In Re the Matter of Da.H. and Dy.H.: K.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2016
• Docket: 49A02-1510-JT-1744
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 24 2016, 6:35 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Agency Attorney General Indianapolis, Indiana Robert J. Henke Deputy Attorney General

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Matter of Da.H. and June 24, 2016 Dy.H.: Court of Appeals Case No. 49A02-1510-JT-1744 Appeal from the Marion Superior K.H. (Mother), Court Appellant-Respondent, The Honorable Marilyn Moores, Judge v. The Honorable Larry Bradley, Magistrate The Indiana Department of Child Services, Trial Court Cause No. 49D09-1502-JT-50 Appellee-Petitioner. 49D09-1502-JT-51

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 1 of 12 Vaidik, Chief Judge.

Case Summary [1] K.H. (Mother) appeals the termination of her parental rights to her twin four-

year-old sons, Da.H. and Dy.H., arguing that the evidence is insufficient to

support the juvenile court’s judgment. The children were adjudicated children

in need of services (CHINS) because Mother did not have stable housing, she

admitted using marijuana and tested positive for methamphetamine, and her

mental-health status was uncertain. In the twenty-two months after the

children were removed, Mother moved between the homes of family and

friends seven times, did not consistently submit to random drug screening, and

was not willing to pursue alternate treatments for her mental-health issues when

therapy alone was insufficient. Concluding that the Indiana Department of

Child Services (DCS) proved the statutory grounds for termination of the

parent-child relationship (TPR) by clear and convincing evidence and that the

trial court’s judgment is not clearly erroneous, we affirm.

Facts and Procedural History [2] Da.H. and Dy.H., born September 12, 2011, are the twin sons of Mother and

D.H. (Father). DCS filed a CHINS petition on January 7, 2014, alleging that

Mother did not have stable housing for the children, she admitted using

marijuana and subsequently tested positive for methamphetamine, and DCS

was unsure of Mother’s mental-health status because “she ha[d] previously been

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 2 of 12 detained for intentionally cutting herself.” Ex. 7, p. 11. Two weeks later,

Mother admitted that the children were CHINS and that she “has substance

abuse issues and mental health needs which need to be consistently addressed.

[Mother] has not properly addressed these issues and therefore the court should

intervene to ensure the children’s safety and well-being.” Ex. 10, p. 28. The

juvenile court adjudicated the children CHINS, finding that they were in need

of services for the reasons alleged in the DCS petition. Id.

[3] The juvenile court entered a parental-participation order that required Mother

to participate in a home-based counseling program, complete a substance-abuse

assessment and successfully complete all treatment recommendations, submit to

random drug and alcohol screens, and complete a mental-health evaluation and

follow all recommendations resulting from it. Ex. 11, p. 32. Accordingly, DCS

generated referrals for home-based case management, mental-health services,

and substance-abuse treatment.

[4] The home-based case-management referral was intended to help Mother find a

job, connect to community resources, and, ultimately, find stable housing. But

Mother was unable to obtain stable housing. She moved between the homes of

friends and family at least seven times during the CHINS proceeding. She lived

with her mother in Martinsville, with Father and his aunt in Speedway, with

Father at a motel, with her mother at a new home in Indianapolis, with her

cousin, back to her mother’s home, and, finally, with her father. Mother’s lack

of stable income was one reason that she had difficulty obtaining stable

housing. Over the course of the CHINS case, Mother worked for only a few

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 3 of 12 weeks as a waitress in November 2014, and then she began a part-time cleaning

job at a hotel a “couple of months” before the TPR hearing. Appellant’s Br. p.

7. The home-based case-management referral was ultimately closed

unsuccessfully because of lack of progress.

[5] DCS also issued referrals for a dual assessment of Mother’s mental-health status

and substance abuse and for home-based counseling. Mother worked with a

therapist consistently over the duration of the CHINS case. According to the

therapist, Mother was making some progress, “but we still have significant

challenges at this point that we’re dealing with.” Tr. p. 36. Specifically,

Mother had not made enough progress in addressing her anxiety and

depression to be discharged from home-based counseling. In addition to the

therapy, Mother was prescribed Zoloft for her anxiety and depression. The

therapist saw signs of improvement while Mother was taking it, but Mother quit

taking it after a month because she did not think it was helping. The therapist

encouraged Mother to either return to the prescribing doctor or see a different

doctor to explore other treatment options, but Mother declined.

[6] Beyond the dual assessment for mental-health status and substance abuse,

which Mother completed, additional treatment was not recommended or

referred for Mother’s marijuana use. However, as part of the parental

participation order, Mother was required to submit to random drug screening.

She was required to call the service provider every day to find out if she needed

to report that day and then travel to the screening facility on the assigned days.

Because Mother did not have a car, DCS supplied bus passes, and her home-

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 4 of 12 based service providers offered to take her to the screening facility if she called

them in the morning. Yet, apart from the five months between March and

August 2014, Mother did not consistently comply with the random screening

procedures.

[7] On January 30, 2015, the permanency plan for the children was changed to

adoption because of Mother’s lack of progress in her services, and DCS filed a

TPR petition four days later. The Family Case Managers (FCM) and the court

appointed special advocate (CASA) testified at the TPR hearing in September

2015. First, FCM Natalie Hicks, who was the FCM from January 2014

through January 2015, testified that Mother was not able to successfully

complete her services and was not ready to parent the children. It was not in

the children’s best interests to give Mother more time, nor did FCM Hicks think

more time would help Mother become ready to parent. Next, FCM Amber

Monday, who had the case from March through September 2015, testified that

she would not recommend placement with Mother because of the lack of safe,

stable housing and Mother’s inability to provide for the children financially.

The CASA also testified that it was in the children’s best interests to be adopted

and that Mother should not be given additional time to complete services.

[8] The juvenile court found that Mother’s housing was unstable and her income

was inconsistent. It found that she had not adequately addressed her mental-

health needs and was still “struggling with anxiety and hopelessness which was

a barrier to going forward in services,” yet she was not taking her medication or

pursuing alternative treatment. Appellant’s App. p. 29. And the juvenile court

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 5 of 12 found that Mother was not completing her drug screens consistently—the last

one was in March or early April 2015, and was positive for marijuana. The

juvenile court concluded that there is a reasonable probability that the

conditions that resulted in the children’s removal and continued placement

outside the home will not be remedied and that termination is in the children’s

best interest. Accordingly, the court terminated the parent-child relationship

between Mother and Da.H. and Dy.H.

[9] Mother now appeals.

Discussion and Decision [10] Mother argues that DCS did not prove the statutory requirements for

termination by clear and convincing evidence. When reviewing the termination

of parental rights, we do not reweigh the evidence or judge witness credibility.

In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). Rather, we consider only the

evidence and reasonable inferences that are most favorable to the judgment of

the juvenile court. Id. We will not set aside the juvenile court’s judgment

unless it is clearly erroneous. Id. To determine whether a judgment

terminating parental rights is clearly erroneous, we review whether the evidence

clearly and convincingly supports the juvenile court’s findings and whether the

findings clearly and convincingly support the judgment. In re V.A., No. 02S04-

1602-JT-93, 2016 WL 661748, at *1 (Ind. Feb. 18, 2016).

[11] A petition to terminate parental rights must allege, among other things:

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 6 of 12 (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[.]

[12] Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. In re I.A., 934 N.E.2d at 1133.

[13] Mother raises two arguments. First, she argues that there is insufficient

evidence to support the juvenile court’s conclusions that the conditions that

resulted in the children’s removal will not be remedied.1 Second, Mother

argues that there is insufficient evidence to support the conclusion that

termination of the parent-child relationship is in the best interests of the

children.

1 Mother also argues that there was insufficient evidence to support the juvenile court’s conclusion that continuation of the parent-child relationship poses a threat to the children’s well-being. Indiana Code section 31-35-2-4(b)(2) requires proof of only one of the three conditions listed in subsection (B), and we conclude that there is sufficient evidence to support the juvenile court’s determination that the conditions resulting in the children’s removal will not be remedied. Therefore, we do not address this argument.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 7 of 12 I. Reasonable Probability That the Conditions Resulting in Removal Will Not Be Remedied [14] Mother contends that the evidence is insufficient to support the juvenile court’s

conclusions that the conditions resulting in the children’s placement outside the

home will not be remedied. We engage in a two-step analysis to determine

whether the evidence is sufficient. In re V.A., No. 02S04-1602-JT-93, 2016 WL

661748, at *4 (Ind. Feb. 18, 2016). First, we identify the specific conditions that

led to placement and retention outside the home and, second, we determine

whether there is a reasonable probability that those conditions will not be

remedied. Id. A parent’s fitness at the time of the termination proceeding is the

focus of the second inquiry, and juvenile courts have discretion to weigh a

parent’s prior history more heavily than efforts made only shortly before

termination. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).

[15] Da.H. and Dy.H. were removed from Mother for three reasons: Mother’s lack

of stable housing, substance abuse, and mental-health condition. The parental

participation order required Mother to participate in a home-based counseling

program, complete a substance-abuse assessment and successfully complete all

treatment recommendations, submit to random drug and alcohol screens, and

complete a mental-health evaluation and follow all recommendations resulting

from it. Therefore, to terminate the parent-child relationship between Mother

and the children, the court had to find that there was a reasonable probability

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 8 of 12 that Mother’s housing, substance abuse, or mental-health issues would not be

remedied.2

[16] The juvenile court found that “[Mother’s] housing has been unstable

throughout the CHINS case, residing with family, friends or living in motels.”

Appellant’s App. p. 29. Mother argues that she had stable housing at the time

of the TPR hearing—she was renting a room from her father. However, the

agreement Mother and her father signed is dated less than a week before the

start of the TPR hearing. Mother received months of home-based case

management targeted at assisting her with finding a job, connecting to

community resources, and obtaining stable housing, but she was unable to

make progress and her referral was closed unsuccessfully. The case manager

felt there would be ongoing issues and no probability of success in the service.

The court could reasonably infer, based on Mother’s frequent movement

between the homes of family members and friends over the course of the

CHINS case and her inability to make progress toward stable housing while

working with a home-based case manager, that Mother’s living arrangements

were not likely to become stable, despite the last-minute agreement that she

could live with her father.

2 After concluding that “[t]here is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their mother[,]” the trial court continued on, saying that Mother “has not been able to become self-sufficient[.]” Appellant’s App. p. 29. We view self-sufficiency as another way to explain Mother’s lack of stable housing, substance abuse, and mental-health issues. In any event we review the trial court’s findings and the evidence addressing only housing, substance abuse, and mental health to determine whether the trial court’s conclusion is supported.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 9 of 12 [17] As to Mother’s substance abuse, no treatment was recommended based on the

dual-diagnosis assessment. Therefore, all Mother needed to do was refrain

from using illegal drugs and submit to the random drug screening required by

the parental-participation order. The order clearly states that a failure to screen

will be interpreted as a positive screen. Ex. 11, p. 32. The juvenile court found

that Mother “was very inconsistent in random screens, taking her last one,

positive for marijuana, in late March or early April 2015.” Appellant’s App. p.

29. In addition, Mother’s therapist testified that Mother admitted to using

marijuana around the time of her last screen, and the therapist thought Mother

used it to cope with anxiety. Mother’s failure to test and the fact that her final

test was positive indicate that Mother did not address her substance abuse

according to the terms of the parental-participation order.

[18] Finally, the juvenile court found that Mother participated in therapy for her

mental health for over a year and the therapist “has seen some improvement in

the area of anger management, but sees issues of mental health and instability

as still being a struggle for [Mother] to the point that she would be concerned if

the children were placed with [her].” Appellant’s App. p. 29. In particular, the

court found that Mother “was still struggling with anxiety and hopelessness

which was a barrier to going forward[.]” Id. This is consistent with the

therapist’s testimony that Mother’s anxiety was impeding her progress and that

the therapist’s biggest concern with the children being returned to Mother was

Mother’s lack of stability—“being able to even just experience what that is like I

think would be a big feat to tackle.” Tr. p. 33-34. In addition to therapy,

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 10 of 12 Mother was prescribed Zoloft for her anxiety and depression, but she quit

taking it after a month because she did not think it was helping, and she

declined the advice of her therapist that she return to the prescriber or see a

different doctor to consider another treatment option. The court’s findings are

supported by the therapist’s testimony and the findings support the conclusion

that there is a reasonable probability that Mother’s mental-health condition will

not be remedied—Mother was willing to participate in therapy, but therapy

alone was not sufficient treatment for her anxiety and depression, and Mother

was unwilling to pursue treatment beyond that.

[19] The evidence supports the juvenile court’s findings that the conditions that led

to the removal of the children were not remedied over the twenty-two months

of the CHINS case, and the findings support the conclusion that there is a

reasonable probability the conditions will not be remedied.

II. Best Interests of the Children [20] Mother also contends that DCS did not present clear and convincing evidence

that termination is in the best interests of the children. In determining what is

in a child’s best interests, the juvenile court must look to the totality of the

evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

denied. We have previously held that recommendations by both the FCM and

CASA to terminate parental rights, in addition to evidence that the conditions

resulting in removal will not be remedied, is sufficient to show by clear and

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 11 of 12 convincing evidence that termination is in the child’s best interests. Id. at 1158-

59.

[21] Here, the juvenile court’s conclusion that termination of the parent-child

relationship is in Da.H.’s and Dy.H.’s best interests is supported by the

testimony of the CASA, FCM Hicks and FCM Monday, as well as Mother’s

failure to achieve stable housing and adequately address her substance-abuse

and mental-health issues over the twenty-two months of the CHINS case.

Mother has not persuaded us that the juvenile court’s judgment was clearly

erroneous.

[22] Affirmed.

Barnes, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JT-1744 | June 24, 2016 Page 12 of 12