MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Dec 02 2016, 8:06 am

court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
the defense of res judicata, collateral                            Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Edgar                                           Gregory F. Zoeller
J. Edgar Law Offices, P.C.                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
In the Termination of the Parent-                        December 2, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         49A02-1604-JT-907
I.C. and Z.S., minor children,
and                                                      Appeal from the Marion Superior
C.S., Mother                                             Court
                                                         The Honorable Marilyn A.
Appellant-Respondent,
                                                         Moores, Judge
        v.                                               The Honorable Larry E. Bradley,
                                                         Magistrate
The Indiana Department of                                Trial Court Cause No.
Child Services,                                          49D09-1506-JT-416
                                                         49D09-1506-JT-417
Appellee-Petitioner



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 1 of 14
[1]   The Marion Superior Court terminated C.S.’s (“Mother”) parental rights to her

      two minor children. C.S. appeals and raises two issues.


          I. Whether the Department of Child Services (“DCS”) proved that there is

              a reasonable probability that continuation of the parent-child relationship

              posed a threat to I.C.’s well-being; and,


          II. Whether C.S. was compelled to testify that she smoked marijuana, which

              violated her privilege against self-incrimination, and therefore, was

              denied her right to a fair trial.


[2]   We affirm.


                                    Facts and Procedural History

[3]   In June 2012, Mother gave birth to I.C. Shortly after his birth, Mother was

      hospitalized for an infection for approximately three weeks. While Mother was

      in the hospital, I.C.’s father and maternal grandmother cared for him. During

      Mother’s hospitalization, a relative took one-month-old I.C. to the hospital and

      he was diagnosed with an open wound on his neck, rib fractures, broken collar

      bone, and a spinal column fracture.

[4]   I.C. was adjudicated a child in need of services (“CHINS”) on August 14, 2012.

      I.C. was placed in a foster home and Mother was ordered to participate in

      services including parenting and domestic violence classes, and therapy. Mother

      complied with services and participated in supervised visitation.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 2 of 14
[5]   On July 19, 2014, I.C. was returned to Mother’s care for a trial home visit. On

      this date, Mother was also pregnant with her second child. Z.S. was born on

      August 10, 2014.1 Z.S. weighed under five pounds at birth.


[6]   Shortly after Z.S.’s birth, DCS removed both children from Mother’s care. Z.S.

      was adjudicated a CHINS after Mother admitted that she was unable to

      properly care for him and meet his special medical needs. Z.S. suffers from

      severe persistent asthma, gross motor developmental delay, and low muscle

      tone. Doctors describe him as medically fragile. Numerous environmental

      triggers, including smoke and secondhand smoke, can exacerbate Z.S.’s asthma

      to the point where he requires hospitalization. I.C. also suffers from asthma, but

      his condition is not as severe. Mother is a smoker and has been unable to quit

      smoking for any significant length of time.


[7]   The DCS case worker who removed the children from Mother’s home in

      August 2014 observed safety concerns and a lack of edible food in the home.

      Mother was also not properly caring for the children and relied on physical

      discipline. Mother was ordered to continue to participate in reunification

      services.

[8]   After I.C. was removed from Mother’s care for the second time, he began to

      experience separation anxiety and feared being separated from anyone. When




      1
        The children have different biological fathers, and the fathers’ parental rights are not at issue in this appeal.
      I.C.’s father’s parental rights were terminated in October 2015. Mother does not know the full name of Z.S.’s
      father.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016                Page 3 of 14
       I.C. feels anxious, he makes himself vomit. I.C. participates in therapy. His

       therapist believes he is bonded to his foster parents and any change in his

       placement could cause negative long-term effects. His therapist strongly believes

       that a permanent home is important for I.C. because of the instability in his

       young life and attachment concerns.


[9]    Mother participated in services including supervised visitation. However,

       visitation never progressed beyond supervised. Mother was taught how to clean

       her home to remove the smell of smoke and given tools to help her quit

       smoking. Mother has not been able to quit smoking and admits that she smokes

       when she feels stressed. Service providers smelled smoke in Mother’s home on

       occasion, though not every time they visited.


[10]   Mother participated in therapy but missed the last three sessions in the weeks

       leading up to the termination hearing. She was also informed of, but failed to

       attend, a majority of the children’s medical appointments. The guardian ad

       litem expressed concern that Mother does not understand the children’s

       medical needs and that she continues to smoke despite the negative effects on

       her children’s health, particularly Z.S.

[11]   The service providers agreed that Mother has had sufficient time and services to

       address the issues that led to the children’s removal. On the date of the

       termination hearing, nearly four-year-old I.C. was in Mother’s care for only two

       months since his birth. After his second removal in September 2014, Mother’s

       visitation was continually supervised.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 4 of 14
[12]   The DCS filed a petition to terminate Mother’s parental rights to I.C. and Z.S.

       on June 2, 2015, and a hearing was held on the petition on March 21, 2016.

       The trial court issued its order terminating Mother’s parental rights to both

       children on April 11, 2016. The trial court found and concluded that


               15. [Mother] receives monthly disability income of seven
               hundred and fifty-three dollars for cognitive deficiencies. She also
               receives food stamps.


               16. [Mother] has maintained an apartment for three years. She
               has trouble maintaining her utilities. [Mother] estimates her rent
               and utilities to be around six hundred and seventy-five dollars per
               month.


               17. [Mother] exercises eight hours of parenting time with the
               children. [I.C. and Z.S.] demonstrate a bond with their mother.
               [Mother] is appropriate, affectionate and engaging during
               parenting time.


               18. During the time the CHINS cases have been pending,
               [Mother] has completed parenting classes, a domestic violence
               class, and had completed most of her home based case
               management and therapy.


               19. [Mother] has not made herself available for her last three
               therapy sessions. Four weeks ago, the therapist smelled cigarette
               smoke in [Mother’s] apartment.


               20. [Z.S. and I.C.] have resided together in the same foster home
               since their respective placements in August 2014 and September
               2014. This placement is pre-adoptive.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 5 of 14
        21. [I.C.] has special needs which include reactive airwaves
        disease, and receives therapy for delays in his speech. He also
        sees a therapist and doctor for an anxiety disorder.


        22. [I.C.’s] therapist, Malinda Cox, sees [I.C.] as also having
        Reactive Attachment Disorder which could come from being in
        several placements during his long standing CHINS case. She
        believes he could be affected negatively if moved again causing
        more anxiety. Ms. Cox also believes that [I.C.] needs a
        permanent home that is stable and routine to avoid long term
        negative effects.


        23. [I.C.] has been out of his mother’s care all of his life with the
        exception of a couple of months in 2014.


        24. [Z.S.] has been out of his mother’s care all of his life with the
        exception of approximately one week.


        25. [Z.S.] has special needs which include severe asthma, a
        swallowing issue, low tone muscles, and developmental issues.


        26. [Z.S.] takes daily medicine for his asthma. He also uses a
        nebulizer as needed. He has been hospitalized four times in 2015
        with breathing complications. The hospitalizations occurred after
        parenting time.


        27. Cigarette smoke, strong odors and fragrances, animals,
        pollution, indoor mold, and cold weather can all be triggers for
        the children’s breathing problems.


                                                ***


        33. [Mother’s] plan, other than not to smoke, is to go outside and
        to do it. After all this time, [Mother] still does not seem to grasp
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 6 of 14
        the utmost importance of keeping her children, especially [Z.S.],
        from any contact with cigarette smoke.


        34. [Mother] has attended some of her children’s medical
        appointments. She was provided with the appointment dates.
        She does not have a full awareness of all the children’s medical
        issues.


        35. On June 2, 2015, the CHINS Court changed the children’s
        plan for permanency from reunification to adoption. At that time
        the Court found, in part, that the cases had been open since July
        2012 and August 2014, and no service provider had
        recommended that the children be placed into the care of their
        mother, that smoking continued to be an issue, and that [I.C.’s]
        therapist stressed that he had been in “limbo” for about three
        years and needed permanency.


                                                ***


        37. Continuation of the parent-child relationship poses a threat to
        the children’s well-being. The children have been placed out of
        the home for a considerable amount of time with no service
        provider recommending unsupervised visitation at this point. The
        children need and deserve a permanent home where their health
        is not endangered. If placed in the home with their mother, the
        threat to well-being could be life threatening, especially to [Z.S.]
        if around smoke, even on clothes and furniture. Upon observing
        [Mother] during the trial and listening to her testimony, the
        Court has grave concerns that the children would not continue
        with their myriad of medical and services appointments due to
        scheduling and transportation, and the possible stress it would
        cause [Mother] when trying to meet her children’s special needs.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 7 of 14
       Appellant’s App. pp. 31-32. The trial court also concluded that termination was

       in the children’s best interests and the foster home is pre-adoptive.


[13]   Mother now appeals the termination of her parental rights to I.C. and argues

       that she was denied a fair trial. Additional facts will be provided as necessary.


                                            Standard of Review

[14]   In the appellate review of a termination of parental relationship, the following

       standard applies:


               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. 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.


       In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quotations and citations omitted). “In

       the appellate review of claims alleging a lack of proof by clear and convincing

       evidence, the reviewing court must [] determine whether there is probative

       evidence from which a reasonable fact-finder could have found the challenged

       matters proven by clear and convincing evidence.” In re N.G., 51 N.E.3d 1167,

       1170 (Ind. 2016).


          I. Whether Continuation of the Parent-Child Relationship Poses a
                           Threat to I.C.’s Well-Being

[15]   The traditional right of parents to establish a home and raise their children is

       protected by the United States Constitution, but may be terminated when
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 8 of 14
parents are unable or unwilling to meet their parental responsibilities. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). When the

DCS seeks to terminate the parent-child relationship of a child that has been

adjudicated as a CHINS, its petition must allege:


        (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 local office 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.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 9 of 14
                        (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)(A)-(D). If the trial court finds that each of these

       allegations “are true,” it must “terminate the parent-child relationship.” Ind.

       Code § 31-35-2-8(a). The trial court must enter findings of fact that support its

       conclusions. Ind. Code § 31-35-2-8(c). “[A] finding in a proceeding to terminate

       parental rights must be based upon clear and convincing evidence.” Ind. Code §

       31-34-12-2.


[16]   Importantly, a trial court need not wait until a child is irreversibly influenced by

       a deficient lifestyle such that his physical, mental, and social growth is

       permanently impaired before terminating the parent-child relationship. In re

       E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows

       that the emotional and physical development of a child in need of services is

       threatened, termination of the parent-child relationship is appropriate. Id.


[17]   Mother argues that the DCS failed to prove that there was a reasonable

       probability that continuation of the parent-child relationship poses a threat to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 10 of 14
       I.C.’s well-being because “there is no medical testimony in the record that

       would indicate that [her] use of cigarettes endangered I.C.’s health.”

       Appellant’s Br. at 13. We agree that Mother’s smoking habit poses a much

       greater threat to Z.S., who is medically fragile, than to I.C. However, I.C. does

       suffer from asthma, and we may logically conclude that residing in a home with

       Mother, who smokes, would negatively impact his health.


[18]   Also, the trial court did not limit its conclusion of law concerning the threat to

       I.C.’s well-being to Mother’s smoking habit. Specifically, the court concluded

       that:


               The children have been placed out of the home for a considerable
               amount of time with no service provider recommending
               unsupervised visitation at this point. The children need and
               deserve a permanent home where their health is not endangered.
               If placed in the home with their mother, the threat to well-being
               could be life threatening, especially to [Z.S.] if around smoke,
               even on clothes and furniture. Upon observing [Mother] during
               the trial and listening to her testimony, the Court has grave
               concerns that the children would not continue with their myriad
               of medical and services appointments due to scheduling and
               transportation, and the possible stress it would cause [Mother]
               when trying to meet her children’s special needs.


       Appellant’s App. p. 32.


[19]   I.C., who was nearly four years old on the date of the hearing, has only been

       placed in Mother’s care for two months of his young life. As a result of his

       placement in multiple foster homes, and his brief, temporary stay with Mother,

       I.C. suffers from separation anxiety and reactive attachment disorder. I.C.’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 11 of 14
       therapist emphasized that I.C. needs a stable, permanent home and another

       move could have a long-term negative effect on him.


[20]   Mother has demonstrated that she is able to care for I.C. for short, supervised

       periods of time. However, her visits have remained supervised because Mother

       has not shown that she was capable of progressing beyond supervised visitation.

       Moreover, the evidence supports the trial court’s finding that Mother does not

       fully comprehend I.C.’s medical issues, and that Mother would be unable to

       continue to maintain I.C.’s medical and service appointments.


[21]   For all of these reasons, we conclude that the DCS presented clear and

       convincing evidence that there is a reasonable probability that the continuation

       of the parent-child relationship poses a threat to I.C.’s well-being.


                                           II. Self-Incrimination

[22]   The Fifth Amendment's Self-incrimination Clause provides that no person

       “shall be compelled in any criminal case to be a witness against himself.” U.S.

       Const. amend. V. This protection extends to state cases by virtue of the

       Fourteenth Amendment. See Withrow v. Williams, 507 U.S. 680, 688-89 (1993).

       “[T]his prohibition not only permits a person to refuse to testify against himself

       at a criminal trial . . . but also ‘privileges him not to answer official questions

       put to him in any other proceeding, civil or criminal, formal or informal, where

       the answers might incriminate him in future criminal proceedings.’” Minnesota

       v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted); see also Clifft v. Ind. Dep't.

       of State Revenue, 660 N.E.2d 310, 314 (Ind. 1995).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 12 of 14
[23]   However, “[t]he Fifth Amendment prohibits only compelled testimony that is

       incriminating.” Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 190 (2004).

       If those two elements are present,


               a witness protected by the privilege may rightfully refuse to
               answer unless and until he is protected at least against the use of
               his compelled answers and evidence derived therefrom in any
               subsequent criminal case in which he is a defendant. Absent such
               protection, if he is nevertheless compelled to answer his answers
               are inadmissible against him in a later criminal prosecution.


       Lefkowitz v. Turley, 414 U.S. 70, 78 (1973).


[24]   Here, Mother was compelled to admit that she smoked marijuana over her

       objection that she had the right not to incriminate herself. Tr. pp. 66-67. Mother

       argues that the trial court “placed [her] in the precarious position of choosing to

       admit to smoking marijuana and expose herself to criminal prosecution or to

       refuse to answer, expose herself to contempt sanctions, and lose credibility with

       the court.” Appellant’s Br. at 17. Further, she claims that her “compelled

       admission of her use of marijuana was so prejudicial that it denied her a fair

       trial.” Id. at 19.


[25]   We cannot agree. Mother testified that she used marijuana in the past (without

       a prescription) because she has vision problems. No testimony or other

       allegations indicated that she is a current marijuana user. The testimony was

       limited, and the DCS did not make any reference to the admission in its closing

       argument. Importantly, the trial court did not make any reference to Mother’s

       statement that she previously used marijuana in its order terminating her
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 13 of 14
       parental rights. On the record before us, we cannot conclude that Mother’s

       compelled testimony that she smoked marijuana was considered by the trial

       court when it determined that Mother’s parental rights to I.C. and Z.S. should

       be terminated. Therefore, Mother has not established that she was denied a fair

       trial.


                                                  Conclusion

[26]   We affirm the trial court’s order terminating Mother’s parental rights to I.C.

       and also conclude that Mother was not denied a fair trial.


[27]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016   Page 14 of 14
