Opinion
24A-JT-1583
12-23-2024
In re the Involuntary Termination of the Parent-Child Relationship of: N.R. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and K.R. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Michael D. Ghilardi Law Office of Michael D. Ghilardi Fort Wayne, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Trial Court Cause No. 02D08-2309-JT-256, The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate.
ATTORNEY FOR APPELLANT Michael D. Ghilardi Law Office of Michael D. Ghilardi Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana.
Brown and Kenworthy, Judges concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] K.R. ("Mother") appeals the trial court's termination of her parental rights over her minor child, N.R. ("Child"). Mother raises two issues for our review, which we restate as the following three issues:
The trial court also terminated the parental rights of Child's alleged father, M.G., and he does not participate in this appeal.
1. Whether DCS violated Mother's due process rights.
2. Whether the trial court clearly erred when it found and concluded that the conditions 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 found and concluded that termination of Mother's parental rights is in Child's best interests.
[¶2] We affirm.
Facts and Procedural History
[¶3] Mother gave birth to Child and Child's twin in July 2021 after just twenty-two weeks of pregnancy. Child's twin died shortly thereafter. Child, meanwhile, had serious medical issues, including chronic lung disease, and remained in the hospital for six months after her birth.
[¶4] In January 2022, the hospital contacted the Indiana Department of Child Services ("DCS") and reported that Mother had not been consistent with visiting Child and had not been cooperative in Child's care. DCS then filed a petition alleging Child to be a Child in Need of Services ("CHINS"). In its petition, DCS alleged that, during Child's time at the hospital, Child "required a life-saving heart surgery," but Mother was "unable to be reached to consent . . . until visited by police ...." Ex. Vol. 1, p. 66. DCS further alleged that, on another occasion, Child needed to have surgery to place a gastric feeding tube, yet, again, Mother "did not respond to the numerous attempts made by the hospital" to obtain her consent. Id. And DCS alleged that Mother had neither consistently visited Child nor participated in necessary training regarding proper care for Child.
[¶5] The trial court adjudicated Child to be a CHINS and ordered Mother to participate in various services, including directing Mother to participate in visitations with Child and to "[p]articipate in necessary medical education for" Child's "special needs." Appellant's App. Vol. 2, p. 112. DCS then removed Child from the hospital and placed Child in licensed foster care. At no time in her life has Child been returned to Mother's care.
[¶6] DCS referred Mother to supervised visitation services through a program called SCAN, which originally provided for her to have between two-and-one-half to three hours of visitation with Child every two weeks. SCAN also offered Mother transportation to the visitation locations. But Mother was inconsistent with her visits, resulting in a decrease in available visits from every two weeks to once per month. Still, Mother only attended about half of the available visits, and, when she did attend, she was not "deeply involved" in bonding with Child. Tr. Vol. 2, p. 26. SCAN eventually discharged Mother due to her noncompliance.
[¶7] Upon her discharge from SCAN, DCS arranged for Mother to exercise visitation through the Bowen Center. Over approximately eleven months, Mother participated in one visitation with Child through the Bowen Center. Throughout the twenty-six months between the initial CHINS petition and the termination hearing, Mother spent about thirty hours in total visiting with Child. Child never developed a bond with Mother.
[¶8] DCS informed Mother of numerous medical and therapy appointments for Child so Mother could attend and become educated in Child's medical needs. But Mother attended only seven out of more than 200 of those appointments. DCS referred Mother to the Bowen Center for home-based case management. Mother never engaged with home-based case management. DCS recommended various services relating to Mother's psychological and emotional needs. Mother only partially participated in those services. Mother also failed to report to mandatory drug screens on 248 occasions, "failed to screen" an additional 51 times, and, when she did participate, tested positive for THC. Appellant's App. Vol. 2, p. 114.
[¶9] DCS moved to change Child's permanency plan from reunification to termination of the parental rights and adoption. In March 2024, the trial court held an evidentiary hearing on DCS's request. Thereafter, the court found as follows:
[N]either parent has participated in the care of [C]hild or received education[] such that they can care for her special needs. [Child] was born premature[ly] and spent six months in the hospital. As a result, [C]hild has chronic lung disease[,] which places her at risk if she were to get sick because she cannot cough. Further, she aspirates when drinking liquids so her formula and food [h]as to be thickened. The Court further finds that [C]hild has a number of developmental delays as she has just started to learn to walk in October 2023 and has issues with strength and flexibility as well as having a hole in her heart. As a result of her many needs, [C]hild receives weekly physical therapy and bi-weekly occupational and feeding therapy for which she spends two hours with each therapist.
. . . Over the course of the last two years, . . . [Child] has had over 200 medical appointment[s] of which the parents have attended seven ....Id. The court then concluded that the reasons that resulted in the removal of Child from Mother's care are not likely to be remedied and that termination of Mother's parental rights over Child is in Child's best interests.
[¶10] This appeal ensued.
Standard of Review
[¶11] 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).
[¶12] 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 care will not be remedied; and (2) whether termination of Mother's parental rights is in Child's best interests. I.C. § 31-35-2-4(c)(3), (d)(3).
[¶13] 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. DCS did not violate Mother's due process rights.
[¶14] We first address Mother's argument on appeal that DCS violated her due process rights. According to Mother, DCS violated her constitutional rights by "failing to make referrals for services" specific to the "actual medical education" Mother needed to obtain to properly care for Child. Appellant's Br. at 18-19. Mother further asserts that the "only training ever referenced specifically . . . was for the operation of" Child's gastric feeding tube, which "was no longer necessary" by the time of the termination hearing. Id. at 19. And Mother challenges related findings by the trial court.
[¶15] As we have explained:
The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Office of Family &Children, 842 N.E.2d 367, 375 (Ind.Ct.App. 2006) (citation omitted), trans. denied.
Due process in parental-rights cases involves the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011) (citing A.P. v. Porter Cnty. Office of Family &Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App. 2000), reh'g denied, trans. denied[]). The private interest affected by the proceeding is substantial-a parent's interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State's interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions. Id.
Any procedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights. A.P., 734 N.E.2d at 1112-13. Nevertheless, a parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal. McBride v.
Monroe Cnty. Office of Family &Children, 798 N.E.2d 185, 194-95 (Ind.Ct.App. 2003); see also In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App .2001) (by raising issue for first time on appeal, mother waived due-process claim that trial court violated her rights in failing to follow statutory requirements governing permanency hearings, case plans, and dispositional orders)....In re S.L., 997 N.E.2d 1114, 1120 (Ind.Ct.App. 2013).
[¶16] Mother's due process argument is not well taken. First, she did not argue in the trial court that DCS failed to offer sufficiently specific services with respect to educating her on Child's medical needs. Accordingly, she has failed to preserve this argument for appellate review.
[¶17] Mother's failure notwithstanding, the record makes clear that DCS offered appropriate services for Mother to learn how to care for Child. In particular, at the termination hearing, family case manager ("FCM") Kendra Kominkiewicz testified that DCS informed Mother of Child's numerous medical and therapy appointments and informed Mother that she was to "participate in [those] appointments" in order to learn "how to care for her child with special medical needs." Tr. Vol. 2, p. 91. Attending Child's medical and therapy appointments would at least appear to be an ideal setting in which Mother could have obtained the education necessary to care for Child. Yet, of the more-than-200 appointments Child had during DCS's involvement, Mother attended seven. Id. at 56-57. The record also makes clear that Child's needs at the termination hearing extended beyond the gastric feeding tube and to her ongoing chronic lung disease and participation in three different therapies each week.
[¶18] Accordingly, Mother's argument on this issue fails, and DCS did not deny Mother her due process rights.
2. The trial court did not err when it found and concluded that the reasons that resulted in Child's removal from Mother's care are not likely to be remedied.
[¶19] Mother next asserts that the trial court erred when it found and concluded that the reasons that resulted in Child's removal from her 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.'" A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App. 2007)), trans. denied.
[¶20] Approximately six months after Child's birth, DCS removed Child from the hospital where she had spent her entire life and placed Child in licensed foster care. The reason for DCS's involvement was Mother's lack of visitation and cooperation in Child's care during Child's time at the hospital. Accordingly, the trial court ordered Mother to participate in various services, most notably services that would educate Mother on how to care for Child given Child's special medical needs. However, over the next two years of the more-than-200 medical and therapy appointments Child attended, Mother attended only seven. Further, in that same timeframe, she participated in a total of thirty hours of visitation with Child. As a result, Mother never became properly educated in how to care for Child and Mother and Child have never bonded.
[¶21] Mother's argument on this issue is focused on her own assessment of the evidence and her challenges to the trial court's findings of fact. But, again, 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 Mother's parent-child relationship is in Child's best interests.
[¶22] Last, Mother contends that the termination of her 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.
[¶23] Here, again, the evidence demonstrates that the conditions that resulted in Child's removal from Mother's care will not be remedied. In addition, FCM Kominkiewicz, the CASA, and the GAL each testified that the termination of Mother's parental rights over Child would be in Child's best interests. The trial court's conclusion on this issue is therefore not clearly erroneous, and Mother's argument to the contrary again simply seeks to have this Court reweigh the evidence, which we will not do.
Conclusion
[¶24] For all of these reasons, we affirm the trial court's termination of Mother's parental rights over Child.
[¶25] Affirmed.
Brown, J., and Kenworthy, J., concur.