MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Dec 21 2016, 8:35 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        December 21, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         82A01-1607-JT-1683
A.C. (Minor Child) and
                                                         Appeal from the Vanderburgh
M.K. (Mother),                                           Superior Court
Appellant-Respondent,                                    The Honorable Brett J. Niemeier,
                                                         Judge
        v.
                                                         The Honorable Renee Ferguson,
                                                         Magistrate
The Indiana Department of
Child Services,                                          Trial Court Cause No.
                                                         82D01-1510-JT-1802
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 1 of 12
      Bailey, Judge.



                                                Case Summary
[1]   M.K. (“Mother”) appeals the termination of her parental rights to A.C.

      (“Child”), upon the petition of the Vanderburgh County Department of Child

      Services (“the DCS”). We affirm.



                                                            Issue
[2]   Mother presents a single issue for review: Whether the DCS established, by

      clear and convincing evidence, the requisite statutory elements to support the

      termination decision.



                                  Facts and Procedural History
[3]   A.C. was born to Mother in February of 2013.1 He was removed from

      Mother’s care one day later and placed in foster care, due to events surrounding

      his older sibling, A.G. These events were discussed in In re A.G., 6 N.E.3d 952,

      953-55 (Ind. Ct. App. 2014):

                 Just a few months after A.G.’s birth, A.G. began suffering
                 cyanotic episodes, which caused his skin to turn blue, his eyes to
                 roll back in his head, and his body to stiffen. Mother obtained
                 medical treatment for A.G., and he was diagnosed with mild to



      1
          Father agreed to the termination of his parental rights and is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016                 Page 2 of 12
        moderate pulmonary hypertension, a condition common among
        A.G.’s paternal relatives. Dr. Julio Morera treated A.G.’s
        cyanotic episodes with medication, oxygen, and the implantation
        of a pacemaker. Despite the medical intervention, A.G.
        continued to suffer cyanotic episodes. Accordingly, Dr. Morera
        referred A.G. for a second opinion with physicians at Riley
        Children’s Hospital, but the physicians there could find no
        medical explanation for A.G.’s cyanotic episodes.


        Dr. Morera then referred A.G. to Kosair Children’s Hospital for
        a third opinion from Dr. Christopher Johnsrude, a board certified
        pediatric cardiologist specializing in pediatric electrophysiology.
        Dr. Johnsrude observed A.G. over the course of a one-week stay
        at Kosair and concluded that: A.G.’s pulmonary hypertension
        was mild and not severe enough to cause the cyanotic episodes
        and A.G. did not require a pacemaker. … No one other than
        Mother had witnessed one of A.G.’s cyanotic episodes. …


        Dr. Johnsrude kept A.G. under observation and monitored by
        telemetry and a cardiorespiratory monitor at Kosair. At some
        point while A.G. was under observation in this manner, Mother
        requested that the monitors be removed so that she could bathe
        A.G. Mother was alone, bathing A.G., whose monitors had
        been removed, when a cyanotic episode occurred. No one else
        witnessed the onset of that episode besides Mother. Dr.
        Johnsrude questioned Mother about the episode and suggested
        that installing video surveillance at Mother’s home would be
        helpful in determining the cause of the cyanotic episodes once
        A.G. was released from Kosair. Mother did not agree to the
        video monitoring of A.G., and her response to the suggestion
        was described by Dr. Johnsrude as “uncomfortable and odd.” …


        Dr. Johnsrude then consulted with other physicians at Kosair
        and members of the Pediatric Forensic Medicine Team at the
        University of Louisville School of Medicine regarding A.G.’s
        case “and the probability that Mother was inducing [A.G.]’s
Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 3 of 12
               cyanotic episodes.” … Dr. Lisa Pfitzer, a board certified
               pediatrician specializing in child abuse pediatrics, consulted with
               Dr. Johnsrude regarding A.G.’s treatment at Kosair. …


               [O]n August 29, 2012, Dr. Pfitzer contacted the Indiana
               Department of Child Services (“DCS”). … Sarah Dotson, a
               family case manager with DCS, contacted Dr. Susanne Blix, a
               board certified clinical psychiatrist, and asked that Dr. Blix
               evaluate Mother for factitious disorder by proxy.2 … Dr. Blix
               concluded “with ninety-nine percent certainty” that Mother
               suffered from factitious disorder by proxy. … Dr. Blix considered
               the risk of failing to protect A.G. from Mother “life threatening.”
               Dr. Blix warned DCS that “any sibling would [also] be at risk of
               harm when in Mother’s custody.”


      (Record Citations Omitted.)


[4]   On the date of A.C.’s removal, the DCS filed a petition alleging that A.C. was a

      Child in Need of Services (“CHINS”). The DCS alleged that A.C. was in

      danger and that Mother had been diagnosed as suffering from factitious

      disorder by proxy, formerly known as Munchausen’s disorder. The trial court,

      juvenile division, held a fact-finding hearing on April 16, 17, 24, and 29, 2013.

      A.C. was found to be a CHINS and remained in foster care. In a dispositional

      order of July 23, 2013, Mother was ordered to participate in a treatment




      2
        As the trial court found, “caretakers affected with Factitious Disorder by Proxy cause harm to their children
      for attention and many times the affected children are subject to medical conditions which the caretaker will
      use as a vehicle for their attention seeking behavior.” Appellant’s App. at 233.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016          Page 4 of 12
      program. Mother was to have supervised visitation subject to recommendation

      by a mental health provider.


[5]   Mother was compliant with the DCS case plan, obtained individual mental

      health therapy, and commenced regular monitored visitation with A.C.

      According to a DCS progress report of January 10, 2014, Mother “continue[d]

      to show progress” and the anticipated permanency plan was reunification.

      (DCS Exh. 15(kk)). On February 20, 2014, the trial court approved a

      permanency plan of reunification.


[6]   One month later, on March 21, 2014, the State of Indiana charged Mother with

      three Class B felonies related to her conduct with A.G. On July 17, 2015,

      Mother was convicted of Neglect of a Dependent. She was sentenced to ten

      years imprisonment, with one year suspended.


[7]   On October 9, 2015, the DCS petitioned to terminate Mother’s parental rights

      as to A.C. A hearing was conducted on May 26, 2016. On June 28, 2016, the

      trial court entered its findings of fact, conclusions, and order terminating

      Mother’s parental rights. This appeal ensued.



                                Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[8]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 5 of 12
       inferences that are most favorable to the judgment. Id. In so doing, we give

       “due regard” to the trial court’s unique opportunity to judge the credibility of

       the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “We will set aside

       the trial court’s judgment only if it is clearly erroneous.” Bester v. Lake Cty. Office

       of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). In order to determine

       whether a judgment terminating parental rights is clearly erroneous, we review

       the trial court’s judgment to determine whether the evidence clearly and

       convincingly supports the findings and the findings clearly and convincingly

       support the judgment. I.A., 934 N.E.2d at 1132.


         Requirements for Involuntary Termination of Parental Rights
[9]    “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

       of a constitutional dimension, the law provides for the termination of those

       rights when the parents are unable or unwilling to meet their parental

       responsibilities. Bester, 839 N.E.2d at 147. The State is required to prove that

       termination is appropriate by a showing of clear and convincing evidence, a

       higher burden than establishing a mere preponderance. In re V.A., 51 N.E.3d at

       1144.


[10]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence in order to terminate a

       parent-child relationship:


       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 6 of 12
               (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.
               (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.


[11]   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore the court need only to find that one of the three requirements of



       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 7 of 12
       subsection (b)(2)(B) had been established by clear and convincing evidence. See

       In re L.S., 717 N.E.2d at 209.


                                                   Analysis
[12]   The trial court’s findings of fact address Mother’s mental health diagnosis,

       participation in dialectical behavioral therapy, criminal proceedings,

       prospective release date, inability to obtain parenting classes during

       incarceration, and history of visitation with A.C. The findings also address the

       CHINS history, and A.C.’s need for stability and reported bonding with his

       foster mother, who wishes to adopt him. Upon these findings, the trial court

       concluded that A.C. had been removed for the requisite time, the continuation

       of the parent-child relationship posed a threat to A.C., termination was in

       A.C.’s best interests, and there was a satisfactory plan for A.C. Mother focuses

       upon whether there is clear and convincing evidence of a reasonable probability

       that continuation of the parent-child relationship poses a threat to A.C.’s well-

       being.


[13]   At the termination hearing, Mother testified that her release date was in June of

       2019 and she explained her plan for A.C.’s care during her incarceration. That

       is, Mother desired that her sister be allowed to adopt A.C. and Mother had

       signed a consent to that effect. On appeal, she notes that four of the findings of

       fact concern her incarceration, and she contends that the trial court’s decision

       rested primarily upon that status, something insufficient to support termination.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 8 of 12
[14]   Mother argues that the termination order must be reversed in light of K.E. v.

       Indiana Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015), as she is likewise a

       parent incarcerated for a crime committed before the child’s birth. She directs

       our attention to our Supreme Court’s language: “incarceration is an insufficient

       basis for terminating parental rights.” Id. at 643. The K.E. Court also observed

       that it had “not established a bright-line rule for when release must occur to

       maintain parental rights” and “the potential release date is only one

       consideration of many that may be relevant in a given case.” Id. at 648.


[15]   K.E. was in the care of his paternal aunt, H.D. In prison, the father had

       completed twelve (mostly voluntary) self-improvement programs; there was

       evidence that he had a place to live and prospective employment upon his

       release. See id. at 646-47. Father had continued to develop a bond with K.E.

       through visitation and nightly telephone calls. Id. at 651. H.D. had testified

       that she hoped Father could take over as caregiver, and she did not “insist upon

       immediate adoption.” Id. Because “there was nothing more Father could have

       done,” the termination decision rested solely upon his incarceration. Id. at 645.

       On transfer, the Court found a lack of clear and convincing evidence that the

       conditions leading to removal could not be remedied or that Father posed a

       threat to K.E.’s well-being. Id. at 644.


[16]   Here, the circumstances do not mirror those of K.E. There is similarity in

       parental circumstances; their crimes pre-dated the births of their children and

       they each pursued self-improvement paths. However, the children were not

       similarly situated. In K.E., there was evidence of continued parent-child

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 9 of 12
       bonding. The father was able to have in-person visits and maintain nightly

       contact with his child because of placement in the paternal aunt’s home. Also,

       the caregiving aunt testified to her desire that the parent-child bond be

       maintained. Significantly, H.D., the CASA, and the DCS case manager had all

       acknowledged it was unlikely that K.E. would be harmed by delaying

       termination. Id. at 650.


[17]   Here, by contrast, Mother had been unable or unwilling to maintain contact

       with A.C. after her incarceration. There was testimony that A.C. would likely

       be traumatized by a separation from his foster mother, with whom he had lived

       for the three years since his birth. There was no evidence that Mother had

       prospective employment or was likely to provide a home for A.C. upon her

       release, when A.C. would be at least six years old. Indeed, Mother testified that

       she planned to have her sister adopt A.C. In effect, Mother’s position is that

       she was entitled to direct A.C.’s adoptive placement. K.E. does not support this

       proposition.


[18]   Mother also observes that three of the trial court’s findings of fact concern

       A.C.’s bonding to his foster mother and his need for stability. Mother

       acknowledges evidence of a strong bond between A.C. and his foster mother,

       but reminds us that her parental rights are of a constitutional dimension:

       “absent a finding that the Mother poses a threat to the child or that the reasons

       for removal will likely not be remedied, it is hard to imagine how a child’s bond

       with a foster mother should override the fundamental constitutional right of a

       biological mother to her child.” Appellant’s Br. at 36.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 10 of 12
[19]   Mother then argues that the trial court did not properly assess whether she

       posed a threat to A.C. because the trial court focused upon past conduct and a

       mental health diagnosis as opposed to a continuing threat. According to

       Mother, “DCS did not provide a scintilla of evidence that Mother’s danger to

       A.C. continued until the termination hearing.” Appellant’s Br. at 41.


[20]   Our reading of the trial court’s findings of fact does not confirm the contention

       that the trial court focused only upon historical conduct. Rather, the findings

       addressed the historical events of Mother’s criminal conduct and mental health

       diagnosis together with their impact upon her circumstances as of the time of

       the hearing. It is commendable that Mother cooperated with DCS services,

       including individual therapy, and that she incurred no criminal charges based

       on post-birth conduct. Nonetheless, the egregiousness of the past conduct,

       felony neglect of A.C.’s older sibling, placed Mother in DOC custody for a

       significant term of years.


[21]   The trial court found that Mother had not completed dialectical behavioral

       therapy and was unable to do so during her incarceration.3 Moreover, the trial

       court found that Mother lacked a plan for providing for A.C. upon her release.

       This is consistent with Mother’s testimony that she desired an intra-family

       adoption.




       3
        To the extent that Mother suggests the therapy is unnecessary because her therapist did not believe that
       Mother suffered from Factitious Disorder by Proxy, she presents an improper request to reweigh the
       evidence. In re V.A., 51 N.E.3d at 1143.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016        Page 11 of 12
[22]   Parental rights are not to be terminated merely because there may be a better

       home available for the child. I.E., 39 N.E.3d at 650. Thus, A.C.’s bonding

       with his foster mother is not dispositive. However, by presenting evidence of

       Mother’s history, interrupted therapy, and limited future prospects, the DCS

       established that Mother was unable or unwilling to provide for A.C.’s care.

       The trial court’s termination decision is supported by clear and convincing

       evidence that continuation of the parent-child relationship would pose a threat

       to A.C.



                                               Conclusion
[23]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[24]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1607-JT-1683 | December 21, 2016   Page 12 of 12
