In the Matter of the Parent-Child Relationship of: C.A. (Minor Child), And M.A. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 01 2018, 5:35 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 Kyle D. Gobel Curtis T. Hill, Jr. Collier Gobel Homann, LLC Attorney General of Indiana Crawfordsville, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Parent-Child March 1, 2018 Relationship of: Court of Appeals Case No. 54A01-1709-JT-2139 Appeal from the Montgomery C.A. (Minor Child), Circuit Court And The Honorable Harry Siamas, M.A. (Mother), Judge Trial Court Cause No. Appellant-Respondent, 54C01-1702-JT-52 v.

The Indiana Department of Child Services, Appellee-Petitioner.

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Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Respondent, M.M.A. (Mother), appeals the trial court’s termination

of her parental rights to her minor child, C.A. (the Child). [2] We affirm.

ISSUE [3] Mother raises one issue on appeal, which we restate as: Whether the Indiana

Department of Child Services (DCS) provided clear and convincing evidence to

support the termination of her parental rights.

FACTS AND PROCEDURAL HISTORY [4] Mother and R.C. (Father) 1 are the biological parents of the Child, born on

December 27, 2004. Father and Mother are not married, and it is unclear to

what extent, if any, Father was involved in the Child’s life. Mother has a long

history of severe schizophrenia, which has largely gone untreated. Mother has

been unable to provide for her own housing or basic necessities; thus, the Child

and Mother have primarily lived with extended maternal family. Throughout

his formative years, the Child was regularly exposed to drug use and domestic

violence. In 2006, DCS became involved with the family after Mother tested

1 On August 16, 2017, Father voluntarily consented to the termination of his parental rights to the Child. Father does not participate in this appeal.

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positive for methamphetamine, cocaine, and marijuana, and the Child’s hair

follicle test was positive for cocaine. Although it appears that the Child was

adjudicated as a Child in Need of Services (CHINS) at that time, there is

nothing in the record to indicate how the matter was ultimately resolved. [5] In June of 2015, Mother was arrested for committing a battery against her

mother—i.e., the Child’s maternal grandmother, B.A. (Grandmother)—in the

Child’s presence. During the altercation, Mother believed that Grandmother

“was actually a man and was kicking, punching and pushing her around the

home. [Mother] was also making claims that she was the Lady of the House

and could not be arrested. [Mother] was stating that she worked for Homeland

Security and needed to be taken to the Social Security Office to [retrieve] her

badge so she could not be arrested.” (DCS Exh. 35, p. 157). Following

Mother’s incarceration in the Montgomery County Jail, the Child was left in

the care of Grandmother. Grandmother never formally obtained a

guardianship. [6] On August 9, 2015, the Montgomery County office of DCS received a report

indicating that the eleven-year-old Child did not have a suitable caregiver.

Specifically, it was reported that Grandmother had been arrested for possession

of methamphetamine and had admittedly been smoking it. The other relatives

with whom Grandmother and the Child had been living expressed their lack of

interest in caring for the Child. In addition, at the time, Father was

incarcerated in the Indiana Department of Correction. Accordingly, DCS took

the Child into custody and subsequently placed him with a maternal uncle.

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However, a few months later, DCS removed the Child from the care of his

maternal uncle—who could not provide proper care and stability for the

Child—and placed him in a foster home. [7] On August 11, 2015, DCS filed a petition alleging that the Child is a CHINS

based on the inability, refusal, or neglect of the parents to supply the Child with

necessary care. The same day, the trial court conducted an initial and detention

hearing. On October 6, 2015, the trial court conducted a fact-finding hearing

and issued an order on October 21, 2015, adjudicating the Child to be a

CHINS. On November 2, 2015, the trial court issued a Dispositional Order.

The trial court granted wardship of the Child to DCS and ordered both parents

to participate in services designed for reunification. As to Mother, the trial

court ordered that, upon her release from incarceration, she must participate in

individual counseling and home-based casework services; complete a

psychological evaluation and follow all recommendations; attend all psychiatric

appointments and follow all recommendations; and participate in visits with the

Child. [8] During Mother’s incarceration, DCS struggled to communicate with her due to

“her mental health.” (Tr. Vol. II, p. 61). The family case manager “could not

get anywhere as to . . . what kind of services [Mother] would participate in

because all we discussed were the jail walls talking and demons.” (Tr. Vol. II,

p. 61). On March 15, 2016, having been found incompetent to stand trial,

Mother was transferred to the Logansport State Hospital for psychiatric

treatment. On May 20, 2016, Mother was released from the state hospital and

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returned to jail. On May 26, 2016, Mother pled guilty to battery as a Class A

misdemeanor and was sentenced to time served. Following her release, Mother

began living in a motel with her sister and Grandmother. She did not contact

DCS. In June of 2016, the DCS case manager observed Grandmother in a

parking lot and communicated with her; DCS was subsequently able to reach

Mother by phone. In mid-August of 2016, Mother completed an intake

appointment at Cummins Behavioral Health. However, it was discovered that

Mother’s Medicaid coverage had lapsed, so services were put in place to get her

insurance re-established because “things were so bad mentally that . . . the key

was to get [Mother] with the psychiatrist to get the medicine then to focus on

her being able to do the services.” (Tr. Vol. II, p. 65). DCS also referred

Mother for individual therapy. [9] On September 21, 2016, Mother was picked up by the police and taken to

Sycamore Springs for inpatient psychiatric treatment. Mother remained

hospitalized between seven and ten days. When she was released from the

hospital, Mother was not given any medication. In October of 2016, a life skills

specialist with Cummins Behavioral Health accompanied Mother and

Grandmother to the Medicaid office to obtain the necessary paperwork for re-

establishing coverage. Because Mother was incapable of handling her own

affairs, the burden fell to Grandmother to ensure that Mother completed the

forms and attended appointments. However, the Medicaid paperwork was

never submitted, and the life skills specialist’s attempts to contact Grandmother

were fruitless. Unable to move forward with “case management type stuff”

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without Grandmother’s participation, the life skills specialist attempted to work

with Mother on mental health issues, such as “mindfulness techniques and

coping instructions to try and work on her hallucinations,” but Mother missed

most of her appointments and eventually stopped attending altogether. (Tr.

Vol. II, p. 30). [10] On November 3, 2016, a psychiatrist at Cummins Behavioral Health conducted

a psychiatric evaluation on Mother. The psychiatrist concluded “that this was a

case of disorganized schizophrenia, based on . . . the gross disorganization, but

. . . also she had voiced that she was experiencing hallucinations and there was

some bizarre ideation that was voiced throughout that time.” (Tr. Vol. II, p.

18). Mother specifically requested that the psychiatrist prescribe Klonopin (a

benzodiazepine) and Adderall (a stimulant). The psychiatrist opined that those

medications “would not help her.” (Tr. Vol. II, p. 22). Instead, the psychiatrist

recommended that Mother continue with the anti-psychotic medication that

had been prescribed at Sycamore Springs—preferably in the form of an

injection that would last for thirty days. Mother still did not have insurance in

place, and “the medications[,] even a generic[,] are quite expensive.” (Tr. Vol.

II, p. 18). Mother missed her follow-up appointment, and she never contacted

her treatment team. During a family and team meeting in November of 2016,

DCS indicated that it would pay for the injectable medication until Mother

could re-establish Medicaid. However, Mother “was very, very, very upset

because . . . the doctor would not prescribe her Adderall and Klonopin like she

wanted and so she wasn’t taking anything.” (Tr. Vol. II, p. 68). Mother

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eventually agreed that she would “think about it,” but she never appeared to

receive the injection. (Tr. Vol. II, p. 33). Mother continued to express to DCS

her belief that the family case worker is a “demon” and that “someone’s trying

to hurt [the Child].” (Tr. Vol. II, p. 71). [11] In August of 2016, the Child began seeing a therapist to address “emotional and

behavioral symptoms.” (Tr. Vol. II, p. 39). Specifically, the therapist focused

“on addressing traumatic incidents from his life, to decrease his depressive

symptoms, to increase his impulse control and to also help him develop

adaptive coping skills.” (Tr. Vol. II, p. 40). Although the Child remained

“insistent on avoiding talking about his past experiences,” the therapist reported

that the Child had “verbalized experiencing a lot of violence between family

members, violent outbursts from his [M]other and some mental health

symptoms from his [M]other’s behavior that he found to be scary in his words.”

(Tr. Vol. II, p. 40). The therapist observed that the Child “had a very flat affect.

He does not speak positively about himself or . . . others or the world.” (Tr.

Vol. II, p. 40). When questioned about his life with Mother, the Child “will

become very quiet and it will appear as if he shuts down.” (Tr. Vol. II, p. 42).

In September of 2016, DCS had planned to initiate visits between the Child and

Mother, and the Child’s reaction to such news “was terrible. It was probably

one of the worst home visits [the DCS family case manager] had.” (Tr. Vol. II,

p. 74). The Child’s “face got red, he balled his fists up[,] and . . . tears came

down his face, huge tears and he said no he’s not doing it.” (Tr. Vol. II, p. 74).

The therapist worked with the Child on becoming receptive to a visit with

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Mother, but the Child never wavered in his resolve against interacting with

Mother. The Child expressed that he did not want to see Father either. [12] In November of 2016, Father was released from prison and subsequently tested

positive for methamphetamine. Father was thereafter re-incarcerated for

violating his parole. Father never availed himself of services available in the

Department of Correction, nor did he participate with DCS when given the

opportunity. [13] In December of 2016, the trial court granted DCS’s request to be relieved of any

obligation to continue providing reunification services for Father and Mother.

Mother was not participating in her mental health treatment plan or other

services and had made no progress. Mother was again hospitalized in February

of 2017 and has since continued to refuse to take her medication. On February

21, 2017, DCS filed a petition to terminate the parental rights of Father and

Mother. On August 16, 2017, the trial court conducted a hearing on DCS’s

termination petition, at which time Father consented to the termination of his

parental rights. During the hearing, DCS, the Child’s therapist, and the court-

appointed special advocate (CASA) all opined that termination of Mother’s

parental rights was in the Child’s best interests. On August 18, 2017, the trial

court issued Findings of Fact, Conclusions of Law and Judgment, terminating

Mother’s parental rights. [14] Mother now appeals. Additional facts will be provided as necessary.

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DISCUSSION AND DECISION I. Standard of Review

[15] Mother challenges the termination of her parental rights. 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). “A parent’s interest in the

care, custody, and control of his or her children is ‘perhaps the oldest of the

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65

(2000)). Yet, parental rights “are not absolute and must be subordinated to the

child’s interests in determining the proper disposition of a petition to terminate

parental rights.” Id. If “parents are unable or unwilling to meet their parental

responsibilities,” their parental rights may be terminated. Id. We also

recognize that the termination of a parent-child relationship is “an extreme

measure and should only be utilized as a last resort when all other reasonable

efforts to protect the integrity of the natural relationship between parent and

child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind.

2015) (internal quotation marks omitted). [16] Indiana courts utilize a “deferential standard of review in cases concerning the

termination of parental rights” due to the trial court’s “unique position to assess

the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

dismissed. On appeal, we will not reweigh the evidence or assess the credibility

of witnesses. Bester, 839 N.E.2d at 147. Rather, we “consider only the evidence

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

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Additionally, because the trial court entered special findings of fact and

conclusions thereon, we rely on the standard set forth in Indiana Trial Rule

52(A), pursuant to which we “shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses.” In applying this standard, we

must first determine whether the evidence supports the trial court’s findings;

second, we consider whether the findings support the judgment. Id. We will

find a judgment to be clearly erroneous “if the findings do not support the trial

court’s conclusions or the conclusions do not support the judgment.” Id.

II. Termination of Parental Rights Statute

[17] To terminate a parent’s rights to her child, DCS must prove:

(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. **** (iii) The child has been removed from the parent and has been under the supervision of a local office . . . 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 [CHINS] . . . ;

(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

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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 [CHINS];

(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.

Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

existence of a fact to ‘be highly probable.’” Id. [18] In ordering the termination of Mother’s parental rights, the trial court

concluded that DCS had established each element of Indiana Code section 31-

35-2-4(b)(2). On appeal, Mother challenges only the trial court’s conclusions

with respect to Indiana Code section 31-35-2-4(b)(2)(B): that DCS failed to

establish either that there is a reasonable probability that the conditions resulting

in the Child’s removal or continued placement out of her custody will not be

remedied or that the continuation of the parent-child relationship poses a threat

to the Child’s well-being. 2

2 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to prove only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, DCS did not allege that the Child had twice been adjudicated a CHINS; therefore, the two relevant inquiries are whether there is a reasonable probability that the conditions resulting in the Child’s removal and continued placement outside

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III. Remediation of Conditions

[19] In determining whether there is a reasonable probability that conditions will not

be remedied, we must identify what conditions led to the Child’s “placement

and retention” outside the home and subsequently determine whether there is a

reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.

Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these

decisions, a court “must judge a parent’s fitness as of the time of the

termination proceeding, taking into consideration evidence of changed

conditions—balancing a parent’s recent improvements against habitual

pattern[s] of conduct to determine whether there is a substantial probability of

future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

(citation and internal quotation marks omitted) (quoting Bester, 839 N.E.2d at

152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include ‘criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate housing and employment.’” K.E., 39 N.E.3d at 647. “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.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

372 (Ind. Ct. App. 2007), trans. denied. DCS need not “provide evidence ruling

out all possibilities of change; rather, it need only establish ‘that there is a

of the home will not be remedied or whether there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the Child’s well-being.

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reasonable probability that the parent’s behavior will not change.’” A.D.S. v.

Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.

denied. [20] In this case, the trial court concluded that

DCS removed the Child from [Grandmother] who was caring for the Child in the absence of both his parents [beginning on] August 9, 2015. . . . DCS has offered reunification services to both parents but neither parent was able to participate in these services in order to overcome their parenting deficits. . . . Mother was in jail and in and out of psychiatric hospitals. Her severe mental illness prevents from caring for herself or the Child. Unfortunately, Mother refuses to consistently take medication prescribed for her that might ameliorate some of her symptoms and as a result, there does not appear to be any other services that . . . DCS can offer in order to reunify the Child with her.

(Appellant’s App. Vol. II, p. 18). In further support of its determination, the

trial court found that

[w]hile [Mother] urgently requires appropriate psychotropic medications to ameliorate her Schizophrenia she resists taking the medications prescribed for her and she insists that she needs prescriptions that will not help her. As a result she remains chronically mentally ill[,] the victim of her own mental distortions. Her hallucinations are so severe that it prevents service providers who attempt to help her from providing appropriate services to her or even to have a rational conversation with her. She has frequent hallucinations that demons are issuing forth from the walls of the jail and that her son has been missing for years. As a result of her chronic poor mental health . . . DCS’[s] efforts to begin Mother on appropriate reunification services were frustrated. When case management

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services were offered to her in October and November of 2016 she missed the majority of her sessions with her case manager. In December she only made one out of seven appointments and after December 15, 2016[,] Mother did not return for her appointments. Mother is incapable of providing for her own needs. She relies on [Grandmother] and [her] sister for food, shelter and the necessities of life. She is not employed. She would be homeless if [Grandmother] and [her] sister did not give her temporary shelter. She is not capable of providing the necessities of life to the Child.

(Appellant’s App. Vol. II, p. 15). [21] Without specifically challenging the trial court’s findings, Mother now claims

that there is insufficient evidence to support a determination that there is a

reasonable probability that conditions will not be remedied because DCS failed

to properly assist Mother “in enhancing her parenting abilities.” (Appellant’s

Br. p. 16). Mother also argues that “[t]here was . . . undisputed testimony . . .

that, given proper medication and supports, a parent with . . . Mother’s

condition can appropriately parent a child.” (Appellant’s Br. p. 17). Thus,

Mother insists that termination is not appropriate because there is no evidence

that “all other reasonable efforts have failed.” (Appellant’s Br. p. 17). [22] DCS cannot force a parent to engage in services or otherwise make the

necessary improvements to become a fit parent. In fact, “the law concerning

termination of parental rights does not require [DCS] to offer services to the

parent to correct the deficiencies in childcare,” and while DCS “routinely

offer[s] services to assist parents in regaining custody of their children,

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termination of parental rights may occur independently of them, as long as the

[statutory elements] are proven by clear and convincing evidence.” In re B.D.J.,

728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (noting that “a parent may not sit

idly by without asserting a need or desire for services and then successfully

argue that he was denied services to assist him with his parenting”). Here,

services were clearly offered for a period of time, but Mother refused to avail

herself of them. It is obvious that her mental illness is severe and contributed to

her refusal to participate; however, DCS cannot be blamed for Mother’s

rejection of mental health services. DCS even went so far as to arrange to pay

for an injectable form of medication in order to stabilize Mother to the point

that she could meaningfully participate in other services. Yet, Mother has

consistently refused to take her medication and instead requires frequent

hospitalizations. Mother would not cooperate, and despite the added efforts of

DCS and service providers to engage Grandmother’s assistance in the process,

no progress was made throughout the two years between the Child’s removal

and the termination hearing. [23] At the termination hearing, Mother’s schizophrenic symptoms were glaringly

on display. Not only did she refer to herself in the third person, she was unable

to directly answer questions that were asked of her, and her responses were

nonsensical. Mother, while able to identify the judge and her attorney, did not

know the date, and she believed that her presence in court was because the

Child was “missing.” (Tr. Vol. II, p. 57). When directed to consider whether

the Child was actually in foster care, Mother answered, “That’s what they say.

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His body is missing. There’s someone missing from Montgomery County.

Three years and still no word.” (Tr. Vol. II, p. 57). Mother readily admitted

that she was “[s]elf medicating” with Adderall and Valium “because the doctors

won’t come off of nothing. There is nothing you can mother fucking say to

these people.” (Tr. Vol. II, p. 56). Yet, when questioned as to the source of

these medications, Mother was oblivious to the fact that taking non-prescribed

Adderall and Valium, both of which she was receiving from Grandmother, was

illegal. At that time, Mother was unemployed, living in a motel with

Grandmother, and had made no effort to seek out any mental health treatment.

The Child’s therapist and CASA testified as to the negative impact of Mother’s

untreated mental illness on the Child, including her proclivity for violent

outbursts. By the time of the termination hearing, the Child was beginning to

speak positively about himself for the first time and was finally experiencing a

sense of permanency with his foster family. [24] Although Mother blames DCS for discontinuing its reunification services based

on her refusal to comply, it was incumbent upon Mother to develop an ability

to appropriately parent without DCS intervention. Prince v. Dep’t of Child Servs.,

861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007) (noting that “the responsibility to

make positive changes will stay where it must, on the parent”). Mother is

correct that the evidence suggested that a parent who suffers from schizophrenia

may be able to independently raise children. The evidence in this case,

however, clearly and convincingly establishes that Mother is unable to provide

for her own needs, let alone the needs of the Child. Therefore, the trial court

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properly concluded that there is a reasonable probability that the conditions

resulting in the Child’s removal and continued placement out of the home will

not be remedied, and we affirm the termination of Mother’s parental rights.

CONCLUSION [25] Based on the foregoing, we conclude that DCS presented clear and convincing

evidence to support the termination of Mother’s parental rights. [26] Affirmed. [27] Baker, J. and Brown, J. concur

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