MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
court except for the purpose of establishing                        Jun 30 2017, 9:16 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sally Skodinski                                           Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          James D. Boyer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          June 30, 2017
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of N.H. (Minor                               71A05-1702-JT-370
Child), and                                               Appeal from the St. Joseph Probate
S.H. (Mother),                                            Court
                                                          The Honorable James N. Fox,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Graham Polando,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           71J01-1603-JT-14
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017          Page 1 of 16
                                             Case Summary
[1]   S.H. (“Mother”) appeals two orders. Following the involuntary termination of

      her parental rights (“the Termination Order”) to her child, N.H. (“Child”),

      Mother failed to file a timely notice of appeal with the Court of Appeals.

      However, she filed with the trial court a motion to file a belated notice of

      appeal. The trial court denied her motion, and Mother then filed a motion to

      correct error as to that denial. The trial court issued an order denying her

      motion to correct error (“Order Denying Motion to Correct Error”). Although

      Mother filed a timely notice of appeal of that order, we conclude that she

      waived her claim of error. Furthermore, we conclude that the trial court did

      not err in denying her motion to correct error. Accordingly, we affirm the

      Order Denying Motion to Correct Error.


[2]   Mother also seeks to appeal the Termination Order. She argues that even

      though she forfeited her right to appeal, extraordinarily compelling reasons

      exist to restore her right to appeal. We agree and therefore address her appeal

      of the Termination Order on the merits. As to that order, Mother argues that

      the trial court clearly erred in concluding that there is a reasonable probability

      that the conditions that resulted in Child’s removal or the reasons for placement

      outside Mother’s home will not be remedied. Finding no error, we affirm the

      Termination Order.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 2 of 16
                                  Facts and Procedural History
[3]   In March 2006, Mother gave birth to Child. Child’s father is deceased. In July

      2014, Mother and Child were living in a homeless shelter. Mother was taken to

      a hospital because she was threatening to kill herself and another person who

      was living at the homeless shelter. The Indiana Department of Child Services

      (“DCS”) removed Child because no caregiver was available to care for Child.

      DCS filed a petition alleging that Child was a child in need of services

      (“CHINS”) because Mother suffered from depression, anxiety, and PTSD, had

      not been taking her medication, had threatened to kill another person, and had

      been admitted to the hospital due to her mental health instability. DCS Ex. A

      at 12-13. In August 2014, Mother admitted to the allegations in the CHINS

      petition, and the trial court adjudicated Child a CHINS. In September 2014,

      the trial court issued a dispositional decree requiring Mother to participate in

      reunification services.


[4]   In March 2015, DCS filed a motion for emergency modification of dispositional

      decree requesting that Child be removed from Mother’s home because of

      Mother’s “increasingly irrational behaviors” and failure to comply with services

      including individual therapy over the past several months and because service

      providers were concerned with Child’s well-being and safety. Id. at 60.

      Following a hearing, the trial court found that the material allegations and facts

      in DCS’s motion for modification were true and ordered Child to be placed in

      foster care. Id. at 64. DCS then filed a modification of dispositional decree,

      requesting therapeutically supervised visits because Mother was no longer

      Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 3 of 16
      engaging in services, DCS was concerned with her mental health, and Child

      was increasingly withdrawn during visitations and displaying intensifying

      behavioral problems outside of visitations. DCS also filed a progress report

      recommending a concurrent permanency plan for adoption of Child. In

      January 2016, the trial court ordered therapeutically supervised visitation and

      approved concurrent permanency plans of reunification and adoption.


[5]   In March 2016, DCS filed a petition for involuntary termination of the parent-

      child relationship of Mother and Child. In May 2016, the trial court approved

      the permanency plan of adoption. In November 2016, the trial court held an

      evidentiary hearing on the termination petition. On January 2, 2017, the trial

      court issued its Termination Order, which found in relevant part as follows:

              [T]he immediate “conditions that resulted in the child’s removal”
              were Mother’s threats to harm the Child, which Mother
              conveyed to [the family case manager] in the Child’s presence.
              The Magistrate finds a reasonable probability that Mother will
              not remedy that “condition.”


              Pursuant to the dispositional decree mentioned above, Mother
              completed a Clinical Interview … with Dr. Alan Wax.


              ….


              Mother suffers from depression, generalized anxiety disorder,
              and a delusional disorder. Her conditions require her to take
              anti-psychotic and anti-depressive medications and engage in
              individual counseling.


              ….
      Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 4 of 16
        [T]he case in which this Child was found to be in Need of
        Services began when Mother was hospitalized for her mental
        health condition …. At the time, Mother was residing with the
        Child at the homeless shelter, and had threatened to kill both
        herself and another resident. Once at [the hospital], she began
        stating the intake social worker there was “harassing” her.


        More disturbingly, Mother contended at various points that [the
        family case manager], not [Child’s deceased father], was this
        Child’s Father. Mother also claimed that [the family case
        manager] wanted to marry her (Mother), that the Foster Parents
        were related to a Department Attorney, and that this Magistrate
        would cry after hearings because of his desire to return the child
        to the home. Needless to say, none of these are correct.


        The Magistrate notes that Mother’s therapist, Stephanie
        Compson, rejected the label “delusional” with respect to Mother,
        stating only that she seemed to display heightened “suspicion.”
        Given the above, however, the Magistrate reiterates that he
        credits Dr. Wax’s testimony, including his diagnosis of a
        delusional disorder.


        Mother has a long and troubled history of mental health
        difficulties; the Magistrate credits Dr. Wax’s summation of her
        pattern of engaging with mental health services, doing well for “a
        while,” and then relapsing back into old behaviors. Despite her
        occasional engagement with treatment, Mother’s symptoms have
        largely continued unabated–perhaps because her engagement has
        been so sporadic.


        The Magistrate makes the finding above (that Mother’s
        symptoms have largely continued unabated), despite finding, as
        she contended, that she has shown increased housing stability of
        late. The Magistrate finds that this housing stability, even if it


Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 5 of 16
              continues, pales in comparison to other, more profound sources
              of instability, as in her mental health and employment.


              ….


              [T]he Magistrate finds that [DCS] has established a reasonable
              probability that the conditions resulting in the child’s removal,
              and continued placement outside the home, will not be remedied.


      Appellant’s App. Vol. 2 at 31-33.


[6]   On January 12, 2017, the trial court found that Mother was indigent and

      appointed the Public Defender Program to represent her for purposes of appeal.

      The deadline for filing the notice of appeal of the Termination Order with the

      Court of Appeals was February 1, 2017. On February 3, 2017, Mother’s

      appellate counsel filed a motion to file a belated notice of appeal with the trial

      court. Id. at 27. In it, appellate counsel stated that she had been under the

      mistaken impression that January 12, 2017, was the date of the Termination

      Order because that was the date on the order appointing counsel, and, although

      she received the order appointing counsel on January 13, 2017, she did not

      receive a copy of the termination order until a later unspecified date. Id. On

      February 6, 2017, the trial court denied Mother’s motion to file a belated notice

      of appeal explaining that (a) the notice of appeal was required to be filed with

      the clerk of the Court of Appeals, (b) the trial court had the authority to grant

      belated motions for appeals only for discretionary interlocutory appeals

      (Indiana Appellate Rule 14(B)(1)(a)) and appeals from criminal convictions



      Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 6 of 16
      (Indiana Postconviction Rule 2), and (c) it lacked the authority to grant

      Mother’s request. Id. at 24.


[7]   On February 9, 2017, Mother filed a motion to correct error as to the denial of

      her motion to file a belated notice of appeal, arguing that Postconviction Rule 2

      governed her motion for belated notice of appeal and required her to file it in

      the trial court. Id. at 22. On February 10, 2017, the trial court issued its Order

      Denying Motion to Correct Error explaining again that Postconviction Rule 2

      applies only to criminal appeals.


[8]   On February 22, 2017, Mother filed her notice of appeal with this Court.


                                     Discussion and Decision

          Section 1 - The trial court did not err in denying Mother’s
                            motion to correct error.
[9]   Mother appeals the Order Denying her Motion to Correct Error. She argues

      that the trial court erred in concluding that Postconviction Rule 2 did not

      provide it the authority to rule on her motion to file a belated notice of appeal.

      Mother fails to provide cogent argument, and therefore this issue is waived. See

      Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant’s brief

      be supported by cogent reasoning and citations to authorities, statutes, and the

      appendix or parts of the record on appeal); Loomis v. Ameritech Corp., 764

      N.E.2d 658, 668 (Ind. Ct. App. 2002) (failure to present cogent argument

      waives issue for appellate review), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 7 of 16
[10]   Waiver notwithstanding, Mother’s argument is unavailing. In addressing her

       claim of error on the merits, we begin by noting that whether Postconviction

       Rule 2 applies to cases involving the termination of parental rights is a question

       of law, which we review de novo. See Ind. Bureau of Motor Vehicles v. Watson, 70

       N.E.3d 380, 384 (Ind. Ct. App. 2017) (stating that where motion to correct

       error raises questions of law, appellate review is de novo). Postconviction Rule

       2 applies to “eligible defendants” who, “but for the defendant’s failure to do so

       timely, would have the right to challenge on direct appeal a conviction or

       sentence.” Plainly, Mother is not an eligible defendant as defined by the rule.

       See Vanderburgh Cty. Election Bd. v. Vanderburgh Cty. Democratic Cent. Comm., 833

       N.E.2d 508, 510 (Ind. Ct. App. 2005) (“The cardinal rule of statutory

       construction is that if a statute is unambiguous, then we need not and cannot

       interpret it; rather, we must apply its plain and clear meaning.”). We conclude

       that the trial court did not err in finding that Postconviction Rule 2 does not

       apply to termination cases and that it had no authority to grant Mother’s

       motion to file a belated notice of appeal. Therefore, we affirm the Order

       Denying Motion to Correct Error.


       Section 2 – Extraordinarily compelling reasons exist to restore
         Mother’s forfeited right to appeal the Termination Order.
[11]   The Termination Order was issued January 2, 2017, but Mother failed to file a

       notice of appeal with the clerk of the Court of Appeals within thirty days of the

       of the entry of the order in the chronological case summary as required by

       Indiana Appellate Rule 9(A)(1). Therefore, her appeal is forfeited. Ind.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 8 of 16
       Appellate Rule 9(A)(5); In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014)

       (“[A]lthough a party forfeits its right to appeal based on an untimely filing of

       the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving

       the appellate courts of authority to entertain the appeal.”). Mother contends

       that even though she has forfeited her right to appeal, we should deviate from

       our appellate rules as permitted by Appellate Rule 1 and address the merits of

       her appeal.


[12]   In support of her argument, Mother relies on O.R., 16 N.E.3d 965, in which our

       supreme court declared that the right to appeal could be restored if there are

       “extraordinarily compelling reasons.” Id. at 971. In O.R., a father filed an

       untimely appeal of a judgment granting the adoption of his child to the child’s

       foster parents. Although he requested the appointment of counsel before the

       deadline for the notice of appeal, the trial court did not appoint counsel until

       twenty-three days after the deadline had passed. In concluding that father’s

       right to appeal should be restored, the O.R. court did not define “extraordinarily

       compelling reasons,” but it stated that there were three reasons that father

       deserved to have his appeal heard on the merits. First, Appellate Rule 1 permits

       deviation from our rules. Id. at 972. Second, father attempted to perfect a

       timely appeal and his failure to do so was not his fault. Id. And third, “and

       perhaps most important,” the O.R. court explained that the parent-child

       relationship was “‘perhaps the oldest of the fundamental liberty interests’” and

       “‘one of the most valued relationships in our culture.’” Id. (quoting Troxel v.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 9 of 16
       Granville, 530 U.S. 57, 65 (2000), and In re I.A., 934 N.E.2d 1127, 1132 (Ind.

       2010)); see also, e.g., In re R.S., 56 N.E.3d 625, 628 (Ind. 2016).


[13]   Like O.R., this case involves termination of parental rights. But in O.R., the

       untimeliness of the filing of the notice of appeal was attributable to the trial

       court’s delay in appointing counsel. Father sent a letter to the trial court for

       appointment of appellate counsel before the notice of appeal was due, but the

       trial court did not appoint O.R. counsel until “long after” the deadline for filing

       his notice of appeal had passed. 16 N.E.3d at 968, 972. Here, Mother’s

       counsel was appointed on January 12, 2017, well before the notice of appeal

       was due on February 1, 2017. Mother’s counsel states that she received a copy

       of the order appointing counsel on January 13 and that she thought that the

       date of the Termination Order was the same date as the order appointing

       counsel. She argues that she did not discover that the Termination Order had

       been issued earlier until she received a copy of the Termination Order on some

       later unspecified date. Rather than assuming that the dates of the orders were

       the same, Mother’s counsel could have verified the date that the Termination

       Order was issued and noted in the chronological case summary. Nevertheless,

       there is no indication that Mother herself is at fault in any way, and counsel’s

       actions do not diminish the high value our culture places on the parent-child




       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 10 of 16
       relationship or the fundamental liberty interests that are at stake.1 Unless and

       until our supreme court further defines extraordinarily compelling reasons and

       we can discern its actual elements rather than merely looking at the result, we

       must conclude that termination of parental rights in combination with a

       contemporaneous if technically deficient effort to perfect an appeal constitute

       extraordinarily compelling reasons to restore the right to appeal. See also

       Cannon v. Caldwell, 74 N.E.3d 255, 257-59 (Ind. Ct. App. 2017) (discussing

       questions raised by O.R,. 16 N.E.3d 965, and concluding that child support

       modification order setting father’s child support in clear violation of Indiana

       Child Support Guidelines constitutes an extraordinarily compelling reason to

       restore forfeited right to appeal). Accordingly, we will address Mother’s appeal

       of the Termination Order on the merits.


           Section 3 –The trial court’s conclusion that there is a
         reasonable probability that the conditions that resulted in
       Child’s removal or the reasons for placement outside the home
                will not be remedied is not clearly erroneous.
[14]   In appeals involving the termination of parental rights, we have long had a

       highly deferential standard of review. C.A. v. Ind. Dep’t of Child Servs., 15

       N.E.3d 85, 92 (Ind. Ct. App. 2014).



       1
         We acknowledge the general rule that a client is bound by her attorney’s actions in civil proceedings. See,
       e.g., Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 867 (Ind. Ct. App. 2011) (concluding that Weinreb was
       bound by prior counsel’s negligence and affirming denial of two motions for relief from judgment).
       However, given that our appellate rules permit us to restore a forfeited right to appeal, see O.R., 16 N.E.3d at
       972, it appears that justice may be best served by departing from the general rule where the nature of the right
       at stake is so important that it outweighs any sufficiently minor negligence of the attorney.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017               Page 11 of 16
               When reviewing the termination of parental rights, we do not
               reweigh the evidence or judge witness credibility. We consider
               only the evidence and reasonable inferences that are most
               favorable to the judgment. …. 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 determine whether the evidence supports the findings,
               and second we determine whether the findings support the
               judgment. We will set aside the trial court’s judgment only if it is
               clearly erroneous. A judgment is clearly erroneous if the findings
               do not support the trial court’s conclusions or the conclusions do
               not support the judgment.


       In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009) (citations, quotation marks, and

       brackets omitted).


[15]   We observe that “although parental rights are of a constitutional dimension, the

       law provides for the termination of these rights when the parents are unable or

       unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799,

       805 (Ind. Ct. App. 2008). Involuntary termination of parental rights is the most

       extreme sanction, and therefore “termination is intended as a last resort,

       available only when all other reasonable efforts have failed.” Id.


[16]   A petition to terminate a parent-child relationship involving a CHINS must

       allege, 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 71A05-1702-JT-370 | June 30, 2017   Page 12 of 16
                        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).


[17]   DCS must prove by “clear and convincing evidence” each and every element

       set forth in Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind. Code § 31-

       37-14-2. “‘Clear and convincing evidence need not reveal that the continued

       custody of the parents is wholly inadequate for the child’s very survival.’” Id.

       (quoting Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 148 (Ind.

       2005)). “‘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).


[18]   Mother challenges the trial court’s conclusion that there is a reasonable

       probability that the conditions resulting in Child’s removal or the reasons for

       placement outside the home would not be remedied. In reviewing this

       determination, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what

       conditions led to [her] placement and retention in foster care.” Id. Second, “we

       ‘determine whether there is a reasonable probability that those conditions will
       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 13 of 16
       not be remedied.’” Id. (quoting I.A., 934 N.E.2d at 1134). When the trial court

       makes its determination, it must evaluate a parent’s fitness at the time of the

       termination hearing, taking into consideration evidence of changed conditions

       and balancing a parent’s recent improvements against “‘habitual pattern[s] of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

       N.E.2d at 1231). “A court may properly consider evidence of a parent’s prior

       criminal history, drug and alcohol abuse, history of neglect, failure to provide

       support, and lack of adequate housing and employment.” McBride v. Monroe

       Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Also,

       the trial court may consider the services offered to the parent and the parent’s

       response to those services. Id. The evidence presented by DCS “need not rule

       out all possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re Kay L.,

       867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[19]   We note that Mother does not challenge any specific findings of fact, and

       therefore, we accept the trial court’s findings as true. See Madlem v. Arko, 592

       N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings

       of the trial court, they must be accepted as correct.”); McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father does not challenge these

       findings and we accept them as true.”). Here, the trial court found that DCS

       initially removed Child from Mother in July 2014 because Mother was

       hospitalized after threatening to kill herself and another resident at the homeless

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 14 of 16
       shelter where she and Child lived. In March 2015, the trial court ordered Child

       removed from Mother and placed in foster care because Mother threatened to

       harm Child and made such threats to the family case manager while Child was

       present. The trial court found that Mother had a long and troubled history of

       mental health difficulties and credited Dr. Wax’s testimony that Mother was

       suffering from a delusional disorder and had a pattern of improvement and

       relapse. The trial court found that “despite her occasional engagement with

       treatment, Mother’s symptoms had largely continued unabated.” Appellant’s

       App. Vol. 2 at 32. Thus, the trial court found that there was a reasonable

       probability that the conditions resulting in Child’s removal or the reasons for

       placement outside the home would not be remedied.


[20]   Mother argues that she has stabilized her home life and shown improvement in

       her mental health and counseling. She notes that she has been living in a two-

       bedroom apartment for over a year and that DCS visited her home prior to trial

       and found it appropriate. She also notes that her counselor testified that she

       was doing “pretty well” and making progress in her individual counseling and

       at group therapy. Tr. at 55, 61. She also argues that the trial court gave too

       much weight to the testimony of Dr. Wax and not enough to her counselor.

       Mother’s argument is merely a request to reweigh evidence and judge witness

       credibility, which we must decline. See G.Y., 904 N.E.2d at 1259.2 We




       2
        To the extent that Mother argues that the trial court erred in concluding that the continuation of the parent-
       child relationship poses a threat to Child’s well-being, the claim is waived because she fails to support it with
       cogent argument. See Ind. Appellate Rule 46(A)(8)(a); Loomis, 764 N.E.2d at 668.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017                Page 15 of 16
       conclude that the trial court did not clearly err in concluding that there is a

       reasonable probability that the conditions resulting in the removal of Child from

       Mother’s home would not be remedied. Therefore, we affirm the Termination

       Order.


[21]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1702-JT-370 | June 30, 2017   Page 16 of 16
