Opinion
24A-JT-109
06-17-2024
In the Termination of the Parent-Child Relationship of: A.T. (Minor Child), v. Indiana Department of Child Services, Appellee-Petitioner and C.H. (Mother) Appellant-Respondent
Attorney for Appellant Atonio G. Sisson Muncie, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Delaware Circuit Court The Honorable Kimberly S. Dowling, Judge The Honorable Amanda L. Yonally, Magistrate Trial Court Cause No. 18C02-2308-JT-35
Attorney for Appellant Atonio G. Sisson Muncie, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] C.H. ("Mother") appeals the termination of her parental rights to A.T. ("Child") upon the petition of the Delaware County Department of Child Services ("DCS"). Mother presents the sole issue of whether the termination order is clearly erroneous because DCS failed to present clear and convincing evidence to establish the requisite statutory elements. We affirm.
Facts and Procedural History
[¶2] Child was born in June of 2014. He was diagnosed with Type 1 diabetes and autism. When Child was four days old, he was released into the care of Mother, who is his biological grandmother, and who was also the guardian of Child's three older siblings. Mother subsequently adopted Child but not his siblings.
[¶3] In August of 2022, Child was admitted to the Arnold Palmer Hospital for Children in Orlando, Florida. Child was malnourished; at age eight, he weighed 38.14 pounds, scoring at less than the first percentile for weight and height for a boy his age. He was weak, unable to walk, and experiencing difficulty breathing. The intake report indicated that his glucose monitor sensor had been beeping for two days. Child's blood sugar level was found to be 1591 grams, a potentially lethal level, and he was in diabetic ketoacidosis.
[¶4] Mother returned to Indiana with Child's older siblings and left Child in the care of hospital personnel, returning for Child after getting his siblings enrolled in school. The hospital staff contacted DCS, and an investigation commenced. DCS assessment worker Lacey Vincent met with Mother on August 29, 2022. Mother, who was then in her mid-sixties and a Type 2 diabetic, informed Vincent during the interview that her blood sugar was low. Mother was losing consciousness and eventually became so unresponsive that Vincent called for an ambulance.
[¶5] The next day, after conducting a review of medical and school records that indicated Child's diabetes had not been well-managed for some time, DCS filed a petition alleging Child to be a Child in Need of Services ("CHINS"). Child was removed on August 31 and placed in the care of his special education teacher ("Foster Mother"). On October 26, Child was adjudicated a CHINS, with Mother admitting that she needed assistance in meeting Child's medical needs. As part of the dispositional decree, Mother was ordered to address her own mental health needs and to take recommended steps to meet Child's physical and mental health needs.
For example, Child's school nurse reported that she had taken over the task of administering Child's long acting insulin at lunch "due to concern it was not being done correctly." (Ex. Vol. II, pg. 19.)
[¶6] Mother reported that she had received diabetes education on two prior occasions. DCS arranged for Mother to receive additional individualized training from Marianne Sprong, a diabetes care center director at Community Hospital of Anderson. After working with Mother and seeing her "struggle," Sprong "felt like the comprehension was low" and asked Mother to return for a two-hour group class that focused on "carb counting." (Tr. Vol. II, pgs. 111, 114.) Mother did not do so. Mother was also referred to diabetic education specialist Traci Arini at Union Health in Terre Haute. Mother performed "fairly poorly" on her pretest, as she was only able to correctly identify two out of twenty foods that are "carbohydrate containing." (Id. at 118.) At the end of the educational session, Mother was still unable to pass the test. Arini documented her concern that Mother was unable to demonstrate the necessary knowledge or skills to manage blood sugars, placing Child at risk. Mother received diabetes instruction from a third provider but remained unable to demonstrate competency with regard to nutrition and the effect of carbohydrates upon insulin production. Child's endocrinologist advised DCS that he could not support Child's return to Mother's care.
[¶7] On August 17, 2023, DCS filed a petition to terminate the parent-child relationship. The trial court conducted a fact-finding hearing on November 30, and on December 19, the court issued its findings of fact, conclusions thereon, and order terminating Mother's parental rights. Mother now appeals.
Discussion and Decision
[¶8] Mother contends that the trial court's order terminating her parental rights is clearly erroneous. We begin our review of this issue by acknowledging that the traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution. See, e.g., In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d 832, 837 (Ind.Ct.App. 2001). 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.
[¶9] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree....
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(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 need establish only one of the requirements of subsection (b)(2)(B) before the trial court may terminate parental rights. Id. DCS'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 I.C. § 31-37-14-2).
[¶10] 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. Furthermore, 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.
[¶11] When, as here, a trial court's judgment contains special findings and conclusions, we first determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005). "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. In re L.S., 717 N.E.2d at 208.
[¶12] Mother claims to challenge the sufficiency of the evidence DCS presented to satisfy the elements of Indiana Code Section 31-35-2-4, inclusive of subsections (B) (remediation of conditions or posing of threat to child), and (C) (best interests of child). In so doing, Mother does not specifically claim that any particular finding of fact is unsupported by the evidence. Rather, she suggests that the trial court failed to acknowledge the challenges she faced in complying with services - such as her recent heart surgery and transportation issues - and give due credit to her progress in diabetes education. On that basis, she challenges the trial court's conclusions that the conditions prompting Child's removal will likely not be remedied, that the continuation of the parent-child relationship poses a threat to the well-being of Child, and that termination of parental rights is in Child's best interests.
Remediation of Conditions.
[¶13] Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only address whether the trial court erred in concluding that Mother is not likely to remedy the conditions that resulted in Child's removal. As to the likelihood of remediation of conditions, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). "First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied." Id. (quotations and citations omitted). In the first step, we consider not only the initial reasons for removal, but also the reasons for continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). In the second step, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re E.M., 4 N.E.3d at 643.
[¶14] However, the court must also "evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child." Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind.Ct.App. 2008) (quotations and citations omitted); see also In re M.S., 898 N.E.2d 307, 311 (Ind.Ct.App. 2008) (noting the "trial court need not wait until a child is irreversibly harmed such that his physical, mental, and social development are permanently impaired before terminating the parent-child relationship"). In evaluating the parent's habitual patterns of conduct, the court may disregard efforts made shortly before the termination hearing and weigh the history of the parent's prior conduct more heavily. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013). And DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a reasonable probability the parent's behavior will not change. Moore, 894 N.E.2d at 226.
[¶15] Child was removed from Mother's care when his blood sugar rose to a potentially lethal level, and Child was found to have "severe protein calorie malnutrition," weighing only 38.14 pounds at eight years of age. (Ex. Vol. II, pg. 19.) The DCS review of Child's medical and school records revealed that there had been historical problems with the management of Child's diet and insulin administration.
[¶16] Commendably, Mother has engaged in five diabetes education programs. However, Mother did not appear to benefit adequately from the instruction, and she failed to attend additional recommended classes. Child's health care providers were unwilling to endorse the return of Child to Mother absent a showing of her proficiency in the regulation of his intake of carbohydrates and administration of insulin. But the diabetes educators uniformly opined that Mother had not demonstrated competency as to nutrition and insulin. None of the service providers who worked with Mother recommended so much as an inhome trial visit after Child's removal. As explained by diabetes educators in their testimony, the management of Child's condition is a matter of life and death. The trial court's conclusion as to remediation of conditions is not clearly erroneous.
Best Interests
[¶17] Mother also challenges the trial court's conclusion that termination of the parent-child relationship is in Child's best interests. Mother asserts that she and Child are bonded and that "no evidence was presented by DCS that the Child's emotional, social, and physical well-being has improved as a result of removal from Mother's care." Appellant's Brief at 25.
[¶18] In determining what is in a child's best interests, the court must look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In this case, DCS involvement began when Child was facing a life-threatening medical crisis. At the fact-finding hearing, evidence was adduced that Mother participated in diabetes instruction at three facilities, as arranged by DCS, but she did not complete a psychiatric evaluation, maintain adequate contact with DCS, participate in additional recommended classes, or respond to offers of virtual visitation with Child after her recent surgery made in-person visits impossible. Mother was unable to demonstrate competency in Child's medical care to the satisfaction of Child's medical providers. Uniformly, service providers and medical providers considered Child at significant risk if he were returned to Mother's care.
[¶19] Meanwhile, Child was thriving in the home of Foster Mother (who was Child's special education teacher for one year before the placement), her co-foster parent, and two other children. Child, non-verbal when placed, had learned sign language, and had begun to speak, sometimes in full sentences. Child's Court Appointed Special Advocate ("CASA") testified that Child's foster parents were "vigilant" about his glucose monitor. (Tr. Vol. II, pg. 154.) CASA recommended that Mother's parental rights be terminated, as did Child's caseworker and his older sister who had lived for several years in Mother's home. The totality of the evidence is such that the trial court did not clearly err in finding termination of Mother's parental rights to be in Child's best interests.
Conclusion
[¶20] DCS presented sufficient evidence to establish the requisite statutory elements for termination of Mother's parental rights. The trial court's findings of fact support its conclusions of law. Accordingly, the order terminating Mother's parental rights to Child is not clearly erroneous.
[¶21] Affirmed.
Altice, C.J., and Mathias, J., concur.