In Re the Termination of the Parent-Child Relataionship of D.H. (Minor Child), F.H. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2020
• Docket: 19A-JT-2011
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 30 2020, 8:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kyle D. Gobel Curtis T. Hill, Jr. Collier Gobel Homann, LLC Attorney General of Indiana Crawfordsville, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Termination of the April 30, 2020 Parent-Child Relationship of Court of Appeals Case No. D.H. (Minor Child), 19A-JT-2011 F.H. (Father), Appeal from the Montgomery Superior Court Appellant-Respondent, The Honorable Heather L. Barajas, v. Judge Trial Court Cause No. Indiana Department of 54D01-1808-JT-251 Child Services, Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 1 of 12 [1] F.H. (Father) appeals the juvenile court’s order terminating his parent-child

relationship with D.H. (Child), arguing that the evidence is insufficient to

support the order. Finding the evidence sufficient, we affirm.

Facts [2] Child was born to Father and J.A. (Mother) on May 21, 2017.1 The next day,

Department of Child Services (DCS) assessor Jonathan Chadd received a report

alleging that Mother had tested positive for marijuana in the hospital while she

was giving birth. There were suspicions that Father had been using illegal

substances as well. Chadd spoke with Father and Mother, both of whom

admitted to using marijuana. They submitted to a drug screen and tested

positive for marijuana. Therefore, on June 23, 2017, DCS filed a petition

alleging that Child was a Child in Need of Services (CHINS). 2 At that time,

Child remained in the care and custody of Father and Mother.

[3] Family Case Manager (FCM) Kimberly Whitus began working with the family.

Father, Mother, and Child had been living with paternal grandmother, but they

soon moved into a hotel. Father confided in FCM Whitus that Mother had

been using heroin and methamphetamine. FCM Whitus then contacted the

police, who went to the hotel room and found methamphetamine and heroin

1 This Court, in a separate appeal, already affirmed the order terminating Mother’s parent-child relationship with Child. In re M.A., Cause No. 19A-JT-1744 (Ind. Ct. App. Feb. 28, 2020). Therefore, Mother is not a party to this appeal. 2 Child has an older sibling, M.A., who is the offspring of Mother and a different man. The termination order at issue here pertains only to Father’s relationship with his own biological child, D.H.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 2 of 12 alongside Child. Child was removed from his parents’ care and custody on

August 5, 2017, and placed with his paternal grandmother.

[4] On September 12, 2017, following a hearing, the juvenile court adjudicated

Child to be a CHINS and entered a dispositional decree on November 7, 2017.

Per that dispositional decree, Father was required to (1) maintain a legal and

stable source of income; (2) obtain adequate housing; (3) complete a substance

abuse assessment and treatment; (4) abstain from alcohol and any illegal

controlled substances; (5) submit to random drug screens; (6) complete a

psychological evaluation; and (7) attend all scheduled visitations. The initial

permanency plan was for reunification of Father and Child.

[5] At first, Father complied with the terms of the dispositional decree. However,

Father started testing positive for both marijuana and methamphetamine. FCM

Whitus then recommended additional random drug screens and a shift towards

intensive outpatient relapse prevention. Father quickly became uncooperative,

missed multiple drug screens, and did not engage in recommended services. In

fact, on February 2, April 18, April 20, April 26, and April 30, 2018, Father

tested positive for one or many of the following substances: marijuana,

amphetamine, and/or methamphetamine. According to clinical psychologist

Dale Crowder, who ran Father’s outpatient therapy sessions, Father attended

only one individual session and did not complete the group therapy program.

Thus, the outpatient facility closed Father’s case and dismissed him.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 3 of 12 [6] Lifeline Youth and Family Services (Lifeline) started working with Father on

obtaining stable housing, employment, and childcare. According to Lifeline

family consultant Jennifer Fortney, Father was eager to get his GED and a

better job. However, Father changed his mind, lost interest in pursuing any

form of higher employment, and deemed Lifeline’s services to be unnecessary.

Lifeline eventually discharged Father.

[7] DCS scheduled visits and had Child’s paternal grandmother supervise them. It

took approximately one month for Father to visit Child, and thereafter, Father

only visited Child approximately four or five times over the course of six

months. And during those visits, Father showed no interest in establishing a

strong and durable bond with Child that would continue after the court-ordered

proceedings.

[8] Moreover, throughout the entirety of the CHINS case, Father was routinely

unemployed. Though he had interviewed with and been hired by various fast-

food restaurants, Father either turned down the offers or left his positions just

after starting, claiming that the pay was too low or that the restaurants were too

“high maintenance.” Tr. Vol. II p. 145. Father and Mother were either

homeless or lived in and out of hotel rooms. The two had a chaotic and

sometimes violent relationship, prompting both Father and Mother to testify

that there were domestic violence issues between them. See id. at 67, 143.

[9] FCM Whitus kept in regular contact with Child’s paternal grandmother for

updates on Child’s placement. FCM Whitus testified that Child had “met his

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 4 of 12 development milestones” and that “[h]e’s very close and bonded to his

grandmother and to his uncles[.]” Id. at 221-22. On July 9, 2018, the

permanency plan changed to adoption by Child’s paternal grandmother.

[10] On August 29, 2018, DCS filed a petition for involuntary termination of the

parent-child relationship between Father and Child. The juvenile court held

termination hearings on November 9, 2018, and February 19, 2019, at which

FCM Whitus testified that termination of parental rights would be in Child’s

best interests. As FCM Whitus attested, Child’s paternal grandmother is ready

and able to adopt Child and has already formed a strong and lasting bond with

him. According to FCM Whitus, Father’s repeated drug use, instability,

homelessness, lack of income, violent behavior in the home, and unwillingness

to commit to rehabilitative services further support the necessity of termination.

Court-Appointed Special Advocate (CASA) James McBee echoed FCM

Whitus’s recommendations and opined that paternal grandmother’s adoption of

Child was in Child’s best interests. The juvenile court then took the matter

under advisement.

[11] On July 19, 2019, the juvenile court issued an order terminating the parent-

child relationship between Father and Child. Father now appeals.

Discussion and Decision I. Standard of Review [12] When reviewing an order on the termination of a parental relationship:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 5 of 12 We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment.

Reviewing whether the evidence “clearly and convincingly” supports the findings, or the findings “clearly and convincingly” support the judgment, is not a license to reweigh the evidence.

In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some

internal quotations omitted). We must give “due regard” to the juvenile court’s

ability to judge witness credibility firsthand, and we will not set aside its

findings or judgment unless clearly erroneous. Id.

[13] Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the

following in order to terminate the parent-child relationship

(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 (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;

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 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; and

(D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove these allegations by clear and convincing evidence. In re N.G.,

51 N.E.3d 1167, 1170 (Ind. 2016).

II. Sufficiency [14] Father’s sole argument on appeal is that the evidence is insufficient to support

the order terminating his parent-child relationship with Child. Specifically,

Father contends that DCS failed to prove by clear and convincing evidence that

the conditions that led to Child’s removal will not be remedied; that

continuation of the parent-child relationship poses a threat to Child’s well-

being; and that termination is in Child’s best interests.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 7 of 12 Conditions Resulting in Removal

[15] First, we must consider what conditions led to Child’s initial and continued

removal and second, whether DCS proved that there is a reasonable probability

that those conditions will not be remedied. In re I.A., 934 N.E.2d 1127, 1134

(Ind. 2010). Child was initially removed from Father’s care and custody after

police officers arrived at Father and Mother’s hotel room and discovered illegal

controlled substances inside and within reach of the children. Plus, according to

both Father and Mother, Child was living in an unstable home where there was

domestic violence. Child continued to be removed from Father’s care because

of continued drug use, failure to participate in court-ordered services, and

unstable employment and housing

[16] Upon review of the record, we find that there was ample evidence supporting

the juvenile court’s conclusion that the conditions resulting in removal would

not be remedied. While he cooperated in the beginning, Father quickly stopped

complying with services. Father consistently failed to attend both individual

and group therapy sessions for his mental health and substance abuse issues.

And even when Father did comply, he returned mostly positive drug screens—a

clear violation of the terms of the CHINS dispositional decree. Any time Father

showed some indicia of progress, he regressed and directly violated the juvenile

court’s orders. See, e.g., Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d

366, 372 (Ind. Ct. App. 2007) (holding that the juvenile court may “consider the

parent’s response to the services offered through . . . DCS[]” in CHINS

proceedings).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 8 of 12 [17] Father also failed to make any meaningful efforts to establish a bond with Child

from the moment of birth. This failure to exercise a parental right to visit one’s

child demonstrates a “lack of commitment to complete the actions necessary to

preserve [the] parent-child relationship[.]” In re A.L.H., 774 N.E.2d 896, 900

(Ind. Ct. App. 2002). Based on the record, we can only find that the evidence is

sufficient to support the juvenile court’s conclusion that there is a reasonable

probability that the conditions resulting in Child’s removal will not be

remedied.

Threat to Child’s Well-Being3

[18] To meet this statutory element, “[c]lear and convincing evidence need not

reveal that ‘the continued custody of the parents is wholly inadequate for the

child’s very survival.’” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

143, 148 (Ind. 2005) (quoting Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592

N.E.2d 1232, 1233 (Ind. 1992)). “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 Egly, 592 N.E.2d

at 1234).

[19] In evaluating the well-being of the child, “[juvenile] courts have properly

considered evidence of a parent’s prior criminal history, drug and alcohol

3 We note that the termination statute is phrased in the disjunctive, and because we find that the element of showing that there is a reasonable probability that the conditions that led to Child’s removal will not be remedied has been satisfied, we are not required to address this issue. However, we choose to do so briefly.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 9 of 12 abuse, history of neglect, failure to provide support, and lack of adequate

housing and employment.” A.F. v. Marion Cty. Office of Family & Children, 762

N.E.2d 1244, 1251 (Ind. Ct. App. 2002). Here, Father has a long history of

substance abuse issues, unemployment, an inability to obtain adequate housing,

and even domestic violence.4 The evidence shows that despite the availability of

various outpatient programs willing to assist Father with his myriad issues,

Father remains uncooperative. And as it stands, Father does not have adequate

housing or employment, even though he applied for—and turned down—

various jobs throughout the CHINS proceedings.

[20] Moreover, we are not convinced that Father has obviated his drug issues or his

potential to become violent in the home—the two most troubling aspects of this

case. Should Child return to Father’s home, the evidence shows that there is a

high likelihood that the unstable environment therein will have a deleterious

and prolonged effect on Child’s future. Therefore, we find that the juvenile

court did not err when it concluded that DCS proved by clear and convincing

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

Child’s well-being.

4 We do not imply that those suffering from substance abuse issues, those that are unemployed, and those that are homeless are per se inadequate parents. Rather, we believe that in this particular case, the cumulative effect of these problems, coupled with Father’s unwillingness to participate in services designed to ameliorate these problems, is a threat to Child’s well-being.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 10 of 12 Best Interests of Child

[21] “The purpose of terminating parental rights is not to punish parents but to

protect their children.” In re T.F., 743 N.E.2d 766, 773 (Ind. CT. App. 2001).

“[I]n determining what is in the best interests of the children, the court is

required to look . . . to the totality of the evidence.” Id. at 776. In so doing, the

juvenile court must subordinate the interests of the parents to those of the

children involved. Id.

[22] Here, the juvenile court determined that:

The DCS has proven by clear and convincing evidence that termination is in the best interests of [Child]. None of the parents are in any better position to provide [Child] with appropriate care, supervision or a safe, nurturing and stable home than they were at the beginning of DCS’ involvement with the family. None of the parents can meet [Child’s] needs. [Child] need[s] a stable and nurturing home to meet [his] many needs. Both the DCS case manager and the CASA believe that termination is in the best interest of the child.

Appellant’s App. Vol. II p. 15. FCM Whitus and CASA McBee both testified at

the termination hearings that it is in Child’s best interests to be adopted by his

paternal grandmother. They testified that Child is thriving in a safe,

comfortable, and healthy environment and that Child needs this stability in

order to grow and prosper.

[23] Given the wealth of evidence already discussed, we find that the juvenile court

did not err by concluding that termination of the parent-child relationship is in

Child’s best interests. At multiple instances, Father failed to complete even the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 11 of 12 most routine tasks as mandated by the CHINS proceedings. He also failed to

take advantage of the numerous mental health and substance abuse treatment

programs available to him, despite multiple opportunities for participation.

[24] Child needs and deserves to have a loving and stable household in which to

thrive, and he has that with his paternal grandmother. With all of this in mind

and given that DCS has established a solid permanency plan for Child’s

adoption, we find that the juvenile court did not err by concluding that DCS

proved by clear and convincing evidence that termination is in Child’s best

interests.

[25] The judgment of the juvenile court is affirmed.

Bradford, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020 Page 12 of 12