Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Feb 24 2014, 9:15 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEIDRE L. MONROE GREGORY F. ZOELLER
Lake Superior Court, Juvenile Division Attorney General of Indiana
Public Defender’s Office
Gary, Indiana ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
C.M. & J.H. (Minor Children) )
)
and )
)
C.M. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 45A04-1309-JT-456
)
THE INDIANA DEPARTMENT )
OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas Webber, Sr., Judge Pro Tempore
Cause Nos. 45D06-1106-JT-165 and 45D06-1106-JT-163
February 24, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this termination of parental rights appeal, the evidence established that C.M.
(Mother) was unwilling to take action to treat her mental illness and, therefore, unable
and unwilling to provide the necessary care to her two children, C.M., born on July 18,
2003, and J.H., born on September 23, 2005 (collectively, the Children). Mother
contends that the Indiana Department of Child Services (DCS) failed to prove, by clear
and convincing evidence, that the conditions that led to the removal of the children would
not be remedied and that termination was in the Children’s best interest. In particular,
Mother argued that the juvenile court erred when it relied on the testimony of a
psychologist that had only met Mother once. We find that Mother’s arguments are a
request to impermissibly reweigh the evidence, which this Court will not do.
Accordingly, we affirm the juvenile court’s decisions to terminate Mother’s parental
rights.
FACTS
On December 9, 2009, the DCS received a report from the East Chicago Indiana
Police Department, who had been called to Mother’s home concerning a landlord/tenant
dispute. The responding officers found that Mother was behaving erratically and were
concerned that the children appeared to be hungry. That same day, the DCS conducted
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its assessment and found that: 1) Mother appeared confused and disoriented; 2) Mother
could not give demographic information about the Children, including dates of birth or
first and last names; 3) Mother had not paid rent and had to vacate her apartment within
twenty-four hours and did not know where she would stay; 4) Mother was hospitalized in
2008 and the Children were removed from Mother’s care; and 5) Mother did not take her
prescribed medicine.
The Children told the DCS family case manager that Mother was afraid of the
light bulbs in the apartment because she believed that cameras were hidden inside the
light bulbs, that Mother thinks the Children are the enemy and calls them bad robots, and
that she believes J.H. has a chip in his ear and tells J.H. not to listen to the chip. The
Children also told the family case manager that Mother is better when she takes her
medication. There was no food in the house, and the Children stated that there was never
any food in the home. Law enforcement transported Mother to a local hospital for a
mental health evaluation, and the DCS placed the Children in foster care.
On March 5, 2010, the juvenile court held a CHINS factfinding hearing, where the
juvenile court heard evidence and adjudicated the Children as CHINS. At the
dispositional hearing on March 23, 2010, the juvenile court issued its Order on the
CHINS Disposition Hearing, wherein the court granted the DCS wardship of the
Children. Mother was ordered to participate in psychological and psychiatric evaluations
and to follow recommended treatment. Additionally, the juvenile court ordered
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supervised visitation, family and individual counseling, homebased case management,
and a parenting assessment and follow-up.
Mother received her evaluation but refused to grant the DCS access to her medical
records to determine if Mother was properly following the doctor’s recommendation.
The DCS attempted to schedule a psychological evaluation, but service providers
informed the DCS that, until Mother was properly taking her medication, they would be
unable to perform an evaluation.
Later, at some point in 2010, police discovered Mother living in a park. The DCS
was notified that Mother had been taken to the hospital. When Mother was released, she
again refused to allow the DCS to view her medical records. The ongoing DCS family
case manager, Rebecca Blair, did not believe that Mother was taking her medication.
On August 5, 2010, Mother underwent a psychological assessment, after which
she was diagnosed with a delusional disorder. Dr. Ronald Ruff, the clinical psychologist
who supervised the assessment, stated that the type of disorder Mother has is likely to
place a child’s welfare significantly at risk. Dr. Ruff’s assessment stated that Mother’s
illness is “severe and pervasive and chronic.” Tr. p. 82. He believed that without
treatment, Mother’s prognosis was very poor. He recommended that Mother seek
immediate psychiatric treatment so that her medical needs could be evaluated. He also
believed that Mother should not be alone with the Children.
On June 17, 2011, the juvenile court entered its order authorizing the DCS to file
its petition for involuntary termination of Mother’s parental rights, and on August 6,
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2013, the juvenile court held an evidentiary hearing on the termination petition. At the
evidentiary hearing, the juvenile court heard evidence from the DCS and Dr. Ruff that
Mother was mentally ill, that she refused to take her medication, and that the Children
would be at risk if she were to continue to parent. DCS family case manager Blair
testified that Mother was resistant to psychological treatment and evaluation and that the
Children believed Mother failed to take her medication during their visitations with her.
Another of Mother’s DCS family case managers, Charlie Brooks, testified that he had
also witnessed Mother’s resistance to treatment and did not believe that it was in the
Children’s best interest to return to Mother’s care. Mother presented evidence that she
has a support system, comprised of her mother, step-father, Children’s father, and her
sister. Mother stated that she could provide a safe and stable home for the children. On
August 13, 2013, after taking the matter under advisement, the juvenile court issued its
order terminating Mother’s parental rights.
Mother now appeals.
DISCUSSION AND DECISION
I. Standard of Review
We initially observe that the Fourteenth Amendment to the United States
Constitution protects the traditional right of parents to raise their children. Troxel v.
Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). However, parental rights are not absolute and must be
subordinated to the child’s interest in determining the proper disposition of a petition to
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terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004).
Thus, “parental rights may be terminated when the parents are unable or unwilling to
meet their parental responsibilities.” Id. at 265. The purpose of terminating parental
rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874,
880 (Ind. Ct. App. 2004).
When reviewing the termination of parental rights, we neither reweigh the
evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260
(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are
most favorable to the judgment below. Id. Here, the juvenile court made specific
findings of fact and conclusions of law in its order terminating Mother’s parental rights.
Where the juvenile court enters specific findings and conclusions, we apply a two-
tiered standard of review. Bester, 839 N.E.2d at 147. We first determine whether the
evidence supports the findings, and then whether the findings support the judgment. Id.
We will not set aside the juvenile court’s judgment unless it is clearly erroneous. In re
A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). A judgment is clearly erroneous
when the evidence does not support the findings, or the findings do not support the result.
In re S.F., 883 N.E.2d 830, 834 (Ind. Ct. App. 2008).
The elements that the DCS must allege and prove by clear and convincing
evidence in order to effect the termination of parental rights are set forth in Indiana Code
section 3l-35-2-4(b)(2), which provides:
(A) that one (1) of the following is true:
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(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
(ii) A court has entered a finding under IC 31–34–21–5.6 that
reasonable efforts for family preservation or reunification are not
required, including a description of the court’s finding, the date of
the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under
the supervision of a county office of family and children 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.
...
(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.
I.C. § 31-35-2-4(b)(2).
We note that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,
which requires that only one of the sub-elements, under subsection (B), be proven true by
clear and convincing evidence. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).
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II. Termination of Mother’s Parental Rights
A. Conditions Remedied
Mother argues that the termination of parental rights order must be set aside
because the DCS failed to prove that the conditions that led to the Children’s removal
will not be remedied. Specifically, the DCS claims that the conditions will not be
remedied because mother remains resistant to psychological treatment and taking her
medication.
Mother argues that the psychological evaluation relied on by the juvenile court
was unreliable because Dr. Ruff “never met with [Mother] and his assistan[t] who
conducted the evaluation only met with her once.” Appellant’s Br. p. 9. Mother
additionally asserts that her behavior at that time could be explained because she was
suffering from depression. Additionally, Mother contends that the juvenile court erred
when it failed to take into account her completion of parenting classes, her participation
in visitation, and her family support system. She maintains that she is now financially
sound and has stable housing.
When determining whether the conditions that led to a child’s removal will not be
remedied, the juvenile court must judge a parent’s fitness to care for his or her child at the
time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
However, the juvenile court’s inquiry must also evaluate a parent’s habitual patterns of
conduct to determine the probability of future neglect or deprivation of the child. Id.
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The juvenile court may properly consider a parent’s history of neglect, failure to
provide support, lack of adequate housing, and lack of employment, among other things.
McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The juvenile
court may also consider the services that the DCS has offered to a parent and the response
to those services. In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008).
The evidence at the termination hearing demonstrated that the conditions that led
to the removal of the Children have not been remedied. Specifically, Mother suffers from
a delusional disorder, and yet refuses to take her medicine. Tr. p. 80, 101, 104. Mother
is resistant to psychological treatment, and Dr. Ruff testified that, without proper
treatment and medication, Mother is a danger to the Children. Id. at 101, 104, 80.
In sum, the evidence established that Mother was unwilling or unable to comply
with the medical treatment necessary to allow her to care for the Children. As a result, it
was proper for the juvenile court to conclude that there was a reasonable probability that
the conditions that resulted in the Children’s removal would not be remedied. In effect,
Mother’s claims amount to an invitation to reweigh the evidence—an invitation that we
decline.
B. Children’s Best Interest
Mother also contends that the juvenile court erred when it determined that
termination of her parental rights was in the Children’s best interest. She argues that the
trial court failed to consider how much the Children love Mother and the suffering
Children will experience when they are separated from Mother.
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In determining what is in the best interest of a child, the juvenile court is required
to look beyond the factors identified by the DCS and to consider the totality of the
evidence. McBride, 798 N.E.2d at 203. In so doing, the trial court must subordinate the
interests of the parent to those of the child. Id. The court need not wait until a child is
irreversibly harmed before terminating the parent-child relationship. Id. Moreover, we
have previously held that the recommendations of the case manager 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. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
Here, the juvenile court found that Mother was a “threat to herself and definitely a
threat to the children.” Appellant’s App. p. 2. It determined that Mother was unwilling
and unable to participate in treatment for her mental disorder. Id. Additionally, Charlie
Brooks, the DCS family case manager at the time of the termination hearing, testified that
the Children were doing well with their foster mother, who wished to adopt them. Tr. p.
127. He stated that “the children have stability in their lives, and to put them in a home
that’s really not stable and constantly the possibility of then having to move around and
stuff would not be good for them.” Id. Under these facts and circumstances, we
conclude that the DCS proved by clear and convincing evidence that the termination of
Mother’s parental rights was in the Children’s best interest.
The judgment of the juvenile court is affirmed.
NAJAM, J., and CRONE, J., concur.
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