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Pursuant to Ind.Appellate Rule 65(D), 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: R. PATRICK MAGRATH Alcorn Goering & Sage, LLP Madison, Indiana

FILED
Dec 30 2009, 9:39 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: MAJORIE A. MILLMAN Indiana Department of Child Services Seymour, Indiana ROBERT J. HENKE Indiana Department of Child Services Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP OF M.H., D.M-H., Appellant-Respondent, vs. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 36A01-0906-JV-299

APPEAL FROM THE JACKSON SUPERIOR COURT The Honorable Bruce A. MacTavish, Judge Cause No. 36D02-0901-JT-34

December 30, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION BROWN, Judge

D.M-H. ("Mother") appeals the involuntary termination of her parental rights to her son, M.H. On appeal, Mother claims there is insufficient evidence supporting the trial courts judgment. Concluding that the Indiana Department of Child Services,

Jackson County ("JCDCS") provided clear and convincing evidence to support the trial courts judgment, we affirm. Facts M.H. was born to Mother on November 21, 2004.1 The evidence most favorable to the trial courts judgment reveals that on February 7, 2007, the JCDCS received a report that Mother had physically abused her three children, M.H., E.H., and L.H., while residing at the Anchor House.2 During the ensuing investigation, the children informed a JCDCS caseworker that Mother "constantly hit [them] with hairbrushes," "pulled" them by their ears, and had "banged" M.H. against the wall. Transcript at 250. Mother, who admitted to some physical discipline of the children, agreed to take a voice stress test and failed the question regarding hitting her children with hairbrushes. The caseworker was also informed by other Anchor House tenants that they had heard Mother "cursing" at the children. Id. at 251. Based on this investigation, the JCDCS substantiated the referral for

The trial court involuntarily terminated the parental rights of M.H.s biological father, Edward H. ("Father"), in its May 2009 termination order. Although it appears from the record that Father remains married to and is living with Mother, Father does not participate in this appeal. Consequently, we limit our recitation of the facts to those pertinent solely to Mothers appeal. 2 E.H. and L.H. are not subject to the trial courts termination order.

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environmental life/health endangerment and inappropriate discipline against Mother. This, however, was not the JCDCSs first encounter with Mother. The JCDCS had been consistently working with Mother and her family since July 26, 2006, after M.H.s three-month-old younger brother, J.H., suffered a heat stroke while in the family home. When discovered, J.H. was blue and not breathing, having been left in an unventilated bedroom that had reached temperatures registering over 100 degrees Fahrenheit. Upon arriving at the hospital, J.H.s core body temperature was 106.9

degrees, and hospital personnel observed that the baby was dirty, wore dirty clothes, his hair was matted, and there was grass in his stool. Although multiple services were offered to Mother and her family as a result of the ensuing child in need of services ("CHINS") action involving J.H., caseworkers described Mothers level of cooperation as "minimal to no cooperation" at all. Id. at 134.3 In addition to the CHINS action relating to J.H., both the JCDCS and the Bartholomew County ("BCDCS") offices of the Indiana Department of Child Services had been involved with Mother and her family on other occasions prior to M.H.s birth. The BCDCS entered into a safety plan with Mother after investigating separate reports in August and September 2004 alleging both unsafe conditions in the family home and lack of supervision. Medical neglect was also substantiated against Mother for failing to give E.H. his prescribed seizure medication, Phenobarbital, in September 2004. Moreover,

J.H. continues to suffer from severe and debilitating medical problems including blindness, as a result of the heat stroke he suffered. Mother declined to participate in court-ordered services during the CHINS case relating to J.H., and the JCDCS eventually initiated involuntary termination proceedings against Mother. Mother voluntarily relinquished her parental rights to J.H. on the first day of trial, and the trial court issued an order terminating Mothers parental rights to J.H. on July 23, 2008.

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from September 2004 through May 2005, E.H. was admitted to Riley Childrens Hospital ("Rileys") on three separate occasions. On one occasion, E.H. had to be "life-lined" to Rileys and, upon admission, it was discovered that E.H.s Phenobarbital level, which was supposed to be maintained above 15, was only at a level of 0.1. Appendix at 21 (Finding No. 140). Appellants

At that time, Mother admitted to a JCDCS

caseworker that she had not given E.H. his Phenobarbital for over two weeks and again signed a safety plan. In the current case, upon receiving and substantiating the referral in February 2007 against Mother for environmental life/health endangerment and inappropriate discipline, the JCDCS offered Mother parenting classes and counseling through an Informal Adjustment.4 Mother declined the offer. Consequently, it was determined that the

children would not be safe if left in Mothers care and the JCDCS filed a CHINS petition as to all three children. M.H. and his siblings were subsequently removed from the home and placed in licensed foster care through Regional Youth Services. Following the childrens removal, Mother refused to participate in the treatment planning conference with Regional Youth Services and did not request visitation with the children for over ten days. At the end of February 2007, the JCDCS informed Mother that it was willing to return the children to her care as in-home CHINS cases if she and Father would agree to participate in services. Mother thereafter signed an agreement

A program of Informal Adjustment is a negotiated agreement between a family and the Department of Child Services whereby the family agrees to participate in various services provided by the county in an effort to prevent the child/children from being formally deemed CHINS. See Ind. Code 31-34-8 et. seq.

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admitting the children were CHINS and agreeing to participate in services. The CHINS document was filed in court on February 27, 2007, and the children were returned to Mothers care on March 12, 2007. Shortly after returning to the family home, M.H. was diagnosed with failure to thrive by his pediatrician, Dr. Linda Hefner. Dr. Hefner also referred M.H. to the Indiana First Steps Early Intervention Program ("First Steps"), a program for infants and toddlers experiencing or at risk for developmental delays, and to a plastic surgeon for evaluation of M.H.s syndactyl hands and feet.5 M.H. was evaluated by First Steps on April 19, 2007, but Mother would not allow First Steps workers back into the home following the initial evaluation. On April 24, 2007, during the initial CHINS hearing, Mother withdrew her admission to the allegations in the CHINS petition that she had signed in February. The trial court entered Mothers denial and set the matter for a fact-finding hearing in June 2007. The children were allowed to remain in the family home, and the JCDCS

continued to offer services to the parents. The JCDCS also monitored the safety and well-being of the children by conducting home visits. For the next several months, Mother refused to cooperate with service providers and caseworkers. In addition, from April 23, 2007, until July 18, 2007, Mother failed to take M.H. to several scheduled doctor visits. Consequently, Dr. Hefner was unable to

Syndactylism is a congenital malformation syndrome involving both upper and lower extremities. In humans, this condition is normally characterized by two or more fused fingers or toes.

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observe M.H. or to monitor his weight. During this time period, M.H. failed to gain any weight and instead lost four ounces. Due to Mothers continuing refusal to participate in court-ordered services, a detention hearing was held at the request of the JCDCS on July 12, 2007. During this hearing, Mother consented to participating in court-ordered services, including weekly counseling sessions with Scott Phillips and weekly home-based services through Quinco Consulting Associates ("Quinco").6 Mother also agreed to make M.H. available for weekly face-to-face conversations with JCDCS caseworkers and to take M.H. to various medical, dental, and First Steps appointments within a specific time frame in order to retain custody of M.H. Mother subsequently failed to uphold the terms of this agreement. In late August 2007, Dr. Hefner submitted a letter to the trial court indicating M.H. had gained only fourteen ounces since his initial visit to her office in March 2007. Dr. Hefner further reported that an average boy M.H.s age and size normally would have gained approximately twice that amount during the same period. Similarly, JCDCS case manager Mary Ann Spray provided a summary to the court dated September 3, 2007, detailing Mothers continuing non-compliance with the courts dispositional orders and Sprays "increased concern for the well being of the children." Id. at 204. Spray

specifically mentioned that during her weekly visits to the family home, there had been only "a couple of times that there was adequate milk and appropriate food for the children." Id. Spray also informed the court that although Dr. Hefner had prescribed

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Quinco is a drug and alcohol rehabilitation center that provides outpatient care to the public.

Pediasure three times a day for M.H. in place of whole milk in response to M.H.s continuing lack of weight gain, Mother had not provided M.H. with Pediasure for three weeks after it was prescribed despite the JCDCSs willingness to reimburse Mother for the cost. Mother also failed to take M.H. to several important doctor appointments and was unable to produce any of his immunization records. On September 4th, 2007, the trial court issued an emergency detention order granting the JCDCSs request to remove M.H. from Mothers care. E.H. and L.H., however, were allowed to remain in the family home. At the time of his removal, M.H., who was nearly three years old, weighed 24.5 pounds, had poor verbal and social skills, did not know his name or his colors, was infected with head lice, and did not have any socks, shoes, or appropriately-sized clothes. Following M.H.s removal from Mothers care, he was placed in licensed foster care in Clark County with his younger biological brother, J.H., and soon thereafter began receiving services through First Steps. M.H. received speech therapy, assistance with simple social skills, such as identifying his first and last name and engaging in simple conversations, and preschool readiness education such as learning to identify shapes, colors, and animals and their sounds. M.H. was also placed under the medical care of Dr. Justin McMonigle on October 9, 2007. On November 14, 2007, Dr. McMonigle noted M.H. had gained 1.3 pounds in one month. M.H. was also seen by Dr. Amit Gupta on November 29, 2007, for his syndactyl hands and feet. Dr. Gupta recommended corrective surgery and noted that the surgery to

release M.H.s fingers needed to be done as soon as possible due to M.H.s age and the deformities of the digits which had already occurred. On January 11, 2008, M.H. weighed 27.4 pounds, a gain of 2.2 pounds since being removed from Mother. Dr. McMonigle also noted in M.H.s medical chart that his failure to thrive was likely environmental, as steady weight gain had occurred since M.H. had been placed in foster care. On January 16, 2008, M.H. underwent a genetics

evaluation at the Weisskopf Child Evaluation Center for his dysmorphic features and syndactyl hands and feet. Although M.H. exhibited some of the characteristics of

Russell-Silver Syndrome, he was not diagnosed with such after further testing. On April 11, 2008, M.H. underwent surgery on his right hand. Surgery on his left hand was performed on May 2, 2008. Both surgeries required skin grafts from his abdomen. A second surgery on M.H.s right hand was performed on September 12, 2008. Despite receiving advanced notice of all three procedures, Mother did not attend any of M.H.s surgeries. Meanwhile, on May 14, 2008, Mother admitted to the allegations of medical neglect set forth in the CHINS petition and the trial court adjudicated M.H. a CHINS. A dispositional hearing was held on June 4, 2008, and the trial court ordered Mother to participate in a variety of services in order to achieve reunification with M.H. Specifically, Mother was ordered to, among other things: (1) obtain and maintain fulltime employment and provide the JCDCS with documentary verification of such; (2) obtain and maintain clean, orderly, and appropriate housing and allow the JCDCS access to such housing at all reasonable times for inspection; (3) maintain sufficient food in the

home to substantially feed and meet the nutritional requirements of each family member; (4) provide M.H. with any doctor-ordered nutrition; (5) successfully complete a parenting skills program approved by the JCDCS; (6) participate in weekly supervised visits with M.H. and provide M.H. with appropriate food if the visits occur during mealtimes; (7) ensure that M.H.s siblings participate in weekly visits with M.H. during the summer; (8) schedule appointments, meet with M.H.s medical providers to obtain all information concerning M.H.s medical needs, and actively participate in M.H.s medical treatment; (9) obtain and maintain valid auto insurance; (10) provide the JCDCS with a workable, reliable, and "reachable" telephone number; (11) participate in a psychological evaluation and follow any resulting recommendations; (12) actively participate in case management services and follow all recommendations of the case manager; and (13) attend and actively participate in therapy services and follow all recommendations of the therapist. For several months following the dispositional hearing, Mother continued to refuse to cooperate with case workers or to participate in court-ordered services, including visitation. In addition, from June 5, 2008 until August 7, 2008, Mother failed to visit with M.H. or to bring his siblings to any of the scheduled visits. In October 2008, however, Mother began to comply, in part, with some of the courts orders by improving her attendance at weekly visits with M.H. and by participating in individual counseling. On October 20, 2008, M.H. was placed in his current foster home, and once again was placed under the medical care of Dr. Hefner. On January 27, 2009, the JCDCS filed a petition to involuntarily terminate Mothers parental rights to M.H. A three-day fact-finding hearing on the termination

petition was held on April 22, 23, and 24, 2009. On May 26, 2009, the trial court entered its judgment terminating Mothers parental rights to M.H. This appeal ensued. Standard of Review We begin our review by acknowledging that this court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). Thus, when reviewing the trial courts judgment, 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 therefrom that are most favorable to the judgment. Id. Here, the trial courts termination order contained specific findings of fact and conclusions thereon. When reviewing findings of fact and conclusions of law entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. First, we must determine whether the evidence supports the findings. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Second, we determine whether the findings support the judgment. Id. In deference to the trial courts unique position to assess the evidence, we will set aside the courts judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; see also Bester, 839 N.E.2d at 147. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. D.D., 804 N.E.2d at 265. A judgment is clearly erroneous only if the findings do not

support the trial courts conclusions or the conclusions do not support the judgment. Bester, 839 N.E.2d at 147. "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. Moreover, because termination severs all rights of a parent to his or her child, the involuntary termination of parental rights is arguably one of the most extreme sanctions a court can impose; consequently, such a sanction is intended as a last resort, available only when all other reasonable efforts have failed. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Nevertheless, parental rights are not absolute and must be subordinated to the childs interests in determining the proper disposition of a petition to terminate a parent-child relationship. Id. Because the purpose of terminating parental rights is to protect the child, not to punish the parent, parental rights may be properly terminated when a parent is unable or unwilling to meet his or her parental responsibilities. K.S. 750 N.E.2d at 836. In order to terminate a parent-child relationship, the State is required to allege and prove, among other things, that: (B) there is a reasonable probability that: (i) the conditions that resulted in the childs removal or the reasons for placement outside the home of the parents will not be remedied; or the continuation of the parent-child relationship poses a threat to the well-being of the child; [and]

(ii)

(C)

termination is in the best interests of the child . . . .

Ind. Code

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