B.M. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] B.M. (“Mother”) appeals the involuntary termination of her parental rights to her minor child, D.M. (“Child”). We affirm.

Facts and Procedural History

[2] Mother and M.M. (“Father,” and together with Mother, “Parents”) are the parents of Child, who was born in June 2022.¹ In July 2022, Child was admitted to Riley Children's Hospital and treated for an infection called “Staphylococcus Scalded Skin Syndrome.” Transcript Volume II at 84. During this visit, Child had bruising to his temple and forehead area and some bruising to his right inner thigh, which was later found to be concerning to Anna Gordon, a pediatric nurse practitioner with the Indiana University child protection team, due to Child's “nonmobile status.” Id. A social worker inquired about Mother's mental health, and Mother denied any issues, indicated that she participated in therapy through Centerstone as a child and had a negative experience, and stated that “therapy is not for her.” Id. at 134.

[3] On August 18, 2022, Mother took Child to a doctor's appointment due to breathing problems, and the doctor completed x-rays and provided Child with a breathing treatment. Mother overslept for a follow-up appointment.

[4] On August 24, 2022, Parents took Child to the emergency room with concerns regarding bruising around Child's anus which they claimed was due to a rectal thermometer. Dr. Alex Yuan observed Child and determined that it was impossible for a thermometer to cause Child's injuries. He noticed that “[i]t was pretty glaringly obvious that something had neurologically happened,” and Child was lethargic and had “non-accidental trauma” to his face, scalp, and forehead. Id. at 17-18. At some point, medical staff asked Parents “not to be so rough” with Child. Id. at 52. Nurses informed Dr. Yuan that Parents were handling Child “very carelessly and dangerously, particularly a two-month-old ․ with lethargy.” Id. at 20-21.

[5] At the hospital, Connersville Police Detective Joshua Tudor spoke with Parents who told him that the injury on Child's forehead, which appeared to him to be “like a floor burn,” was “a bug bite that had spread across the forehead.” Id. at 27. Family Case Manager Sarah Feldman (“FCM Feldman”) asked Parents about the bruising and abrasions on Child's forehead, and they told her it was a spider bite which they attempted to treat with peroxide and “another over-the-counter item.” Id. at 50. When FCM Feldman asked about Child's broken bones, Parents did not provide any explanation and told her that they were the only caregivers. Parents declined to submit to drug screens.

[6] After being transferred to Riley Children's Hospital, Child had seizures “to the point where they had to give him medication and intubate him.” Id. at 56. Nurse Gordon found that Child had “multiple traumatic injuries in different regions” including healing bilateral rib fractures on three ribs on his right side and two ribs on his left side, a healing humerus fracture, a skull fracture, perianal bruising, a healing laceration around his anal area, and “unexplained lesions and abrasions to his forehead.” Id. at 79. Child tested positive for amphetamines and cannabinoids. “Any explanation” provided by Parents “did not adequately explain his constellation of injuries that were found.” Id. at 83.

[7] During an interview at the police station, Mother initially told Detective Tudor that she did not know how Child had been injured but later stated that “she could have or possibly squeezed [Child] when picking him up around the belly or the trunk.” Id. at 32. During the interview, Detective Tudor received an update that Child had at least five broken ribs, and he relayed this information to Mother. Mother also mentioned “shaking of the” Child. Id. at 35. Family Case Manager Supervisor Douglas Rader (“FCM Supervisor Rader”) also spoke with Mother at the police station and at the Fayette County Jail when she was incarcerated. He found it noteworthy that Mother was not upset and “was not crying during the interview at all or while [he] was talking to her.” Id. at 68. On August 25, 2022, Mother agreed to submit to a drug screen, said that the screen would be negative, and expressed concerns about Father “and his possible drug use.” Id. at 57. Mother's drug screen tested positive for methamphetamine. On August 25, 2022, the Department of Child Services (“DCS”) filed a verified petition alleging Child was a child in need of services (“CHINS”) based upon Child's injuries.

[8] In September 2022, Family Case Manager Amy Elizabeth Parker (“FCM Parker”) spoke with Mother at the Union County Jail and discussed her positive drug screen. Mother denied any use of drugs and stated she had used marijuana but that had “not been for some time.” Id. at 71. She said that the only reason her screen would be positive would be that Father used methamphetamine. Mother also stated that Father “used frequently” while she and Child were in the home. Id.

[9] Law enforcement obtained video footage from Parents’ home surveillance system showing Father abusing Child while Mother was reportedly sleeping in the adjoining room with the door open. Detective Tudor also observed numerous “hand-to-hand drug transactions at the front of their home” and “[t]he majority of them were from [Father], but there were several that were from [Mother] as well,” and “[t]hey appeared to be selling marijuana from the home quite frequently.” Id. at 42.

[10] The State charged Mother with battery resulting in serious bodily injury to a person less than fourteen years old and neglect of a dependent resulting in serious bodily injury as level 3 felonies and obstruction of justice and maintaining a common nuisance as level 6 felonies.² The court issued a no contact order between Mother and Child. On February 28, 2024, Mother and the State filed a plea agreement pursuant to which Mother agreed to plead guilty to neglect of a dependent resulting in serious bodily injury as a level 3 felony in exchange for dismissal of the remaining counts. The plea agreement provided for a sentence of eight years with four years executed in the Department of Correction and four years suspended to probation.

[11] Meanwhile, after a hearing, the trial court entered an order on October 17, 2022, adjudicating Child to be a CHINS. On December 6, 2022, the court entered a dispositional order which ordered Mother to contact the family case manager every week, keep all appointments with any service provider, secure and maintain a legal and stable source of income, ensure that Child is properly clothed, fed, and supervised, complete a parenting assessment and all recommendations, complete a substance abuse assessment and all treatments, submit to random drug screens, attend all scheduled visitations with Child, and participate in all programs available to her while incarcerated. That same month, Child was placed with his great aunt, a nurse, and Mother told Family Case Manager Molly Parkhurst (“FCM Parkhurst”) that she “was planning to stay with [Father] no matter what.” Id. at 130.

[12] On February 10, 2023, the court entered an order approving the permanency plan of reunification with a concurrent plan of adoption. In March 2023, Mother informed FCM Parkhurst that her attorney had shown her videos of Father hitting Child while she was asleep in a bed and taking clonidine “for sleep” despite the drug screen taken on August 25, 2022, indicating that Mother was not positive for any prescribed medication. Id. at 131. At the time Mother was shown the videos at the end of February or beginning of March 2023, Mother did not file for divorce from Father.

[13] In October 2023, Tytiana Kennedy, a recovery coach and care coordinator employed by Centerstone, began working with Mother at the Union County Jail and provided substance abuse treatment pursuant to a DCS referral. Mother denied the need for substance abuse treatment. That same month, Hope Peer, a therapist and team leader of the substance use team employed by Centerstone, began providing Mother with individual therapy at the Union County Jail.

[14] On December 5, 2023, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Parents and Child. On February 27 and March 26, 2024, the court held a hearing at which DCS presented the testimony of Dr. Yuan, Detective Tudor, FCM Feldman, FCM Supervisor Rader, FCM Parker, Nurse Gordon, Father, Kennedy, Peer, FCM Parkhurst, Court Appointed Special Advocate Nichole Ervin (“CASA Ervin”), and Child's great aunt.

[15] On April 23, 2024, the court entered a nine-page order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Mother's care would not be remedied; there was a reasonable probability that continuation of the parent-child relationship posed a threat to the well-being of Child; termination of Mother's parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

[16] Mother argues that there was insufficient evidence that the conditions that led to the removal of Child were unlikely to be remedied and that DCS failed to present sufficient evidence that a continuation of the parent-child relationship would be harmful to Child. She asserts that she was incarcerated for the two-year period when the CHINS case was pending, she was not permitted to have contact with Child due to the no contact order, and she had not been offered services when the permanency plan was changed to a concurrent plan of adoption and reunification in February 2023. She contends that she began services in jail in October 2023, participated in substance abuse treatment and individual therapy, and worked on managing her emotions. She states that Father was the parent who physically abused Child and that she filed for divorce after DCS filed the petition to terminate her parental rights.

[17] At the time of the petition, Ind. Code § 31-35-2-4(b)(2) required DCS to allege and prove, among other things:

(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.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)).³ If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[18] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640.

[19] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. First, we identify the conditions that led to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. In the second step, the trial 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 patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. 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 future behavior. Id. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id. Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances the problematic situation will not improve. Id. To the extent Mother does not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[20] The court found Child “was severely abused and neglected during the first twelve weeks of his life.” Appellant's Appendix Volume II at 84. It found that Child had bruising on his left cheek and right forehead and a subconjunctival hemorrhage in his eye on July 18, 2022; he had fractured ribs and shortness of breath on August 18, 2022; and he had abrasions and bruising on his forehead, multiple fractured ribs, a fractured humerus, a skull fracture, and bruising and a laceration to his perianal area on August 24, 2022. The court found that Child also tested positive for methamphetamine and THC. It found that it was “unreasonable to believe that [Mother] remained asleep and was unable to hear and/or see [Child]” during the incident when Father physically abused Child “absent some concerning level of impairment.” Id. at 85. It found that, while Father was the main perpetrator of the physical abuse of Child, Mother also contributed to the conditions that resulted in Child's removal and continued placement outside of the home by admitting to law enforcement that she shook Child and squeezed him around his midsection,⁴ reporting she may have caused the laceration to Child's rectum, handling Child roughly while in the hospital, testing positive for methamphetamine, and allowing Father to care for Child while she was aware he was using methamphetamine. It found that Mother has failed to show self-awareness or take responsibility for any of the conditions that led to Child's removal.

[21] The record details Child's extensive injuries. FCM Parkhurst testified that Mother's statement in July 2022 that therapy was “not for her” caused her concern regarding whether Mother would continue services. Transcript Volume II at 134. When asked if it caused her concern about whether services for Mother would be successful, she answered: “It does. I've learned and experienced that parents who were not actively engaged in services or consistent in services outside of incarceration or inpatient treatment, they did not continue with those services once they – or continue with those services once they are in the community.” Id. She testified that Mother had not taken any accountability for the situation that led to incarceration. FCM Parkhurst also testified that Mother was “still planning to stay married to [Father] all the way up until October, November of this past year,” Id. at 142, and she had filed for divorce “just recently.”⁵ Id. at 132. Mother has been incarcerated during the duration of the case and pled guilty to neglect of a dependent resulting in serious bodily injury as a level 3 felony. FCM Parkhurst testified that Mother's sentencing date was scheduled for April 5, 2024, and Mother would still have “over a year to serve if that sentence is accepted” even with credit for time served. Id. at 128.

[22] In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in Child's removal and the reasons for placement outside Mother's care will not be remedied.

[23] While the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B), we note that the trial court also found that continuation of the parent-child relationship posed a threat to the child's well-being. “Clear and convincing evidence need not reveal that ‘the continued custody of the parents is wholly inadequate for the child's very survival.’ ” In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009) (quoting Bester v. Lake Cnty. Office of Family & Child., 839 N.E.2d 143, 148 (Ind. 2005) (quoting Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992))), reh'g denied. “Rather, it is sufficient to show by clear and convincing evidence that ‘the child's emotional and physical development are threatened’ by the respondent parent's custody.” Id. (quoting Bester, 839 N.E.2d at 148 (quoting Egly, 592 N.E.2d at 1234)).

[24] The trial court found that Child will continue to require “an elevated level of care, treatment, and supervision due to medical conditions, developmental delays, and behavioral needs.” Appellant's Appendix Volume II at 86. It found that Mother was “unable to recognize obvious symptoms of injury/illness while [Child] was in her care” and it was unlikely that she “will be able to recognize less obvious symptoms or behaviors, which would seriously endanger the Child's well-being given his current developmental, behavioral, and medical needs.” Id. at 87. In light of the record as detailed above, we conclude that clear and convincing evidence supports the trial court's determination that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to Child's well-being.⁶

[25] For the foregoing reasons, we affirm the trial court's termination order.

[26] Affirmed.

FOOTNOTES

1.   Father, who does not participate in this appeal, signed a “Consent to Adoption” in which he consented to the adoption of Child by Child's great aunt. Appellant's Appendix Volume II at 65.

2.   Father pled guilty to dealing in marijuana and two counts of possession of methamphetamine under three cause numbers. Father was also convicted of neglect of a dependent as a level three felony and received a sentence of thirty years for that conviction and his status as an habitual offender.

3.   Although the trial court's termination order was entered on April 23, 2024, after the effective date of the amended statute, DCS filed the termination petition and the factfinding hearing commenced prior to the effective date. Mother cites the prior version of the statute that we refer to above and she makes no suggestion that the amended version applies to this case. Further, we note that Ind. Code § 31-35-2-4 was amended March 11, 2024, to provide in part:(c) A petition filed under subsection (a) must allege:(1) the existence of one (1) or more of the circumstances described in subsection (d);(2) that there is a satisfactory plan for care and treatment of the child; and(3) that termination of the parent-child relationship is in the child's best interests.(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:* * * * *(3) That 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.(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child․

4.   Nurse Gordon testified that “a squeeze with excessive force would be the correct mechanism to cause bilateral rib fractures.” Transcript Volume II at 80.

5.   The court took judicial notice of “divorce petitions filed in both cause numbers 81C01-2401-DC-03, filed on January 8th, and under 21C01-2401-DC-53 filed on January 26th, both of this year.” Transcript Volume II at 132.

6.   Mother does not challenge the trial court's conclusion that termination of her parental rights is in Child's best interests or that there is a satisfactory plan for the care and treatment of Child. Accordingly, we do not address those conclusions.

Brown, Judge.

Mathias, J., and Kenworthy, J., concur.