In the Matter of the Parent-Child Relationship of L.C. (Child) and M.H. (Mother) M.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 04 2020, 8:51 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennie Scott Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Parent-Child February 4, 2020
Relationship of L.C. (Child) and Court of Appeals Case No.
M.H. (Mother); 19A-JT-1714
M.H. (Mother), Appeal from the Delaware Circuit
Court
Appellant-Respondent,
The Honorable Kimberly S.
v. Dowling, Judge
Trial Court Cause No.
The Indiana Department of 18C02-1811-JT-135
Child Services,
Appellee-Petitioner
May, Judge.
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[1] M.H. (“Mother”) 1 appeals the involuntary termination of her parental rights to
L.C. (“Child”). Mother challenges several of the trial court’s findings, arguing
they are not supported by the evidence. In addition, Mother contends the trial
court’s findings do not support its conclusions that the conditions under which
Child was removed from Mother’s care would not be remedied, 2 that
termination was in Child’s best interests, and that there exists a satisfactory plan
for Child’s care following the termination of Mother’s parental rights. 3 We
affirm.
Facts and Procedural History
[2] Child was born to Mother on December 27, 2015. Child was born at thirty-
three weeks gestation and “required an extended hospital stay following his
birth.” (App. Vol. II at 34.) Upon his release from the hospital, Child lived
1
J.C. (“Father”) consented to Child’s adoption and does not participate in this appeal.
2
Mother also alleges the trial court’s findings do not support its conclusion that the continuation of the
Mother-Child relationship posed a threat to Child’s well-being. Because we hold the trial court’s findings
supported its conclusion that the conditions under which Child was removed from Mother’s care would not
be remedied, we need not consider Mother’s argument regarding whether the continuation of the parent-child
relationship poses a risk to Child’s well-being. See In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999)
(because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the court need find only one
requirement to terminate parental rights), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).
3
Mother also argues the Department of Child Services (“DCS”) did not prove that Child had been
adjudicated a Child in Need of Services (“CHINS”) on two separate occasions as required by Indiana Code
section 31-35-2-4(b)(2)(B)(iii). Mother is correct – Child has been adjudicated a Child in Need of Services
only one time. However, as Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and we
conclude the trial court’s findings support its conclusion that the conditions under which Child was removed
from Mother’s care would not be remedied, DCS did not need also to prove that Child had twice been
adjudicated a CHINS. See In re L.S., 717 N.E.2d at 209 (because Indiana Code section 31-35-2-4(b)(2)(B)
written in the disjunctive, court needs find only one requirement to terminate parental rights).
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with Mother. Dr. Milissa Eley was Child’s pediatrician and began seeing Child
in February 2016. At Child’s first visit, Dr. Eley observed Child was
“underweight and struggling to meet his milestones.” (Id.) Dr. Eley prescribed
a high-calorie formula and spoke with Mother multiple times regarding proper
feeding practices to encourage Child’s proper weight gain. Dr. Eley ultimately
concluded Child suffered from various medical issues, including “failure to gain
weight and at high risk for failure to thrive . . . [and] physically and
developmentally delayed.” (Id. at 35.)
[3] On August 16, 2016, the Department of Child Services (“DCS”) filed a petition
alleging Child was a Child in Need of Services (“CHINS”) based on Dr. Eley’s
diagnosis and because Mother had failed to bring Child to thirteen of his last
fifteen appointments with Meridian Pediatric Rehabilitation, Mother’s live-in
boyfriend used illicit substances, and Father had tested positive for marijuana.
Child remained in Mother’s care. On September 9, 2016, the trial court
adjudicated Child as a CHINS based on Mother’s admission to all allegations
except those related to boyfriend and to Father’s use of drugs.
[4] On October 28, 2016, at his nine-month checkup, Child had lost five ounces
since his weight check eight days earlier. Dr. Eley told Mother that Child
should be admitted to the hospital immediately. Mother left Dr. Eley’s office
before Child could be admitted to the hospital. Dr. Eley contacted DCS, who
took Child into emergency custody and placed him in foster care the same day.
On October 31, 2016, Child was admitted to the hospital and began gaining
weight.
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[5] On November 29, 2016, the trial court entered its dispositional decree in the
CHINS proceeding. The trial court ordered Mother to, among other things,
maintain suitable, safe and stable housing; secure and maintain a
legal and stable source of income; complete a substance abuse
assessment and follow recommendations; meet with
medical/psychiatric personnel and meet personal[,] medical and
mental health needs, as well as medical and mental health needs
of [Child]; attend scheduled visitation with [Child] and follow
visitation rules and procedures; and provide [Child] with a safe,
secure and nurturing environment free from abuse and neglect.
(Id. at 36.) Mother was initially compliant in services and completed all
assessments. However, Mother did not believe she needed assistance with her
mental health or parenting skills, and she did not make any progress in services.
Mother eventually stopped participating in services.
[6] At the beginning of the proceedings, Mother’s visitation with Child was
unsupervised. However, on August 6, 2018, Mother’s visits were changed to
supervised “until [Mother] was compliant with visitation rules and had secured
stable housing.” (Id.) Mother did not return to unsupervised visits. After the
visits became supervised, Mother started missing visits. Mother missed fifteen
visits between August 6, 2018, and February 2019. At Mother’s request, her
visits were decreased to one per week in November 2018, and to once every
other week in January 2019.
[7] On November 30, 2018, DCS filed a petition to terminate Mother’s parental
rights to Child based on Mother’s noncompliance with services. The trial court
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held fact-finding hearings on the matter on February 21, 2019, March 21, 2019,
and April 2, 2019. On July 1, 2019, the trial court entered its order terminating
Mother’s parental rights to Child.
Discussion and Decision
I. Standard of Review
[8] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
credibility of 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
most favorable to the judgment. Id. In deference to the juvenile court’s unique
position to assess the evidence, we will set aside a judgment terminating a
parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).
[9] “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. A trial court must
subordinate the interests of the parents to those of the children when evaluating
the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.
The right to raise one’s own children should not be terminated solely because
there is a better home available for the children, id., but parental rights may be
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terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[10] To terminate a parent-child relationship, the State must allege and prove:
(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.
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[11] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
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Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “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 juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208. Mother challenges
several findings and the trial court’s conclusions that there was a reasonable
probability that the conditions under which Child was removed from Mother’s
care would not be remedied, that termination was in Child’s best interests, and
that there existed a satisfactory plan for Child’s care following termination of
Mother’s parental rights.
II. Reasonable Probability Conditions Would Not Be
Remedied
[12] A trial court must judge a parent’s fitness to care for her child at the time of the
termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
Evidence of a parent’s pattern of unwillingness or lack of commitment to
address parenting issues and to cooperate with services “demonstrates the
requisite reasonable probability” that conditions will not change. Lang v. Starke
Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Mother
challenges a number of the trial court’s findings related to its conclusion that the
conditions under which Child was removed from Mother’s care would not be
remedied, which we discuss infra. She then argues the trial court’s
unchallenged findings do not support its conclusion.
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A. Finding 20
[13] Mother challenges Finding 20 of the trial court’s order, which states: “Dr. Eley
concluded that [Child’s] failure to thrive was not due to a medical condition but
rather was the result of social and environmental factors while he was in
Mother’s care.” (App. Vol. II at 35.) Mother directs us to testimony from Dr.
Eley that supports Mother’s contention that Child’s failure to thrive was based
on a medical condition and not environmental factors.
[14] Dr. Eley testified that Child was born premature, and “feeding issues were an
issue when he was a newborn from the beginning.” (Tr. Vol. II at 46.)
Additionally, Dr. Eley testified Child had reflux, which can cause vomiting and
a child with reflux can have difficulty “retaining calories.” (Id. at 47.) Dr. Eley
also testified Child had anemia due to the feeding issues. Mother argues Dr.
Eley’s testimony indicates Child’s failure to thrive is medical, and not
environmental.
[15] However, Mother’s argument ignores Dr. Eley’s other testimony, which
supports the trial court’s finding that Child’s failure to thrive, while initially
medical, was exacerbated by environmental factors, specifically, Mother failing
to follow the doctor’s recommendations regarding feeding practices for Child.
Dr. Eley testified Mother did not pick up the high calorie formula prescribed to
address Child’s weight gain issues, Mother left with Child after an appointment
during which Child had lost weight, and Dr. Eley had explained Child’s feeding
issues to Mother multiple times. Additionally, at the time of his removal from
Mother’s care, Child fell below the first percentile on the pediatrician’s growth
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chart, which charts a child’s weight compared to a general standard. After
some time in foster care, he was in the 25th percentile and hitting appropriate
developmental milestones.
[16] When asked for her medical opinion regarding the reason for Child’s diagnosis
as failure to thrive, Dr. Eley testified the diagnosis was not due to “medical
reasons” and instead was due to “social reasons.” (Id. at 55.) Mother’s
argument is an invitation for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265
(appellate court cannot reweigh the evidence or judge the credibility of
witnesses). The evidence was sufficient to support this finding.
B. Finding 33
[17] Mother challenges a portion of Finding 33 of the trial court’s order, which
states in relevant part: “Mother has been unable to maintain safe, stable and
suitable housing during the CHINS proceedings.” (App. Vol. II at 36.) Mother
directs us to testimony supporting her contention that she has maintained safe,
stable, and suitable housing during the pendency of these proceedings.
Specifically, Mother cites the testimony of Amber Coleman, one of the service
providers, who stated Mother has “been in stable housing for a while.” (Tr.
Vol. II at 117.) Additionally, Family Case Manager Patrick Orto testified
Mother’s housing was “appropriate.” (Id. at 153.) Mother also testified she
had been living at her current residence for approximately one year.
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[18] Mother’s argument ignores testimony contrary to Mother’s own, including
testimony that Mother had only been living at her current residence for
approximately six months, and that Mother did not have “income to pay” for
the apartment. (Id. at 47.) Further, other testimony supported the trial court’s
finding, including evidence that Mother moved multiple times during the
CHINS proceedings -- from her Mother’s house, to her boyfriend’s, and then to
an apartment. Family Case Manager Laura Bennett testified that, at one point
during the proceedings, “[Mother] up and moved and did not let DCS know
that she was moving prior.” (Id. at 46.) Mother’s argument is an invitation for
us to reweigh the evidence and judge the credibility of witnesses, which we
cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh
the evidence or judge the credibility of witnesses). The evidence supports this
finding.
C. Finding 69
[19] Mother challenges Finding 69 of the trial court’s order, which states:
[Child] needs a safe, stable, secure and permanent environment
in order to thrive. Mother has not shown the ability to provide
[Child] with such an environment and has not demonstrated that
she is able to provide a home free of neglect for [Child].
Mother’s habitual patterns of conduct support the substantial
probability of future neglect or deprivation of KS.
(App. Vol. II at 39) (internal citation omitted). Mother argues DCS did not
present evidence to support this finding, and “there is no child in this matter
named K.S.” (Br. of Appellant at 22.) This case involves no child named K.S.;
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however we interpret this singular reference to “K.S.” as a scrivener’s error,
which cannot be used to defeat a judgment. See McBride v. Monroe Cty. Ofc. of
Family & Children, 798 N.E.2d 185, 200 (Ind. Ct. App. 2003) (typographical
error in trial court’s finding does not corrupt judgment).
[20] Regarding evidence to support the trial court’s finding, DCS presented evidence
Mother had difficulty maintaining stable employment, as she held jobs for only
four or five months at a time; she relied on her ex-boyfriend for financial
support; and she did not seem to retain much of the information discussed as
part of parenting-related services. Mother’s argument is an invitation for us to
reweigh the evidence and judge the credibility of witnesses, which we cannot
do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh the
evidence or judge the credibility of witnesses). The evidence was sufficient to
support this finding.
D. Remainder of the Trial Court’s Findings
[21] Additionally, we note the plethora of unchallenged trial court findings that
support the trial court’s decision to terminate Mother’s parental rights. See
Matter of A.C.B., 598 N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming
termination of parental rights despite erroneous findings because other findings
supported termination). Such findings include:
11. DCS filed a Petition Alleging Child to be In Need of Services
on August 16, 2016 under Cause 18C02-1608-JC-000234
(“CHINS proceeding”) alleging that since birth, [Child] had
remained below the 1% for weight; that [Child] is unable to sit up
without assistance; that [Child] has missed thirteen (13) of fifteen
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(15) appointments with Meridian Pediatric Rehabilitation for
feeding treatment, physical therapy evaluation and occupational
therapy evaluation; that Mother’s live-in boyfriend, [K.Y.], uses
illicit substances including but not limited to marijuana; that
Father exercises limited visitation with [Child]; and that Father
tested positive for marijuana.
*****
15. At a weight check on October 28, 2016, [Child] had lost 5
ounces from his prior weight check. [Child] should have been
gaining approximately ½ to 1 ounce per day.
16. Dr. Eley recommended that [Child] be admitted directly to
the hospital from the October 28, 2016 weight check
appointment, but Mother left Dr. Eley’s office with [Child]
before he could be admitted.
17. [Child] was subsequently removed from Mother’s care on an
emergency basis on October 28, 2016 and was placed into foster
care.
18. On October 31, 2016, [Child] was admitted to the hospital,
and he began gaining weight.
19. [Child] has continued to gain weight while in foster care, and
he is currently in the 25th percentile for height and weight.
*****
22. FCM Bennett determined that Mother needed assistance
with parenting education. FCM Bennett observed that Mother
was unable to care for [Child] and appeared to have difficulty
understanding, processing and remembering basic parenting
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instructions or directions. Mother was unable to properly mix
formula for [Child] and routinely forgot instructions she was
given regarding how to care for [Child].
*****
28. At the Periodic Case Review on February 6, 2017, Mother
had recently tested positive for marijuana and had not attended
[Child’s] therapy appointments. Mother was visiting with
[Child]. Mother had been offered therapy and parenting
education, as well as the opportunity to participate in [Child’s]
medical visits and therapies.
*****
39. On August 24, 2017, Mother completed an evaluation of her
cognitive, academic and social-emotional functioning, as well as
an evaluation of her parenting style and beliefs, with Dr. Crystal
Hicks from Anchor Behavioral Counseling.
40. Dr. Hicks determined that Mother holds inappropriate
expectations for children and is at risk of reversing family roles.
Specifically, Mother may tend to treat children more as peers and
use child to help meet self-needs.
41. Diagnostic impressions from Mother’s assessment were
Borderline Intellectual Functioning and Unspecified Anxiety
Disorder. Mother’s global cognitive functioning fell within the
borderline range and revealed that Mother will likely have greater
difficulty than her peers in effective problem solving and
interacting with her environment.
42. Mother’s responses during the evaluation indicated the
presence of paranoia and extreme guardedness, and Dr. Hicks
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determined that Mother is likely experiencing psychological
problems she is not reporting.
*****
46. During her home-based casework, Mother required frequent
re-direction and was very resistant to the service. Mother would
make some progress, then digress. Mother cancelled multiple
home-based casework sessions (approximately 10 sessions) and
multiple scheduled visitations with [Child] (approximately 15
sessions).
47. During the time Mother was working with Lifeline Family
Consultant, she was behind on her rent and facing eviction.
Mother was resistant to setting and maintaining a financial
budget and resistant to assistance with money management.
*****
49. Mother engaged in home-based therapy with Amy Kelly
from Cornerstone between October 2016 and November 2018.
Mother’s initial goal with Ms. Kelly, as established by Mother,
was to get DCS out of her life. Mother later added goals of
addressing anxiety, depression and anger. Mother made some
progress, but would then regress.
50. After Mother and [K.Y.] ended their relationship, Mother
became less consistent with her therapy with Ms. Kelly.
51. Mother was often inconsistent in attending her visitation
with [Child]. In late 2018, Mother only attended approximately
half of the scheduled supervised visits with [Child].
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52. Mother often caused friction between herself, DCS, CASA
[Court Appointed Special Advocate] and service providers.
*****
54. Mother was financially dependent on others, including
[K.Y.]. Financial instability, housing instability and poor
decision-making continued to be barriers for Mother.
55. Mother reported to FCM Orto that she often met men online
and convinced them to give her money.
56. Mother was dishonest with DCS, CASA and service
providers about her housing, employment and/or financial
situation.
*****
60. Mother continued to be inconsistent in attending her
supervised visits with [Child]. At Mother’s request, her visitation
with [Child] was reduced to one visit every other week.
(App. Vol. II at 34-8.) As Mother does not challenge these findings, we accept
them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because
Madlem does not challenge the findings of the trial court, they must be accepted
as correct.”).
[22] The trial court’s findings overwhelmingly support the trial court’s conclusion
that the conditions under which Child was removed from Mother’s care would
not be remedied. Thus, the conclusion was not erroneous. See In re G.M., 71
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N.E.3d 898, 908 (Ind. Ct. App. 2017) (affirming the trial court’s conclusion that
the conditions under which child was removed from mother’s care would not
be remedied based on mother’s pattern of behavior and noncompliance with
services).
III. Child’s Best Interests
[23] In determining what is in Child’s best interests, a trial court is required to look
beyond the factors identified by DCS and consider the totality of the evidence.
In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. A parent’s
historical inability to provide a suitable environment, along with the parent’s
current inability to do so, supports finding termination of parental rights is in
the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990 (Ind. Ct. App.
2002). The recommendations of a DCS case manager and court-appointed
advocate to terminate parental rights, in addition to evidence that conditions
resulting in removal will not be remedied, are sufficient to show by clear and
convincing evidence that termination is in Child’s best interests. In re J.S., 906
N.E.2d 226, 236 (Ind. Ct. App. 2009).
[24] Mother argues termination of her parental rights is not in Child’s best interests
because she “was not given a chance to reunify” with Child and DCS “did not
work this case to reunify” Child with Mother. (Br. of Appellant at 28.) To the
extent Mother’s argument impugns the services offered to her as part of the
CHINS proceedings, a challenge to the services offered by DCS pursuant to the
CHINS adjudication is not a ground by which a parent can attack the
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involuntary termination of that parent’s rights to a child. See In re H.L., 915
N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to provide services does not
serve as a basis on which to directly attack a termination order as contrary to
law”). Further, as indicated supra, over the three years this matter has been
pending, Mother was offered and participated in many services, but she had not
demonstrated any progress in the skills she needed to reunify with Child.
[25] Further, the CASA testified termination of the parent-child relationship was in
Child’s best interests because she believed “[Mother] is either unwilling or
unable to take care of [Child] and insure [sic] his health and well-being.” (Tr.
Vol. III at 4.) Family Case Manager Zach Rozelle testified termination was in
Child’s best interests and, when asked about Child in the foster care setting, he
testified Child appeared “very comfortable, very at home[.]” (Id. at 51.) The
trial court found Child gained weight in foster care and Child was “thriving” in
his current placement. (App. Vol. II at 39.) Based thereon, we conclude the
trial court’s findings support its conclusion that termination of Mother’s
parental rights to Child was in Child’s best interests. See In re J.S., 906 N.E.2d
226, 236 (Ind. Ct. App. 2009) (recommendation of termination by DCS case
worker and CASA coupled with conclusion that parent would not remedy the
conditions under which child was removed was sufficient to terminate parent’s
rights to child).
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IV. Satisfactory Plan for Care Following Termination
[26] Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be
terminated unless DCS provides sufficient evidence of a satisfactory plan for the
care and treatment of the child following termination. Mother argues DCS did
not provide a satisfactory plan for Child’s care following termination because
the “case manager did not go into detail about the child or the child’s plan.”
(Br. of Appellant at 28.) Regarding this issue, the trial court found: “The
Indiana DCS has a satisfactory plan for the care and treatment of the child,
which includes adoption.” (App. Vol. II at 40.)
[27] Adoption is a sufficient plan for a child’s care following termination of a
parent’s rights. See In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008)
(adoption is satisfactory plan for child’s care and treatment after termination).
Additionally, such a plan “need not be detailed, so long as it offers a general
sense of the direction in which the child will be going after the parent-child
relationship is terminated.” In re Termination of Parent-Child Relationship of D.D.,
804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied. We find no error in the
court’s conclusion.
Conclusion
[28] DCS presented evidence that supported the findings challenged by Mother.
Further, the trial court’s findings supported its conclusions that the conditions
under which Child was removed would not be remedied and that termination
was in Child’s best interests. Finally, the proffered plan of adoption was
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sufficient evidence of a satisfactory plan for Child’s placement and care
following termination of Mother’s parental rights. Accordingly, we affirm the
involuntary termination of Mother’s parental rights to Child.
[29] Affirmed.
Crone, J., and Pyle, J., concur.
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