MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Dec 15 2016, 11:03 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael D. Gross                                         Gregory F. Zoeller
Lebanon, Indiana                                         Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.S.,                                                    December 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         06A01-1606-JT-1260
        v.                                               Appeal from the Boone Circuit
                                                         Court
Indiana Department of Child                              The Honorable J. Jeffrey Edens,
Services,                                                Judge
Appellee-Plaintiff.                                      The Honorable Sally E. Berish,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         06C01-1508-JT-285, 06C01-1508-
                                                         JT-286



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016         Page 1 of 11
[1]   M.S. (Mother) appeals the trial court’s termination of her parental rights to

      A.R. and B.S. (collectively, the Children). In doing so, she does not directly

      challenge any of the trial court’s findings of fact or conclusions. Mother

      acknowledges that she suffers from mental illness, which has resulted in her

      distrust of the Department of Child Services (DCS) and her refusal to cooperate

      with virtually all service providers. Her sole argument on appeal is that her

      parental rights were improperly terminated exclusively on the basis of her

      mental disability.


[2]   We affirm.


                                       Facts & Procedural History


[3]   B.S. was born to Mother in September 2012, and the two moved to Indiana in

      March 2014. On April 24, 2014, DCS received a report from the Lebanon

      Police Department that Mother was walking on the street in Lebanon with B.S.

      and appeared to be impaired. Rachel Mullins responded to the scene for DCS.

      B.S. had not eaten all day and Mother had no money, so the officers bought

      food for the child. B.S. also had a badly soiled diaper. Mother, who was

      approximately eight months pregnant at the time, had no way to transport

      herself and B.S. to a home in Thorntown, where they were staying with a




      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 2 of 11
      friend.1 Mullins drove them to Thorntown, and a safety plan was developed for

      B.S.


[4]   The following day, DCS received a report that Mother had left B.S. with the

      friend without indicating when she would return. The friend and police had

      been unsuccessful in contacting Mother. When Mullins was finally able to

      reach her, Mother refused to provide her whereabouts or indicate when she

      would return. Accordingly, Mullins detained B.S. and placed him in foster

      care, where he has remained. DCS has never been able to locate B.S.’s father.


[5]   Mother gave birth to A.R. in Lebanon on May 11, 2014.2 DCS detained A.R.

      because Mother was homeless and refused assistance in finding shelter upon

      discharge from the hospital. Following a detention hearing on May 14,

      however, A.R. was returned to Mother’s care because Mother was living with

      another friend, Rhonda Wamsley. A safety plan was developed for A.R.’s care.


[6]   Shortly thereafter, on May 28, 2014, Family Case Manager (FCM) Kristin

      Miller convened a Family Team Meeting (FTM) to create a safety plan for the

      return of B.S. to Mother’s care. The meeting terminated unsuccessfully when

      Mother began yelling, screaming, and cursing. Mother returned to the DCS

      office on June 5, 2014, to confront FCM Miller. Mother was combative,




      1
       Mother has no driver’s license and no other means of transportation aside from relying on others. She
      walks most places.
      2
       A.R.’s father lives in Mississippi. Although he appeared telephonically for the initial detention hearing, he
      has never been involved in A.R.’s life.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016           Page 3 of 11
      accusatory, and yelling. DCS staff eventually called law enforcement in order

      to force Mother to leave.


[7]   On June 6, 2014, FCM Miller performed a home check. Mother was not

      present, and A.R. had been left in Wamsley’s care. Wamsley expressed

      concerns regarding A.R.’s health and the care provided by Mother. A.R. had

      developed severe thrush and diaper rash. Later that day, FCM Miller held

      another FTM to discuss concerns about Mother’s recent behavior and A.R.’s

      medical condition and to create a safety plan. Law enforcement was present at

      DCS’s request. Mother was once again verbally combative and out of control,

      but she eventually signed the proposed safety plan. Mother indicated, however,

      that she was leaving Wamsley’s home and refused to say where she was going.

      While still upset and agitated, Mother roughly pushed a bottle into A.R.’s

      mouth and caused the infant’s head to hit the table. As a result of Mother’s

      actions, DCS detained A.R. for a second and final time and placed her in foster

      care with B.S., where she remains today.


[8]   A.R. and B.S. were adjudicated CHINS on November 3, 2014, and a

      dispositional order was entered a few weeks later. Among other things, Mother

      was ordered to maintain weekly contact with DCS, notify DCS of any changes

      in address, appear for all appointments with service providers, obtain and

      maintain suitable housing, engage in and cooperate with home-based

      counseling, undergo a parenting assessment and a psychological evaluation and

      follow all recommendations, attend to her own psychiatric needs, and attend all

      visits with the Children.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 4 of 11
[9]    Mother regularly failed to abide by the dispositional order. Along with periods

       of homelessness, Mother changed residences on a number of occasions and

       consistently refused to provide DCS with her current address, even when

       directed to do so by the trial court. Mother was uncooperative, abusive, and

       hostile with her various FCMs. At the termination hearing, Mother openly

       acknowledged that she never attempted to work with the FCMs because she did

       not “really see eye to eye with them.” Transcript at 308. Accordingly, she made

       little to no progress in services and flatly refused certain services. During initial

       assessments and evaluations with various providers, Mother refused to answer

       many necessary questions and was generally uncooperative, angry, and

       paranoid.


[10]   Mother was diagnosed with generalized anxiety disorder, major depression,

       PTSD, and personality disorder not otherwise specified. Individual therapy

       sessions began in June 2014 with Jane Roell of Cummins Behavioral Health

       (Cummins). The sessions proved unproductive due to Mother’s attitude and

       refusal to provide information. Mother also missed most scheduled sessions.

       In November 2014, Mother’s therapy was reassigned to Vanessa Enos, but

       Mother did not re-engage in individual therapy until January 2015. Mother

       again made no progress and was combative, insulting, and defiant in her

       therapeutic sessions with Enos. Mother had to be escorted from Cummins by

       law enforcement on two occasions.


[11]   Cummins attempted to provide other needed services to Mother to no avail.

       Mother refused home-based therapy, believing she did not need it. Further,

       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 5 of 11
       although she attended two life-skills sessions, both were terminated early due to

       Mother’s yelling and disrespect. With the exception of supervised visitation,

       Mother was unsuccessfully discharged from services with Cummins in March

       2015. She met none of her therapeutic goals during her time with Cummins

       and failed to acquire the skills needed to properly parent the Children.


[12]   Mother went to her third therapist – Angela Magana with Aspire – between

       April and June 2015. Mother exhibited hostility and lack of trust throughout

       the four sessions that she attended with Magana. No progress resulted from

       these sessions, and Mother was discharged due to lack of cooperation and

       verbal abuse of her therapist.


[13]   In July 2015, Mother re-engaged with a new therapist, Keith Seegers with

       Aspire. Mother attended approximately eight group therapy sessions by

       December 2015 and did well. During this time, she also attended five or six

       individual sessions with Seegers, missing six other scheduled appointments.

       Mother behaved a bit better with Seegers but overall she made no noticeable

       progress in individual therapy. By January 2016, Seegers continued to have

       concerns about Mother’s parenting ability based on her refusal to interact

       appropriately with those trying to help her and her refusal to reach out to others

       for assistance.


[14]   Mother was referred for supervised visitation with the Children throughout the

       case. Visitation generally went well for a period of time but Mother eventually

       began to struggle with inappropriate verbal aggression toward service providers


       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 6 of 11
       in front of the Children. In June 2015, Mother refused any further visitation

       supervised by Cummins. She exercised no visitation with the Children from

       May 22 through July 30, 2015. Thereafter, she re-engaged with visitation

       services through Cummins. In August 2015, Mother terminated visitation with

       A.R.3 because A.R. cried inconsolably during visits. She also inquired of the

       foster mother whether she would be willing to adopt A.R. Mother continued to

       sporadically visit with B.S. from September through December 2015.


[15]   Throughout the course of the CHINS proceedings, the trial court generally

       found after review hearings that Mother had, at best, minimally complied with

       the case plan, minimally enhanced her ability to fulfill her parental obligations,

       and minimally cooperated with DCS. After the review hearing on August 17,

       2015, the court found that Mother had not complied with the case plan, had not

       enhanced her ability to fulfill her parental obligations, and was minimally

       visiting the Children. Accordingly, the court changed the permanency plan to

       concurrent plans of reunification and adoption. Following the next review

       hearing on October 19, 2015, the court changed the plan to adoption.


[16]   In the meantime, DCS filed the instant termination petitions on August 10,

       2015. The trial court held hearings regarding the petitions on January 7, 8, and

       25, 2016, as well as February 1, March 4, and March 11, 2016. During her




       3
        Mother admittedly has no bond with A.R. She testified at the termination hearing that A.R. would be
       better off with her foster family. Mother indicated, however, that she still wanted A.R. and B.S. back in her
       care and custody.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016          Page 7 of 11
       testimony on January 25, Mother refused to answer certain questions and then

       stormed out of the courtroom despite the court’s warning that she would be

       arrested for direct contempt of court. At the hearing on February 1, Mother

       presented the court with her signed consents for the adoption of the Children.

       She revoked the consents in writing on February 29, 2016. The court issued its

       orders terminating Mother’s parental rights to B.S. and A.R. on May 4, 2016.4

       Mother now appeals. Additional information will be provided below as

       needed.


                                                Discussion & Decision


[17]   When reviewing the termination of parental rights, 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 most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its

       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. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[18]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &



       4
           The rights of A.R. and B.S.’s respective fathers was also terminated. The fathers do not appeal.


       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016               Page 8 of 11
       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

       evidence supports the findings, and second we determine whether the findings

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[19]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[20]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, 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
       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 9 of 11
                       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[.]

       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[21]   In this case, Mother does not specifically challenge any of the trial court’s

       findings or conclusions. To the extent she argues that the trial court’s findings

       or conclusions are clearly erroneous, Mother has waived this issue by failing to

       make a cogent argument. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App.

       2007) (citing Ind. Appellate Rule 46(A)(8)(a)).


[22]   Mother’s entire, and rather brief, argument is that she is under a severe mental

       disability, and Indiana law provides that her parental rights may not be

       terminated solely on the basis of mental disability. Indeed, mental disability is

       just one factor to be considered along with other pertinent evidence bearing

       upon the question of a parent’s fitness. Stone v. Daviess Cty. Div. of Children &

       Family Servs., 656 N.E.2d 824, 831 (Ind. Ct. App. 1995), trans. denied. While it

       is clear that Mother has some mental health issues, the trial court did not

       terminate her rights based upon her mental illness. Rather, in concluding that

       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 10 of 11
       there existed a reasonable probability the conditions that resulted in the

       Children’s removal or continued placement in foster care would not be

       remedied, the court explained:


               Mother remains without stable housing, lacks basic parenting
               skills, refuses to recognize and address her lack of interpersonal
               skills and the effect that has on the children, has been offered
               services and refused or failed to comply with the same, has failed
               to complete any [d]ispositional terms despite involvement with
               multiple agencies and service providers, has failed to consistently
               visit [B.S.] and has voluntarily had no contact with [A.R.] in
               months.


       Appendix at 52. In sum, after approximately two years of services provided to

       her by DCS and a multitude of different service providers, Mother remained

       either unable or unwilling to meet her parental responsibilities.


[23]   The DCS presented clear and convincing evidence that the conditions that

       resulted in the Children’s removal from and continued placement outside

       Mother’s care remained unchanged and that termination of parental rights was

       in the best interests of the Children. The evidence also established a satisfactory

       plan for the Children’s care and treatment following termination – adoption by

       the foster family with whom they have lived since June 2014. Mother has failed

       to establish reversible error.


[24]   Judgment affirmed.


[25]   Riley, J. and Crone, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 06A01-1606-JT-1260 | December 15, 2016   Page 11 of 11
