In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.O. (Minor Child) T.G. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 12 2019, 7:34 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 Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary June 12, 2019 Termination of the Parent-Child Court of Appeals Case No. Relationship of E.O. (Minor 18A-JT-2864 Child); Appeal from the Marion Superior T.G. (Mother), Court The Honorable Marilyn Moores, Appellant-Respondent, Judge v. The Honorable Scott Stowers, Magistrate Indiana Department of Child Services, Trial Court Cause No. 49D09-1804-JT-465 Appellee-Petitioner,

and Child Advocates, Inc., Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019 Page 1 of 11

Appellee-Guardian Ad Litem

Pyle, Judge.

Statement of the Case [1] T.G. (“Mother”) appeals the termination of the parent-child relationship with

her son, E.O., (“E.O.”), claiming that: (1) the trial court abused its discretion

when it denied her motion for a continuance; and (2) there is insufficient

evidence to support the termination. Finding no abuse of the trial court’s

discretion and sufficient evidence to support the termination, we affirm the trial

court’s judgment.1 [2] We affirm.

Issue 1. Whether the trial court abused its discretion when it denied Mother’s motion for a continuance.

2. Whether there is sufficient evidence to support the termination of the parent-child relationship.

1 The trial court also terminated D.O.’s (“Father”) parental relationship with E.O. Father is not a party to this appeal.

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Facts [3] The evidence and reasonable inferences that support the judgment reveal that

E.O. was born in March 2017. Less than a week later, DCS filed a petition

alleging that E.O. was a Child in Need of Services (“CHINS”). The petition

alleged that Mother had “displayed paranoid and combative behavior at the

hospital shortly after [E.O.] was born.” Exhibits at 43. The petition further

alleged that Mother had been diagnosed with a paranoid personality disorder

and had not received treatment for the disorder. She also had an extensive

history with DCS, including an open CHINS case with E.O.’s one-year-old

biological sibling where she had failed to engage in any services to address her

mental health issues. The petition further alleged that Mother’s mental health

issues hindered her ability to appropriately care for E.O. [4] E.O. was removed from Mother and placed in foster care with his sibling. In

July 2017, Mother admitted that E.O. was a CHINS. Following a dispositional

hearing, the trial court ordered Mother to continue her mental health treatment

at Eskenazi and to sign any necessary releases of information. [5] In April 2018, DCS filed a petition to terminate Mother’s parental rights. At

the beginning of the termination hearing, Mother’s counsel asked the trial court

to continue the hearing because Mother was not present. Counsel did not know

where Mother was and why she was not present. Mother was not incarcerated.

The State objected to the motion. Specifically, the State explained that it had

provided notice of the hearing to Mother, the case was a year old, and the

State’s witnesses were present and ready to testify. The trial court denied Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019 Page 3 of 11

Mother’s motion for a continuance. Also at the beginning of the hearing, the

parties discussed the possibility that the hearing might take two days. [6] Testimony at the hearing revealed that Mother suffered from a paranoid

personality disorder and “presented with a significant amount of paranoia and

delusions . . . specific to DCS.” (Tr. at 45). Specifically, Mother had written

letters to then-President Obama and then-Governor Pence about her case.

Mother did not complete mental health services at Eskenazi and refused to sign

releases of information because she insisted that she did not need mental health

treatment. A social worker at Midtown Mental Health Center also assessed

Mother, but Mother’s case was closed within three months because of her

numerous cancellations and no-shows. [7] DCS Family Case Manager Alicia Walker (“FCM Walker”) testified that she

had been working on cases with Mother’s other children for three and one-half

years. Mother had told the case manager that her mental health was her

personal business. Mother had also denied having any mental health issues and

had accused FCM Walker of falsifying documents regarding the children.

Mother had contacted the FBI with these allegations. [8] FCM Walker further testified that E.O. had issues with his vision and that

Mother lacked an understanding of her son’s needs. According to the

caseworker, Mother believed that DCS had killed E.O. at birth and had brought

him back to life and that his vision issues resulted from physical abuse in his

foster home. FCM Walker testified that the reasons that DCS had become

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involved with the case had not been remedied because Mother had failed to

address her mental health issues. FCM Walker testified that termination was in

E.O.’s best interest. The guardian ad litem also testified that termination was in

E.O.’s best interest. [9] E.O.’s foster mother (“Foster Mother”) testified that E.O. had undergone eye

surgery at Riley Hospital and continues to see an ophthalmologist. He also

receives occupational therapy, developmental therapy, and vision therapy

through First Steps. Foster Mother further testified that E.O. was thriving and

that she and her husband planned to adopt him and his biological sister. [10] After DCS rested its case, Mother’s counsel told the trial court that she did not

need the second hearing day. In October 2018, the trial court issued an order

terminating Mother’s parental rights. Mother now appeals.

Decision [11] Mother argues that the trial court abused its discretion in denying her motion

for a continuance and that there is insufficient evidence to support the

termination. We address each of her contentions in turn.

1. Denial of Mother’s Motion for a Continuance

[12] Mother first argues that the trial court abused its discretion in denying her

motion for a continuance. The decision to grant or deny a continuance rests

within the sound discretion of the trial court. In re K.W., 12 N.E.3d 241, 243-44

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(Ind. Ct. App. 2014). An abuse of discretion occurs when the party requesting

the continuance has shown good cause for granting the motion and the trial

court denies it. Id. at 244. No abuse of discretion will be found when the

moving party is not prejudiced by the denial of its motion. Id. [13] Mother specifically argues that the trial court abused its discretion in denying

her motion for a continuance because she was not present at trial. In support of

her argument, Mother directs us to In re K.W., 12 N.E.3d 241, 243 (Ind. 2014),

wherein the Indiana Supreme Court reversed the involuntary termination of the

parent-child relationship between K.W. and his mother. The Indiana Supreme

Court specifically concluded that the trial court had abused its discretion in

denying mother’s motion for a continuance where she was incarcerated and her

release from prison was imminent. Id. at 249. [14] However, the facts in K.W. are distinguishable from the facts of this case. Here,

Mother was not incarcerated. Although she had the opportunity to attend the

hearing and demonstrate her ability to assume her parental duties, she chose

not to do so. Mother has failed to show good cause for granting the motion,

and the trial court did not abuse its discretion in denying it.

2. Sufficiency of the Evidence

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019 Page 6 of 11 [15] Mother also argues that there is insufficient evidence to support the

termination. The Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their

children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

provides for termination of that right when parents are unwilling or unable to

meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

2005). The purpose of terminating parental rights is not to punish the parents

but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

1999), trans. denied. [16] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship 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. Id. at 1229-30. [17] A petition to terminate parental rights must allege:

(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 Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019 Page 7 of 11

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.

IND. CODE § 31-35-2-4(B)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231. [18] Here, Mother argues that there is insufficient evidence to support the

termination of her parental rights. Specifically, she first contends that the

evidence is insufficient to show that there is a reasonable probability that: (1)

the conditions that resulted in E.O.’s removal or the reasons for placement

outside the parent’s home will not be remedied; and (2) a continuation of the

parent-child relationships poses a threat to E.O.’s well-being. [19] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in E.O.’s removal or

the reasons for his placement outside the home will not be remedied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019 Page 8 of 11 [20] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

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

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. Requiring trial courts to give due regard to

changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643. [21] Here, our review of the evidence reveals that E.O. was adjudicated to be a

CHINS in July 2017 because of Mother’s untreated mental health issues.

Nearly a year later, Mother still had not successfully completed treatment for

these issues and she continued to exhibit symptoms of mental illness. For

example, she blamed DCS for her loss of E.O. She had contacted public figures

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and the FBI with her allegations about the case. Mother had further alleged

that DCS had killed E.O. at birth and had subsequently brought him back to life

and that his vision issues resulted from physical abuse in his foster home.

Mother had also alleged that FCM Walker had falsified paperwork about the

case. This evidence supports the trial court’s conclusion that there was a

reasonable probability that the conditions that resulted in E.O.’s placement

outside the home would not be remedied. We find no error. [22] Mother also argues that there is insufficient evidence that the termination was

in E.O.’s best interests. In determining whether termination of parental rights is

in the best interests of a child, the trial court is required to look at the totality of

the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied. In so doing, the court must subordinate the interests of the parents to

those of the child involved. Id. Termination of the parent-child relationship is

proper where the child’s emotional and physical development is threatened. In

re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

historical inability to provide adequate housing, stability and supervision

coupled with a current inability to provide the same will support a finding that

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

providers may support a finding that termination is in the child’s best interests.

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McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003). [23] Here, both FCM Walker and the guardian ad litem testified that termination

was in E.O.’s best interests. The testimony of these service providers, as well as

the other evidence previously discussed, supports the trial court’s conclusion

that termination was in E.O.’s best interests. 2 [24] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court. [25] Affirmed.

Riley, J., and Bailey, J., concur.

2 [1] Mother also argues that her hearing was fundamentally unfair because her counsel told the trial court that she did not need the second hearing day. The Indiana Supreme Court has explained that where a parent whose rights were terminated claims on appeal that her counsel underperformed, the focus of the inquiry is whether it appears that the parent received a fundamentally fair trial whose facts demonstrate an accurate determination. Baker v. Marion County Office of Family and Children, 810 N.E.2d 1035, 1041 (Ind. 2014). The question is not whether counsel might have objected to this or to that, but whether counsel’s overall performance was so defective that we cannot say with confidence that the conditions leading to the removal of the child from his mother’s care are unlikely to be remedied and that termination is in the child’s best interest. Id. Here, our review of the evidence reveals nothing to suggest that Mother’s counsel declining the second hearing day led to an unfair trial. Rather, our review reveals that Mother received a fundamentally fair trial whose facts demonstrate an accurate determination. We can also say with confidence that the conditions leading to E.O.’s removal from his Mother’s care are unlikely to be remedied and that termination is in E.O.’s best interest. We find no error.

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