Opinion
24A-JT-1333
11-26-2024
In the Termination of the Parent-Child Relationship of: Ky.B. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and Ke.B. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Cathy Serrano Fort Wayne, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate
Trial Court Cause No. 02D08-2308-JT-228
ATTORNEY FOR APPELLANT
Cathy Serrano
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
Bradford and Foley concur. Bailey, Judges Judge.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Ke.B. ("Mother") appeals the trial court judgment terminating her parental rights to her child, Ky.B., ("Child"), born June 28, 2017. The sole restated issue is whether the termination of Mother's parental rights is clearly erroneous. We affirm.
The parental rights of B.E., Ky.B.'s father, ("Father") were also terminated, but Father does not participate in this appeal.
Facts and Procedural History
[¶2] In June 2022, the Indiana Department of Child Servies ("DCS") removed Child from Mother's care and filed a petition alleging Child was a Child in Need of Services ("CHINS") because
Mother had a history of mental health issues that included inpatient treatment for depressive behaviors; [] she has a diagnosis of schizoaffective disorder, psychosis, auditory
hallucinations, delusions, and a mood disorder; [] she was not taking her medications; [] she was evicted from her residence and not able to care for [Child]; [and ...] Father was incarcerated with an earliest release date of 2032.
Appealed Order at 2. Mother and Father (collectively, "Parents") admitted to the CHINS allegations, and on July 19, 2022, following a hearing, the trial court adjudicated Child to be a CHINS.
[¶3] On that same date, the trial court entered a dispositional order in which it ordered Mother, among other things, to: refrain from all criminal activity; maintain clean, safe, and appropriate sustainable housing; follow all discharge instructions and take all medications as prescribed by Parkview Behavioral Health; follow all recommendations of the psychiatric evaluation that was completed in May 2022, including medication management, any substance abuse recommendations, and any mental health treatment; submit to random drug screens and refrain from the use of alcohol and illegal drugs; and enroll in an approved licensed agency home-based services program by August 19, 2022, and participate in all sessions and successfully complete the program.
[¶4] Mother had supervised visitation with Child beginning in July 2022, and she began participation in-but did not complete-home-based services. In August 2022, Mother was evicted from her apartment, and DCS assisted her in obtaining housing at the St. Joseph Women's Mission Center. While she was a resident there in September 2022, Mother attempted to kidnap Child from her relative placement. Mother was arrested, incarcerated, and subsequently convicted of burglary, as a Level 4 felony, and attempted kidnapping, as a Level 5 felony. As a result of the latter conviction, a No-Contact Order was entered against Mother as to Child, but Mother was still permitted supervised visitation "at DCS's discretion." Tr. Vol. 2 at 32. However, Mother has not had visitation with Child since August 2022. Mother was sentenced to three years and 183 days of incarceration for her felony convictions.
[¶5] At a December 13, 2022, permanency hearing, the court ordered a plan of termination of parental rights and adoption to be concurrent with the initial plan of reunification. At the February 27, 2023, permanency hearing, the court changed the permanency plan to termination due to Mother's "significant unaddressed mental health issues" and both parents' incarcerations. Appealed Order at 4.
[¶6] Mother remained incarcerated until February 2023, at which time she was released to the Allen County Community Corrections facility. At that time, Mother's supervised visitation rights were suspended at the recommendation of Child's therapist, who testified that Child "was experiencing anxiety and had difficulty self-regulating, due in part to Mother telling [Child] that [Child] had demons going in and out of her body." Id. at 6. Child had been diagnosed with adjustment disorder and anxiety, and her therapist recommended the suspension of Mother's visitation with Child until Mother completed additional psychiatric treatment. Mother did not obtain such treatment.
[¶7] On August 29, 2023, DCS filed a petition to terminate Mother's parental rights. In September 2023, Mother's placement in Community Corrections was revoked due to her violation of the program rules. Since then, Mother has remained incarcerated, first at the Allen County Jail and then at Rockville Correctional Facility. Mother's expected release date is in June 2025, although she "hopes to be released sooner" due to credit time. Id. at 5. Mother participated in individual therapy through Community Corrections but did not complete the therapy.
[¶8] On February 27, 2024, the court held Mother's termination fact-finding hearing. At the hearing, Child's therapist, the DCS Family Case Managers ("FCM"), and Child's Court Appointed Special Advocate ("CASA") all testified. The CASA stated he believes termination of Mother's parental rights is in Child's best interest due to Mother's behavior that put Child "in danger," and Mother's incarceration. Tr. Vol. 2 at 60. One of the FCMs testified that Child's pre-adoptive placement with her uncle was suddenly "disrupted" about one week before the termination hearing, but that DCS's permanency plan for Child was still adoption, preferably with Child's relatives in or out of state. Appealed Order at 6.
[¶9] In an order dated May 20, 2024, the trial court issued findings of fact-which included the above stated facts-and conclusions thereon and terminated Mother's parental rights to Child. This appeal ensued.
Discussion and Decision
Standard of Review
[¶10] Mother maintains 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 a parent to establish a home and raise his or her 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 parent 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.
[¶11] 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: * * *
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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) [and] that termination is in the best interests of the child ....I.C. § 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).
[¶12] 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.
[¶13] Here, in terminating Mother's parental rights, the trial court entered specific 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.
Conditions that Resulted in Removal/Continued Placement
[¶14] Mother does not challenge the sufficiency of the evidence to support the findings of fact; therefore, we must accept those findings as correct. See, e.g., Matter of To.R., 177 N.E.3d 478, 485 (Ind.Ct.App. 2021) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. denied. Rather, Mother alleges that the findings of fact do not support the trial court's ultimate determination that there is a reasonable probability that the conditions that resulted in Child's removal and continued placement outside the home likely will not be remedied. When addressing that issue, we must determine whether the evidence most favorable to the judgment supports the trial court's determination. Id.; Quillen, 671 N.E.2d at 102. In doing so, 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).
We note that Mother does not raise or address the best interests of the Child factor on appeal.
[¶15] 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. 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). 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.
[¶16] Here, among the reasons for Child's removal from Mother's care was Mother's untreated mental health issues and lack of a home for Child. Mother had serious mental health diagnoses but was not taking her medications for those conditions. In addition, Mother had been evicted from her residence. After Child's removal, Mother was offered and began to engage in services, but her "circumstances deteriorated significantly" when she attempted to kidnap Child from her placement just three months after Child's removal. Appealed Order at 7. Although Mother points out that she only had a few months to engage in services before termination was added to Child's permanency plan, those serviced ceased because Mother was incarcerated for the criminal actions in which she chose to engage-actions that placed Child in danger. "Individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children." K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1235-36 (Ind. 2013) (quotation marks and citation omitted).
[¶17] At the time of the termination hearing, Mother was still incarcerated, having been removed from the Community Corrections program due to noncompliance with rules, and her release date was over a year away. Mother had not visited with Child or engaged in services designed to assist her in reunifying with Child in over a year. Moreover, there was no evidence that Mother was obtaining adequate (or any) treatment for her mental health conditions. Thus, both DCS and the CASA concluded that termination was in Child's best interest.
Although termination of parental rights may not be based solely on a parent's mental disability, a parent's mental illness may be considered as one factor where "'parents are incapable of or unwilling to fulfill their legal obligations in caring for their children.'" Z.B. v. Ind. Dept. of Child Serv., 108 N.E.3d 895, 902 (Ind.Ct.App. 2018) (quoting Egly v. Blackford Cnty. Dept. of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992)), trans. denied. As noted above, the trial court's decision in this case was based on many factors in addition to Mother's untreated mental health, all of which showed that Mother is incapable or unwilling to fulfill her legal obligations to care for Child.
[¶18] The trial court concluded that "there is a reasonable probability that [the] reasons that brought about [Child's] removal and the reasons for placement outside the home will not be remedied." Appealed Order at 7. The clear and convincing evidence supports that ultimate finding. See Lang v. Starke Cnty. Off. of Fam. &Child., 861 N.E.2d 366, 372 (Ind.Ct.App. 2007) (citation omitted) (noting evidence of a parent's pattern of unwillingness or lack of commitment to addressing parenting issues and cooperating with services supports a finding that there exists no reasonable probability that the conditions will change), trans. denied. Mother's contentions to the contrary are simply requests that we reweigh the evidence, which we will not do.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we do not address the trial court's ultimate finding that Mother also posed a threat to Child's well-being.
Satisfactory Permanency Plan
[¶19] Finally, Mother maintains that DCS failed to show that it had a satisfactory permanency plan for Child. We disagree. A permanency 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 D.D., 804 N.E.2d at 268 (citing Jones v. Gibson Cnty. Div. of Family and Children (In re B.D.J.), 728 N.E.2d 195, 204 (Ind.Ct.App. 2000)). DCS presented a plan for adoption of Child, including potential placement with relatives. Adoption is a satisfactory plan for permanency. K.W. v. Ind. Dep't of Child Servs. (In re A.S.), 17 N.E.3d 994, 1007 (Ind.Ct.App. 2014), trans. denied. The trial court did not clearly err in holding that DCS had a satisfactory plan for Child's permanent placement.
Conclusion
[¶20] The trial court's uncontested findings of fact support its judgment terminating Mother's parental rights. The trial court did not clearly err.
[¶21] Affirmed.
Bradford, J., and Foley, J., concur.