H.B. v. Ind. Dep't of Child Servs. (In re J.C.)

984 N.E.2d 722

In the Matter of the Termination of the Parent–Child Relationship of J.C. (Minor Child),andH.B. (Mother), Appellant–Respondent,

v.The Indiana Department of Child Services, Appellee–Petitioner.

No. 26A01–1205–JT–207.

Court of Appeals of Indiana.

March 1, 2013.

Appeal from the Gibson Circuit Court, Juvenile Division; The Honorable Jeffrey F. Meade, Judge; Cause No. 26C01–1104–JT–8.

Michael R. Cochren, Princeton, IN, Attorney for Appellant.

Raymond P. Dudlo, DCS, Gibson County Local Office, Princeton, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

In this termination of parental rights appeal, the evidence demonstrated that H.B. (Mother) was severely mentally handicapped and unable and unwilling to provide the necessary care for her daughter, J.C. Although Mother was offered supervised visitation with J.C, she was routinely late for the visits, displayed poor decision-making skills, and was not able to comprehend the care and supervision that J.C. required. Mother was also unable to manage money or find appropriate housing. She showed no improvement throughout the CHINS proceedings.

Three caseworkers and the guardian ad litem (GAL) all testified that terminating Mother's parental rights as to J.C. was in the child's best interest, and that J.C. should remain in pre-adoptive foster care rather than reuniting with Mother. Accordingly, we affirm the juvenile court's decision to terminate Mother's parental rights.¹

FACTS

Mother and Father had their first child, A.C, on May 29, 2007, and the Indiana Department of Child Services (DCS) removed A.C. from their care one week later. There were concerns about the parents' mental handicaps and the fact that they were unable and unwilling to provide the care that A.C. needed. DCS personnel substantiated the allegations of neglect against Mother during their initial assessment. Specifically, the DCS determined that Mother and Father were not able to manage their money and that they could not handle the changes and challenges involved in raising a child. The juvenile court ultimately terminated the parents' rights as to A.C. on December 9, 2008.

The DCS received a report on June 23, 2009, that Mother had given birth to another child, J.C, on June 2, 2009, and was not able to care for her. The DCS investigator determined that both parents suffered significant difficulty in understanding and supplying J.C.'s basic needs. These were the same difficulties that were exhibited during the CHINS and termination proceedings that involved A.C. The DCS removed J.C. from Mother's care and placed her with J.C .'s aunt.

At an initial CHINS hearing that was conducted on July 2, 2009, Mother admitted that she was improperly providing care for J.C. and that she and Father were unable or unwilling to do so. After it was determined that Mother made no reasonable efforts to improve, the DCS filed a verified petition to terminate Mother and Father's parental rights as to J.C. on April 14, 2011.

The juvenile court held a three-day evidentiary hearing that concluded on October 31, 2011. At the hearing, it was established that Father functioned at the level of a seven-and-one-half-year-old, and Mother functioned lower than a one-year-old in many areas and had no functioning above the level of a six-and-a-half-year-old.

Dr. Thomas Holsworth, the physician who performed assessments on both parents, testified that Mother suffers from a variety of primary “cognitive distortions,” including denial of faults, motivational deficits, immaturity, and anxious avoidance. Appellant's App. p. 9. Dr. Holsworth also testified that these diagnoses would not change over time.

It was Dr. Holsworth's opinion that Mother could not function as a parent and that J.C. should remain with the pre-adoptive foster care parents rather than reuniting with Mother. It was also established that Mother has a history of seizures but did not take her medicine regularly, which could result in J.C. being left alone while Mother is incapacitated.

Although Mother participated in supervised visitation with J.C, she was consistently late in arriving for these visits. Mother's behavior during the visits displayed her poor decision-making and demonstrated that she was unable to comprehend the care and supervision that J.C. required. Mother would get angry and often lose her focus and attention on J.C. For instance, after J.C. choked on a toy during a visit, Mother left that toy in the room with J.C.

Mother was not able to obtain appropriate housing, manage her money, or learn how to care for J.C. At some point, Mother had no heat in her residence and was going to save some money to purchase a heater. However, once Mother had enough money to buy a heater, she instead chose to purchase a pair of shoes for herself. Mother showed no improvement throughout the CHINS proceeding, and she still lacked the skills and knowledge to provide for J.C. at the time of the termination hearing.

Although J.C. was originally placed with an aunt, she was eventually moved to foster care with the family who adopted J.C.'s sibling. That family also desired to adopt J.C. The GAL testified that it was in J.C.'s best interest to remain in her current placement. The DCS case managers agreed and believed that J.C.'s parents posed “an immediate safety risk” to the child. Tr. p. 191–92, 256–57, 347–48.

On January 23, 2012, the juvenile court entered findings of fact and conclusions of law terminating both Mother and Father's parental rights as to J.C. Mother now appeals.

DISCUSSION AND DECISION

I. Standard of Review

We initially observe that the Fourteenth Amendment to the United States Constitution protects the traditional right of parents to raise their children. Troxel v. Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). But parental rights are not absolute and must be subordinated to the child's interest in determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 264–65 (Ind.Ct.App.2004). Thus, “parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.” Id. at 265. The purpose of terminating parental rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind.Ct.App.2004).

When reviewing the termination of parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.2009). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment below. Id. Here, the juvenile court made specific findings of fact and conclusions of law in its order terminating Mother's parental rights.

Where the juvenile court enters specific findings and conclusions, we apply a two-tiered standard of review. Bester, 839 N.E.2d at 147. We first determine whether the evidence supports the findings, and then whether the findings support the judgment. Id. We will not set aside the juvenile court's judgment unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind .Ct.App.1997). A judgment is clearly erroneous when the evidence does not support the findings, or the findings do not support the result. In re S.F., 883 N.E.2d 830, 834 (Ind.Ct.App.2008).

The elements that the DCS must allege and prove by clear and convincing evidence in order to effect the termination of parental rights are set forth in Indiana Code section 31–35–2–4(b)(2), which provides:

(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 county office of family and children 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.

...

(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.

I.C. § 31–35–2–4(b)(2).

We note that Indiana Code section 31–35–2–4(b)(2)(B) is written in the disjunctive, which requires that only one of the sub-elements, under subsection (B), be proven true by clear and convincing evidence. In re L.S., 717 N.E.2d 204, 209 (Ind.Ct.App.1999).

II. Mother's Contentions

A. Consideration of Mental Health

Mother claims that the termination of parental rights order must be set aside because the juvenile court improperly considered her mental health as a basis for terminating her parental rights. Mother contends that notwithstanding her mental retardation, she can “care for the basic needs of a child now and ... her abilities and conditions have changed dramatically.” Appellant's Br. p. 12.

Mother correctly observes that mental illness alone is not a sufficient basis for the termination of parental rights. Dull v. Delaware Cnty. Dep't of Public Welfare, 521 N.E.2d 972, 976 (Ind.Ct.App.1988). However, mental illness can be considered a factor by the juvenile court in determining whether to...