MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 23 2016, 8:55 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 APPELLANT ATTORNEYS FOR APPELLEE Danielle L. Gregory Gregory F. Zoeller Indianapolis, 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
N.H., May 23, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1510-JT-1627 v. Appeal from the Marion Superior Court Indiana Department of Child The Honorable Marilyn Moores, Services, Judge Appellee-Plaintiff. The Honorable Larry Bradley, Magistrate Trial Court Cause No. 49D09-1505-JT-280 and 49D09- 1505-JT-281
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 1 of 18 Case Summary
[1] N.H. (Father) appeals the involuntary termination of his parental rights to his
children. He raises the following issues on appeal:
1. Did the trial court abuse its discretion in denying his motion for a continuance?
2. Was the trial court’s order terminating his parental rights supported by sufficient evidence?
[2] We affirm.
Facts & Procedural History
[3] Father and K.S. (Mother)1 have two children together, H.H. (Daughter), who
was born in 2012, and J.H. (Son), who was born in 2014 (collectively, the
Children). On February 20, 2014, the Department of Child Services (DCS)
filed a petition alleging that Son was a Child in Need of Services (CHINS)
because he had tested positive for methadone at birth. A month later, DCS
filed a petition alleging that Daughter was a CHINS because she had been
found unsupervised while in Father’s care and Father tested positive for
amphetamines and methamphetamine. The Children were both placed in
foster care.
1 Mother consented to the termination of her parental rights and does not participate in this appeal. Accordingly, we limit our recitation of the facts to those relevant to Father’s appeal.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 2 of 18 [4] Prior to the CHINS determination, Father was referred for a substance abuse
assessment, which he completed in April 2014. In May 2014, the Children
were adjudicated CHINS, and following a dispositional hearing, Father was
ordered to participate in a number of services, including home-based
counseling, a substance-abuse assessment, random drug screens, a
psychological evaluation, and a parenting program. Father was also ordered to
complete all treatment recommendations developed as a result of the substance-
abuse assessment and psychological evaluation.
[5] Father did not follow through with treatment recommendations resulting from
his April 2014 substance-abuse assessment. Specifically, it was recommended
that Father participate in outpatient treatment until he could be admitted into
inpatient treatment. It was also recommended that Father complete individual
therapy, weekly drug screens, a clinical interview, and a parenting assessment.
Father attended one therapy session, and it was recommended that he
participate in an inpatient program before furthering his substance abuse
services “due to his high needs.” Transcript at 13. DCS repeatedly attempted to
contact Father to arrange inpatient treatment, but Father did not respond.
Father did not complete a June 2014 referral for a second substance-abuse
assessment. Father also failed to participate in home-based case management
and was inconsistent with submitting to random drug screens and participating
in supervised visitation.
[6] Father was arrested in August 2014 and spent seven months in jail. While
Father was incarcerated, the trial court ordered that his supervised visitation be
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 3 of 18 suspended until he consistently participated in services for a period of one
month. Upon his release in March 2015, Father contacted DCS and was again
referred for services. At a permanency hearing on April 17, 2015, DCS
reported that Father had tested positive for methamphetamine a few days after
his release from jail. DCS also reported that Father been referred for a mental
health evaluation and detox, but that he had not engaged in those services. At
that time, the trial court changed the permanency plan for the Children to
adoption.
[7] Father subsequently completed a substance-abuse assessment and a five-day
detox program. He was required to enroll in inpatient treatment by April 27,
2015, but he failed to do so. On May 7, 2015, DCS filed its termination
petition. Father was arrested again in June 2015, and he remained incarcerated
at the time of the September 1, 2015 termination hearing, at which he appeared
telephonically.2 At the conclusion of the hearing, the trial court took the matter
under advisement. On September 18, 2015, the trial court issued its order
terminating Father’s parental rights to the Children. Father now appeals.
Additional facts will be provided as necessary.
Discussion & Decision
2 The transcript lists the date of this hearing as August 31, 2015. However, the Chronological Case Summary lists the date as September 1, 2015.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 4 of 18 [8] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its
judgment terminating a parent-child relationship only if it is clearly erroneous.
In re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the
evidence and inferences support the decision, we must affirm. Id.
[9] The trial court entered findings in its order terminating Father’s parental rights.
When the trial court enters 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). First, we determine whether the
evidence supports the findings, and second we determine 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). A judgment is clearly erroneous
only if the findings do not support the court’s conclusions or the conclusions do
not support the judgment thereon. Id.
[10] We recognize that 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.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 5 of 18 their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
1. Motion for Continuance
[11] Father first argues that the trial court abused its discretion by denying his
motion to continue the termination hearing. “A trial court’s ruling on a motion
for a continuance in a termination of parental rights case is reviewed for an
abuse of discretion.” In re E.D., 902 N.E.2d 316, 321 (Ind. Ct. App. 2009),
trans. denied. An abuse of discretion may be found when the moving party has
shown good cause for granting the motion, but no abuse of discretion will be
found when the moving party has not demonstrated prejudice resulting from
the denial of the motion. In re K.W., 12 N.E.3d 241, 244 (Ind. 2014).
[12] Father argues that he was entitled to a continuance because, according to his
own testimony, he expected to sign a plea agreement resulting in his discharge
to work release or home detention in November 2015, and he believed his latest
possible release date would be March 2016—that is, six months after the
termination hearing. Father argues that if his request had been granted, he
would have had the opportunity to participate in services upon his release from
jail and demonstrate his ability to remain drug free and provide a stable
environment for the Children. In support of this claim that he desired to
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 6 of 18 participate in services, Father notes that he completed a number of voluntary
programs while incarcerated.
[13] Father directs our attention to Rowlett v. Vanderburgh Cnty. Office of Family &
Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied,3 in which this
court reversed the trial court’s denial of a motion to continue a termination
hearing. The father in that case was arrested, convicted, and incarcerated
shortly after the CHINS case was initiated, and he was due to be released
within six weeks of the termination hearing. Id. at 618. He requested the
continuance because he wanted an opportunity to become established in the
community and to participate in reunification services. Id. at 619. This court
reversed the denial of his motion because he “had not had the opportunity to
participate in services offered by [DCS] or to demonstrate his fitness as a
parent.” Id. The court noted that termination was “particularly harsh” because
the father had participated in numerous services and programs while
incarcerated. Id. Specifically, he “had participated in nearly 1,100 hours of
individual and group services, including services in encounters, anger
management and impulse control, parenting skills, domestic violence, self-
esteem, self-help, and substance abuse.” Id. at 622. Additionally, he had
maintained a relationship with his children through letters and phone calls. Id.
3 The other cases Father cites in support of his argument that he established good cause for a continuance are inapposite because they do not discuss the issue of whether the trial court abused its discretion in denying a parent’s motion for a continuance. Instead, they address the sufficiency of the evidence supporting the trial court’s ruling on a petition to terminate parental rights. We address Father’s sufficiency argument separately.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 7 of 18 [14] This case is readily distinguishable. Father has not been incarcerated
throughout the entirety of the CHINS and termination cases. Instead, he has
had multiple arrests after the Children were removed. Father continued to use
drugs during the CHINS case, testing positive for methamphetamine shortly
after being released from a seven-month stint in jail. Indeed, Father testified
that the last time he used drugs was June 18, 2015—the date of his last arrest.
Moreover, Father failed to participate in reunification services on two separate
occasions when he was not incarcerated and he has not had contact with the
Children since July 2014. Additionally, according to his own testimony, under
the terms of his expected plea agreement, Father could have spent as long as six
more months in jail following the termination hearing. Finally, Father’s
participation in programs while incarcerated is not nearly as extensive as that of
the father in Rowlett, and while a number of Certificates of Completion were
entered into evidence showing that Father had participated in programs during
his incarceration, none of the certificates address substance-abuse treatment.4
[15] In sum, Father has had the opportunity to engage in reunification services as
ordered, and he has consistently chosen not to do so. In light of Father’s dismal
track record, we cannot conclude that the trial court abused its discretion in
4 Although Father testified that he participated in programs relating to substance abuse and relapse prevention and that he had been active in Alcoholics Anonymous and Narcotics Anonymous, he presented no documentary evidence supporting these assertions.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 8 of 18 declining to allow him still more time to demonstrate that he could become an
adequate parent.
2. Sufficiency of the Evidence
[16] Father also challenges the trial court’s judgment terminating his parental rights
as unsupported by the evidence. First, Father argues that a number of the trial
court’s factual findings are clearly erroneous. Specifically, Father challenges
the trial court’s finding number 13, in which the court stated that
“[d]etoxification and substance abuse assessments were referred in June 2014.
[Father] failed to participate.” Appellant’s Appendix at 20. Father argues that
this finding is clearly erroneous because he underwent a substance-abuse
assessment and detox program in April 2015. Father fails to note that those
services were not completed until after he was referred for services a second
time after being released from jail in March 2015. The trial court’s finding that
Father did not complete the substance-abuse services referred in June 2014 is
supported by the record.
[17] Father also challenges finding number 15, in which the trial court stated that
“[a] drug screen referral was made in April 2014. No screens were conducted.”
Id. DCS concedes that this finding is not supported by the record, noting that
the evidence presented at the termination hearing instead established that
Father submitted to some drug screens, but his participation was inconsistent.
Although the trial court’s finding that no screens were conducted was incorrect,
in light of Father’s failure to consistently submit to drug screens, we conclude
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 9 of 18 that the error was not so serious that it affected the trial court’s ultimate
decision. See In re A.C.B., 598 N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming
the termination of parental rights despite an erroneous finding because the error
was “not of such magnitude that it calls into question the court’s conclusion”).
[18] Father next challenges finding number 17, in which the trial court stated that
“[p]arenting time was to take place two times a week and a referral started [o]n
May 27, 2014. Sessions were closed out by the supervising agency due to
[Father] not appearing, or cancelling, too many times.” Appellant’s Appendix at
21. This finding is clearly supported by the testimony of Family Case Manager
(FCM) Sonja Daniel. Specifically, FCM Daniel testified that Father “began
seeing his children for visits on May 27th, 2014 and visits occurred up until July
3rd, 2014 and that was because the Children’s Bureau closed out due to too
many no shows and cancellations on [Father’s] behalf.” Transcript at 18.
[19] Father also takes issue with finding number 27, in which the trial court states
that Father “was in a detoxification program from April 21, 2015 through April
25, 2015. He failed to follow up with treatment thereafter.” Appellant’s
Appendix at 21. Father argues that he did, in fact, follow up with four to six
weeks of treatment before becoming incarcerated. The record indicates that
although Father completed detox in April 2015, he did not enroll in inpatient
treatment as recommended by the service provider. Although Father testified
that he “went to Midtown [and] . . . was there for about four to six weeks,” he
did not explain what services he received there. Transcript at 113. In any event,
Father presented no evidence supporting his assertion that he received
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 10 of 18 treatment of any kind at Midtown, and the trial court was not required to credit
Father’s testimony to that effect. Finding number 27 is supported by the record.
[20] Father next challenges finding number 28, which simply states that “[n]o other
services were completed.” Appellant’s Appendix at 21. To be fully understood,
this finding must be read in conjunction with the preceding findings, which
state that upon his release from jail in March 2015, Father was referred for
detox, substance-abuse treatment, random drug screens, and home-based
therapy and case management. Finding number 28 indicates that aside from
the detox program mentioned in finding number 27, Father did not complete
any of those services. This finding is supported by the record.
[21] Father next takes issue with finding number 39, which states in relevant part
that “[w]ithout successfully addressing substance abuse addiction, [Father]
would not be able to provide the [C]hildren with a safe environment. His
pattern of criminal activities could lead to further instability and not being
available to parent.” Appellant’s Appendix at 21-22. Father claims that he
addressed his addiction and criminal behavior by participating in substance-
abuse assessments, an aftercare program (apparently referring to the services he
claims to have received at Midtown), and various programs while in jail. As we
noted above, Father submitted no evidence supporting his claim that he
participated in substance-abuse treatment at Midtown, and although Father
participated in programs while incarcerated, he submitted no evidence that any
of those programs addressed substance abuse. Although Father participated in
a substance-abuse assessment and detox program, he did not follow up with
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 11 of 18 treatment recommendations. In light of Father’s untreated substance-abuse
problems and his history of committing substance-related offenses, it was
perfectly reasonable for the trial court to find that Father’s patterns of behavior
could lead to further instability and future incarcerations.
[22] Father also challenges the trial court’s “Combined Finding/Conclusion 40,”
Appellant’s Brief at 25, in which the trial court stated that this case is
distinguishable from In re K.E., 39 N.E.3d 641, 644 (Ind. 2015), in which our
Supreme Court reversed the termination of an incarcerated father’s parental
rights. Although this case and K.E. share certain factual similarities, the cases
are readily distinguishable. Notably, the father in K.E. was incarcerated prior to
the child’s birth and remained so throughout the entirety of the CHINS and
termination proceedings and therefore had no opportunity to participate in
services in the community. Id. Additionally, the father in K.E. had maintained
contact with the child through visitation and nightly phone calls. Id. In this
case, however, Father, had the opportunity to participate in services while he
was not incarcerated, and instead continued to use drugs and commit crimes.
Moreover, his supervised visitation with the Children was ended after he
repeatedly cancelled and/or failed to show up, and his visits were never
reinstated because he failed to participate in services and provide clean drug
screens. The trial court’s finding that K.E. is distinguishable from this case is
not clearly erroneous.
[23] We next address Father’s argument that the findings were insufficient to
support the trial court’s ultimate judgment terminating his parental rights.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 12 of 18 Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, 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[.]
Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
evidence that termination is in the best interests of the child. I.C. § 31-35-2-
4(b)(2)(C).
[24] Father challenges the trial court’s findings as to subsection (b)(2)(B)(i) and (ii).
We note that DCS was required to establish only one of the three requirements
of subsection (b)(2)(B) by clear and convincing evidence before the trial court
could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.
App. 2003). Here, the trial court found that DCS presented sufficient evidence
to satisfy two of those requirements, namely, that there is a reasonable
probability the conditions resulting in the Children’s removal or continued
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 13 of 18 placement outside Father’s care will not be remedied and that the continuation
of the parent-child relationship poses a threat to the Children’s well-being. See
I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of
subsection (b)(2)(B)(i)—that is, whether there was sufficient evidence to
establish a reasonable probability that the conditions resulting in the Children’s
removal or continued placement outside Father’s care will not be remedied.
[25] In making such a determination, the trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation of the child. Id. In making this
determination, courts may consider evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
The court may also consider the parent’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
at 210. Moreover, the failure to exercise visitation demonstrates a “lack of
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 14 of 18 commitment to complete the actions necessary to preserve [the] parent-child
relationship.” Lang, 861 N.E.2d at 372 (quoting In re A.L.H., 774 N.E.2d 896,
900 (Ind. Ct. App. 2002)) (alteration in original).
[26] The trial court made the following finding with respect to subsection
(b)(2)(B)(i):
There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their father. [Father] has had a number of months while not incarcerated to demonstrate he is able or willing to make the effort needed to be given additional time to pursue reunification. However his lack of participation in services and parenting time, and his pattern [of] drug use and criminal activities evidences he is not able or willing to overcome conditions.
Appellant’s Appendix at 21.
[27] On appeal, Father argues that he demonstrated he is willing and able to make
the necessary changes by completing a substance-abuse assessment, detox, and
participating in programs in jail. As we have explained, however, Father never
followed through with substance-abuse treatment as ordered and he continued
to use drugs even after the termination petition was filed. Father also failed to
participate in home-based services and he did not consistently submit to
random drug screens. Although Father was incarcerated and therefore unable
to participate in services throughout much of the underlying CHINS case, it is
well settled that “[i]ndividuals who pursue criminal activity run the risk of being
denied the opportunity to develop positive and meaningful relationships with
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 15 of 18 their children.” Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 374
(Ind. Ct. App. 2006) (quoting Matter of A.C.B., 598 N.E.2d 570, 572 (Ind. Ct.
App. 1992)), trans denied. Moreover, Father failed to participate in services
when he was not incarcerated, even failing to consistently attend supervised
visitation. After Father’s visits were suspended, he did not participate in
services and provide clean drug screens as necessary to have his visits
reinstated, and as a result, he has not had contact with the Children since July
2014. As for Father’s assertion that his participation in services while in jail
precludes a finding that conditions will not be remedied, our Supreme Court
has explained that the trial court may in its discretion weigh a parent’s prior
history more heavily than efforts made only shortly before termination. In re
K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).
[28] Father also directs our attention to his own testimony that he had been drug
free for three months at the time of the termination hearing. We note, however,
that Father was incarcerated during that entire period, and he immediately
went back to using drugs the last time he was released from jail in March 2015.
For all of these reasons, the trial court’s finding that there is a reasonable
probability that the conditions resulting in the Children’s removal and
continued placement outside Father’s care will not be remedied is amply
supported by the evidence. Father’s arguments to the contrary are merely
requests to reweigh the evidence.
[29] Father also challenges the trial court’s finding that termination of his rights is in
the Children’s best interests. In determining whether termination of parental
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 16 of 18 rights is in the best interests of a child, the trial court is required to look beyond
the factors identified by DCS and consider the totality of the evidence. In re
J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court
must subordinate the interest of the parent to those of the child, and the court
need not wait until a child is irreversibly harmed before terminating the parent-
child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798
N.E.2d 185, 199 (Ind. Ct. App. 2003).
[30] Here again, Father’s argument is simply a request to reweigh the evidence.
Throughout the entirety of these proceedings, Father has been using drugs and
has been in and out of jail. Consequently, he has been unable to be a stable
presence in the Children’s lives or provide adequate supervision. Father’s
arguments to the contrary notwithstanding, he had made no real progress
toward these goals at the time of the termination hearing. According to his
own testimony, he was facing as much as six more months in jail before he
would have the opportunity to even begin to demonstrate that he could
participate in services consistently, remain drug free, and provide an
appropriate home. The Children cannot wait forever; they need stability and
permanency now. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010)
(explaining that “a child’s need for permanency is an important consideration
in determining the best interests of a child”). For all of these reasons, we
conclude that the evidence presented was sufficient to support the trial court’s
finding that termination was in the Children’s best interests.
[31] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 17 of 18 [32] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-JT-1627 | May 23, 2016 Page 18 of 18