In re I.A.

• Decision Date: 23 March 2009
• Docket Number: No. 02A05-0811-JV-660.,02A05-0811-JV-660.
• Court: Indiana Appellate Court
• Parties: In the Matter of the Termination of the Parent-Child Relationship of I.A., Minor Child, Lavonne Aikens (Mother), Appellant-Respondent, v. Indiana Department of Child Services., Appellee-Petitioner.

903 N.E.2d 146

In the Matter of the Termination of the Parent-Child Relationship of I.A., Minor Child,

Lavonne Aikens (Mother), Appellant-Respondent, v. Indiana Department of Child Services., Appellee-Petitioner.

No. 02A05-0811-JV-660.

Court of Appeals of Indiana.

March 23, 2009.

Daniel G. Pappas, Fort Wayne, IN, Attorney for Appellant.

Alisa L. Rude Indiana Department of Child Services, Fort Wayne, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Lavonne Aikens ("Mother") appeals the termination of her parental rights to her son, I.A., who was almost two years old at the time of the termination hearing, had never been in her care, and has many medical needs. In the same proceeding that the trial court terminated Mother's parental rights to I.A., however, the court did not terminate Mother's parental rights to four of her older children, M.H., Z.A., D.A., and J.A. This case presents a most unusual circumstance where, in the same proceeding, the court terminates a parent's rights to one child but not to others. Although at the time of the termination hearing Mother had successfully completed many services and was cocaine-free for eight months to the point of getting four of her children back, the record shows that Mother has nevertheless demonstrated a continued indifference to I.A. — ranging from using cocaine during the whole nine months of her pregnancy with him, to not knowing the extent of his medical conditions at birth, to not educating herself on his current medical needs. We therefore affirm the termination of Mother's parental rights to I.A.

Facts and Procedural History

Mother began using cocaine in 1988 or 1989 when she was nineteen years old. Except for a short break from 1999 to 2001, Mother used cocaine from then until the termination petition was filed in this case in 2007. Mother has nine children, five of which were listed in the termination petition that is the subject of this appeal, I.A., M.H., Z.A., D.A., and J.A. I.A., the youngest, was born on August 22, 2006, and tested positive for cocaine at birth.¹ Mother used cocaine during the entire nine months of her pregnancy with I.A. I.A. had numerous problems at birth, including extra digits on both hands, a heart murmur, right ventricular enlargement, pulmonary stenosis, organic encephalopathy, a disfigured scalp, one of his ears was fully attached to his scalp, and his neck leaned to one side.

About one month after I.A.'s birth, on September 20, 2006, the Allen County Department of Child Services (DCS) filed a petition alleging that the children were in need of services (CHINS).² Specifically, the DCS alleged that I.A. tested positive for cocaine at birth, Mother thereafter tested positive for cocaine, and that Mother is unable to provide appropriate care and supervision for her children due to her drug addiction and that she needs professional help that she will not receive without court intervention. The court determined the children to be CHINS. Following a disposition hearing, I.A. was placed in licensed foster care and I.A.'s siblings were placed in relative care and then later licensed foster care apart from I.A. A parent participation plan was entered that ordered Mother to, among other things, cooperate with DCS caseworkers, refrain from using illegal substances, submit to a drug and alcohol assessment and a psychological evaluation and follow all recommendations, enroll in and regularly attend Alcohol/Narcotics Anonymous meetings, complete parenting classes, enroll in and complete home-based services, establish paternity, and regularly visit with her children.

Mother was allowed to visit with her children as a group every Tuesday for two hours at SCAN. At the time of a periodic review hearing in January 2007, the trial court determined that Mother was in compliance with the dispositional decree. However, in June 2007, the court found that Mother was no longer in compliance. That is, starting in June 2007, Mother had a relapse wherein she started using cocaine again and stopped participating in services, including missing several visits with her children. As a result, on September 13, 2007, the DCS filed a petition to terminate Mother's parental rights to I.A., M.H., Z.A., D.A., and J.A.

After the DCS filed the termination petition in September 2007, Mother had to be re-referred for services. Ever since the termination petition was filed, Mother has made efforts to engage in services. For example, she has successfully completed a substance abuse evaluation and treatment program, and she resumed visits with her children.

A two-day termination hearing was held in April 2008. Mother testified at the hearing that she had been "clean" for eight months. Tr. p. 55. Mother also testified about I.A.'s medical problems at birth. She first expressed confusion over the number of fingers that I.A. has. She initially said "nine," then "ten," then "twelve," and finally settled on "eleven." Id. at 42. When asked whether I.A. had breathing or heart problems at birth, Mother said only "breathing problems." Id. When asked what other problems I.A. had at birth, Mother said "I don't know." Id. at 43 (emphasis added). When the attorney for the DCS pressed Mother with the following question, "You don't know what his issues were when he was born," Mother answered, "No, he wasn't eating good." Id. Mother acknowledged that she was made aware of I.A.'s medical needs and was asked to take a blood test to assist with his diagnosis, but she refused. Id. at 52. Mother gave no good reason for her refusal.

Mother also testified about her knowledge of I.A.'s current medical needs:

Q: And finally, Ms. Aikens, do you know, on a day to day basis, what type of medical treatment or regimen[ ] that [I.A.] needs to go through?

A: No, I do not.

Q: You do not? Do you know if he's on any medicines?

A: Yeah, he's on medicine, he's on breathing machine.

Q: Do you know the names of his doctors?

A: No, I don't.

Q: Do you know if —

A: He's in foster care, they don't give me that right.

Q: Do you know if he goes to therapy or —

A: Yeah, last I heard he was going to therapy.

Q: What type of therapy, do you know?

A: I don't know.

Q: You don't know?

A: He's in foster care, they don't give me that right. They used to tell me about it, his foster parents, but they don't no more.

Q: Do you receive reports from the Department of Child Services —

A: No, I do not.

Q: — concerning your children?

A: No.

Q: Do you know how to contact Stacey Isenbarger [DCS family case manager] —

A: Yeah.

Q: — at the Department?

A: Yes, I do.

Q: And does she return your phone calls?

A: She might.

Q: She talk to you on the phone?

A: Yeah.

Q: And if you ask her questions, does she try to get you the answers?

A: Yes.

Q: So you could have asked her some of these questions?

A: They used to tell me when they came to take [I.A.] to the visits; they don't do that no more. They used to tell me what doctor he was seeing, they used to give me pictures; they don't do that any more. They the one told me about his heart problems, that's how I knew that. All conversation was cut between us. They just drop him off and leave.

Id. at 59-61 (emphasis added). Notably, Mother was not responsive to the DCS's attorney's final question of whether she could have contacted Family Case Manager Isenbarger to obtain information about her son.

Isenbarger, as suggested, was very knowledgeable about I.A.'s current medical needs. Isenbarger testified that I.A. undergoes both physical and occupational therapies. She said that I.A. wore a helmet on his head to try to correct the scalp malformation, which did not work, leaving surgery as the only option. He sees a breathing specialist every three to four months and undergoes breathing treatments daily, as often as three times per day. Isenbarger explained that the basic medicines used for the breathing treatments are Albuterol and Pulmicort, but if he is sick, then Qvar and Singulair are added. I.A. sees a cardiologist every six months and also undergoes heart tests. In addition, I.A. saw a genetic specialist, Dr. Bader, and was diagnosed with Noonan's Disorder, a genetic disorder. Dr. Bader could not rule out additional problems for I.A. Finally, I.A. has a sensitive immune system. As of the date of the termination hearing, I.A., who was approximately four months shy of his second birthday, was getting ready to start speech and developmental therapies. Isenbarger opined that it was in I.A.'s best interests for Mother's parental rights to be terminated "[d]ue to the nature of [I.A.'s] health concerns" and "the fact that he's also been in foster care for the first almost two (2) years of his life and he's formed a bond." Id. at 122; see also id. at 124. When asked if the bond was strong, Isenbarger responded yes. In addition, Isenbarger added that the foster parents have been responsible for taking I.A. to his doctor and therapy appointments. The Guardian Ad Litem also testified at the termination hearing that termination was in I.A.'s best interests given his health issues and the great job his foster parents have done in stabilizing the significant health problems with which I.A. was born. Id. at 204. In short, the Guardian Ad Litem testified that I.A. has "thrived" with his foster parents. Id. at 205.

Mother's attorney then presented the following closing argument to the court:

Your Honor, this is my Sophie's Choice case, if you will. I've been contacted by Andy Goeglein with regard to the adoption of [I.A.] and provided with consents for that and have had them, have discussed that last week with my client, this week, and frankly, I — I — professionally, I — I — I see [I.A.] in a little bit different basket than the other children with regard to my client simply because [I.A.] presents some different needs; and the fact is, [I.A.'s] not been in the care of my client since his birth, whereas the other children have been, and I — I...