In Re the Termination of the Parent-Child Relationship of V.A. and A.A. v. Ind. Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Dec 18 2014, 8:03 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:

GREGORY L. FUMAROLO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana

ROBERT J. HENKE
Deputy Attorney General

DAVID DICKMEYER
Graduate Law Clerk
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE THE TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF )
V.A. (Minor Child) and )
)
A.A. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 02A04-1405-JT-233
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
Cause No. 02D08-1307-JT-80

December 18, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
 Case Summary

A.A. (“Father”) appeals the trial court’s termination of his parental rights to his

daughter, V.A. We affirm.

Facts and Procedural History

In April 2014, the trial court entered a termination order that reads in pertinent part as

follows:

THE COURT NOW FINDS AND CONCLUDES that:

….

2. [V.A. was born to S.A. (“Mother”) and Father] on August 3, 2010.

3. A Preliminary Inquiry was held in the underlying Child in Need of
Services case … on August 22, 2012. At the time of Preliminary
Inquiry, the [Department of Child Services’ (“DCS”)] caseworker Sara
Drury met with the parents. The Mother advised that she was
overwhelmed by the child and wanted her removed. Services were
provided to the family by [DCS]. From caseworker Drury’s testimony
the Court finds that the Mother was verbally hard to follow and
expressed unrealistic behavioral expectations of the child. The Mother
expressed a belief that people were trying to read and control her mind
over the internet. She was unwilling to follow a behavioral plan and
the Father was unwilling to live separate from the Mother.
Accordingly, the child was removed from their care.

4. An Additional Initial Hearing was held on September 19, 2012, and the
case was referred for a Factfinding. Provisional Orders were entered.
[DCS] was ordered to provide services and the parents were ordered to
enroll in home based services. The Mother was directed to obtain a
psychiatric evaluation at the Bowen Center.

5. A Factfinding was held on December 3, 2012. The Court found that
the mother was diagnosed with schizo-[a]ffective disorder and, if left
untreated, she may experience delusions, hear voices and/or manifest
manic or depressive moods.…

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6. The Court adjudicated the child to be a Child in Need of Services
(CHINS) and a Dispositional Hearing was held.

7. On December 3, 2012, [the Court] entered a Dispositional Decree in the
underlying child in need of services case and placed the child in
licensed foster care. The Respondent Mother was granted visitation
under the supervision of an agency contracted by [DCS]. A Parent
Participation Plan was incorporated into the Dispositional Decree and
the Respondent Mother was ordered to [do or refrain from doing certain
things, including attending and appropriately participating in all visits
with V.A. and enrolling in and successfully completing a therapeutic
home based services program through the Bowen Center].

8. The Father was … granted unsupervised visits with the child and was
placed under a parent participation plan. In addition to the
requirements of the Mother …, he was ordered to:
….
m. Seek advice and education regarding wife’s mental illness and
possible [effect] on children from therapist or other experts
provided by [DCS].
n. Enroll in therapeutic home based services program through
Bowen Center, participate in all sessions, and successfully
complete the program. (Masters Level services)

9. A Review Hearing was held on February 7, 2013 and the Court found
that the Mother and Father had been involved in services and were
demonstrating an ability to benefit from services. The child was
continued in licensed foster care and the parents were granted
therapeutic visitations.

10. Within a few months, at a July 31, 2013 Permanency Hearing, the Court
found that the parents were not participating in therapy and that the
Mother was not demonstrating an ability to benefit from services. The
Court adopted a Permanency Plan of termination of parental rights.…
The child was continued in licensed foster care.

….

13. Prior to the initiation of the underlying Child in Need of Services case,
the Mother had a long history of mental health treatment. From the
testimony of Park Center’s Clinical Nurse Specialist and Advance[d]
Practice Nurse, Karen Lothamer, the Court finds that:

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[Mother was referred for Park Center medication management services
in February 2009 following her hospitalization and diagnosis of
schizoaffective disorder. In the following months, Mother was
prescribed various medications and reported hearing voices in
September 2009 and an increase in anger issues in November 2009.]
….
j. On December 10, 2010 the Mother came to an appointment with
her child. She reported that she was doing well with the
medications as prescribed.
k. On January 3, 2011 the Mother reported that she was again
pregnant. The Geodon was discontinued. However, by January
26, 2011, the Mother reported that she was not pregnant and the
Geodon prescription was restored.
l. An additional [medication] review was held without incident on
February 1, 2011. The Mother and the Respondent Father
attended the appointment on April 8, 2011. She advised that she
wanted to apply for disability and stated that her family doctor
had provided her with sufficient prescriptions for two months.
However, on May 20, 2011 the Mother appeared and reported
that she was delusional. She stated that a worm was in her head
laying eggs. As a result her medications were adjusted. On
June 8, 2011, the Mother appeared and a prescription for
Geodon was restored to “reduce the voices”.
m. On August 23, 2011, the Mother, Father, and child appeared.
She again believed she was pregnant (from Nurse Lothamer’s
testimony the Court finds that Invega can cause a false positive
pregnancy test result.) Optional medications were prescribed.
n. On October 21, 2011 the Mother appeared and reported that she
was out of her medications and was again hearing voices. Her
medications were again adjusted.
o. On November 18, 2011 the Mother and Father appeared. The
Mother reported she heard voices directing her not to pick up the
baby when the baby was crying. The nurse increased her
medications and set up a three month appointment.
p. On January 13, 2012, the Mother appeared and advised that she
was doing well with her medications. A review appointment
was set for April 9, 2012, however she did not appear.

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 q. The Mother was next seen on July 20, 2012. She and her
husband came to Park Center with the baby. The Mother
exhibited a rambling speech pattern, and was easily side tracked.
The parents agreed not to allow the Mother to be alone with the
child. The Mother and the Father also stated that the Mother did
not need to take her [medications].
r. Following a second hospitalization at Parkview Behavioral
Health the Mother was seen on November 19, 2012. The Father
also appeared for this appointment. The Mother had again been
prescribed Geodon. She complained of side effects and rambled
about her rights. After calming her down the Mother agreed to a
modified dosage. A follow up appointment was set for
December, 2012 but the Mother did not appear.

14. From Nurse Lothamer’s testimony the Court finds that the debilitating
effects of the Mother’s mental illness can be minimized and/or
controlled by medications. Because the Mother has a life long illness
she requires on-going medication management to maintain her stability.
Nurse Lothamer assessed that the Father was supportive of what the
Mother wanted but not what she needed. Nurse Lothamer opined that if
the Mother is not on her properly prescribed medications a child in her
care would be at risk.

….

17. Despite advising Nurse Lothamer that the Mother should not have to
take her medications, [Father] admitted in his testimony that the Mother
is better able to care for his daughter when she is taking her
prescriptions. When the child was still in their care he made it a
practice to call home from work every two hours to ensure all was well.

18. From November 2012 to April 2013 the parents were seen by therapist
Erin Christy of the Bowen Center. She provided assistance with regard
to coping skills, life skills, and therapy.… She determined that the
parents understood the skills she taught but did not know how to
implement [them] in their daily functioning.… [Mother’s] therapeutic
services were discontinued by the Bowen Center’s liaison to [DCS].

19. Beginning in May, 2013 the Mother and Father were seen by therapist
Andrew [Liechty] of the Bowen Center. From his testimony the Court
finds that the Mother reported she had no mental health condition.
However, the Bowen Center’s psychiatric report with regard to the

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 Mother reflected a diagnosis of mood disorder and delusional thinking
(indicative of bi-polar disorder). The Mother did not want to take her
prescribed medications. The therapist observed the Mother to have
paranoid thoughts and incoherent speech.

20. Dr. Hani Ahmad, clinical director and child psychologist for the Bowen
Center saw the Mother twice in 2013. After his first meeting he
concluded that the Mother suffered from paranoia and disorganized
thinking. He accepted the Mother’s refusal to take medications pending
further review of her condition. By his last meeting with her he
concluded that she needed to be prescribed Geodon. Without
medication he opined that a psychotic break could result. The Mother,
he testified, has no insight into her mental health and could harm
herself or others, including a child.

21. On or about May 10, 2013 the Mother admitted herself into the
Women’s Shelter. By her testimony she stated that she went there to
understand whether she was abused or if she had been abused. On May
12, 2013 the police were called to the facility. From the testimony of
Kenneth Johnson of the Fort Wayne Police Department, the Court finds
that the Mother had locked herself in a small room. She would not
respond to the staff. When the officer made entry she advised that she
felt threatened by the other [residents] and the staff. She was expelled
from the property and the officer transported [her] to a home that she
advised was the residence of her relatives. Later that day the husband
appeared at the police station. He advised Officer Johnson that he was
looking for his wife. He stated that she was a paranoid schizophrenic
and was not on her medications. He also noted that the Mother was
demonstrating erratic behaviors and had left. The Officer assured him
that his wife was safe and advised him to seek the assistance [of DCS]
or the Mental Health Association.

….

23. Officer Johnson saw the Mother again on June 17, 2013 when she came
into his office to report a problem at the library. After a discussion the
Mother had to be escorted [from] the station.

24. Throughout the pendency of the underlying CHINS case, the Mother’s
visits with her child have been supervised. The Father was offered
unsupervised visits. However, beginning in the winter months he
expressed concern that his exercise of unsupervised visitation would

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 increase the amount of time the child would be in a car during
hazardous weather conditions. He therefore opted to continue his
supervised visits with the Mother under the supervision of SCAN, a
local agency contracted for that purpose.

25. From the testimony of Amanda Nichols, SCAN therapeutic visitation
supervisor, the Court finds that the Mother and Father requested
therapeutic visitation because regular visits were not going well. She
testified and the Court finds that the Mother will become upset if the
Father permitted the child to determine an activity outside the
prearranged plan. The Mother gets upset “out of the blue[”] and her
angst increases if she is redirected.

….

27. On one occasion the child was brought to the visitation with a coat that
had been provided by the foster mother. The mother took the coat and
would not return it until another coat, the one left at the foster home,
was returned. The episode upset the child. On another occasion when
the child leaned up against her, the Mother told her to get out of her
personal space. [In] yet another incident the Mother observed what she
believed to be serious injuries to the child. She called the police and an
ambulance and directed that the child be taken to the hospital. The
injuries were superficial and had been sustained while the child was at a
doctor’s appointment. Similar conflicts with the Mother were reported
by SCAN visitation supervisor Angel Ness.

28. On December 31, 2013, SCAN supervisor Robin James monitored the
interaction of the parents with the child … during a scheduled visit. The
Father and child played on the floor. The Mother ordered the Father to
sit with her and to pick a more appropriate toy for the child. The
Mother reminded the child that she had told her before not to invade her
personal space. She then drew an imaginary line around herself and
announced that was her personal space. When addressed by the Father,
the Mother became angry. She hit him and clenched her fists. The
child reacted emotionally from the episode and the visits were
concluded. The Mother’s visitations were then suspended.

….

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30. The Father has advised service providers and has testified that he is not
willing to separate from the Mother and care independently for the
child.

31. Should parental rights be terminated [DCS] has an appropriate plan,
that being adoption.

32. The child’s Guardian ad Litem/CASA has also concluded that the
child’s best interests are served by the termination of parental rights. In
support of her conclusion she cites the Mother’s significant mental
health issues and the historic cycle of her inability to manage her
illness. In addition the Guardian ad Litem notes that the Father
comforts and protects the Mother over the needs of the child. The
Father has not shown an ability to benefit from services and cannot
physically protect the child when with the mother. She, too, has
concluded that the recommended adoption by the foster parent is in the
child’s best interests.

BASED ON THE ABOVE FINDINGS OF FACT THE COURT APPLIES
THE RELEVANT STATUTORY LAW AND CONCLUDES THAT:

1. …. In the present case the child has been placed outside the care of
Respondent Parents under a Dispositional Decree for more than six (6)
months prior to the filing of the petition to terminate parental rights.

2. … By the clear and convincing evidence the court determines that
there is [a] reasonable probability that [the] reasons that brought about
the child’s placement outside the home will not be remedied. In this
case the Court finds and concludes by the clear and convincing
evidence that the Mother poses a risk to the safety and well-being of the
child when in her care. She insists on maintaining a personal space that
cannot be entered by the child. The safe care of a toddler does not lend
itself to such an on-going restriction. Unpredictably the Mother can
become agitated and take irrational action.… Her husband goes to
great lengths to interpret what therapists have described as disjointed
and delusional thinking. She has demonstrated a history through which
the use of medications can assist her in maintaining her sanity and to
provide for a child. However, she and the Father have little recognition
if any of her mental illness. Both are not supportive of the medicinal
regimen she requires to maintain her health and, in turn, safely provide
for a small child. The Father has been afforded the option of separately
providing for the child. However, he has chosen, instead, to remain

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 with his wife. He does not have the support or ability to provide the
level of supervision required to ensure the child’s safety when in the
company of her mother. He is unwilling and incapable of ensuring that
the Mother has no unsupervised contact with the child while she
refrains from following her required mental health care. The
circumstances today are the same as that which existed at the time of
the Preliminary Inquiry and CHINS adjudication.

3. …. In this case the Guardian ad Litem has concluded that termination
of parental rights is in the child’s best interests. The child needs a safe
stable and nurturing home environment. The child has suffered
emotional turmoil during visitations with her parents. The child has not
been able to be safely placed back into the care of either parent and
their supervised visits continue. The child needs a safe, sustainable
nurturing environment that the parents are unable to provide. By
termination of parental rights the child can be freed for adoption. The
same serves her best interests.

4. The Department of Child Services has thus proven by clear and
convincing evidence that the allegations of the petition are true and that
the parent-child relationships should be terminated.

Appellant’s App. at 10-17 (citation omitted). Father now appeals.

Discussion and Decision

“The Fourteenth Amendment to the United States Constitution protects the traditional

right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “However, the trial court must

subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination of the parent-child relationship.” In re J.S., 906

N.E.2d 226, 231 (Ind. Ct. App. 2009). “The purpose of terminating parental rights is not to

punish parents but to protect their children. Although parental rights have a constitutional

dimension, the law allows for their termination when parties are unable or unwilling to meet

9
their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004)

(citation omitted).

Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate parental

rights must allege

(A) that one (1) of the following is true:

(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 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) 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.

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DCS must prove “each and every element” by clear and convincing evidence. In re G.Y., 904

N.E.2d 1257, 1261 (Ind. 2009); Ind. Code § 31-37-14-2. If the trial court finds that the

allegations in a petition are true, the court shall terminate the parent-child relationship. Ind.

Code § 31-35-2-8(a).

We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App. 2011). We

will neither reweigh evidence nor judge witness credibility. Id. “Instead, we consider only

the evidence and reasonable inferences that are most favorable to the judgment.” Id. We

apply a two-tiered standard of review: we first determine whether the evidence supports the

trial court’s findings and then determine whether the findings support the judgment. Id. “In

deference to the juvenile 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.” Id.

“A judgment is clearly erroneous when the findings do not support the trial court’s

conclusions or the conclusions do not support the judgment.” In re A.S., 905 N.E.2d 47, 49

(Ind. Ct. App. 2009).

Father first challenges conclusion 2, which states that there is a reasonable probability

that the conditions that resulted in V.A.’s removal will not be remedied. When determining

if there is a reasonable probability that the conditions that resulted in the child’s removal will

not be remedied, “a trial court must judge the parent’s fitness to care for his or her child at

the time of the termination hearing, taking into consideration evidence of changed

conditions.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013).

11
“The court must also evaluate the parent’s habitual patterns of conduct to determine whether

there is a substantial probability of future neglect or deprivation of the child.” Id. “The trial

court may also consider the services offered to the parent and the parent’s response to those

services as evidence of whether conditions will be remedied.” Id. “A pattern of

unwillingness to deal with parenting problems and to cooperate with those providing social

services, in conjunction with unchanged conditions, support a finding that there exists no

reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d 204, 210 (Ind.

Ct. App. 1999), trans. denied (2000), cert. denied (2002).

Specifically, Father contends that “there has been no showing that mother’s odd

behavior poses any kind of physical threat to the child.” Appellant’s Br. at 11. The trial

court’s uncontested findings establish that Mother has exhibited symptoms of mental illness

far more serious than “odd behavior,” and both Nurse Lothamer and Dr. Ahmad opined that

Mother’s refusal to manage her illness with medication could put a child in her care at risk.

Father also contends that the trial court’s conclusion that he “is not supportive of the

medicinal regimen mother requires is not supported by the evidence. In fact, [he] recognized

the need for his wife to maintain her medication regimen and tried to persuade her to follow[]

it.” Id. The evidence most favorable to the trial court’s judgment, however, indicates that

Father has limited insight into Mother’s mental illness and, in Dr. Ahmad’s words, has “let

12
[Mother] decide what she wants” when it comes to managing her illness with medication. Tr.

at 383. In sum, Father has failed to show that conclusion 2 is clearly erroneous.1

Father also challenges conclusion 3, which essentially states that termination of

parental rights is in V.A.’s best interests and that adoption is a satisfactory plan. We have

recognized that “the best interests of the child are paramount in termination proceedings and

that children should not be compelled to suffer emotional injury, psychological adjustments,

and instability to preserve parental rights.” L.S., 717 N.E.2d at 210.

In termination cases, we have held that the trial court is required to look to the
totality of the evidence to determine the best interests of a child. Relevant
factors include, among others, a parent’s historical and current inability to
provide a suitable environment for the child; the recommendations of the
child’s case worker or guardian ad litem; and the child’s need for permanence
and stability.

In re Adoption of M.S., 10 N.E.3d 1272, 1282 (Ind. Ct. App. 2014) (citations omitted).

Father concedes that the guardian ad litem opined that termination is in V.A.’s best

interests but claims that he “has gone to great lengths in his attempt to be reunified with his

daughter. He completed and benefitted from services. He has done everything asked of him,

1
Father also “challenges any finding or inference made by the trial court which determined that there
was a reasonable probability that the continuation of the parent-child relationship poses a threat to the well
being of V.A.” Appellant’s Br. at 10. Because the trial court made no such finding, we do not address this
argument. And finally, Father says,

If those in the system, including the trial court, believed that mother should be
removed from the family’s dynamic, then it could have made this choice by terminating the
mother’s parental rights and leav[ing] the father’s parental rights intact. A better choice
would have been to provide home-based services to assess mother’s parenting abilities (or
dangers) when [Father] was off at work.

Id. at 12. Father disregards Mother’s erratic and disturbing behavior during her supervised visits with V.A.
and his own refusal to separate from Mother.

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but (1) convince his wife to take her medicine or (2) separate from or divorce her.”

Appellant’s Br. at 14. Father did complete court-ordered services, but the evidence most

favorable to the trial court’s judgment indicates that his insight into Mother’s mental illness

remains limited and that he has been either unwilling or unable to persuade Mother to

manage her illness with medication. When Mother’s visits with V.A. were cut short because

of inappropriate behavior, Father chose to leave with Mother instead of staying to comfort

the traumatized V.A.

We are sympathetic to Father’s desire to remain with Mother and be reunified with

V.A., but the unfortunate reality is that the evidence clearly and convincingly demonstrates

that he would be unable to ensure V.A.’s physical safety and emotional well-being as long as

Mother refuses to take medication and remains in his household. And it is well settled that

“[t]he 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 re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008). Father’s arguments

regarding V.A.’s best interests are essentially invitations to reweigh evidence and judge

witness credibility in his favor, which we may not do. The same may be said for his

arguments regarding adoption as a satisfactory plan for V.A.’s care and treatment. Father has

failed to show that conclusion 3 is clearly erroneous, and therefore we affirm the trial court’s

termination order.

Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.

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