In re the Termination of the Parent-Child Relationship of H.H.:, A.S. (Mother) and J.H. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 29, 2016
• Docket: 27A04-1602-JT-445
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 29 2016, 8:52 am

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 APPELLANTS ATTORNEYS FOR APPELLEE Bruce N. Elliott Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Robert J. Henke Deputy Attorney General

James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the September 29, 2016 Parent-Child Relationship of Court of Appeals Case No. H.H.:, 27A04-1602-JT-445 Appeal from the Grant Superior Court A.S. (Mother) and J.H. (Father), The Honorable Dana J. Appellants-Respondents, Kenworthy, Judge

v. Trial Court Cause No. 27D02-1504-JT-11

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 1 of 10 Vaidik, Chief Judge.

Case Summary [1] A.S. (“Mother”) and J.H. (“Father”) appeal the termination of their parental

rights to H.H. They argue that the trial court erred because there is insufficient

evidence to establish a reasonable probability that the circumstances leading to

the child’s removal will not be remedied and that termination is in the child’s

best interests. Concluding that the trial court’s judgment is not clearly

erroneous, we affirm.

Facts and Procedural History [2] Mother and Father have one daughter together, H.H., born May 21, 2010.

Father has four children in addition to H.H., and Mother has one son. Father’s

children live with their mothers. Mother’s mother has guardianship over her

son after the Department of Child Services (DCS) substantiated a case of

neglect in July 2008.

[3] Father has an extensive criminal history that includes convictions for domestic

battery, various drug-related offenses, corrupt business influence, theft, forgery,

operating a motor vehicle while privileges are forfeited for life, and fraud on a

financial institution. Relevant here, Father was incarcerated around October

2011 for operating a motor vehicle while privileges are forfeited for life and

possession of marijuana. He later pled guilty to forgery and fraud on a financial

institution under a separate cause number. As a result of these convictions, he Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 2 of 10 was in prison for four-and-a-half years—spanning almost the entire period of

the Child in Need of Services (CHINS) and termination proceedings at issue

here.

[4] On July 17, 2013, DCS was called to investigate concerns that H.H. was

sexually abused. Two weeks later, DCS was notified by H.H.’s pediatrician

that she had tested positive for gonorrhea. At the end of August 2013, DCS

filed a petition alleging that H.H. was a CHINS and requesting an order to

remove H.H. from her home. The trial court authorized DCS to file a CHINS

petition and to remove H.H. from the home because it appeared she had been

sexually abused and Mother could not provide stable housing. H.H. was placed

with her paternal grandparents.

[5] Mother and Father both admitted that H.H. was a CHINS at a hearing in late

September 2013. A month later, the trial court entered a dispositional order

that required Mother to, among other things, maintain stable housing, secure

and maintain stable income, refrain from using illegal drugs, successfully

complete substance-abuse treatment, attend all appointments to treat her mental

health, and attend all appointments for recommended services such as home-

based counseling services. Ex. 1, p. 21.

[6] Mother initiated her substance-abuse treatment in Anderson the following

January. But she did not complete it because she moved to Marion in May

2014 and then married a man the following month. In September, she restarted

substance-abuse treatment, but she was unsuccessfully discharged a month later

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 3 of 10 because she continued testing positive for marijuana—out of Mother’s forty

drug screens, thirty-two were positive for marijuana. She lived with her

husband until January 2015, when she left her husband and moved into her

uncle’s home. Also in January, Mother restarted substance-abuse treatment. A

short time later, Mother reunited with her husband and moved back into his

home. She was unsuccessfully discharged from substance-abuse treatment

again in April 2015. The same month, DCS filed a petition to terminate

Mother’s and Father’s parental rights to H.H.

[7] In May 2015, Mother got a job at a fast-food restaurant. A month later, in June

2015, Father was released from prison and moved in with his parents and H.H.

Mother and Father reunited. Mother left her husband, quit her job, and moved

to Syracuse, Indiana, to live with her son, Father, and a friend. Less than a

month after moving to Syracuse, Mother, her son, and Father moved into a

home owned by Mother’s mother.

[8] The trial court held a multi-day hearing on the termination petition September 8

and 29 and October 6, 2015. Father was not present for the last two days of the

hearing because he was incarcerated for violating his parole. Mother’s mental-

health counselor testified that Mother missed half of her scheduled

appointments. Mother’s home-based case manager testified that Mother

attended her visitation with H.H. regularly and successfully, but did not

successfully complete her home-based services. Mother testified that she was

supporting herself by donating plasma and occasionally cleaning homes. She

further testified that she was receiving food stamps, allowing her to maintain a

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 4 of 10 stable source of food, but she was dependent on her mother for additional

financial support and housing. The Family Case Manager (FCM) and the

Court Appointed Special Advocate (CASA) both testified that termination is in

the best interests of H.H.

[9] The trial court concluded, among other things, that there is a reasonable

probability the conditions leading to H.H.’s removal will not be remedied, that

continuation of the parent-child relationship poses a threat to H.H.’s well-being,

and that termination is in her best interests. The trial court terminated Mother’s

and Father’s parental rights on January 27, 2016. Both parents now appeal.

Discussion and Decision [10] Mother and Father contend that there is insufficient evidence to support the

termination of their parental rights. 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 trial court. Id. We will not set aside the trial 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 trial court’s findings1 and whether the findings clearly

1 Mother and Father dispute three of the trial court’s factual findings: (1) “Mother’s employment history, like her residential history, displays a lack of stability and lack of focus on [H.H.’s] needs[;]” (2) “[DCS’s] involvement [with her son] did not result in reunification, and instead resulted in appointment of the child’s

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 5 of 10 and convincingly support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind.

2016).

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

(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[.]

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.

[12] Mother and Father argue that the trial court erred in terminating their parental

rights because there is insufficient evidence that the conditions that resulted in

maternal grandmother as guardian for the child[;]” and (3) “Both parents have failed to participate in treatment services designed to address their parenting inadequacies.” Appellants’ App. p. 35-36. Because we find that the trial court’s conclusions are supported by factual findings that the parents do not dispute, we need not address the support for these three facts in particular. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992); In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 6 of 10 H.H.’s removal will not be remedied, and there is insufficient evidence that

termination is in H.H.’s best interests.2

I. Reasonable Probability That the Conditions Resulting in Removal Will Not Be Remedied [13] Determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied requires in a two-step

analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). First, the conditions

that led to removal or placement outside the home must be identified and,

second, the court must determine whether there is a reasonable probability that

those conditions will not be remedied. Id. The second step requires trial courts

to judge a parent’s fitness at the time of the termination proceeding, taking into

consideration evidence of changed conditions, and balancing any recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. In determining

fitness, trial courts have discretion to weigh a parent’s prior history against

efforts made only shortly before termination, and courts may find that past

behavior is the best predictor of future behavior. Id.

2 Mother and Father also argue that there is insufficient evidence to support the trial court’s conclusion that continuation of the parent-child relationship poses a threat to the child’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 trial court’s determination that the conditions resulting in H.H.’s removal will not be remedied. Therefore, we need not address whether continuation of the parent- child relationship poses a threat to H.H.’s well-being.

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 7 of 10 [14] In this case, Father was in prison when H.H. was removed from Mother’s

home. Because Mother and Father were not residing in the same household,

we address each parent separately.

A. Mother [15] Here, H.H. was removed from Mother because Mother did not have stable

housing or income and H.H. contracted gonorrhea, apparently as a result of

sexual abuse. In determining whether these conditions were likely to be

remedied, the trial court may also consider Mother’s response to the services

offered through DCS. Lang v. Starke Cnty. Office of Family & Children, 861

N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness

to deal with parenting problems and to cooperate with those providing social

services, in conjunction with unchanged conditions, support a finding that there

exists no reasonable probability that the conditions will change.” In re L.S., 717

N.E.2d 204, 210 (Ind. Ct. App. 1999), trans. denied.

[16] At the time of the termination hearing, Mother had neither stable housing nor

stable income, and she had not complied with much of the dispositional order.

She stopped and started substance-abuse treatment on three different occasions

without successfully completing it. Of her forty drug screens, only eight were

negative. She missed half of her appointments with her mental-health

counselor and did not complete the home-based services DCS provided. She

had a steady job for one month, but otherwise she donated plasma, took odd

cleaning jobs, and depended on family and friends for support. She moved

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 8 of 10 multiple times, and two of those moves were in the five months between when

DCS filed the petition to terminate her parental rights and the hearing was

conducted. In sum, Mother did not do what she was ordered to do by the trial

court to provide a safe, stable home for H.H. The trial court did not clearly err

in determining that the conditions that led to H.H.’s removal from Mother are

unlikely to be remedied.

B. Father [17] Because H.H. was not living with Father at the time of removal by DCS, the

inquiry with respect to him is whether there is a reasonable probability that he

will not remedy the reason H.H. was not placed with him when she was

removed from Mother’s home. See In re I.A., 934 N.E.2d at 1134. The trial

court must first determine what conditions led to DCS placing and then

retaining H.H. with her paternal grandparents rather than placing her with

Father. Id. Second, the trial court must determine whether there is a

reasonable probability that those conditions will not be remedied. Id.

[18] When H.H. was removed from her home in August 2013, Father was in prison,

preventing DCS from placing her with Father. Father finished serving four-

and-a-half years in prison in June 2015, he lived at four different addresses

between June and September, and then he missed the final two days of hearings

on the termination petition because he was incarcerated again for violating his

probation. Given Father’s extensive criminal history, we cannot say the trial

court clearly erred in concluding that there is a reasonable probability the

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 9 of 10 circumstances that prevented DCS from placing H.H. with him will not be

remedied.

II. Best Interests of the Children [19] Mother and Father next argue that the trial court erred in determining that

termination is in H.H.’s best interests. In determining what is in a child’s best

interests, the trial 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. In so doing, the trial

court must subordinate the interests of the parent to those of the child. Id. The

court need not wait until a child is irreversibly harmed before terminating the

parent-child relationship. Id. We have previously held that recommendations

by both the FCM and the 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 convincing evidence that termination is in the

child’s best interests. Id. at 1158-59.

[20] Here, the FCM and the CASA both testified that termination is in the child’s

best interests. As we have already discussed, there is evidence that the

conditions resulting in removal will not be remedied. Therefore, the trial court

did not clearly err in concluding that termination of parental rights is in H.H.’s

best interests.

[21] Affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A04-1602-JT-445 | September 29, 2016 Page 10 of 10