in-the-matter-of-the-term-of-the-parent-child-relationship-of-sh-child ( 2015 )

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.
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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.
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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
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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
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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.
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(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).
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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.
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(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
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[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.
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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).
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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]
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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.
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