Opinion
24A-JT-1389
11-12-2024
In the Termination of the Parent-Child Relationship of: Z.S. (Minor Child), v. Indiana Department of Child Services, Appellee-Petitioner and J.M. (Mother) and D.S. (Father), Appellants-Respondents,
ATTORNEYS FOR APPELLANTS Rachel M. Rogers Kyle K. Dugger Monroe County Public Defender Bloomington, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Marjorie Lawyer-Smith Office of Indiana Attorney General Todd Rokita Indianapolis, Indiana ATTORNEY FOR MONROE COUNTY CASA, INC. Kendra G. Gjerdingen Bloomington, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Monroe Circuit Court The Honorable Stephen R. Galvin, Senior Judge Trial Court Cause No. 53C07-2308-JT-408
ATTORNEYS FOR APPELLANTS Rachel M. Rogers Kyle K. Dugger Monroe County Public Defender Bloomington, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Marjorie Lawyer-Smith Office of Indiana Attorney General Todd Rokita Indianapolis, Indiana
ATTORNEY FOR MONROE COUNTY CASA, INC. Kendra G. Gjerdingen Bloomington, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶1] J.M. ("Mother") and D.S. ("Father") (collectively, "Parents") appeal the trial court's termination of their parental rights over Z.S. ("Child"). Parents raise four issues for our review, but we need address only the following three:
1. Whether certain findings of the trial court are clearly erroneous.
2. Whether the trial court clearly erred when it concluded that the reasons that resulted in Child's removal from Mother's care are not likely to be remedied.
3. Whether the trial court clearly erred when it concluded that termination of the parent-child relationships was in Child's best interests.
[¶2] We affirm.
Facts and Procedural History
[¶3] Mother gave birth to Child on May 22, 2021. At the time, Father's identity and whereabouts were unknown.
[¶4] On May 29, the Indiana Department of Child Services ("DCS") received a report that Child was a victim of neglect while in Mother's care. Family case manager ("FCM") Lindsey McDonald investigated the report. Mother told FCM McDonald that Mother's step-father had committed suicide on May 28 and "his evil spirit was manifesting as a demon in other people." Appellant's App. Vol. 2, p. 15. Mother further believed that her step-father's spirit "was following her and her family." Id.
[¶5] Law enforcement officers transported Mother to a nearby hospital for a mental health evaluation. Mother left Child in the care of her mother, Melissa Coy. However, Coy's own minor children were removed from her care later that same evening. DCS then filed a petition alleging Child to be a Child in Need of Services ("CHINS").
[¶6] Following a fact-finding hearing on the CHINS petition, the trial court found that Mother was homeless, unemployed, and had a history of mental illness that included diagnoses of PTSD, disruptive mood dysregulation disorder, and depression. The court found that those diagnoses were still valid, that she had been prescribed medication for her illnesses, and that she had "independently stopped taking" at least one of those medications "because of the way that the medication ma[de] her feel." Id. The court further noted that stressors related to the post-partum period following Child's birth had "combined with" her illnesses to "negatively impact[] [Mother's] mental health and emotional stability." Id.
[¶7] The court then found that Mother's instability negatively affected "her ability to be present and make safe decisions for" Child and made it "difficult for her to remain calm and appropriately parent," which on at least one occasion resulted in the need for law enforcement to intervene during a visitation. Id. Accordingly, the court concluded that Child was a CHINS and ordered Mother to participate in various services.
[¶8] Over the next few years, Mother's participation in mental health services failed to address underlying concerns. For example, Mother initially met with Olivia Stoner for individual therapy starting in March 2022. However, much of Mother's therapy time with Stoner "was taken up with discussion of [Child's] placement and DCS service providers" rather than Mother's mental health issues. Id. at 21; see Tr. Vol. 1, pp. 17-18. Mother ceased meeting with Stoner in October 2023.
[¶9] Mother also met with psychologist Dr. Jenna Cacciola. Dr. Cacciola determined that Mother has an IQ of 62. She also determined that Mother has PTSD and major depressive disorder with psychotic features. Dr. Cacciola observed that there was evidence in Mother's medical records of hallucinations and references to "demons." Tr. Vol. 1, p. 145. However, Dr. Cacciola was unable to confidently assess the full extent of Mother's possible hallucinatory experiences or psychosis because Mother displayed "concerns about how that might impact . . . the reunification process," which Dr. Cacciola believed prevented Mother from providing "a full picture of what's going on." Id.
[¶10] Dr. Cacciola made several recommendations for Mother's care, and to accommodate those recommendations FCM Jamie Bennett arranged for Mother to meet with Jackie Jordan for individual therapy. Jordan, unlike Stoner, with whom Mother was meeting at the time, would have been able to employ specific techniques recommended by Dr. Cacciola. However, Mother refused to meet with Jordan. Id. at 191-92.
[¶11] Mother's visitations with Child were supervised throughout the CHINS proceedings, and Mother was unable to progress to unsupervised visitation. During several visits, Mother put Child's safety at risk by not returning Child as expected, and law enforcement officers were called to intervene and return Child to the care of Child's foster family. By the time of the fact-finding hearing on DCS's termination petition, Amanda Bohall, who had supervised more than 100 hours of Mother's visits with Child, thought that the "maximum amount of time" Mother could have in a visit with Child was "three hours." Id. at 75. After that, Mother's "mental health" would become too serious of an issue to continue the visit. Id.
[¶12] Mother's housing throughout the CHINS proceedings was also unstable. Over about three years, she moved residences numerous times. Mother did not always disclose where she was living to DCS caseworkers. For at least some portion of time, she lived with a partner whom Mother acknowledged committed acts of domestic violence against her.
[¶13] Also during the CHINS proceedings, DCS identified and located Father, who was living and still lives in Kentucky. Father became a party to the CHINS proceedings in February 2022, and the trial court ordered him to complete a DNA test to establish his paternity. Father waited more than one year before doing so. At no point during the CHINS proceedings did Father visit with Child or contact DCS to arrange a visit.
[¶14] In August 2023, DCS filed its petition to terminate Parents' parental rights over Child. After a four-day fact-finding hearing that spanned across six months, the court found and concluded that the reasons that resulted in Child's removal from Mother's care were not likely to be remedied and that termination of the parent-child relationships was in Child's best interests. The court terminated Parents' parental rights accordingly, and this appeal ensued.
Standard of Review
[¶15] Indiana appellate courts have long adhered to a highly deferential standard of review in cases involving the termination of parental rights, and we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous. To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the trial court's findings of facts and conclusions thereon. 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; 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." In re A.D.S., 987 N.E.2d 1150, 1156 (Ind.Ct.App. 2013), trans. denied. We neither reweigh the evidence nor assess witness credibility. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind.Ct.App. 2019). And we will accept unchallenged factual findings as true. See In re S.S., 120 N.E.3d 605, 614 n.2 (Ind.Ct.App. 2019).
[¶16] It is well-settled that the parent-child relationship is one of society's most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind.Ct.App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove several elements by clear and convincing evidence. Ind. Code § 31-35-2-4(c) (2024). Only two of those elements need to be addressed in this appeal: (1) whether there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside of Mother's home will not be remedied; and (2) whether termination of Parents' parental rights is in Child's best interests. I.C. § 31-35-2-4(c)(3), (d)(3).
[¶17] Clear and convincing evidence need not establish that the continued custody of a parent is wholly inadequate for a child's very survival. Bester, 839 N.E.2d at 148. It is instead sufficient to show that the child's emotional and physical development are put at risk by the parent's custody. Id. If the trial court finds DCS's allegations in the petition to be true, the court shall terminate the parentchild relationship. I.C. § 31-35-2-8(a).
1. The challenged findings are supported by the record.
[¶18] On appeal, we first address Parents' challenge to forty-nine of the trial court's findings of fact. The challenged findings relate to Mother's mental health diagnoses, her IQ, her history with domestic violence, and her numerous residences during the CHINS proceedings. Several of the findings also relate to Mother's progress, or lack thereof, in treating her mental health issues.
[¶19] According to Parents:
The uncontroverted evidence was that 1) Mother had a meaningful, long-term relationship with a qualified therapist that DCS connected her with[, Stoner]; 2) in spite of Mother's diagnoses and long history of trauma, she was able to open up to this therapist and gained many life skills through doing so, including, but not limited to: identifying what an abusive relationship actually looks like and how to deal with it, and growing her self-awareness exponentially; 3) Mother grew her parenting skills commendably throughout the duration of the case and benefitted from any courses or general teachings/work with service providers in growing her parenting skillset; 4) Mother never hurt [Child] and no testimony was offered that there was genuine and actualized fear that Mother would physically harm [Child]; and 5) Mother demonstrated the ability to seek and obtain employment, to maintain income to care for [Child], and to seek and obtain housing.
Appellants' Br. at 15-16 (footnote omitted). In support of those and similar arguments, Parents emphasize certain portions of Stoner's testimony, Bohall's testimony, and Mother's testimony. Parents emphasize the progress Mother made with Stoner and their belief that the trial court did not properly "value" Mother's relationship with Stoner, id. at 20-21; their belief that unfavorable evidence is "questionable" in its credibility, id. at 19; their belief that DCS "rushed in with a termination prematurely," id. at 20; their belief that Mother could not have complied with Dr. Cacciola's recommendations; and their belief that the trial court failed to mention in its order certain facts favorable to Mother. Parents also take issue with the trial court's finding that Mother "only parented [Child] for seven days of his life." Id. at 25.
[¶20] Parents' arguments on appeal attempt to tell a story about Mother that the trial court did not find convincing. Their arguments on appeal notwithstanding, the record supports the trial court's findings that Mother has a history of serious mental health issues, including hallucinations. Ex. Vol. 1, pp. 60-61. The record supports the trial court's findings that progress with Stoner may have been comfortable and friendly for Mother but ultimately failed to address her underlying mental health issues. Tr. Vol. 1, pp. 17-18. The record supports the trial court's reliance on Dr. Cacciola's treatments, diagnoses, and recommendations. Id. at 145. The record supports the trial court's findings that DCS attempted to have Mother meet with a new therapist who could better accommodate Dr. Cacciola's recommendations, but Mother refused to do so. Id. at 191-92. The record supports the trial court's findings that, at the time of the fact-finding hearing on DCS's termination petition, Mother's mental health issues continued to be a significant barrier to reunification and limited Mother's ability to visit with Child to no more than three hours per visit. Id. at 75. The record supports the trial court's findings that several of Mother's visits with Child resulted in DCS having to call law enforcement to secure Child from Mother. Id. at 39, 53-56. The record supports the trial court's findings that Mother frequently relocated residences throughout the CHINS proceedings. Id. at 61-63. And Mother admitted to the trial court to having lived with a partner who had engaged Mother in domestic abuse. Tr. Vol. 2, p. 37.
[¶21] In sum, Parents' challenges to the trial court's findings of fact simply seek to have this Court reweigh the evidence and reassess the witnesses' credibility, which we will not do. Accordingly, we cannot say that the trial court's findings of fact are clearly erroneous.
2. The trial court's conclusion that the reasons that resulted in Child's removal from Mother's care are not likely to be remedied is supported by the record.
[¶22] We next consider Parents' argument that the trial court clearly erred when it concluded that the reasons that resulted in Child's removal from Mother's care are not likely to be remedied. In determining whether the trial court erred when it concluded that the conditions that led to a child's removal and continued placement outside a parent's home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, "we must ascertain what conditions led to [the child's] placement and retention in foster care." Id. Second, we must determine whether the record supports the trial court's assessment that "there is a reasonable probability that those conditions will not be remedied.'" Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)). In this step, the trial court must assess a parent's fitness at the time of the termination proceeding, taking into consideration any evidence of changed conditions and balancing a parent's recent improvements against "habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation." In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). "Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that . . . the problematic situation will not improve." In re A.H., 832 N.E.2d 563, 570 (Ind.Ct.App. 2005). DCS "is not required to provide evidence ruling out all possibilities of change; rather, it need only establish 'that there is a reasonable probability that the parent's behavior will not change.'" In re A.D.S., 987 N.E.2d 1150, 1157 (Ind.Ct.App. 2013) (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App. 2007)), trans. denied.
[¶23] Child was removed from Mother's care following a mental health incident in which Mother was reported to have experienced hallucinations. Accordingly, the trial court ordered Mother to participate in various mental health services. But, over the next several years, Mother failed to address her underlying mental health issues. While she developed a rapport with Stoner, Dr. Cacciola concluded that Mother was less than forthright about Mother's mental health issues for fear of adversely affecting reunification efforts. Tr. Vol. 1, p. 139. Dr. Cacciola concluded that it was "imperative" to explore and determine the extent to which Mother's hallucinations and related symptoms may have been evident in Mother's life. Ex. Vol. 1, p. 143. Yet, when DCS attempted to arrange for Mother to meet with a therapist who could assist with Dr. Cacciola's recommendations, Mother refused to do so. And, at the fact-finding hearing on DCS's termination petition, Mother continued to deny that she presently had or had ever had hallucinations. Tr. Vol. 2, pp. 83-84.
[¶24] Mother's unaddressed mental health issues have adversely affected her visitations with Child. She has not been able to advance beyond supervised visitations, and, as of the fact-finding hearing on the termination petition, DCS case workers believed that Mother could not be with Child for more than three hours before her mental health became too serious of an issue to continue the visitation. DCS also had to contact law enforcement officers on several occasions during supervised visits in order to have Child returned to foster care. And, whether a product of her mental health issues or not, Mother's housing throughout the CHINS proceedings has remained unstable.
[¶25] Parents' argument on this issue is focused on their own assessment of the evidence and their challenges to the trial court's findings of fact. As explained above, the trial court's findings are supported by the record. And the trial court's conclusion that the conditions that resulted in Child's removal from Mother's care are not likely to be remedied is supported by the court's findings. Accordingly, we affirm the trial court's conclusion on this issue.
3. Termination of the parent-child relationships is in Child's best interests.
[¶26] Last, Parents contend that the termination of their parental rights over Child is not in Child's best interests. A court's consideration of whether termination of parental rights is in a child's best interests is "[p]erhaps the most difficult determination" a trial court must make in a termination proceeding. E.M., 4 N.E.3d at 647. When making this decision, the court must look beyond the factors identified by DCS and examine the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate the interests of the parent to those of the child. Id. at 1155. Central among these interests is a child's need for permanency. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Indeed, "children cannot wait indefinitely for their parents to work toward preservation or reunification." E.M., 4 N.E.3d at 648. "[W]e have previously held that the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." A.D.S., 987 N.E.2d at 1158-59.
[¶27] Here, again, the evidence demonstrates that the conditions that resulted in Child's removal from Mother's care will not be remedied, and Father never had and has never sought to have Child in his care. In addition, FCM Sheyla Fogle and CASA Mark Kingsbury both testified that termination of Parents' parental rights over Child is in Child's best interests. Tr. Vol. 1, p. 208; Tr. Vol. 2, p. 10. The trial court's conclusion on this issue is therefore not clearly erroneous, and Parents' arguments to the contrary again simply seek to have this Court reweigh the evidence, which we will not do.
Conclusion
[¶28] For all of these reasons, we affirm the trial court's termination of Parents' parental rights over Child.
[¶29] Affirmed.
Brown, J., and Kenworthy, J., concur.