MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 30 2016, 8:13 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew J. Sickmann Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the September 30, 2016 Parent-Child Relationship of: Court of Appeals Case No. A.H. & P.H. (Minor Children) 89A01-1601-JT-53 and T.S. (Mother) and D.H. Appeal from the Wayne Superior (Father) Court Appellants-Respondents, The Honorable Darrin M. Dolehanty, Judge. v. Trial Court Cause Nos. 89D03-1509-JT-29 The Indiana Department of 89D03-1509-JT-30 Child Services, Appellee-Petitioner
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 1 of 16 [1] T.S. (“Mother”) and D.H. (“Father”) appeal the involuntary termination of
their parental rights to minor daughter A.H. and minor son P.H (collectively
“the Children”). Mother and Father raise one issue, which we restate as
whether the State presented sufficient evidence to support the trial court’s
termination order.
[2] We affirm.
Facts and Procedural History
[3] The Children were born on June 30, 20141 to Mother and Father. On August
15, 2014, the Children were removed from Mother’s and Father’s care by an
emergency custody order after it was discovered that P.H.’s meconium tested
positive for morphine and the Children were both experiencing symptoms of
withdrawal. The Department of Child Services (“DCS”) filed petitions alleging
that the Children were Children in Need of Services (“CHINS”) on August 19,
2014. At this time, the Children were placed in the care of their paternal
grandmother.
[4] On the same day, the trial court held an initial hearing and adjudicated the
Children as CHINS based on Mother’s and Father’s admissions. In its
September 16, 2014 dispositional order, the court ordered Mother and Father to
participate in reunification services, which included: notifying the DCS case
1 Children are fraternal twins.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 2 of 16 manager of any arrest or criminal charges, keeping all appointments with DCS,
Court Appointed Special Advocate (CASA)/Guardian ad litem (GAL), and
service providers, not using or consuming illegal controlled substances,
submitting to random drug screens with results being positive if failure to timely
submit, completing a substance abuse assessment and following all
recommendations, and attending all visitation with the Children.
[5] On October 9, 2014, DCS filed a petition for contempt due to lack of parental
participation. The trial court held a hearing on the petition on October 27,
2014, and Mother and Father admitted that they had tested positive for drugs
and failed to comply with the court’s dispositional order. The court sentenced
Mother and Father to each serve fourteen days in jail.
[6] The court held a review hearing on February 20, 2015, and found that Mother
and Father continued to use drugs, failed to participate in services, and failed to
notify DCS of their location for weeks at a time. Further, Father was arrested
and incarcerated on armed robbery charges on April 29, 2015. On May 15,
2015, Mother overdosed on drugs while she was at paternal grandmother’s
home—a place she was not supposed to be. As a result, DCS removed the
Children from paternal grandmother’s care and placed them in a foster home.
[7] On August 12, 2015, the trial court held a review and permanency hearing
where it changed the plan to termination and adoption. The court made this
determination after discovering that Father was still incarcerated and that
Mother was not routinely participating in visitation with Children and was not
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 3 of 16 complying with substance abuse counseling services. DCS filed its termination
petitions on September 8, 2015. The trial court held an evidentiary hearing on
DCS’s termination petitions on December 8, 2015.
[8] Meridian Services clinical addiction counselor, Jessica Cate (“Cate”) worked
with Mother for a brief period of time. Cate stated that Mother never completed
the twelve-week intensive outpatient treatment program, but when she did
attend, she was receptive to feedback and participated in group discussions.
Mother attempted to complete the program three times but was discharged each
time based on her lack of attendance. Meridian Services clinical addiction
counselor, Tom Pennington (“Pennington”), worked with Father twice at the
intensive outpatient treatment program, but because of his failure to attend,
Father was also discharged from the program. Pennington noted that Father
had limited engagement when he did attend and that he had a significant need
for substance abuse services.
[9] Family case manager, Emily Graham (“Graham”), knew Mother from a
previous CHINS case dating back to May 2014 and became acquainted with
Father in August 2014 after the Children were removed. Graham stated that
Mother had voluntarily terminated her parental rights to another child involved
in a prior CHINS case in June 2014.2 Graham also noted Mother and Father’s
2 Apparently, a total of two prior CHINS cases involved two of Mother’s other children. In the first CHINS case, the child was removed from Father’s care, but DCS would not place the child with Mother due to her substance abuse issues. The second CHINS case involved Mother overdosing in February 2014 in front of child. That child’s grandmother is now his guardian.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 4 of 16 lack of participation in services. Father completed only the substance abuse
assessment, while Mother was referred for substance abuse treatment as early as
January 2013, but she began participatation in rehab services just before the
termination hearing. Graham stated that Mother’s original service provider
cancelled all future visitation because Mother continuously missed visits with
Children. Graham then held the visitation at the DCS office between June and
September 2015, but Mother missed more visits than she attended.
[10] Graham stated that termination of parental rights is in the Children’s best
interests. She expressed that the Children were removed due to noncompliance
with substance abuse and the situation has not been remedied. Mother only
recently went to rehab, and Father maintains sobriety due to his incarceration.
Graham noted that Mother has not shown consistently maintained sobriety,
and before Father was incarcerated, he failed eight out of nine drug screens
between August 2014 and February 2015. She stated that the Children are well
bonded to their foster parents and call them “mama” and “dada.” Tr. p. 53.
[11] Deborah Walcott (“Walcott”) provided supervised visitation to Mother through
the Extra Special Parents program. Walcott stated that she began providing
Mother with visitation services twice per week in September 2015. Walcott
reported that Mother interacted with the Children at the visits and never was
under the influence of alcohol or drugs. Children’s Bureau case worker, Tom
Brazell (“Brazell”) stated that he had been working with Father since August
2015 through the Engaging Father’s Program, which focuses on improvement
in fatherhood. Brazell testified that Father is always friendly, kind, considerate,
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 5 of 16 and ready to engage. Brazell also stated that Father has anger issues that he is
working to remedy and has made progress during the time Brazell has worked
with him.
[12] Mother reported that she recently completed inpatient rehab at Harbor Lights,
which consisted of two weeks’ inpatient treatment and one week of detox. She
admitted that she had not successfully completed the substance abuse program
at Meridian Services but recently enrolled again. Mother also noted that she
plans to attend “90 meetings in 90 days” to maintain her sobriety. Tr. p. 89.
Mother reported having a job lined up at Kroger and that she was waiting on an
apartment at Carriage House but presented no verification of either
employment or housing to the court. She also explained that the reason she
terminated her parental rights to the child involved in one of the prior CHINS
cases was because he had mental and behavioral issues that she could not
handle, especially with her own substance abuse issues.3
[13] CASA Director Karen Bowen (“Bowen”) also testified that termination of
parental rights is in the best interests of the Children. Bowen noted that the
Children were removed shortly after birth and were eighteen months old at the
time of the termination hearing. Bowen emphasized the importance of the
3 Mother has five children: (1) the oldest child lives with his father; (2) another child lives with paternal grandmother who has guardianship; (3) Mother voluntarily terminated parental rights to a child with mental and behavioral issues; and (4) the twins that are the subject of the trial court’s termination order. It is not clear whether any of these children have the same father. However, from the record it appears that Father is only the biological father of the Children.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 6 of 16 Children developing trust and having stability from their caregivers, which she
believed Mother and Father could not provide. Bowen stated that Mother has a
history of substance abuse and housing insecurity. Bowen expressed that three
weeks of sobriety was not enough to indicate whether Mother intends to make a
permanent lifestyle change. She further noted that Father remains incarcerated
and only started participating in services after his incarceration. Like Graham
expressed, Bowen stated that the Children are well bonded to their foster
parents and the foster parents are able to meet their needs.
[14] On December 11, 2015, the trial court entered an order terminating Mother and
Father’s parental rights to the Children. Mother and Father now appeal.
Discussion and Decision
[15] We have long had a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.
2011). We neither reweigh the evidence nor assess witness credibility. Id. We
consider only the evidence and reasonable inferences favorable to the trial
court’s judgment. Id. Where the trial court enters findings of fact and
conclusions thereon, we apply a two-tiered standard of review: we first
determine whether the evidence supports the findings and then determine
whether the findings support the judgment. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside a judgment terminating
a parent-child relationship only if it is clearly erroneous. Id. Clear error is that
which “leaves us with a definite and firm conviction that a mistake has been
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 7 of 16 made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.
Ct. App. 2004), trans. denied.
[16] “The purpose of terminating parental rights is not to punish parents but to
protect their children. Although parental rights have a constitutional dimension,
the law allows for their termination when parties are unable or unwilling to
meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.
App. 2004) (citation omitted). Indeed, parental interests must be subordinated
to the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).
[17] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental
rights must meet the following requirements:
(2) The petition must allege:
(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.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 8 of 16 [18] However, Indiana Code section 4(b)(2)(B) is written in the disjunctive;
therefore, the trial court is required to find that only one prong of subsection
(2)(B) has been established by clear and convincing evidence. In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every
element” by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind.
Code § 31-37-14-2. Clear and convincing evidence need not establish that the
continued custody of the parent is wholly inadequate for the child’s very
survival. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
(Ind. 2005). Rather, it is sufficient to show by clear and convincing evidence
that the child’s emotional development and physical development are put at risk
by the parent’s custody. Id. If the court finds the allegations in a petition are
true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-
2-8(a).
[19] Mother and Father argue that DCS failed to present sufficient evidence that
they were unable to remedy the conditions and situation that led to Children’s
removal and that termination of their parental rights was in the Children’s best
interests. Specifically, Mother and Father claim that several of the trial court’s
findings do not support the two conclusions. The challenged findings are as
follows:
22. Tom Brazell is a case worker with the Children’s Bureau. He has worked with father, through an August 2015 referral from DCS. Mr. Brazell visits with father once each week, while father remains incarcerated. Mr. Brazell has been using an individual enrichment program referred to as “Being the Best Father You Can Be.” The program focuses on the importance of fathers in a Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 9 of 16 child’s life, and how to parent as a father. The program is administered through workbooks and discussion. Mr. Brazell has observed father to be appropriate, kind, considerate, and receptive.
29. The DCS has not requested that father submit to drug screens since he has been incarcerated.
30. Father’s incarceration has also kept FCM Graham from being able to determine if father is able to apply skills he may have acquired as a result of the services being provided.
33. FCM Graham made arrangements for mother to participate in an inpatient substance abuse program, as early as January, 2015.[4] Mother did not participate in any inpatient program as a result of those referrals. Mother reports that she very recently attended an inpatient program through the Salvation Army, known as “Harbor Lights.” Mother reported that the program consisted of one (1) week of “detox” and then two (2) weeks of inpatient therapy. Mother was very vague about the dates when she participated in this program, and no evidence was presented to verify mother’s claim that she completed the program or completed it successfully.
39. Mother reports that she has been “sober” for forty-one (41) days.
Appellant’s Br. at 24-26.
4 Graham’s testimony in the transcript indicates that Mother was offered substance abuse services as early as January 2013. See Tr. p. 49.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 10 of 16 [20] Based on these findings, among others, the trial court concluded that: (1) DCS
has shown by clear and convincing evidence, that it is a reasonable probability
that the conditions that resulted in the children’s removal from and placement
outside of the home of the parents will not be remedied; and (2) clear and
convincing evidence was presented to show that termination of parental rights
is in the best interest of these children. Appellant’s Br. at 26-27.
A. Conditions that Led to Removal
[21] When making a determination as to whether a reasonable probability exists that
the conditions resulting in a child’s removal or continued placement outside of
a parent’s care will not be remedied, the trial court must judge a parent’s fitness
to care for her child at the time of the termination hearing while also taking into
consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the court can
“disregard the efforts. . . made only shortly before termination and to weigh
more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,
989 N.E.2d 1225, 1234 (Ind. 2013).
[22] The trial court is also required to consider the parent’s habitual patterns of
conduct in order to determine the probability of future neglect or deprivation of
the child. ADS, 987 N.E.2d at 1157. The trial court may consider evidence of a
parent’s prior history of neglect, failure to provide support, and lack of adequate
housing and employment. Id. The trial court may consider the services offered
to the parent by DCS and the parent’s response to those services as evidence of
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 11 of 16 whether conditions will be remedied. Id. DCS is not required to provide
evidence ruling out all possibilities of change. Id. Instead, it needs to establish
only that a “reasonable probability” exists that the parent’s behavior will not
change. Id.
1. Mother
[23] Mother specifically challenges finding numbers thirty-three and thirty-nine,
which relate to her recent participation in rehab and forty-one days of sobriety
at the time of the termination hearing. Mother contends that shortly before the
termination hearing, she remedied this condition by completion of an inpatient
rehab program, took steps to secure stable housing, and expected to start job
orientation the day after the hearing.
[24] In this situation, the Children were removed from Mother and Father’s home
after the Children were experiencing withdrawal symptoms and P.H.’s
meconium tested positive for morphine. Mother had a prior history of
substance abuse issues, and DCS was familiar with Mother from prior CHINS
cases. In the 2012 and 2014 CHINS cases, Mother was offered substance abuse
services and treatment but acknowledged that she never successfully completed
any of these programs. It was not until DCS filed its termination petitions to the
Children that Mother enrolled in substance abuse treatment. The trial court can
“disregard the efforts. . . made only shortly before termination and to weigh
more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,
989 N.E.2d at 1234. The trial court acknowledged Mother’s self-reported
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 12 of 16 progress, and it weighed it accordingly. Mother’s argument is simply a request
that we reweigh witness credibility and the evidence, which is not within our
role as an appellate court. See In re D.B., 942 N.E.2d at 871.
2. Father
[25] Father challenges finding numbers twenty-two, twenty-nine, and thirty, which
relate to Father’s participation in services while incarcerated, his sobriety while
incarcerated, and demonstration of skills learned from the provided services.
Father specifically argues that he has remedied the conditions that led to
removal of the Children because he has participated in services in jail, has
maintained his sobriety, and has not been given an opportunity to demonstrate
the parenting skills that he has learned.
[26] Although Father participated in a DCS-referred service while he was
incarcerated, he failed to consistently participate in substance abuses services
and visitation with the Children prior to incarceration. Further, before Father
was incarcerated, he failed eight out of nine drug screens. The court’s finding
regarding DCS not drug testing Father while in prison assumes that Father’s
sobriety is a result of incarceration, not that he has overcome his substance
abuse issues. It is within the trial court’s discretion to give more weight to a
parent’s habitual patterns of conduct in order to determine the probability of
future neglect or deprivation of the child. See ADS, 987 N.E.2d at 1157. The
trial court’s finding that case manager Graham stated she was unable to
determine if Father could apply the learned parenting skills did not unfairly
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 13 of 16 penalize Father. Individuals who pursue criminal activity run the risk of being
denied the opportunity to develop positive and meaningful relationships with
their children. Castro v. State OFC, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006).
Just like he could not participate in visitation with Children due to his
incarceration, case manager Graham could not assess whether Father had made
progress in parenting due to Father’s incarceration.
B. Best Interests of the Child
[27] When determining what is in the best interests of a child, the trial court must
look beyond the factors identified by DCS and look to the totality of the
evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate
the interests of the parent to those of the child. Id. The court need not wait until
the child is irreversibly harmed before terminating the parent-child relationship.
Id. A recommendation by the case manager or child advocate to terminate
parental rights is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id. at 1158-59. Permanency is a
central concern in determining the best interests of a child. Id. at 1159.
[28] Mother and Father argue that they have made progress with their substance
abuse issues and challenge the court’s conclusion that termination of their
parental rights is in the Children’s best interests.
[29] The Children were six weeks old when they were removed from Mother’s and
Father’s care. Father basically has had no interaction with the Children since
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 14 of 16 they were removed, and while Mother attended visitation during the CHINS
proceedings, she often missed visits, which led to cancellation of these services.
[30] Both case manager Graham and CASA Bowen expressed that termination of
parental rights was in the Children’s best interests. Case manager Graham
emphasized that Mother has had many years to seek treatment for her
substance abuse issues but had failed to do so until immediately before the
termination hearing. Graham further noted that Father was also ordered to
participate in substance abuse services and visitation with the Children prior to
incarceration but failed to do so. CASA Bowen stated that the Children are well
bonded to their foster parents and the Children are at a critical age to establish
permanency and stability. Based on the recommendations from Graham and
Bowen, we cannot conclude that the trial court erred in determining that
termination of Mother and Father’s parental rights to the Children was in the
best interests of the Children.
Conclusion
[31] Although Mother and Father have recently attempted to make positive changes
in their lives, it is simply too late in the lives of these children. Mother only
recently completed a rehab program after several years of failed attempts.
Although she reported maintaining sobriety for forty-one days and having
housing and a job lined up after the termination hearing, we defer to the trial
court’s discretion on the weight given to that evidence. Father remains
incarcerated and arguably sober, but this is largely due to the nature of his
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 15 of 16 incarceration. He has engaged in services while in jail but failed to comply with
the Children’s case plan prior to incarceration. Applying our highly deferential
standard of review in this situation, we cannot conclude that the trial court’s
decision to terminate Mother and Father’s parental rights to Children was
clearly erroneous.
[32] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A01-1601-JT-53 | September 30, 2016 Page 16 of 16