a termination of
parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.
In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Here, in accordance with Indiana Code section 31-35-2-8(c), the trial court entered
specific factual findings and conclusions in terminating Mother’s parental rights. When a
trial court’s judgment contains specific findings of fact and conclusions thereon, we
apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment. Id.6
“Findings are clearly erroneous only when the record contains no facts to support them
either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the trial court’s decision, we must affirm. L.S., 717
N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. K.S., 750 N.E.2d at 837. Termination of a
parent-child relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be terminated
solely because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
Before an involuntary termination of parental rights may occur in Indiana, the
State is required to allege and prove, among other things:
(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.
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(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).3 “The State’s burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial 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). Mother challenges the
sufficiency of the evidence supporting the trial court’s conclusions as to subsection
(b)(2)(B) of the termination statute cited above. See I.C. § 31-35-2-4(b)(2).
I. Conditions Remedied
Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) requires a trial
court to find that only one of the three elements of subsection (b)(2)(B) has been
established by clear and convincing evidence before properly terminating parental rights.
See L.S., 717 N.E.2d at 209. Because we find it to be dispositive, we limit our review to
Mother’s allegations of error pertaining to subsection (b)(2)(B)(i) of Indiana’s
3
We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1,
2012). The changes to the statute became effective after the filing of the termination petition involved
herein and are not applicable to this case.
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termination statute, namely, whether TCDCS presented clear and convincing evidence
establishing that there is a reasonable probability the conditions leading to the removal
and continued placement of L.M. outside Mother’s care will not be remedied.
When making a determination as to whether there is a reasonable probability that
the conditions resulting in a child’s removal or continued placement outside of a parent’s
care will not be remedied, a trial court 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 conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.
The court must also “evaluate the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of the child.” Id. Pursuant to this rule, courts
have properly considered evidence of a parent’s prior criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and lack of adequate housing and
employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251
(Ind. Ct. App. 2002), trans. denied. The trial court may also consider any services
offered to the parent by the local Indiana Department of Child Services office (here,
TCDCS) and the parent’s response to those services, as evidence of whether conditions
will be remedied. Id. Moreover, TCDCS is not required to provide evidence ruling out
all possibilities of change; rather, it need establish only that there is a reasonable
probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
9
Although Mother acknowledged that, at the time of the termination hearing, she
had “two (2) actual years to serve in prison, followed by a year of community
corrections,” had failed to complete even one of the court-ordered reunification services
due to her incarceration, and had no bond with L.M., she nevertheless insists on appeal
that “it will not take long to ascertain her abilities” to parent L.M. once she is released
from prison and therefore it was “premature” for the trial court to terminate her parental
rights. Appellant’s App. pp. 9, 11, 16. Mother further insists that her “plea to Neglect of
a Dependent as a class B felony was a pragmatic decision, calculated to achieve a
suspended sentence that would head off a TPR.” Id. at 11. Mother therefore contends
that the trial court committed reversible error in terminating her parental rights.
Here, the trial court made numerous, detailed findings in its judgment terminating
Mother’s parental rights to L.M. addressing Mother’s history of abusive relationships,
admitted past substance use, and unresolved parenting issues. In so doing, the trial court
noted Mother was arrested at age eighteen in New York for battery against a seventeen-
year-old high school student, has a “long-term history of instability” including being in
the foster care system from age fourteen to nineteen as a result of abuse and neglect by
her own parents, was “homeless” in New York before relocating to Lafayette, Indiana,
admitted to a history of drug and alcohol use, and self-reported a history of Post
Traumatic Stress Disorder, Battered Women’s Syndrome, and Depression although she
denied any “formal diagnoses.” Id. at 14.
10
Regarding the circumstances surrounding L.M.’s life threatening injuries, the trial
court found that upon L.M.’s arrival at Peyton Manning’s Children’s Hospital at St.
Vincent, the child appeared “listless and pale” and was admitted to the Intensive Care
Unit with “cerebral hemorrhages and other physical symptoms associated with Shaken
Baby Syndrome.” Id. at 13. The court went on to find that an investigation revealed
“medical evidence of at least two (2) non-accidental incidents of physical abuse at least
one of which involved a definitive impact,” “[p]ossible seizure activity was noted,” tubes
were inserted to drain blood from the skull and provide nutrition,” and MRI results
showed an “older injury” that had caused “bleeding in the brain” with “multiple areas of
stroke.” Id. In addition, the court noted that Mother “plead[ed] guilty and was
convicted” of Class B felony neglect of a dependent resulting in serious bodily injury
with “[a]ggravating factors for sentencing” including “the young age of the child victim,
Mother’s position of trust in relation to the child victim, Mother’s history of drug and
alcohol use, and that Mother compounded the child’s injuries by her actions,” including
failing to seek immediate medical attention for L.M. and failing to fully disclose medical
history to treating physicians. Id. at 14. Moreover, the trial court noted Mother’s current
incarceration and earliest possible release date not occurring until February 2014.
Based on these and other findings, the trial court concluded that there is a
reasonable probability that the conditions that resulted in the removal and continued
placement of L.M. outside Mother’s care will not be remedied. A thorough review of the
record leaves us satisfied that clear and convincing evidence supports the trial court’s
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findings, and these findings, in turn, support the court’s ultimate decision to terminate
Mother’s parental rights to L.M.
During the termination hearing, it was the overwhelming consensus of case
managers and service providers that Mother had made no progress in services and/or her
ability to provide L.M. with a safe and stable home environment. Specifically, case
manager Haywood confirmed that Mother and Husband had both admitted to getting
“easily frustrated” when caring for L.M. Tr. p. 50. Haywood also reported that while at
the hospital, Mother provided “different stories” as to how L.M. may have sustained her
injuries and had unrealistic expectations regarding the child’s developmental milestones.
Id. TCDCS case manager Regina Drummond likewise confirmed that the reasons for
L.M.’s removal from Mother’s care had not been remedied, that the child needs stability
and “does not know [Mother].” Id. at 56.
Mother’s own testimony provides further support for the trial court’s judgment.
During the termination hearing, Mother confirmed her history of past abusive
relationships and substance use. Although Mother testified as to several services she
planned to participate in while incarcerated, she acknowledged that as of that time she
had failed to complete any of the court-ordered services, including a psychological
examination, parenting assessment, substance abuse evaluation, parenting classes and all
other court-ordered reunification services. In addition, Mother further acknowledged that
her earliest possible release date was not until February 2014.
12
As noted earlier, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation of the
child. D.D., 804 N.E.2d at 266. A trial court 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. In re E.S., 762
N.E.2d 1287 (Ind. Ct. App. 2002). Moreover, we have repeatedly recognized that
“[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to
develop positive and meaningful relationships with their children.” Castro v. State Office
of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans. denied. After
reviewing the record, we conclude that TCDCS presented clear and convincing evidence
to support the trial court’s findings and ultimate determination that there is a reasonable
probability the conditions leading to L.M.’s removal and/or continued placement outside
of Mother’s care will not be remedied. Mother’s arguments to the contrary amount to an
impermissible invitation to reweigh the evidence. See D.D., 804 N.E.2d at 265.
II. Best Interests of the Child
Mother argues that the trial court’s findings are insufficient to support a
determination that termination of her parental rights is in L.M.’s best interests. However,
Mother has waived this argument because she fails to appropriately develop or support
her claim. See Ind. Appellate Rule 46(A)(8)(a) (requiring conclusions to be “supported
by cogent reasoning” and “citations to the authorities, statutes, and the Appendix or parts
13
of the Record on Appeal relied on”). Her “argument” in this regard consists of
statements that are generously characterized as inflammatory and/or unsupported such as
“[I]f the [S]tate is tired of providing services or if the [S]tate feels the case should move
on, the TPR provides a way to dispose of the file” and “That’s right, [L.M.], we did not
give your mom a chance to prove herself.” Appellant’s Br. at 17-18.
Waiver notwithstanding, the evidence in the record before us is more than
sufficient to support the conclusion that termination of Mother’s parental rights is in
L.M.’s best interests. Mother’s history of instability, substance abuse, mental health
issues, history of abusive relationships, and current incarceration all support termination
of her parental rights. See Lang v. Starke County Officer of Family & Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007) (“A parent’s historical inability to provide a
suitable environment along with the parent’s current inability to do the same supports a
finding that termination of parental rights is in the best interests of the children.”), trans.
denied. Moreover, Mother lacks the ability to care and provide for L.M. medical needs.
CASA Devon Moore concluded that termination of Mother’s parental rights was
in L.M.’s best interests and that L.M.’s condition has improved during her foster care
placement. L.M. has bonded with her foster placement and her special needs are being
met. Finally, L.M. needs permanency that Mother cannot currently provide because she
is imprisoned for neglecting and injuring L.M. See In re G.Y., 904 N.E.2d 1257, 1265
(Ind. 2009) (“Permanency is a central consideration in determining the best interests of a
child.”).
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Conclusion
For all of these reasons, we conclude that the trial court properly terminated
Mother’s parental rights to L.M.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
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