T.H. and J.W. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 27, 2015
• Docket: 71A03-1503-JT-110
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 27 2015, 8:51 am 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 ATTORNEYS FOR APPELLEE Mark S. Lenyo Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Philip R. Skodinski Robert J. Henke South Bend, Indiana Deputy Attorney General

Abigail R. Recker Deputy Attorney General

IN THE COURT OF APPEALS OF INDIANA

T.H. and J.W., October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 71A03-1503-JT-110 v. Appeal from the St. Joseph Probate Court Indiana Department of Child The Honorable James Fox, Judge Services, Trial Court Cause Nos. Appellee-Plaintiff 71J01-1302-JT-13 71J01-1302-JT-14 71J01-1311-JT-78

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 1 of 11 Case Summary

[1] T.H. (Mother) and J.W. (Father) (collectively, Parents) appeal the involuntary

termination of their parental rights to J.L.W. (Child 1), J.L.H. (Child 2), and

J.H. (Child 3) (collectively, the Children). Parents challenge the sufficiency of

the evidence supporting the probate court’s order terminating their rights.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father are the parents of three children: Child 1, born in

December 2010, Child 2, born in November 2011, and Child 3, born in January

2013. The family first came to the attention of the Department of Child

Services (DCS) shortly after Child 1’s birth due to a report that Child 1’s

newborn meconium screening had been positive for marijuana. In January

2011, Parents entered into a program of informal adjustment, under the terms

of which both Mother and Father agreed to take random drug screens, among

other things. Child 1 remained in their custody at that time.

[4] In October 2011, DCS filed a request for unsatisfactory discharge of the

informal adjustment and a petition alleging that Child 1 was a child in need of

services (CHINS). DCS alleged that Mother had continued to test positive for

marijuana and that she had tested positive for cocaine on more than one

occasion. DCS also noted that Mother was pregnant and due to give birth in

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 2 of 11 November. The probate court granted DCS’s request to discharge the informal

adjustment and set a fact-finding hearing for the CHINS petition.

[5] In November 2011, Mother gave birth to Child 2, whose newborn meconium

screening was also positive for THC. DCS filed a CHINS petition with respect

to Child 2, but because Mother tested negative for all controlled substances

shortly after Child 2’s birth, Child 1 and Child 2 were left in the home at that

time. In January 2012, however, Mother tested positive for cocaine, and DCS

filed an emergency motion to remove Child 1 and Child 2 from Mother and

Father’s custody. Following a detention hearing, the probate court granted the

motion and Child 1 and Child 2 were placed in foster care. A fact-finding

hearing was held on January 31, 2012, at which Mother and Father admitted

the allegations against them and Child 1 and Child 2 were adjudicated CHINS

and continued in foster care. The probate court entered a dispositional order on

February 16, 2012, pursuant to which Mother and Father were ordered to

participate in counseling, visit with the children weekly, keep in touch with

DCS, and submit to random drug screens.

[6] On October 17, 2012, the probate court suspended Parents’ visitation because

they continued to test positive for drugs. The court ordered that visitation

would resume as previously ordered when Mother and Father each provided

three consecutive negative drug screens. Mother did not satisfy this

requirement, so her visits were never reinstated. Father eventually provided

negative drug screens as required, and his visits were reinstated on January 6,

2013. However, Father tested positive for marijuana on January 17, 2013, and

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 3 of 11 positive for marijuana and cocaine on January 31, 2013. He also refused a drug

screen on January 24, 2013, and he failed to appear for scheduled drug screens

on February 6, 12, and 14, 2013. As a result, DCS filed a motion to again

suspend Father’s visitation, which the probate court granted on February 20,

2013.

[7] Meanwhile, Mother gave birth to Child 3 in January 2013, at which time both

Child 3 and Mother tested positive for marijuana. As a result, DCS filed a

CHINS petition with respect to Child 3, who was removed from Mother’s

custody before being discharged from the hospital. Child 3 was adjudicated a

CHINS and placed in foster care with her two older siblings. Mother was

ordered to participate in the same services ordered in the CHINS case involving

the two older children.

[8] On February 25, 2013, DCS filed petitions to terminate Parents’ rights to Child

1 and Child 2. On March 14, 2013, DCS filed a motion requesting that services

for Parents be stopped because Parents were not in compliance and were

“seemingly uninterested in any service that has been referred.” Appellee’s

Appendix at 84. The probate court granted the motion on April 10, 2013. DCS

filed a petition to terminate Parents’ rights to Child 3 on November 4, 2013.

An evidentiary hearing was held on the termination petitions on January 27,

2015.

[9] At the hearing, DCS presented evidence that Mother had failed to complete

services as ordered. Specifically, she had failed to complete substance abuse

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 4 of 11 counseling, tested positive for marijuana and cocaine on several occasions, and

canceled or failed to show up for drug screens multiple times. Additionally,

before Mother’s visits were suspended, her attendance at weekly supervised

visitation with the Children had been sporadic. Moreover, DCS had concerns

about Mother’s behavior during the visits because she would yell at the

children, threaten to “pop” them, and be on her phone instead of interacting

with them. Transcript at 44. DCS also presented evidence that Mother had

lived in multiple residences throughout the CHINS and termination

proceedings and that she was unemployed at the time of the termination

hearing. Additionally, Mother testified that she had been arrested for a

misdemeanor in December 2013, spent time in jail, and remained on probation

at the time of the termination hearing. Mother also had two pending criminal

cases at the time of the termination hearing.

[10] With respect to Father, DCS presented evidence concerning his ongoing

contact with the criminal justice system. Father was convicted of burglary in

2010 and placed on probation for two years. While on probation, Father

committed criminal trespass and a drug possession offense. Father served a

sentence in the Department of Correction before being transferred to a work

release center in March 2014, and then home detention. Father’s visitation

with the Children was reinstated in August 2014, but visits ceased when Father

was arrested in October 2014 for violating the terms of his home detention.

Father remained incarcerated at the time of the termination hearing, and he was

also facing a new theft charge in another county at that time.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 5 of 11 [11] At the conclusion of the evidentiary hearing, the probate court took the matter

under advisement. On February 27, 2015, the probate court issued its order

terminating Parents’ parental rights to Children. Parents now appeal.

Additional facts will be provided as necessary.

Discussion & Decision

[12] 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 probate 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.

[13] The probate court entered findings in its order terminating Mother’s and

Father’s parental rights to Children. When the probate 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 6 of 11 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.

[14] 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

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.

[15] 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 7 of 11 (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).

[16] On appeal, Parents argue that the evidence is insufficient to support the

involuntary termination of their parental rights. Specifically, Parents challenge

the probate court’s findings as to subsection (b)(2)(B)(i) and (ii).1 We note that

DCS needed to establish only one of the three requirements of subsection

(b)(2)(B) by clear and convincing evidence before the probate court could

terminate parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003).

Here, the probate 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 placement outside

Parents’ 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 Parents’ care will not be remedied.

1 Parents do not challenge the court’s determination with respect to the other requirements that must be proven by clear and convincing evidence before a court can terminate parental rights. Specifically, Parents do not challenge the court’s determination as to I.C. § 31-35-2-4(b)(2)(A)(i-iii), that termination is in the Children’s best interest, or that there is a satisfactory plan for the care and treatment of the Children.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 8 of 11 [17] In making such a determination, the 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. Moreover, the failure to exercise

visitation demonstrates a “lack of commitment to complete the actions

necessary to preserve [the] parent-child relationship.” Id. (quoting In re A.L.H.,

774 N.E.2d 896, 900 (Ind. Ct. App. 2002)) (alteration in original).

[18] We first address Mother’s arguments. Mother argues that the evidence

presented concerning her drug screens was insufficient to support the

termination of her parental rights because no actual drug test results were

admitted into evidence and because the record is not clear as to how many drug

screens were taken or when they were administered. Mother’s argument in this

regard is a request to reweigh the evidence, which we will not do on appeal. All

three of the Children tested positive for marijuana at birth, and Mother

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 9 of 11 admitted at the termination hearing that she had tested positive for marijuana

on multiple occasions. There was also evidence presented that Mother

frequently cancelled or failed to show up for drug screens and that she tested

positive for cocaine on more than one occasion. After her visits were

suspended in October 2012, Mother never provided the three consecutive

negative drug screens necessary to have visitation restored, and she has not seen

the Children since that time. Mother testified at the termination hearing that

she had not used marijuana in a “couple months.” Transcript at 153. Despite

her obvious issues with substance abuse, Mother never completed substance

abuse counseling as ordered. Although Family Case Manager Eric Fikes

testified that Mother had given negative drug screens in the last few months

prior to the termination hearing, the probate court was within its discretion to

give greater weight to Mother’s habitual pattern of substance abuse, failure to

engage in services, and housing and income instability throughout the CHINS

proceedings. See K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office, 989

N.E.2d 1225, 1234 (Ind. 2013) (noting that a termination court is free to

disregard efforts made shortly before termination and weigh a parent’s history

of conduct prior to those efforts more heavily).

[19] Father’s arguments on appeal also constitute requests to reweigh the evidence.

Specifically, Father argues that his only obstacle to caring for the Children is his

incarceration. Father then directs our attention to his own testimony that he

was not guilty of the pending theft charge and that he would be released the

following month. The probate court was not obligated to credit Father’s

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 10 of 11 testimony in this regard. The record reveals that Father was incarcerated for

the majority of the underlying CHINS case, and he was facing yet another

criminal charge at the time of the termination hearing. Moreover, when Father

was not incarcerated, his visits with the Children were twice suspended due to

positive drug screens. Although Father eventually completed substance abuse

treatment while incarcerated and his visits with the Children generally went

well, the probate court was entitled to attribute greater weight to Father’s

established pattern of criminal activity, drug use, and instability.

[20] We have no doubt that Mother and Father both genuinely love the Children.

The Children, however, cannot wait forever. They need stability and

permanency now, and Parents have unfortunately been unable to provide such

an environment. For all the reasons set forth above, the probate court’s

conclusion that there is a reasonable probability that the conditions resulting in

the Children’s removal or continued placement outside Parents’ care will not be

remedied is supported by sufficient evidence.

[21] Judgment affirmed.

[22] Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1503-JT-110 | October 27, 2015 Page 11 of 11