In the Matter of the Term. of the Parent-Child Relationship of S.H. (child) and M.H. (father) and C.H. (Mother) M.H., and C.H. v. The Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 16, 2015
• Docket: 08A02-1505-JT-298
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 16 2015, 8:37 am 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.

ATTORNEY FOR APPELLANT, C.H. ATTORNEYS FOR APPELLEE Mark A. Delgado Gregory F. Zoeller Monticello, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT, M.H. Robert J Henke Steven Knecht James D. Boyer Vonderheide & Knecht, PC Deputies Attorney General Lafayette, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 16, 2015 of the Parent-Child Relationship Court of Appeals Case No. of S.H. (child) and M.H. (father) 08A02-1505-JT-298 and C.H. (mother); Appeal from the Carroll Superior Court M.H. (father), and The Honorable Kurtis G. Fouts, C.H. (mother), Judge Appellants-Respondents, Trial Court Cause No. 08D01-1408-JT-3 v.

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 1 of 12 May, Judge.

[1] M.H. (Father) and C.H. (Mother) (collectively Parents) appeal the involuntary

termination of their parental rights to S.H. (Child). Parents argue the

Department of Child Services (DCS) did not present sufficient evidence the

conditions under which Child was removed from their care would not be

remedied and termination was not in the best interest of Child. In addition,

Mother asserts the trial court erred when it did not dismiss the termination

proceedings because P.H. (Paternal Grandmother) did not receive notice of the

hearing. We affirm.

Facts and Procedural History [2] Child was born to Mother on November 11, 2012. At birth, Mother and Child

tested positive for amphetamines for which Mother could not produce a valid

prescription. Mother and Father were married at the time of Child’s birth.

DCS substantiated neglect and referred Parents to “intensive home based”

services, (February 17, 2015 Tr.1 at 57), which they did not successfully

complete.

[3] On March 3, 2013, Lafayette police investigated a shoplifting complaint

involving Father. While Father had not shoplifted, the police discovered him in

1 Each hearing has a separately-numbered transcript, so we will refer to the transcript based on the date of the hearing. We remind the court reporter of Indiana Appellate Rule 28(A)(2), which requires all volumes of a transcript to be consecutively numbered.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 2 of 12 a state that rendered him unable to drive because of suspected untreated renal

failure. Police drove Father to the hotel where he, Mother, and Child were

staying and discovered in plain view an array of prescription pills and alcohol in

the room with the four-month-old Child. Mother was not forthcoming with her

identity, and when police confirmed her name, she was arrested on an

outstanding warrant. Child was removed by DCS because Mother was arrested

and Father was unable to care for Child due to his medical condition.

[4] On March 5, 2013, DCS alleged Child was a Child in Need of Services

(CHINS). On May 29, 2013, after a hearing, the trial court adjudicated Child a

CHINS because Mother was arrested while on probation and remained

incarcerated at the time of the CHINS hearing, Mother had an alcohol abuse

problem, and Father had acute kidney failure for which he did not seek

treatment, rendering him unable to care for Child. In its June 24 dispositional

order and parental participation orders, the trial court ordered Parents to,

among other things: keep all appointments with DCS staff and service

providers; maintain appropriate and consistent housing and income; abstain

from using illegal substances and take prescription medication as directed; not

use alcohol; visit Child as scheduled; and participate and complete services such

as intensive family preservation program, parenting assessment and

recommendations, substance abuse assessment and recommendations, random

drug screens, and psychological evaluation and recommendations. Father was

also ordered to participate in a medical evaluation and follow all

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 3 of 12 recommendations, and Mother was ordered to follow the terms of her

probation.

[5] The trial court ordered Child placed with Mi.H. and P.H. (collectively Paternal

Grandparents). That placement was briefly changed to foster care on October

17, 2013, after DCS learned Parental Grandparents allowed Parents to visit

with Child unsupervised in violation of the safety plan. Child returned to

Paternal Grandparents’ care on October 30, but was again removed in

December after Mi.H.’s death. Placement into foster care was necessary at that

time because Parents and DCS had concerns regarding Paternal Grandmother’s

ability to care for Child alone.

[6] On December 6, 2013, the trial court found Parents in contempt of the

disposition and parental participation orders because Parents were not

participating in services and failed several drug screens. Mother was sentenced

to 120 days and Father was sentenced to 30 days incarceration. On January 13,

2014, the trial court a second time found Father in contempt because Father

failed multiple drug screens. Father was sentenced to an additional 120 days.

On May 22, 2014, Mother and Father were again found in contempt for failing

multiple drug screens and sentenced to 60 days each.

[7] On August 29, 2014, DCS filed a petition to involuntarily terminate Parents’

parental rights to Child. The trial court held fact finding hearings on November

24, 2014, February 17, 2015, and February 24, 2015. At the beginning of the

February 17 hearing, Parents’ respective counsels orally moved to dismiss the

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 4 of 12 termination proceedings because they claimed Paternal Grandmother had not

received notice of the hearing. The trial court denied the motion. On April 13,

2015, the trial court issued an order involuntarily terminating Parents’ rights to

Child.

Discussion and Decision Motion to Dismiss

[8] During the second fact-finding hearing on February 17, 2015, Parents’

collective counsels orally moved to dismiss the termination proceedings because

Paternal Grandmother was not given notice of the hearing. Ind. Code § 31-35-

2-6.5(f) requires the court to provide “any other suitable relative or person who

the department knows has had a significant or caretaking relationship to the

child,” Ind. Code § 31-35-2-6.5(c)(5), “an opportunity to be heard and make

recommendations to the court at the hearing.” Ind. Code § 31-35-2-6.5(f). The

trial court denied the motions, finding Paternal Grandmother to be a relative

not suitable to care for Child due to Paternal Grandmother’s inability to drive

and numerous health problems and thus not entitled to notice of the hearing

under Ind. Code § 31-35-2-6.5(c)(5).

[9] Mother argues:

Paternal Grandmother was never provided notice of the parental rights termination hearing, violating a substantial due process right. As a result, [P]aternal [G]randmother was unable to assert any right to guardianship or custody of [Child], which would permit her to remain within [Mother’s] extended family.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 5 of 12 (Br. of Appellant Mother at 10). However, as the State points out, Mother does

not have standing to assert Paternal Grandmother’s rights. In order to establish

standing, Mother must demonstrate she “sustained or was in immediate danger

of sustaining some direct injury as a result of the conduct at issue.” State ex rel

Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005), trans. denied.

Mother has not done so.2

Sufficiency of the Evidence

[10] We review termination of parental rights with great deference. In re K.S., D.S.,

& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

reasonable inferences most favorable to the judgment. Id. In deference to the

juvenile court’s unique position to assess the evidence, we will set aside a

judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

534 U.S. 1161 (2002).

[11] When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first

2 In addition, the “rights” Mother attempts to assert on behalf of Paternal Grandmother, those of the ability to gain guardianship or custody of Child, are not part of the proceedings in front of the termination court. See Ind. Code § 29-3-5-1 (guardianship proceedings) and Ind. Code § 31-17-2-3 (custody proceedings by someone other than a parent).

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 6 of 12 whether the evidence supports the findings and second whether the findings

support the judgment. Id. “Findings are clearly erroneous only when the

record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences

support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

208.

[12] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

subordinate the interests of the parents to those of the child, however, when

evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

at 837. The right to raise one’s own child should not be terminated solely

because there is a better home available for the child, id., but parental rights

may be terminated when a parent is unable or unwilling to meet his or her

parental responsibilities. Id. at 836.

[13] To terminate a parent-child relationship, the State must allege and prove:

(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.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 7 of 12 (iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (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;

(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. Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

denied. If the court finds the allegations in the petition are true, it must

terminate the parent-child relationship. Ind. Code § 31-35-2-8.

Remedy of Conditions Resulting in Child’s Removal

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 8 of 12 [14] Parents argue DCS did not present sufficient evidence to prove the conditions

which resulted in Child’s removal would not be remedied.3 The trial court must

judge a parent’s fitness to care for his child at the time of the termination

hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

[15] Evidence of a parent’s pattern of unwillingness or lack of commitment to

address parenting issues and to cooperate with services “demonstrates the

requisite reasonable probability” that the conditions will not change. Lang v.

Starke County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007). Mother likens

her situation to that of the parents in In re J.M., in which our Indiana Supreme

Court upheld the denial of DCS’s petition to terminate parents’ rights to their

child despite the fact the parents were incarcerated. 905 N.E.2d 191, 194-96

(Ind. 2009). Mother’s reliance on In re J.M. is misplaced, as the parents in that

case had completed all required services and had a stable plan for life post-

incarceration. In contrast, Mother was repeatedly arrested during the

proceedings and did not complete services.

[16] DCS removed Child from Parents’ care because Mother was incarcerated and

Father had physical ailments rendering him unable to care for Child.

Throughout the CHINS and TPR proceedings, Parents tested positive for illegal

3 DCS does not have to prove both a reasonable probability the conditions that resulted in Child’s removal will not be remedied and the continuation of the parent-child relationship between Mother and Child posed a threat to the well-being of Child. The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. See Ind. Code § 31-35-2-4. Because there was a reasonable probability conditions leading to Child’s removal would not be remedied, we need not address whether the continuation of the parent-child relationship posed a threat to Child’s well-being.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 9 of 12 substances multiple times. Mother attended an inpatient substance abuse

program, but was kicked out when she drank alcohol while on a weekend pass.

Father claims he takes his prescribed medication as directed, but drug screens

have indicated varying levels of the substance in his body, which suggests he

did not comply with the court’s order. Mother habitually did not show up for

appointments with service providers. Father repeatedly denied having a

substance abuse problem, despite testing positive for illegal substances.4 In light

of their continuing problems, we see no error in the court’s determination that

the circumstances leading to removal would not change. Parents’ arguments to

the contrary are merely invitations for us to reweigh the evidence, which we

cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh

evidence).

Best Interests of Child

[17] Parents argue DCS did not prove termination of Parents’ rights was in the best

interests of Child, as required by Ind. Code § 31-35-2-4(c). In determining what

is in the best interests of a child, the juvenile court is required to look beyond the

factors identified by DCS and look to the totality of the evidence. McBride v.

Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003). In so doing, the juvenile court must subordinate the interests of the

4 Father contends the trial court’s findings regarding his continued substance abuse and propensity towards the same behavior in the future are not supported by the evidence. His contention is an invitation for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence).

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 10 of 12 parent to those of the child. Id. Recommendations from the case manager and

child advocate that it would be in the child’s best interest to terminate the

parent-child relationship, in addition to evidence that the conditions resulting in

removal will not be remedied, are sufficient to show by clear and convincing

evidence that termination is in the child’s best interests. In re M.M., 733 N.E.2d

6, 13 (Ind. Ct. App. 2000).

[18] Mother analogizes the facts of this case to those in In re G.Y., in which our

Indiana Supreme Court held termination of parental rights was not in the

child’s best interests because mother’s incarceration had not resulted from a

crime committed during the child’s lifetime, mother had completed all services,

and mother had a good relationship with the child. 904 N.E.2d 1257, 1263-64

(Ind. 2009), reh’g denied. Mother’s reliance on In re G.Y. is misplaced because

she was arrested multiple times after Child’s birth, did not complete required

services, and never progressed beyond supervised visits with Child.

[19] Child spent only the first four months of her life with Parents. Since December

2013, Child has been in foster care with a family who is interested in adopting

her. Parents have repeatedly violated the trial court’s orders, resulting in

contempt findings and related incarcerations. They have abused drugs and

have not completed services. Mother’s visitation with Child was inconsistent

due to incarceration, and Father was reported to have shown aggression toward

Child during a visit when he became frustrated with Child’s behavior. Child’s

Guardian ad Litem testified she felt Parents’ behavior “shows that there is a

substantial probability of future neglect of [Child] or deprivation of [Child’s]

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 11 of 12 needs.” (February 17, 2015 Tr. at 189.) That evidence supports the court’s

conclusion, and Parents’ arguments to the contrary are invitations for us to

reweigh the evidence, which we cannot accept. See In re D.D., 804 N.E.2d at

265 (appellate court cannot reweigh evidence).

Conclusion [20] Mother did not have standing to assert any rights available to Paternal

Grandmother. Additionally, there was sufficient evidence the conditions under

which Child was removed from Parents’ care would not be remedied and

termination was in Child’s best interests. Therefore, involuntary termination of

Parents’ rights to Child was appropriate. We accordingly affirm the decision of

the trial court.

[21] Affirmed.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015 Page 12 of 12