In the Termination of the Parent-Child Relationship of: B.L.D.H. (Minor Child), and D.D. (Mother) & B.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 22A05-1606-JT-1325
• 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 Jan 13 2017, 9:25 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT – ATTORNEYS FOR APPELLEE MOTHER Curtis T. Hill, Jr. Matthew J. McGovern Attorney General of Indiana Anderson, Indiana Robert J. Henke ATTORNEY FOR APPELLANT – David E. Corey FATHER Deputy Attorneys General Indianapolis, Indiana Mark Small Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- January 13, 2017 Child Relationship of: Court of Appeals Case No. 22A05-1606-JT-1325 B.L.D.H. (Minor Child), Appeal from the Floyd Circuit and Court D.D. (Mother) & B.H. (Father), The Honorable J. Terrence Cody, Appellants-Respondents, Judge Trial Court Cause No. v. 22C01-1508-JT-517

The Indiana Department of Child Services, Appellee-Plaintiff

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 1 of 9 Baker, Judge.

[1] D.D. (Mother) and B.H. (Father) (collectively, Parents) appeal the trial court’s

order terminating their parent-child relationship with their child, B.L.D.H.

(Child). Mother and Father argue that there is insufficient evidence supporting

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

Facts [2] Child was born in November 2013. Both Father and Mother have had

substance abuse issues for many years. Father’s substance abuse began when

he was run over by a train, an accident that led to the amputation of both of his

legs.

[3] In January 2014, Father battered Mother. This resulted in a protective order,

which prohibited Father from being in contact with Mother or Child.

Protective order notwithstanding, in February 2014, Father and Mother went to

a hospital together because of back pain that Father was experiencing. Child

was at Father’s brother’s house, where Child was staying the night. After

observing symptoms of drug use, the hospital called an Indiana Department of

Child Services (DCS) family case manager (FCM). The FCM noted that

Parents were unable to stay conscious or communicate and that they were

shaking. When DCS went to pick up Child from the relative’s house, the

relative informed DCS that Child had been covered in feces from head to toe

when he was dropped off. DCS also decided against placing Child with

Father’s brother because he had a prior conviction for operating a vehicle while

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 2 of 9 intoxicated. Instead, Child was placed with Mother’s niece, where he has

remained ever since.

[4] DCS filed a petition alleging that Child was a child in need of services (CHINS)

based upon Father’s domestic violence, his violation of the protective order,

and Parents’ substance abuse. At an April 10, 2014, hearing, Father waived the

factfinding process and Mother admitted to the CHINS allegations. In

particular, Mother admitted that she had taken more than the prescribed

amount of her medication and that she was living with Father in violation of

the protective order.

[5] The trial court issued a dispositional decree on June 26, 2014. It ordered

Parents to comply with several requirements, including the following: contact

the FCM weekly; notify the FCM of any arrests; allow the FCM to see the child

and home; enroll in courses recommended by the FCM; keep all appointments;

obtain suitable housing and stable income; avoid drugs, alcohol, and illegality;

submit to random drug screens; and attend all scheduled visitations with Child.

[6] Mother was also ordered to comply with the terms of probation stemming from

previous convictions. In September 2007, she had been convicted of theft as a

Class D felony. Her violations of the terms of probation associated with this

first conviction had already been dismissed pursuant to a plea agreement

regarding a second conviction, this time for Class B felony dealing in a

controlled substance in May 2011. Before the June 2014 dispositional decree

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 3 of 9 was entered, Mother had already violated her new terms of parole and, on

March 19, 2014, had been sentenced to sixty days in jail.

[7] Mother’s participation in services has been inconsistent, perhaps owing to the

nearly fifteen months she spent in jail between Child’s removal in February

2014 and the eventual termination of parental rights (TPR) hearing held on

May 2, 2016. Even when she was not in jail, she did not consistently

participate in services, attend her random drug screens, remain drug free, or

maintain contact with DCS. She also failed to attend many of her scheduled

visitations with Child.

[8] Likewise, Father did not participate in services. DCS recommended drug

therapy, but he has not met with a therapist or caseworker since July 2014.

DCS referred him to another substance abuse evaluation, but he was discharged

from the program in April 2015 because of his noncompliance. Since the

dispositional decree, Father has continued to use drugs, to drink, and has tested

positive for methamphetamine as recently as one month before the termination

hearing. Father has only visited Child thirteen times during the pendency of the

CHINS case, and Child does not recognize him as a father figure. On one

occasion, Child threw a tantrum because he wanted to be returned to his

relative caregiver. At the TPR hearing, Father was unable to remember Child’s

birthdate.

[9] Neither Mother nor Father will be in a position to care for Child in the

immediate future. On August 21, 2015, Mother’s probation was revoked after

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 4 of 9 failing a drug screen and having contact with Father. She was sentenced to four

years imprisonment, with the last six months to be served at a halfway house.

She is currently in prison, scheduled to be released in August 2017. Father has

been unable to maintain housing through the entire pendency of the CHINS

case and is currently living with his brother.

[10] On August 31, 2015, DCS filed a petition seeking the termination of Parents’

rights. On May 2, 2016, the trial court held a TPR hearing. An FCM testified

that Parents were not likely to fix their substance abuse issues because they had

failed to demonstrate any long-term change in the entire two-year CHINS case.

Another FCM noted that Mother has only been able to maintain sobriety while

incarcerated, and so would likely relapse upon her release. A court appointed

special advocate (CASA) likewise opined that Parents would not be able to

provide Child with a safe and stable home. Both FCMs testified that

termination would be in Child’s best interest, as his current caregivers would

like to adopt him.

[11] On June 7, 2016, the trial court ordered that Parents’ parental rights be

terminated. It denied DCS’s motion to issue findings of fact and conclusions of

law, but issued a series of both sua sponte. The termination order stressed

Parents’ repeated incarcerations and drug abuse, and noted that neither would

be in a position to take care of Child in the immediate future. While

acknowledging that Parents were currently expressing the desire to turn their

lives around, the trial court found that Parents “have made a conscious decision

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 5 of 9 to not make any attempt to comply with the terms of the Dispositional Decree.”

Appellant’s App. p. 47. Parents now separately appeal.

Discussion and Decision [12] Both Parents argue that the evidence is not sufficient to support the trial court’s

decision. Mother also argues that the trial court’s findings of fact do not

support its judgment.

[13] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229–30.

[14] Indiana Code section 31–35–2–4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 6 of 9 (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 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

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 7 of 9 (D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

[15] Father argues that there is not sufficient evidence to prove that termination is in

the best interests of Child. Mother argues the same and also argues that there is

insufficient evidence to prove that there is a reasonable probability that the

conditions that resulted in Child’s removal will not be remedied.

[16] Child was removed from Parents in February 2014 based, in part, on Parents’

abuse of drugs. Child had been dropped off, covered from head to toe in feces,

at a relative’s house so that Parents could go to the hospital; once Parents were

there, they were so intoxicated that they could not communicate or stop

shaking. Both have failed to complete the substance abuse classes offered

during the CHINS case and both have admitted to continued drug use. Indeed,

Mother is currently in prison because her probation was revoked after she failed

a drug screen, and Father tested positive for methamphetamine use just one

month prior to the termination hearing. Given that Child was removed due to

Parents’ drug use, and that Parents were either imprisoned for drug use or

currently using drugs at the termination hearing more than two years later,

there was sufficient evidence that the condition that led to Child’s removal will

not be remedied. And the same evidence regarding Parents’ inability to stop

abusing drugs also suffices to show that termination was in the best interests of

Child. Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 8 of 9 [17] Mother attempts to analogize her situation to cases that have held that the

evidence supporting a TPR is insufficient where the trial court’s findings focus

on historical shortcomings while ignoring changed conditions, In re C.M., 960

N.E.2d 169, 175 (Ind. Ct. App. 2011); or that incarceration alone is an

insufficient basis for terminating parental rights, In re G.Y., 904 N.E.2d 1257,

1264-66 (Ind. 2009); or that a parent’s rights “may not be terminated solely

because there may be a better home available for that child.” In re R.A., 19

N.E.3d 313, 321 (Ind. Ct. App. 2014).

[18] We do not find these cases analogous to Mother’s situation. While C.M. held

that a trial court cannot ignore changed conditions, the trial court here noted

that Mother is presently incarcerated for failing a drug screen. Nor did the

court terminate Mother’s rights due solely to her incarceration; her present

incarceration for failing a drug screen indicates that there is a reasonable

likelihood that she will not be able to remedy her substance abuse issues. And

the trial court did not terminate her rights solely because there was a better

home available for Child. Child was removed from Parents’ home because of

their abuse of drugs; more than two years later, after failing to take advantage of

classes and therapy offered by DCS, Mother was in jail for failing a drug screen

and Father was still testing positive for methamphetamine use. The evidence is

sufficient to support the trial court’s order terminating Parents’ parental rights.

[19] The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A05-1606-JT-1325 | January 13, 2017 Page 9 of 9