The Termination of the Parent-Child Relationship of E.H. (Child) and R.H. (Father) and K.G. (Mother) R.H. (Father), and K.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 27, 2017
• Docket: 32A05-1706-JT-1161
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 27 2017, 10:21 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana

Robert J. Henke Deputy Attorney General

Abigail Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 27, 2017 of the Parent-Child Relationship Court of Appeals Case No. of E.H. (Child) and R.H. 32A05-1706-JT-01161 (Father) and K.G. (Mother); Appeal from the Hendricks Superior Court R.H. (Father), and The Honorable Karen M. Love, K.G. (Mother), Judge Appellants-Respondents, Trial Court Cause No. 32D03-1608-JT-4 v.

The Indiana Department of Child Services,

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 1 of 9 Appellee-Petitioner

May, Judge.

[1] K.G. (“Mother”) and R.H. (“Father”) (collectively, “Parents”) appeal the

involuntary termination of their parental rights to E.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 that the continuation of the parent-child relationship posed

a threat to the child. We affirm.

Facts and Procedural History [2] Child was born on July 28, 2011. On February 16, 2015, DCS received a report

indicating Parents were using illegal substances and were not following the

terms of a Protective Order Mother had against Father. The trial court ordered,

at DCS’s request, Parents to submit to drug screens. Mother tested positive for

methamphetamine, amphetamine, and codeine. Father tested positive for

methamphetamine, amphetamine, and THC. Parents admitted illegal drug use.

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 2 of 9 [3] On March 25, 2015, DCS removed Child from Parents’ care and placed her

with Maternal Grandmother, where she has remained throughout the

proceedings. On March 26, DCS filed a petition alleging Child was a Child in

Need of Services (“CHINS”). On April 8, Father admitted Child was a

CHINS. The trial court held a hearing regarding Mother on May 20, but

Mother did not appear. During that hearing, the trial court entered parental

participation and dispositional decrees regarding Father. Then, on June 17, the

trial court adjudicated Child a CHINS and entered parental participation and

dispositional decrees regarding Mother.

[4] As part of the parental participation and dispositional decrees, the trial court

required Father to refrain from using alcohol or illegal substances, submit to

random drug screens, obtain and maintain stable housing, obtain and maintain

a legal source of stable income, complete all terms of his probation, enroll in

and successfully complete any programs recommended by the Family Case

Manager (“FCM”), successfully complete substance abuse treatment, complete

a domestic violence assessment and successfully complete all recommended

treatment, and attend all scheduled visitation with Child. As part of the

parental participation and dispositional decrees, the trial court required Mother

to refrain from using alcohol or illegal substances, submit to random drug

screens, obtain and maintain stable housing, obtain her GED, enroll in and

successfully complete any programs recommended by the Family Case

Manager (“FCM”), successfully complete substance abuse treatment, and

attend all scheduled visitation with Child.

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 3 of 9 [5] Parents both initially participated in the required services, but each had periods

of time where they could not be located by the FCM or a service provider.

After over a year of intermittent compliance with services and visitation, DCS

filed a petition to involuntarily terminate Parents’ rights to Child. The trial

court held fact finding hearings on the matter on January 17 and 31, 2017. On

May 2, 2017, the trial court issued an order 1 involuntarily terminating Parents’

rights to Child.

Discussion and Decision [6] 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).

[7] “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

1 The trial court’s order is very detailed and has aided our review of this complicated matter immensely.

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 4 of 9 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 children, 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 children should not be terminated solely

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

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

responsibilities. Id. at 836.

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

(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.

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 5 of 9 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.

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

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

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

evidence supports the findings and 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.

[10] Parents challenge the court’s conclusions the conditions under which Child was

removed would not be remedied and the continuation of the parent-child

relationship posed a risk to Child. 2

[11] The trial court must judge parents’ fitness to care for the child at the time of the

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

2 The trial court found the conditions under which Child was removed would not be remedied and the continuation of the parent-child relationship posed a threat to Child. DCS does not have to prove both. 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 the evidence supports the conclusion 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. See In re L.S., 717 N.E.2d at 209 (because statute is written in the disjunctive, court needs to find only one requirement to terminate parental rights).

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 6 of 9 Evidence of parents’ 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 Cty.

OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.

[12] When assessing parents’ fitness to care for a child, the trial court should view

the parents as of the time of the termination hearing and take into account the

changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

“evaluat[e] the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

509, 512 (Ind. Ct. App. 2001), trans. denied.

[13] DCS removed Child from Parents’ care because Parents tested positive for

illegal substances and had a history of domestic violence. Throughout the

CHINS proceedings, Parents were offered services ranging from home

management and parenting skills to substance abuse rehabilitation. Father

started many programs, but did not finish any of them. Mother successfully

completed an inpatient substance abuse program, but did not engage in the

recommended outpatient substance abuse program.

[14] Parents also had periods of time when the service providers could not reach

them because Parents had not provided updated contact information. Parents

also did not participate in family case meetings or visitation with Child during

these periods. At one point Parents lived together in Father’s van. Parents also

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 7 of 9 frequently relapsed into illegal drug use and refused multiple times to submit to

random drug screens.

[15] Father did not engage in recommended domestic violence treatment. Mother

attended an intake visit for group domestic violence treatment but the service

provider was unable to complete the assessment “because Father kept knocking

on the window of the room they were in.” (App. Vol. II at 23.) Mother also

snuck out of a domestic violence shelter to see Father. Ultimately, the court

concluded:

187. DCS offered numerous services designated to address the parents’ difficulties.

188. At the time of [sic] the fact finding hearing concluded on January 31, 2017, neither parent has shown a real investment in reunification. The circumstance of the parents had not improved since the child was removed. Neither parent was in a better position to care for the child.

*****

190. Although the parents love this child, neither has the current ability to meet the child’s needs. It is not safe for the child to be in the care of Mother or Father at this time. Mother’s history of instability and d [sic] substance use continues.

191. Father’s history of instability and substance use continues. The domestic violence between the parents has not been addressed. All available services have been offered and nothing is significantly different in [sic] circumstances since the time of

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 8 of 9 removal[. T]o continue the parent-child relationship would be detrimental to the child. The child needs permanency now.

(Id. at 36.)

[16] Parents argue they were mostly compliant with services and attempt to blame

DCS for their failures to comply with the trial court’s parental participation and

dispositional decrees. The arguments are invitations 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 or judge the credibility of witnesses). The

evidence in the record supports the trial court’s findings and conclusions.

Conclusion [17] DCS provided sufficient evidence the conditions under which Child was

removed from Parents’ care would not be remedied. We therefore affirm the

involuntary termination of Parents’ parental rights to Child.

[18] Affirmed.

Barnes, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A05-1706-JT-01161 | October 27, 2017 Page 9 of 9