Involuntary Termination the Parent-Child Relationship Hampshire v. Ind. Dep't of Child Servs., Court of Appeals Case No. 71A05-1702-JT-370

CitationCourt of Appeals Case No. 71A05-1702-JT-370
Case DateJune 30, 2017
CourtCourt of Appeals of Indiana

In the Matter of the Involuntary Termination of the Parent-Child
Relationship of N.H. (Minor Child), and S.H. (Mother), Appellant-Respondent,
The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals Case No. 71A05-1702-JT-370


June 30, 2017


Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.


Sally Skodinski
South Bend, Indiana


Curtis T. Hill, Jr.
Attorney General of Indiana

James D. Boyer
Deputy Attorney General
Indianapolis, Indiana

Appeal from the St. Joseph Probate Court

The Honorable James N. Fox, Judge

The Honorable Graham Polando, Magistrate

Trial Court Cause No. 71J01-1603-JT-14

Crone, Judge.

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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.

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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

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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.


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[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

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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

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(Indiana Postconviction Rule 2), and (c) it lacked the authority to grant Mother's request. Id. at 24.

[7] On February 9,...

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