K.R. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 23 2016, 8:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Robert J. Henke
Deputy Attorney General

David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

K.R., February 23, 2016
Appellant-Defendant, Court of Appeals Case No.
33A01-1509-JT-1511
v. Appeal from the Henry Circuit
Court
Indiana Department of Child The Honorable Mary G. Willis,
Services, Judge
Appellee-Plaintiff. Trial Court Cause No.
33C01-1502-JT-3

Altice, Judge.

Case Summary

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[1] K.R. (Mother) appeals the involuntary termination of her parental rights to D.B.

(Child). Mother challenges the sufficiency of the evidence supporting the

termination.

[2] We affirm.

Facts & Procedural History

[3] Mother and E.B. (Father) have a son together, Child.1 Mother also has two older

daughters, Z.D. and J.D.2 (collectively, Siblings), from a previous relationship.

The family came to the attention of the Department of Child Services (DCS) on

August 10, 2013, the day after Child’s birth. Child was born with THC in his

meconium, and Mother subsequently admitted that she used marijuana during the

pregnancy. DCS received a second report on September 17, 2013, after Child was

hospitalized with a diagnosis of failure to thrive. As a result, Mother and Father

entered into an informal adjustment with DCS and were referred for intensive in-

home services that included parenting education.

[4] Despite services, Mother and Father were missing doctor appointments and not

meeting Child’s basic needs. Child continued to lose weight and was hospitalized

again on October 8, 2013, for failure to thrive. DCS detained Child on an

emergency basis and placed him in foster care. On October 9, 2013, DCS filed a

1
Although Father’s rights were also terminated, he does not participate in this appeal. We therefore limit
our discussion of the facts to those relevant to Mother’s appeal.
2
Z.D. and J.D. were born in October 2009 and October 2011, respectively.

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 petition alleging that Child was a Child in Need of Services (CHINS). Mother

and Father subsequently admitted that Child was a CHINS. On December 6,

2013, the trial court ordered Mother and Father to participate in reunification

services, including frequent contact with their Family Case Manager (FCM),

home-based counseling, parenting assessments, random drug screens, and

supervised visitation.

[5] Child has remained with the same foster family throughout this case. He began to

gain weight almost immediately under their care and has otherwise thrived and

received the medical care he needs. Siblings were removed from Mother and

Father’s home in January 20143 and placed in the same foster home as Child.

They were also adjudicated CHINS under separate cause numbers.

[6] Although Siblings are generally healthy, Child has a number of medical issues as

set out in the trial court’s findings:

15. The Child was born with Fetal Alcohol Syndrome that caused
significant medical issues in the Child’s young life which
continued to the date of the hearing and will be lifelong
medical conditions and needs.

16. A month after the Child’s birth, after being in the care of
Mother and Father, the Child was diagnosed with Failure to
Thrive based on his easily observable failure to gain weight as
a healthy baby would….

3
Siblings were removed after Father went into a violent rage and the police were called to the home. The
home was in poor condition with a lot of trash, little food, and no running water. The girls had bed bugs and
lice so badly that they had blood infections for which they had to receive medical treatment.

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 17. To this day, Child suffers from numerous medical issues,
including:

a. Heart Murmur,
b. Aortic Enlargement and Leakage which will require
lifelong heart medication and cardiology appointments,
i. The Child’s Nurse Practitioner opined this is caused
by a genetic disorder,
c. Drifting Eye,
d. Irregular Pupil Dilation,
e. Ankles that require leg braces, and
f. A 1 to 2 month developmental delay which requires
regular therapy.

18. The Child’s numerous medical and developmental issues have
required, and will require, him to go to many more doctor’s
visits, medications, physical therapy routines, and constant
supervision than would be required of a healthy Child the
same age. This child has an average of three medical
appointments per month; in addition to physical therapy three
times per week – one at home and two at the clinic; and
recommended occupational and equine therapy in
Indianapolis.

Appellant’s Appendix at 51-52.

[7] Review hearings were held on March 7, 2014, and June 27, 2014. At the

conclusion of each hearing, Child was ordered to remain in foster care due to

continued lack of compliance with the case plan by Mother and Father. On July

21, 2014, Mother and Father signed a safety plan, which emphasized that they

were to attend Child’s doctor visits. The family’s FCM, Abigail Neuman,

painstakingly went over Child’s appointment schedule with Mother several times

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 each month. Mother, however, continued to miss the majority of these

appointments for various reasons including oversleeping and not having a ride.

[8] Following a hearing on October 10, 2014, the trial court changed the permanency

plan for Child from reunification to concurrent plans of reunification and adoption.

Although Siblings also remained in foster care, their permanency plan continued to

be reunification. However, following a hearing on January 16, 2015, the

permanency plan for all three children was changed to adoption, and the court

authorized DCS to cease reunification efforts and initiate the termination of

parental rights.

[9] On February 2, 2015, DCS filed termination petitions with respect to Child and

Siblings. By June 2015, Siblings were returned to Mother’s care for a trial home

visit. Termination proceedings continued with respect to Child with evidentiary

hearings on July 23 and August 3, 2015.

[10] FCM Neuman testified at the July hearing that although Mother had made recent

progress regarding housing, drug treatment, and participation in services, safety

and parenting concerns still existed. While Mother was providing for Siblings’

basic needs, FCM Neuman explained: “I have concerns with supervision. I think

[Mother] needs a lot of prompting to complete things. She doesn’t show a lot of

follow through at times.” Transcript at 113. FCM Neuman noted that her biggest

concern with respect to Child was his medical needs and testified:

[Mother] has not been able to prove that even with all the added
assistance of having someone tell her time and time again when
the appointments are and where they are … she still wasn’t able
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 to go. I am just concerned that she wouldn’t be able to without
that person telling her and reminding her all the time.

Id. Even with progress in other areas around December 2014, FCM Neuman

testified that Mother was still missing some medical appointments. With respect to

supervision, FCM Neuman indicated that Mother was struggling at times with

Siblings and noted that Child would require even more supervision and has “very

different needs” than the girls. Id. at 125. Ultimately, FCM Neuman

recommended the termination of Mother’s parental rights over Child.

[11] In a detailed report filed July 21, 2015, the CASA similarly recommended

termination of parental rights. The CASA observed that despite receiving

extensive in-home services, routine daily needs are often difficult for Mother.

Mother lacks initiative and requires multiple prompts to complete needed tasks.

The CASA also noted that Mother continues to miss medical appointments and,

although she has made concerted efforts, still struggles with basic parenting skills.

In sum, the CASA concluded:

It is in [Child’s] best interest to be cared for by individuals who
maintain appointments and are able to provide for his medical
and emotional needs. CASA believes it to be in his best interest
to have the parent child relationship terminated and that a
permanency plan of adoption is pursued.

Appellant’s Appendix at 41.

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[12] On August 20, 2015, the trial court issued its order terminating Mother’s and

Father’s parental rights to Child. In addition to the findings set out above, the trial

court made the following detailed findings, among others:

19. The physical manifestation of the Child’s diseases will require
consistent physical therapy both at home and in the physical
therapist’s office for the foreseeable future. Mother has been
without a valid driver’s license in excess of five years and has
significant transportation issues which will affect her ability to
meet the rigorous demands of the medical appointment
schedule.

20. Predictably, DCS and service providers provided services for
Mother to participate in the Child’s medical care so that
when/if reunification occurred, it could be assured that
Mother and Father would be able to handle the rigors of the
Child’s significant medical care needs.

21. In order to assist Mother and Father with the medical issues,
DCS provided the following:

a. Foster Mom informed Mother of every appointment at
least a few days prior to it occurring,
b. Foster Mom did attempted [sic] to facilitate the
participation of Mother and Father in the medical care
process,
c. At multiple team meetings, it was stressed to Mother that
regularly attending the medical appointments for the
Child was a crucial component of ensuring the Child’s
safety in her care (See DCS Exhibits 75 through 78),
d. Because of minimal compliance by parents in medical
appointments, Mother and Father were required to sign a
Safety Plan on July 21, 2014 (six months after the Court’s
dispositional order) in which they both agreed to attend
the Child’s doctor’s visits (See DCS Exhibit 73), and

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 e. Later, in December of 2014, in yet another attempt to
help Mother with attending the Child’s appointments,
Mother was provided a duplicate list of the name and
location of every doctor the Child was seeing or may see.
This was not the first time a list of this nature was given to
the parents (See DCS Exhibit 23).

22. Despite the repeated and concerted efforts to encourage
Mother and Father, they never became consistent participants
in the Child’s medical care, missing well over 50% of the
Child’s medical appointments.

* **
b. When given the opportunity to provide medical history at
a medical appointment Mother did attend, Mother failed
to provide the correct medical history to the doctor
because of her lack of knowledge of the child’s medical
needs and history,
c. …. Although Mother made some improvement in services
after separating from Father in November of 2014, she
still did not improve her performance when it came to
becoming a meaningful participant in the Child’s medical
care (as evidenced by FCM and Foster Mom providing
Mother yet another list of the Child’s doctors in DCS
Exhibit 23), and
d. After a year of constant reminders, it became clear that
there existed a reasonable probability that this aspect of
Mother’s parenting would not improve or be remedied
despite the coercive intervention of the court.

23. Not only was Mother struggling with the Child’s medical care
for which she was wholly unfamiliar, she was struggling with
ordinary day-to-day care … as well.

24. By December 2014, fourteen (14) months after the case was
opened, Mother was still only receiving two hour long
supervised visits with the Child due to safety concerns….

25. Due to the Child’s significant and ongoing medical issues, he
requires constant and close supervision, because he is

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 constantly mobile contending with leg braces and because of
his sensory issues and hyperactivity places things in his mouth
much more than a normal Child of his age does. Because of
his condition, he is weaker on his right side and wears braces
on his feet and he is prone to falling.

26. Even in November of 2014, Mother was still struggling to
properly supervise the Child while also supervising her two
older children who did not have any special medical needs
and were school age (See DCS Exhibits 19 through 22).

27. Mother also was never able to develop proper feeding habits
for the Child…as she consistently struggled to feed the Child
while in her care, despite having a year of supervised visit
time to address the issue. Special nutrition is especially
important for this child because of his medical needs and
heart medication.

28. Mother also delayed completing her substance abuse
treatment….

b. [D]espite being court ordered to do so, Mother did not
commence services with Robert Johnson at Anchor
Behavioral Services until April of 2014 – six months after
her child had been removed, and did not complete the three
(3) month long program there until January 2015 – nine
additional months later. (See DCS Exhibits 24-27).
c. The delay Mother caused in commencing and completing
substance abuse treatment caused a delay in completing
other necessary services or improving other skills that
would have assisted in her reunification and learning the
skills necessary to provide for her medically dependent
child.
d. The Court finds that this significant delay in commencing
and completing services … demonstrates that the
conditions that resulted in the child’s removal and the
reasons for placement at the age of 2 months outside the

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 home of the parents will not be remedied now that the
child is 24 months of age.

29. During the lifespan of this CHINS case, [Siblings] were
detained, and the girls were not placed back in the care of
Mother for a trial home visit until June of 2015 under a strict
safety plan. Mother has the support of the father of [Siblings]
who are without medical needs.

a. Even now…Mother still needs close supervision by
service providers to ensure that these two healthy children
live in a safe and nurturing environment,
b. Mother has to be reminded to provide basic necessities
numerous times by either the FCM or service providers
before she fixes or addresses an issue, and
c. In only two months, the girls have already had lice and
been seen playing unsupervised near the busy street….

30. Mother has not yet endangered these girls’ safety so much
that they have needed to be re-detained, but it is this Court’s
finding that should this Child with extensive medical needs
and extensive supervision requirements be introduced back
into the home, that the safety of all three Children would be in
doubt. The half-siblings are not a “package deal” and the
needs between the two sibling groups differ significantly.

***

35. Between the first Dispositional Order entered on December 6,
2013 and the completion of the Fact-Finding Hearing on the
Termination on August 3, 2015, Mother has failed to comply
with the case plan and dispositional order in the following
ways:

a. Mother failed to keep all appointments, as the first 12
months of the case showed a litany of missed
appointments for Mother in all areas of her services,

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 b. Mother still does not have suitable housing, as it took her
12 months to find anything resembling suitable
housing…,
c. While Mother’s drug use was “better” than Father’s, she
still failed to abstain from the use of drugs for the first six
months of the case, and
d. Mother did not adequately care for the Child during the
time period she was allotted ….
i. Mother failed to attend over half of the Child’s
medical appointments…,
ii. Mother failed to properly utilize her time visiting
with the Child to show she was capable of handling the
Child’s medical and physical therapy needs, and
iii. Mother was never able to achieve greater than two
(2) hour long supervised visits….

***

37. Mother[’s] … compliance with the case plan and dispositional
orders can be summed up as such:

a. ….
b. Mother did not show any modicum of improvement until
November of 2014, 13 months after the case was opened
at which time the child had only spent two months of his
life in her care,
c. In those 13 months, Mother routinely missed medical
appointments and was minimally compliant with services
that would have assisted in her reunification effort, and
d. Mother’s level of noncompliance is more than mere
difficulty in meeting the needs of her child, they rise to the
level of her inability to meet the child’s significant medical
needs without lifelong state intervention;
e. Even after November 2014, Mother did not show enough
improvement in her parenting skills to lead this Court to
believe that reunification was in the best interests of the
Child, as she continued to miss medical appointments and

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 use sleep as an excuse, despite her improvement in other
areas of services and at no point did she progress past
supervised two hour visits with her child.

Appellant’s Appendix at 52-62 (emphases in original).

[13] Based upon its extensive findings, the trial court concluded that there existed a

reasonable probability the conditions that resulted in Child’s placement outside

Mother’s home will not be remedied and that continuation of the parent-child

relationship poses a threat to Child’s well-being. The court determined further that

termination was in Child’s best interest and that a satisfactory plan for his care and

treatment existed – adoption. The trial court granted DCS’s petition to terminate

Mother’s and Father’s parental rights with respect to Child. Mother now appeals. 4

Discussion & Decision

[14] When reviewing the 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 most favorable to the judgment. Id. In deference to the trial

court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous. In

4
Although he had counsel present, Father did not attend the termination hearing. His whereabouts were
unknown.

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 re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[15] The trial court entered findings in its order terminating Mother’s parental rights.

When the trial court enters specific findings of fact and conclusions thereon, we

apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

Children, 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). A judgment is clearly erroneous only if the

findings do not support the court’s conclusions or the conclusions do not support

the judgment thereon. Id.

[16] We recognize that the traditional right of parents to “establish a home and raise

their children is protected by the Fourteenth Amendment of the United States

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet their

parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). In

addition, a court must subordinate the interests of the parents to those of the child

when evaluating the circumstances surrounding the termination. In re K.S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating parental rights

is not to punish the parents, but to protect their children. Id.

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[17] Before an involuntary termination of parental rights may occur in Indiana, DCS is

required to allege and prove by clear and convincing evidence, among other things:

(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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child. I.C. § 31-35-2-

4(b)(2)(C).

[18] On appeal, Mother argues that the evidence was insufficient to support the

involuntary termination of her parental rights. She challenges the trial court’s

conclusions as to subsection (b)(2)(B)(i) and (ii), as well as the determination

regarding Child’s best interests. In sum, Mother’s argument is based on her

assertion that “nearly every service provider who testified either expressly or

impliedly indicated that s/he did not agree with the decision to initiate termination

proceedings rather than continue with services.” Appellant’s Brief at 10.

[19] We observe initially that DCS was required to establish only one of the three

requirements of subsection (b)(2)(B) by clear and convincing evidence before the

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 juvenile court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69

(Ind. Ct. App. 2003). As set forth above, the trial court found that DCS presented

sufficient evidence to satisfy two of those requirements, namely, that there is a

reasonable probability the conditions resulting in Child’s removal or continued

placement outside Mother’s care will not be remedied and that the continuation of

the parent-child relationship poses a threat to Child’s well-being. See I.C. § 31-35-

2-4(b)(2)(B)(i), (ii). We focus our inquiry on the former requirement—that is,

whether there was sufficient evidence to establish a reasonable probability that the

conditions resulting in Child’s removal or continued placement outside Mother’s

care will not be remedied.

[20] In making such a determination, the trial court must judge a parent’s fitness to care

for his or her child at the time of the termination hearing, taking into consideration

evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

2001), trans. denied. 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. Further, the court may consider the parent’s history of

neglect and response to services offered through DCS. McBride v. Monroe Cnty.

Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

[21] Initially, Mother challenges some of the trial court’s findings of fact. Specifically

referencing finding number 19, Mother argues that Child’s future medical

appointments will not be that rigorous and that she will have adequate

transportation to attend appointments because she is planning to pay the

reinstatement fee for her license and can get rides from family members. We reject

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 Mother’s request to reweigh the evidence. There was ample evidence to support

the court’s finding that Mother has significant transportation issues that affect her

ability to meet the rigorous demands of Child’s medical appointment schedule.

[22] Mother’s remaining challenges to the court’s findings are general and do not

specifically reference any findings. We will briefly address her arguments in this

regard to the extent we can decipher them. First, Mother asserts that after she

ended her unhealthy relationship with Father in November 2014, she attended all

of Child’s medical appointments. This assertion does not find support in the

record. Indeed, FCM Neuman testified that although Mother made progress in

some other areas around December 2014, Mother was still missing medical

appointments. See Transcript at 114-15. FCM testified that throughout the case

Mother attended less than half of Child’s medical appointments and that this

stayed the same even after Mother signed the safety plan in July 2014.

Accordingly, the trial court’s statement in finding number 22 that Mother “never

became [a] consistent participant[] in the Child’s medical care, missing well over

50% of the Child medical appointments”, is not clearly erroneous. Appellant’s

Appendix at 53.

[23] Mother next asserts that any concerns with her parenting and supervision skills had

been remedied before the termination proceedings began. On the contrary, there

was evidence that Mother was still “in need of intense parenting skills to help

stabilize the home and provide a safe environment” for Siblings. Transcript at 69.

FCM Neuman testified that safety issues existed in Mother’s home at the time of

the termination hearing. She explained that although Mother was providing for

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 Siblings’ basic needs, concerns with respect to her supervision of the children

remained. FCM Neuman testified: “I think [Mother] needs a lot of prompting to

complete things. She doesn’t show a lot of follow through at times. She just needs

a lot of reminders as far as parenting goes.” Id. at 113. With respect to Child,

FCM Neuman testified that Mother has not remedied her parenting issues and has

continued to miss medical appointments even with constant reminders from

service providers. FCM Neuman noted: “I still have some concerns about her

supervision of the girls and with them being two and four years older tha[n Child]

my concerns would be magnified a lot if [Child] was in the home. He requires a

lot of supervision more so than even what the girls need.” Id. at 114. Despite

belated efforts by Mother to cooperate with service providers and make

improvements in her home, FCM Neuman unequivocally recommended

termination of Mother’s parental rights with respect to Child.

[24] The CASA similarly recommended termination of parental rights. Specifically, the

CASA noted that daily needs are often difficult for Mother and that she lacks

initiative and requires multiple prompts to complete needed tasks. The CASA also

observed that although Mother has made concerted efforts, she still struggles with

basic parenting skills and continues to miss or come late to medical appointments.

In sum, the CASA concluded:

It is in [Child’s] best interest to be cared for by individuals who
maintain appointments and are able to provide for his medical
and emotional needs. CASA believes it to be in his best interest
to have the parent child relationship terminated and that a
permanency plan of adoption is pursued.

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 Appellant’s Appendix at 41.

[25] The trial court’s detailed findings are supported by the evidence. The findings, in

turn, support the court’s conclusion that there is a reasonable probability the

conditions resulting in Child’s removal or continued placement outside Mother’s

care will not be remedied. As explained by the trial court, “Mother has a nearly

two-year long pattern of neglect regarding the medical issue” and has proven

“unable to meet [Child’s] significant medical needs without lifelong coercive State

intervention.” Id. at 65. Further, the trial court expressly rejected Mother’s claim

that the conditions resulting in Child’s removal had been remedied:

i. While Mother had drug issues at the beginning of the case,
that was not the sole or main reason for removal of the Child,
Mother’s lack of attention to the Child’s medical needs was…,

ii. While the Child is now achieving health despite his chronic
medical conditions including his heart condition, that is not the
prism for [sic] which this Court views the case,

iii. The Child was nursed back to health and has continued in
good health despite his ongoing heart condition while outside the
care of Mother, and because of this, the Child’s current “healthy”
(despite having continuing medical issues) status is not credited
towards Mother in regards to proving the elements of the
termination petition,

iv. Mother had over 14 months to show DCS and this Court that
she was willing and able to be an active and appropriate
participant in the Child’s medical care; which she failed to do at
every turn,

v. Even at the fact-finding hearing on this petition, Mother was
still having difficulty balancing her shift employment with her

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 need for sleep and providing adequate care for her two older
school age children even with the help of their father,

vi. Therefore, due to the 14 months of failure and apparent
continued lack of awareness of the gravity of the Child’s medical
needs, this Court believes that there is … a reasonable probability
the conditions that lead to the Child’s placement outside the
home will not be remedied….

Id. at 68-69.

[26] The trial court’s findings also support its conclusion that termination is in Child’s

best interests. Contrary to Mother’s suggestion that service providers were against

termination, the record establishes that both FCM Neuman and the CASA

recommended termination as being in Child’s best interests. See In re J.S., 906

N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the recommendations of the case manager

and court-appointed 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”).

[27] Judgment affirmed.

[28] Robb, J. and Barnes, J., concur.

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