MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 21 2016, 8:35 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- December 21, 2016
Child Relationship of: Court of Appeals Case No.
82A01-1607-JT-1683
A.C. (Minor Child) and
Appeal from the Vanderburgh
M.K. (Mother), Superior Court
Appellant-Respondent, The Honorable Brett J. Niemeier,
Judge
v.
The Honorable Renee Ferguson,
Magistrate
The Indiana Department of
Child Services, Trial Court Cause No.
82D01-1510-JT-1802
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] M.K. (“Mother”) appeals the termination of her parental rights to A.C.
(“Child”), upon the petition of the Vanderburgh County Department of Child
Services (“the DCS”). We affirm.
Issue
[2] Mother presents a single issue for review: Whether the DCS established, by
clear and convincing evidence, the requisite statutory elements to support the
termination decision.
Facts and Procedural History
[3] A.C. was born to Mother in February of 2013.1 He was removed from
Mother’s care one day later and placed in foster care, due to events surrounding
his older sibling, A.G. These events were discussed in In re A.G., 6 N.E.3d 952,
953-55 (Ind. Ct. App. 2014):
Just a few months after A.G.’s birth, A.G. began suffering
cyanotic episodes, which caused his skin to turn blue, his eyes to
roll back in his head, and his body to stiffen. Mother obtained
medical treatment for A.G., and he was diagnosed with mild to
1
Father agreed to the termination of his parental rights and is not an active party to this appeal.
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moderate pulmonary hypertension, a condition common among
A.G.’s paternal relatives. Dr. Julio Morera treated A.G.’s
cyanotic episodes with medication, oxygen, and the implantation
of a pacemaker. Despite the medical intervention, A.G.
continued to suffer cyanotic episodes. Accordingly, Dr. Morera
referred A.G. for a second opinion with physicians at Riley
Children’s Hospital, but the physicians there could find no
medical explanation for A.G.’s cyanotic episodes.
Dr. Morera then referred A.G. to Kosair Children’s Hospital for
a third opinion from Dr. Christopher Johnsrude, a board certified
pediatric cardiologist specializing in pediatric electrophysiology.
Dr. Johnsrude observed A.G. over the course of a one-week stay
at Kosair and concluded that: A.G.’s pulmonary hypertension
was mild and not severe enough to cause the cyanotic episodes
and A.G. did not require a pacemaker. … No one other than
Mother had witnessed one of A.G.’s cyanotic episodes. …
Dr. Johnsrude kept A.G. under observation and monitored by
telemetry and a cardiorespiratory monitor at Kosair. At some
point while A.G. was under observation in this manner, Mother
requested that the monitors be removed so that she could bathe
A.G. Mother was alone, bathing A.G., whose monitors had
been removed, when a cyanotic episode occurred. No one else
witnessed the onset of that episode besides Mother. Dr.
Johnsrude questioned Mother about the episode and suggested
that installing video surveillance at Mother’s home would be
helpful in determining the cause of the cyanotic episodes once
A.G. was released from Kosair. Mother did not agree to the
video monitoring of A.G., and her response to the suggestion
was described by Dr. Johnsrude as “uncomfortable and odd.” …
Dr. Johnsrude then consulted with other physicians at Kosair
and members of the Pediatric Forensic Medicine Team at the
University of Louisville School of Medicine regarding A.G.’s
case “and the probability that Mother was inducing [A.G.]’s
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cyanotic episodes.” … Dr. Lisa Pfitzer, a board certified
pediatrician specializing in child abuse pediatrics, consulted with
Dr. Johnsrude regarding A.G.’s treatment at Kosair. …
[O]n August 29, 2012, Dr. Pfitzer contacted the Indiana
Department of Child Services (“DCS”). … Sarah Dotson, a
family case manager with DCS, contacted Dr. Susanne Blix, a
board certified clinical psychiatrist, and asked that Dr. Blix
evaluate Mother for factitious disorder by proxy.2 … Dr. Blix
concluded “with ninety-nine percent certainty” that Mother
suffered from factitious disorder by proxy. … Dr. Blix considered
the risk of failing to protect A.G. from Mother “life threatening.”
Dr. Blix warned DCS that “any sibling would [also] be at risk of
harm when in Mother’s custody.”
(Record Citations Omitted.)
[4] On the date of A.C.’s removal, the DCS filed a petition alleging that A.C. was a
Child in Need of Services (“CHINS”). The DCS alleged that A.C. was in
danger and that Mother had been diagnosed as suffering from factitious
disorder by proxy, formerly known as Munchausen’s disorder. The trial court,
juvenile division, held a fact-finding hearing on April 16, 17, 24, and 29, 2013.
A.C. was found to be a CHINS and remained in foster care. In a dispositional
order of July 23, 2013, Mother was ordered to participate in a treatment
2
As the trial court found, “caretakers affected with Factitious Disorder by Proxy cause harm to their children
for attention and many times the affected children are subject to medical conditions which the caretaker will
use as a vehicle for their attention seeking behavior.” Appellant’s App. at 233.
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program. Mother was to have supervised visitation subject to recommendation
by a mental health provider.
[5] Mother was compliant with the DCS case plan, obtained individual mental
health therapy, and commenced regular monitored visitation with A.C.
According to a DCS progress report of January 10, 2014, Mother “continue[d]
to show progress” and the anticipated permanency plan was reunification.
(DCS Exh. 15(kk)). On February 20, 2014, the trial court approved a
permanency plan of reunification.
[6] One month later, on March 21, 2014, the State of Indiana charged Mother with
three Class B felonies related to her conduct with A.G. On July 17, 2015,
Mother was convicted of Neglect of a Dependent. She was sentenced to ten
years imprisonment, with one year suspended.
[7] On October 9, 2015, the DCS petitioned to terminate Mother’s parental rights
as to A.C. A hearing was conducted on May 26, 2016. On June 28, 2016, the
trial court entered its findings of fact, conclusions, and order terminating
Mother’s parental rights. This appeal ensued.
Discussion and Decision
Standard of Review – Sufficiency of the Evidence
[8] When we review whether the termination of parental rights is appropriate, we
will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d
1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable
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inferences that are most favorable to the judgment. Id. In so doing, we give
“due regard” to the trial court’s unique opportunity to judge the credibility of
the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “We will set aside
the trial court’s judgment only if it is clearly erroneous.” Bester v. Lake Cty. Office
of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). In order to determine
whether a judgment terminating parental rights is clearly erroneous, we review
the trial court’s judgment to determine whether the evidence clearly and
convincingly supports the findings and the findings clearly and convincingly
support the judgment. I.A., 934 N.E.2d at 1132.
Requirements for Involuntary Termination of Parental Rights
[9] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are
of a constitutional dimension, the law provides for the termination of those
rights when the parents are unable or unwilling to meet their parental
responsibilities. Bester, 839 N.E.2d at 147. The State is required to prove that
termination is appropriate by a showing of clear and convincing evidence, a
higher burden than establishing a mere preponderance. In re V.A., 51 N.E.3d at
1144.
[10] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must
allege and prove by clear and convincing evidence in order to terminate a
parent-child relationship:
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(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.
[11] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
therefore the court need only to find that one of the three requirements of
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subsection (b)(2)(B) had been established by clear and convincing evidence. See
In re L.S., 717 N.E.2d at 209.
Analysis
[12] The trial court’s findings of fact address Mother’s mental health diagnosis,
participation in dialectical behavioral therapy, criminal proceedings,
prospective release date, inability to obtain parenting classes during
incarceration, and history of visitation with A.C. The findings also address the
CHINS history, and A.C.’s need for stability and reported bonding with his
foster mother, who wishes to adopt him. Upon these findings, the trial court
concluded that A.C. had been removed for the requisite time, the continuation
of the parent-child relationship posed a threat to A.C., termination was in
A.C.’s best interests, and there was a satisfactory plan for A.C. Mother focuses
upon whether there is clear and convincing evidence of a reasonable probability
that continuation of the parent-child relationship poses a threat to A.C.’s well-
being.
[13] At the termination hearing, Mother testified that her release date was in June of
2019 and she explained her plan for A.C.’s care during her incarceration. That
is, Mother desired that her sister be allowed to adopt A.C. and Mother had
signed a consent to that effect. On appeal, she notes that four of the findings of
fact concern her incarceration, and she contends that the trial court’s decision
rested primarily upon that status, something insufficient to support termination.
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[14] Mother argues that the termination order must be reversed in light of K.E. v.
Indiana Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015), as she is likewise a
parent incarcerated for a crime committed before the child’s birth. She directs
our attention to our Supreme Court’s language: “incarceration is an insufficient
basis for terminating parental rights.” Id. at 643. The K.E. Court also observed
that it had “not established a bright-line rule for when release must occur to
maintain parental rights” and “the potential release date is only one
consideration of many that may be relevant in a given case.” Id. at 648.
[15] K.E. was in the care of his paternal aunt, H.D. In prison, the father had
completed twelve (mostly voluntary) self-improvement programs; there was
evidence that he had a place to live and prospective employment upon his
release. See id. at 646-47. Father had continued to develop a bond with K.E.
through visitation and nightly telephone calls. Id. at 651. H.D. had testified
that she hoped Father could take over as caregiver, and she did not “insist upon
immediate adoption.” Id. Because “there was nothing more Father could have
done,” the termination decision rested solely upon his incarceration. Id. at 645.
On transfer, the Court found a lack of clear and convincing evidence that the
conditions leading to removal could not be remedied or that Father posed a
threat to K.E.’s well-being. Id. at 644.
[16] Here, the circumstances do not mirror those of K.E. There is similarity in
parental circumstances; their crimes pre-dated the births of their children and
they each pursued self-improvement paths. However, the children were not
similarly situated. In K.E., there was evidence of continued parent-child
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bonding. The father was able to have in-person visits and maintain nightly
contact with his child because of placement in the paternal aunt’s home. Also,
the caregiving aunt testified to her desire that the parent-child bond be
maintained. Significantly, H.D., the CASA, and the DCS case manager had all
acknowledged it was unlikely that K.E. would be harmed by delaying
termination. Id. at 650.
[17] Here, by contrast, Mother had been unable or unwilling to maintain contact
with A.C. after her incarceration. There was testimony that A.C. would likely
be traumatized by a separation from his foster mother, with whom he had lived
for the three years since his birth. There was no evidence that Mother had
prospective employment or was likely to provide a home for A.C. upon her
release, when A.C. would be at least six years old. Indeed, Mother testified that
she planned to have her sister adopt A.C. In effect, Mother’s position is that
she was entitled to direct A.C.’s adoptive placement. K.E. does not support this
proposition.
[18] Mother also observes that three of the trial court’s findings of fact concern
A.C.’s bonding to his foster mother and his need for stability. Mother
acknowledges evidence of a strong bond between A.C. and his foster mother,
but reminds us that her parental rights are of a constitutional dimension:
“absent a finding that the Mother poses a threat to the child or that the reasons
for removal will likely not be remedied, it is hard to imagine how a child’s bond
with a foster mother should override the fundamental constitutional right of a
biological mother to her child.” Appellant’s Br. at 36.
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[19] Mother then argues that the trial court did not properly assess whether she
posed a threat to A.C. because the trial court focused upon past conduct and a
mental health diagnosis as opposed to a continuing threat. According to
Mother, “DCS did not provide a scintilla of evidence that Mother’s danger to
A.C. continued until the termination hearing.” Appellant’s Br. at 41.
[20] Our reading of the trial court’s findings of fact does not confirm the contention
that the trial court focused only upon historical conduct. Rather, the findings
addressed the historical events of Mother’s criminal conduct and mental health
diagnosis together with their impact upon her circumstances as of the time of
the hearing. It is commendable that Mother cooperated with DCS services,
including individual therapy, and that she incurred no criminal charges based
on post-birth conduct. Nonetheless, the egregiousness of the past conduct,
felony neglect of A.C.’s older sibling, placed Mother in DOC custody for a
significant term of years.
[21] The trial court found that Mother had not completed dialectical behavioral
therapy and was unable to do so during her incarceration.3 Moreover, the trial
court found that Mother lacked a plan for providing for A.C. upon her release.
This is consistent with Mother’s testimony that she desired an intra-family
adoption.
3
To the extent that Mother suggests the therapy is unnecessary because her therapist did not believe that
Mother suffered from Factitious Disorder by Proxy, she presents an improper request to reweigh the
evidence. In re V.A., 51 N.E.3d at 1143.
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[22] Parental rights are not to be terminated merely because there may be a better
home available for the child. I.E., 39 N.E.3d at 650. Thus, A.C.’s bonding
with his foster mother is not dispositive. However, by presenting evidence of
Mother’s history, interrupted therapy, and limited future prospects, the DCS
established that Mother was unable or unwilling to provide for A.C.’s care.
The trial court’s termination decision is supported by clear and convincing
evidence that continuation of the parent-child relationship would pose a threat
to A.C.
Conclusion
[23] The DCS established by clear and convincing evidence the requisite elements to
support the termination of parental rights.
[24] Affirmed.
Najam, J., and May, J., concur.
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In the Term. of the Parent-Child Relationship of: A.C. (Minor Child) and M.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)
Combined Opinion