IN RE: the Involuntary Termination of the Parent-Child Relationship of: Ka.M. (2025)

MEMORANDUM DECISION

[1] V.S. (“Mother”) appeals following the involuntary termination of her parental rights to Ka.M., J.M., Z.M., and Ke.M. (collectively, “Children”). Mother asserts she received ineffective assistance of counsel because: (1) her counsel did not sufficiently cross-examine witnesses during the termination fact-finding hearing, and (2) her counsel improperly conceded that the Department of Child Services (“DCS”) had met its burden to terminate Mother's parental rights to Children. However, since March 2023, Mother has been incarcerated in Texas for creating and distributing sexually explicit images of herself, her husband, and one of Children engaged in sexual conduct, and a no-contact order has prohibited Mother from having contact with Children. Under these circumstances, we are confident counsel's alleged errors did not impact the outcome of the termination proceeding. Accordingly, we affirm the termination of Mother's rights to Children.

Facts and Procedural History

[2] Mother gave birth to Ka.M. on September 21, 2009; J.M. on April 25, 2011; Z.M. on February 23, 2013; and Ke.M. on June 19, 2013. Children's father, C.M., is deceased. Children lived with Mother and stepfather G.B.¹

[3] On January 4, 2023, the FBI, Indiana State Police, and the Internet Crimes Against Children task force executed a search warrant at Mother's home after they received evidence that Mother had posted sexually explicit images depicting sexual contact between Mother, G.B., and Z.M. on a social media app called “Wickr.” (App. Vol. II at 49.) On January 6, 2023, DCS filed a petition alleging Children were Children in Need of Services (“CHINS”). At an initial hearing, Mother denied that Children were CHINS, and the court placed Children in foster care, where they have remained.

[4] DCS conducted an interview with each of Children, and each reported being exposed to pornography while in Mother's care. When shown censored versions of the images that Mother shared online, Z.M. identified herself as the minor in the pictures. On March 14, 2023, the FBI arrested Mother in Indiana and extradited her to Texas because some of the sexual images of Z.M. were created in Texas. Mother was indicted on seven charges including Sexual Exploitation of Children, Distribution of Child Pornography, Receipt of Child Pornography, and Possession of Child Pornography. Mother remained incarcerated in Texas awaiting trial throughout these proceedings.

[5] The CHINS court adjudicated Children CHINS in July 2023. Because of her incarceration and a no-contact order, the CHINS court did not order Mother to participate in services or visit Children. On December 3, 2023, Mother pled guilty in Texas to one count of violating “Title 18 U.S.C. 2251(a) – Production of Child Pornography.” (Ex. Vol. I at 147.) The CHINS court changed Children's permanency plan from reunification to adoption on January 8, 2024, and DCS filed a petition to terminate parental rights on April 10, 2024.

[6] At the termination hearing on September 16, 2024, FBI Agent Verschoor testified Mother's minimum sentence would be fifteen years and she would be required to serve at least eighty-five percent of that time. DCS Family Case Manager (“FCM”) Amanda Swisher testified the children were “educationally, emotionally, and socially delayed” when removed from Mother. (Tr. Vol. II at 45.) She indicated that, since removal, individual education plans had been developed for each child and all were receiving special education services. FCM Swisher noted that Ke.M., who has physical disabilities, was wearing a diaper and had a feeding tube at the time of removal, but no longer “has any of those things” and “her medical needs have been addressed ․ with her needs ․ decreasing as time goes on.” (Id. at 46.) She testified the children's grades were improving and they were working on “learning age-appropriate skills.” (Id. at 45.) FCM Swisher told the court that continuing a relationship with Mother would be a threat to the children's well-being because the progress they had made would decline.

[7] The trial court terminated Mother's parental rights on December 2, 2024, finding that continuation of the parent-child relationship posed a threat to Children, termination was in Children's best interests, and a satisfactory plan existed for adoption. To support its conclusion, the trial court specifically found, “Mother subjected [Children] to sexual abuse and failed to provide for [Children's] educational needs. There is no evidence that [Children] would be safe in Mother's care or that Mother can adequately provide for [Children].” (App. Vol. II at 62.)

Discussion and Decision

[8] Mother argues her due process rights were violated because she received ineffective assistance of counsel. “When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011).

The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding. Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a unique kind of deprivation.

Id. (internal quotations and citations omitted). Thus, parents retain “a vital interest in preventing the irretrievable destruction of their family life” even when relationships are strained, Santosky v. Kramer, 455 U.S. 745, 753 (1982), and the State “must provide the parents with fundamentally fair procedures.” Id. at 754. Parents must receive “the opportunity to be heard at a meaningful time and in a meaningful manner.” In re C.G., 954 N.E.2d at 917.

[9] When examining whether a parent whose parental rights were terminated received ineffective assistance of counsel, “the focus of the inquiry [is] whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination” rather than whether counsel might have raised particular objections. Baker v. Marion Cty. Ofc. of Family and Children, 810 N.E.2d 1035, 1041 (Ind. 2004). We will reverse a termination for ineffective assistance only if we “cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child's best interest.” Id.

[10] Mother first argues her counsel was ineffective because counsel “failed to adequately cross-examine witnesses, or otherwise contest in any way, the allegations of neglect made by DCS witnesses.” (Mother's Br. at 14.) She asserts counsel should have “hash[ed] out” FCM Swisher's “broad allegations [of neglect] that lack[ed] specificity as to what each specific child endured.” (Id. at 15.) Our review of the record reveals Mother's counsel did cross-examine FCM Swisher, asking her about Children's living situation, their relationships with relatives, and the lack of services offered to Mother. Mother's counsel also cross-examined Agent Verschoor and asked him about his investigation, Mother's arrest, and Mother's criminal legal counsel. Mother's counsel did not cross-examine the Court Appointed Special Advocate. We note, however, that the “nature and extent of cross-examination is a matter of strategy delegated to trial counsel.” Myers v. State, 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015) (quoting Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied), reh'g denied, trans. denied.

[11] Second, Mother argues her counsel was ineffective because counsel conceded during closing argument that DCS had met its burden to terminate her parental rights.² She asserts counsel's concession ignored the possibility that the federal court would not accept her plea,³ and that Agent Verschoor's testimony regarding the federal minimum sentence for her crime “was an estimation.” (Mother's Br. at 17.) We recognized, in a criminal case, that “acknowledgment by defense counsel at the end of trial that guilt on a particular count is evident given overwhelming evidence does not constitute ineffective assistance of counsel where such concession is made to gain a strategical advantage[.]” Christian v. State, 712 N.E.2d 4, 6 (Ind. Ct. App. 1999). Herein, however, we see no strategic advantage to counsel conceding Mother's entire case, and we discourage counsel from taking such an approach in future termination cases.

[12] Nevertheless, the evidence supporting the termination of Mother's parental rights was so overwhelming that we cannot imagine a different result even if counsel had performed differently. Mother's arguments about counsel's performance ignore the full picture of the evidence that the trial court used to support the termination of her parental rights to Children – all Children had been exposed to pornography; Z.M. was a victim of child pornography at the hands of Mother, which resulted in Mother's incarceration; and Children were socially, educationally, and emotionally delayed prior to removal from Mother's care. Agent Verschoor and FCM Swisher both testified about Mother's crime and the heinous nature of the act. Prior to their removal from Mother's care, Children did not attend school on a regular basis, did not have “age-appropriate skills ․ [such as] making friends, socializations, things of that nature.” (Tr. Vol. II at 45-6.) Further, after their removal from Mother, Children participated in therapy, attended school, were well-liked by peers, were doing well in foster care and, in the case of Ke.M., had made several strides in the management of a serious medical condition. Based on all the evidence in the record, we are confident that the conditions leading to the removal of Children were unlikely to be remedied and that termination was in the best interests of Children. Because Mother's trial was not fundamentally unfair and DCS proved its case with overwhelming evidence, Mother did not receive ineffective assistance from counsel. See, e.g., In re A.P., 882 N.E.2d 799, 808 (Ind. Ct. App. 2008) (appointed counsel not ineffective when counsel cross-examined witnesses and termination supported by sufficient evidence), reh'g denied.

Conclusion

[13] We cannot say Mother's counsel was ineffective. Accordingly, we affirm the termination of Mother's parental rights to Children.

[14] Affirmed.

Weissmann, J., and Scheele, J., concur.

FOOTNOTES

1.   G.B. was a party to the Children in Need of Services proceedings, but he was not involved in the termination proceedings.

2.   Mother also seems to argue that the trial court erred when it terminated her parental rights because “incarceration is an insufficient basis for terminating parental rights.” K.E. v. Ind. Dept. of Child Servs., 39 N.E.3d 641 (Ind. 2015). However, as the trial court explained in its order, incarceration was not the only fact that led to the court's decision to terminate Mother's parental rights. Mother's sexual abuse of Z.M. and her neglect of Children's basic needs also supported termination.

3.   If the federal court rejected Mother's plea agreement, then she would again be facing charges for four crimes, which arguably could lead to a longer prison sentence than the single charge to which she pled guilty. We therefore fail to see how the federal court's possible rejection of her plea could demonstrate she was prejudiced by counsel's concession.

May, Judge.

Judges Weissmann and Scheele concur.