Opinion
24A-JT-1625
12-16-2024
In the Termination of the Parent-Child Relationship of C.M. and M.M. (Minor Children) v. Indiana Department of Child Services, Appellee-Petitioner and J.H. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Monika Prekopa Talbot 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lawrence Circuit Court The Honorable Luke Rudisill, Special Judge Trial Court Cause Nos. 47C01-2310-JT-422, - 423
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] J.H. ("Father") appeals the trial court's order terminating his parental rights over his minor children, C.M. and M.M. ("the Children"). Father raises one issue for our review, namely, whether the court violated Indiana Code Section 31-10-2-3 when it terminated his parental rights based on his intellectual disability. We affirm.
The Children's mother voluntarily relinquished her parental rights and does not participate in this appeal.
Facts and Procedural History
[¶2] Father and T.M. ("Mother") (collectively, "Parents") have two children together: C.M., born June 4, 2020, and M.M., born September 9, 2021. On November 5, 2021, the Indiana Department of Child Services ("DCS") received a report that the Children were victims of neglect "due to unsafe home conditions, inadequate clothing and hygiene, and [a] failure to ensure medical care." Ex. at 148. In particular, the report alleged that there was a "lice infestation in the home" and that "[s]cabs have been observed" on C.M.'s head. Id. The report also indicated that the home was "crowded" and that "cockroaches have been observed in the home." Id.
Mother also has a third child, Ma.M., whose father is unknown.
[¶3] DCS also became aware that M.M. is "routinely put to sleep in a car seat[,] which has resulted in severe Torticollis (a stiffening of the neck)" and that "Caregivers have been observed to prop a bottle in [M.M.'s] mouth," which resulted in M.M. "aspirating on spit-up while in the car seat" on one occasion. Id. Service providers instructed Parents on safe sleeping and eating practices, but Parents "continue[d] to put [M.M] to sleep in the car seat" and "prop a bottle in [her] mouth despite being educated on the dangers of this practice." Id.
[¶4] On November 15, DCS created a safety plan to address safe sleep and feeding habits. However, at subsequent visits, DCS again observed M.M. sleeping in her car seat "while having a bottle propped next to her." Id. at 149. Service providers went to Parents' house on a "daily basis," but "the family continue[d] to put [M.M.] to sleep in unsafe places and positions" and Parents "continue[d] to prop a bottle in [M.M.'s] mouth." Id. M.M.'s torticollis had "gotten so bad that it [affected] her breathing." Id. In addition, Parents failed to keep sufficient formula for M.M, so service providers and DCS staff provided it for them. DCS informed Parents that they could obtain formula for free, but "they have simply not picked it up." Id. DCS also learned that C.M. had not had a medical checkup since September 2020.
[¶5] On January 4, 2022, DCS removed the Children from the home and filed an amended petition alleging the Children to be Children in Need of Services ("CHINS"). DCS alleged that the "home is unsuitable for small children" as there "are no clear walkways, there is dirty laundry piled up, and the home is dirty and infested with cockroaches." Id. DCS further alleged that Father "has been uncooperative with DCS and service providers" and that Father "takes no responsibility for the neglect occurring in the home." Id.
[¶6] Father entered into an agreed entry and admitted to the allegations in DCS's petition. The court accepted the agreed entry and adjudicated the Children to be CHINS. Thereafter, the court entered its dispositional order and ordered Father to maintain suitable and safe housing, secure and maintain a legal source of income, ensure that the children are properly clothed and fed, enroll in recommended programs, complete a parenting assessment and successfully complete all recommendations, and meet all personal medical and mental health needs in a timely manner.
[¶7] DCS referred Father to a psychological evaluation, home-based case work, and supervised parenting time. Father submitted to the psychological evaluation, which demonstrated that Father has an intellectual disability and functions in the very low range. Father also participated in home-based case work. However, Father did not make improvements. Despite food stamps and income from Social Security, Father was unable to budget his money. He also had issues with anger management and was referred to anger management services, but Father refused to go. And while Father participated in supervised parenting time, initially spending eight hours per week with the Children, he asked that it be reduced. Father never progressed to unsupervised parenting time.
[¶8] On October 13, 2023, DCS filed a petition to terminate Father's parental rights over the Children. The court held a fact-finding hearing on DCS' petition on March 15 and April 5, 2024. Following the hearing, the court entered the following findings of fact and conclusions thereon:
12. DCS made referrals for a Psychological Evaluation for [Father], Home Based Casework, and supervised parenting time. Due to [Father] having no driver's license, the visit supervisor also transported him to visits.
13. A Psychological Evaluation for [Father], that was completed by Dr. Pfeffer, was filed on January 4, 2023. [Father's] intellectual functioning assessed in the extremely low range. Individualized services that are concrete in nature, repetitive, and modeled were recommended. It was found that [Father's] ratings showed deficits and impairments across all adaptive areas measured which will affect his ability to engage in his own care and thus his ability to care for a child. See DCS Exhibit 2.
14. A Parent's Joint Motion for Relief From Judgment was filed [i]n January, 2023 to which DCS filed an Objection. A hearing on the [P]arent's motion was held at the same time as a Permanency Hearing on January 23, 2023. DCS EX. 6.
15. A Permanency Hearing and a hearing on the Motion for Relief From Judgment was held on January 23, 2023. An Order Approving Permanency Plan and an Order on the [P]arent's Relief From Judgment motion was issued on that same date. In the Permanency Hearing portion, the order mentions that the [P]arents participate in services, but no progress is being made towards providing a safe environment for the [C]hildren. It also mentions that parenting time has been reduced at the request of the [P]arents.
16. In the Relief From Judgment portion of the order on January 23, 2023, the Court found the Psychological Evaluations were new evidence and no relief from the finding of CHINS under Indiana Trial Rule 60(B)(2) or 60(B)(8) was warranted. A thorough review of case law as it relates to services in CHINS cases and the ADA was laid out in the order. The Court in the CHINS Case ordered a hearing on Modification of the Dispositional Decree in light of the results of the Psychological Evaluations to make sure that the Disposition[al] Order complied with the new information regarding the [P]arents' functioning level. The Court ordered that the Permanency Plan remain as Reunification to give the [P]arents every opportunity to be given every service available. See DCS EX. 6.
17. After commencing and recessing on two separate occasions[,] the Modification Hearing commenced and concluded on May 1, 2023. The Court affirmed the prior Dispositional Order except that it modified Paragraph 1 to require that if the primary care physicians for the [P]arents recommends it, that the [P]arents be assessed for occupational therapy and/or speech therapy. It was also ordered that the HBC help comply with the additional requirement. Counsel for parents was ordered to attend Child and Family Team Meetings ("CFTM's") and that these meetings are to occur more frequently than the usual case.
These modifications afforded parents and their counsel to have an active voice in the services provided and how those services would be individualized for each parent. These provisions ensured that services were individualized and based on the [P]arents' needs and equal to the opportunities of other parents. See DCS EX. 6.
18. Dr. Pfeffer testified at the Fact Finding Hearing in this Case and her report was entered as DCS Exhibit 2. Dr. Pfeffer testified that [Father] fell in the extremely low functioning range
for all areas tested, which was indicative of Intellectual Disability Mild. Dr. Pfeffer indicated that individuals who meet the criteria of Intellectual Disability have deficits and impairments in both intellectual and adaptive functioning impairments as it relates to practical, social, and conceptual areas. [Father's] scores on the Adaptive Functioning portion of the test were slightly higher than his other scores but still fell well within the extremely low functioning range.
Dr. Pfeffer testified that [Father's] intellectual disability is not expected to improve over time. Further she testified and it is reflected in her report, that it can be expected that [Father] would have difficulties picking up on social cues, difficulty with any tasks that require abstract reasoning such as planning, organizing, and prioritizing, and avoiding manipulation by others. Dr. Pfeffer did an in-depth social history interview with [Father]. His responses during the interview were in line with his test results and provided examples of his functioning level. Examples were provided such as, he related several examples of being manipulated by others to his financial loss, spending all his money on a house only to lose it because he could [not] afford upkeep, and the inability to describe medical concerns or conditions of his children. Dr. Pfeffer found that [Father] will continue to struggle to meet his own needs and is ill-equipped to parent on his own. To parent with support, he would need ongoing, consistent perhaps even daily support and as the [C]hildren get older and the issues present[ed] to [Father] will get more complex and difficult for him to manage. [Father] gave no detailed plan as to how he would be able to parent moving forward. He mentioned one name for support but had difficulty explaining his relationship to this person or what support that person would provide.
19. At the Fact Finding Hearing in this Case, the Home-based Caseworker, Bobb[ie] Murphy, testified that she had a background in providing services and independent living skills to
persons with intellectual disabilities. She also testified that she worked closely with [Father], that she geared services to his level, and that she went with him to appointments in the community for services such as food stamps or the social security office. Not only did she provide transport for these appointments, but she attended with him to navigate [Father] through what he needed to do. She testified that despite food stamps, an SSI check and doing odd jobs, [Father] often had short falls at the end of the month. She testified that he bought a four-wheeler and a motorcycle despite having no license and being on a fixed income. She also testified that [Father] bought a fifth-wheel camper to live in but had not made any provisions for a suitable sleeping area for his children, that he did not own or rent the property that the camper sat on but did pay $25.00 a month to the property owner for water.
20. Bobb[ie] Murphy further testified that when [Father] would become distracted during their sessions or too angry, she would let him vent until he got it out of his system or take a smoke break even though it was against the rules. She testified that [Father] became so disruptive at times that there was discussion of banning him from [her employer's] offices and she would have to do their sessions elsewhere.
20 [sic]. Bobb[ie] Murphy also testified that [Father] worked on parenting techniques at the beginning of her time with him, but a time came when he decided he wanted his kids to be with his brother and he would not work on parenting skills after that point, and they solely worked on [Father's] own needs.
21. Bobb[ie] Murphy stated that it took her a long time to navigate [Father] through the process of applying for services through the Bureau of Disability Services (BDS) because he was reluctant to do it. She stated she pushed for him to apply because she wanted services in place for him if DCS services ended. Ms.
Murphy stated that he is on a waiting list, and that it could be a year or longer before he receives any services through BDS.
22. [Family Case Manager (FCM")] Brianna Gassion testified that she had been the caseworker very early in [Father's] case. She testified that [Father] was compliant with some services but never made enough progress to have unsupervised visits due to safety concerns for the [C]hildren. She stated that originally the [P]arents had 8 hours of parenting time but that the [P]arents began to ask for less because they could not handle the [C]hildren for 2 four-hour visits. Their visit times were cut down at the [P]arents' request. [Court Appointed Special Advocate ("CASA") Melissa Kelly also testified that the visit length was cut back due to a request by the [P]arents.
23. FCM Gassion testified that [Father] was referred to anger management, but he refused to go. She testified that [Father] has issues with outbursts during the [Child and Family Team Meetings ("CFTM's")], sessions with Bobb[ie] Murphy and during visit transport. The issues in transport were detailed by one visit supervisor who stated that he was "flipping off" other motorists and yelling pejoratives at police officers.
24. FCM Gassion also testified that [Father] had little family or community support and that she specifically checked with the BDS program to see if they provided any kind of parenting support[,] which they did not.
25. CASA Melissa Kelly testified about her concerns for [Father's] judgment due to spending his money on a motorcycle, four-wheeler and a camper instead of on a way to provide a safe home for his children. She detailed an account of a fire that occurred in [Father's] camper due to leaving on a space heater plugged into many extension cords despite being counseled not to leave the space heater on in such a condition.
26. Melissa Kelly also testified that the conditions for the [C]hildren's removal had not been remedied, that [Father] had not made enough progress in services to safely return his children to his care and that a return to his care would be a threat to their wellbeing. She agreed with DCS that termination of [Father's] parental rights was in the best interests of [the Children]. Melissa Kelly testified that DCS's plan for adoption of [the Children] by the [C]hildren's current placement was in the [C]hildren's best interests.
27. Current pre-adoptive placement, Jenni Young, testified that except for a few months early on in the case, she and her wife had placement of not only [the Children] but their half-sister [Ma.M.], also. Ms. Young explained the challenges the girls faced when placement was first made with them and the progress that had been made. [M.M] had to undergo treatment for Torticollis and [C.M.] had a leg brace. Food hoarding was an issue and [C.M.] could not speak except in gibberish.... Young detailed behaviors before and after visits with [Father]. She explained that [C.M.] has an IEP and gets special help with educational needs. Ms. Young explained that there are many doctors, therapy and educational appointments to keep up with to meet the [C]hildren's needs. Ms. Young indicated that the [C]hildren call [her] and her wife, "Momma" and "Mommy", respectively, while they call [Father], "Josh." Ms. Young stated that the plan is to adopt all three children and they have the support of their large extended family and the community around them.Appellant's App. Vol. 2 at 162-67.
[¶9] Based on those facts, the court entered the following conclusions:
7.... In the present case, services were tailored to the special needs of [Father]. After [Father's] psychological evaluation was
obtained, a Modification of Disposition hearing was held to tailor the requirements to his needs. He was provided with [a] parent aid who was experience[d] with delivering services to persons with Intellectual Disabilities. And finally, CFTMs were held more frequently, and his counsel was present to protect his interests and [Father] was provided with transportation services. DCS Ex. 6.
8. A child's need for permanency and a safe, secure and stable home is a factor in determining the best interest of the child and is a paramount consideration. See K.T.K. v. Ind. Dept. of Child Svcs. 989 N.E.2d 1225, 1235 (Ind. 2013). [Father] has not progressed in services to the point of being able to provide a safe home nor does he have an adequate plan to do so.
9. In making a determination that there is a reasonable probability that the conditions that resulted in the child's removal will not be remedied, the trial court must judge the parent's fitness to care for his child at the time of the termination hearing. See id. at 854. The Trial Court must also evaluate habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. [Father] has not prepared a safe and suitable home for his children, nor has he progressed in services to the point that he could adequately care for them. There is a reasonable probability that the conditions that resulted in removal will not be remedied in this case based on the totality of the evidence presented.
10. There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, health, and lives of the [C]hildren based on the totality of the evidence presented. [The Children] have special needs that are complex and are likely to be beyond [Father's] ability to parent. [M.M.] has remained out of [Father's] care for the majority of her life. [Father] was overwhelmed by the supervised visitation of more than a two-hour period and asked that the time be
shortened. Father's cognitive and decision-making deficits, including but not limited to the fire caused by an unsafe space heater after he had been warned by providers not to utilize the space heater in his camper, demonstrate that the [C]hildren are not safe in his unsupervised care. Father's lack of progress with services and requests to receive less services (less visitation due to parenting being too stressful) and no parenting skills services (due to a belief that a family member would take guardianship) combined with the expert testimony of Dr. Pfeffer demonstrate a reasonable probability that Father's deficits and the safety concerns for the [C]hildren will not be remedied.
11. Termination of the parent-child relationship is in the best interest of the [C]hildren.
12. DCS has a satisfactory plan for the care and treatment of the [C]hildren, which is adoption.Id. at 168-70. Accordingly, the court terminated Father's parental rights over the Children. This appeal ensued.
Discussion and Decision
[¶10] Father challenges the trial court's termination of his parental rights over Child. We begin our review of this issue by acknowledging that "[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." Bailey v. Tippecanoe Cnty. Div. of Fam. & Child. (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. Schultz v. Porter Cnty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 832, 837 (Ind.Ct.App. 2001). 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.
[¶11] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to 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 wellbeing of the child.
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(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) (2023). DCS's "burden of proof in termination of parental rights cases is one of 'clear and convincing evidence.'" R.Y. v. Ind. Dep't of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
[¶12] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Off. of Fam. & Child. (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. Judy S. v. Noble Cnty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied.
[¶13] Here, in terminating Father's parental rights, the trial court entered findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 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. "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.
[¶14] On appeal, Father does not challenge any of the factual findings made by the trial court. When findings of fact are unchallenged, this Court accepts them as true. L.M. v. Ind Dep't of Child Servs. (In re S.S.), 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind.Ct.App. 2015), trans. denied. Further, Father does not specifically challenge any of the court's conclusions. Rather, Father's only argument on appeal is that the court violated Indiana Code Section 31-10-2-3 when it terminated his parental rights based on his disability.
[¶15] That statute provides that the "right of a person with a disability to parent the person's child may not be denied or restricted solely because the person has a disability." I.C. § 31-10-2-3. Further, "mental or cognitive disabilities, standing alone, are not a proper basis for termination of parental rights." A.B. v. Ind. Dep't. of Child Servs. (In re Z.B.), 108 N.E.3d 895, 902 (Ind.Ct.App. 2018) (citing A.A. v. Ind. Dep't. of Child Servs. (In re V.A.), 51 N.E.3d 1140, 1147 (Ind. 2016)). On appeal, Father contends that the "primary reasons the termination court provided for terminating Father's parental rights were based solely on Father's disability." Appellant's Br. at 8. In particular, Father asserts that "[m]uch of the testimony noted in the court's factual findings supporting termination were about alleged concerns DCS had about what could happen in the future as a result of Father's intellectual disability." Id. at 9.
[¶16] There is no dispute that Father has a disability. However, a court may consider a mental or cognitive disability "where parents are incapable of or unwilling to fulfill their legal obligations in caring for their children." In re Z.B., 108 N.E.3d at 902 (quotation marks omitted). And, here, it is clear that the trial court did not rely solely on Father's disability when it terminated his parental rights.
[¶17] Rather, the court found that Father would need ongoing, consistent support to successfully parent the Children but that Father did not have a plan in place for that support. In addition, Father continued to struggle with finances, making purchases for vehicles that he did not need and for which he did not have a license or could afford. Father purchased a camper to live in, but it did not have a suitable place for the Children to sleep. Further, while Father participated in some services, he did not attend the recommended anger management classes, and he requested that his visits with the Children be shortened because he could not handle eight hours with the Children each week. Father never progressed enough in services to have unsupervised visits. And, notably, Father stopped working on parenting skills after he decided he wanted the Children to be with his brother.
[¶18] In other words, the court terminated Father's parental rights because of Father's failure to progress in services to the point of being able to safely care for the Children. And Father failed to progress even after the court modified the dispositional order in January 2023 to provide occupational and speech therapy assessments for both Parents and to allow Parents' counsel to attend CFTMs, which modifications were designed to "afford[] [P]arents and their counsel . . . an active voice in the services provided and how those services would be individualized for each parent." Appellant's App. Vol. 2 at 163. The court's findings support its conclusion that Father is incapable of or unwilling to fulfill his legal obligations in caring for the Children. See In re Z.B., 108 N.E.3d at 902.
Conclusion
[¶19] The trial court did not rely solely on Father's disability when it terminated his parental rights. As such, the trial court did not violate Indiana Code Section 31-10-2-3, and we affirm the trial court's order.
[¶20] Affirmed.
Bradford, J., and Foley, J., concur.