In the Termination of the Parent-Child Relationship of: T.H. (Minor Child), and B.H. (Father) and D.A. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                              FILED
    regarded as precedent or cited before any                                      Jul 17 2018, 9:19 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                            CLERK
    Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                                   and Tax Court
    ATTORNEY FOR APPELLANT B.H.                               ATTORNEYS FOR APPELLEE
    Harold E. Amstutz                                         Curtis T. Hill, Jr.
    Lafayette, Indiana                                        Attorney General of Indiana
    ATTORNEY FOR APPELLANT D.A.                               Abigail R. Recker
    Deputy Attorney General
    Cynthia Phillips Smith                                    Indianapolis, Indiana
    Law Office of Cynthia P. Smith
    Lafayette, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Termination of the Parent-                         July 17, 2018
    Child Relationship of: T.H.                               Court of Appeals Case No.
    (Minor Child),                                            18A-JT-423
    Appeal from the Tippecanoe
    and                                                       Superior Court
    The Honorable Faith A. Graham,
    B.H. (Father) and D.A.                                    Judge
    (Mother),                                                 Trial Court Cause No.
    Appellants-Respondents,                                   79D03-1707-JT-70
    v.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                           Page 1 of 11
    Indiana Department of Child
    Services,
    Appellee-Petitioner.
    Bradford, Judge.
    Case Summary
    [1]   B.H. (“Father”) and D.A. (“Mother”) (collectively, “Parents”) appeal the
    juvenile court’s order terminating their parental rights to T.H. (“the Child”).
    On October 25, 2016, the Indiana Department of Child Services (“DCS”)
    became involved in the Child’s life after Mother was arrested on drug-related
    charges. The Child was subsequently determined to be a child in need of
    services (“CHINS”) and Parents were ordered to complete certain services.
    They failed to successfully do so.
    [2]   DCS filed petitions seeking the termination of Parents’ parental rights to the
    Child on July 27, 2017. Following an evidentiary hearing, the juvenile court
    issued an order granting DCS’s petitions. On appeal, Parents contend that
    DCS did not provide sufficient evidence to support the termination of their
    parental rights. We affirm.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 2 of 11
    Facts and Procedural History
    [3]   The Child was born on March 14, 2016. He was removed from Mother’s home
    on October 25, 2016, after she was arrested on drug-related charges and was
    placed with a relative. Two days later, on October 27, 2016, DCS filed a
    petition alleging that the Child was a CHINS. At this time, Father’s identity
    was unknown. The petition alleged that (1) Mother was arrested after
    marijuana and heroin were recovered from her home; (2) when authorities
    arrived at the home, the Child “was strapped into his stroller which was sitting
    close to a table containing a pile of marijuana and a half-smoked blunt”; and (3)
    there were no other adult caregivers available at the time of Mother’s arrest.
    Ex. Vol. I, p. 13. The CHINS petition was amended on November 2, 2016, to
    include Father. Following an evidentiary hearing, the juvenile court found the
    Child to be a CHINS and noted that Father was not available to care for the
    Child due to his incarceration.
    [4]   The juvenile court conducted a dispositional hearing after which Mother was
    ordered to (1) complete a substance-abuse and mental-health assessment and
    follow all recommendations, (2) participate in home-based services, (3) remain
    drug-and-alcohol-free for the duration of the case, (4) participate in parenting
    time, and (5) participate in random drug screening. Father was ordered to (1)
    complete an updated substance-abuse assessment and follow all
    recommendations, (2) participate in home-based services, (3) submit to random
    drug screening, (4) remain drug-and-alcohol-free, and (5) participate in
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 3 of 11
    parenting time. Neither Mother nor Father successfully complete the ordered
    services.
    [5]   On July 27, 2017, DCS filed petitions seeking the termination of Parents’
    parental rights to the Child. The juvenile court conducted an evidentiary
    hearing on DCS’s petitions on October 18, 2017. During the evidentiary
    hearing, DCS presented evidence indicating that (1) Mother displayed a pattern
    of combative and threatening behavior; (2) Mother lacks the ability to make
    healthy choices for both herself and the Child; (3) although Mother had made
    some progress, concerns remain about whether this progress would last as she
    has not displayed the motivation or commitment to making lasting positive
    changes; (4) Mother tested positive for drugs on at least fifteen separate
    occasions; (5) Father largely failed to participate in service and has tested
    positive for drugs; (6) termination of the Parents’ parental rights was in the
    Child’s best interests; and (7) its plan was for the Child to be adopted. For their
    part, Parents argued that they loved the Child and had begun to take the steps
    necessary to improve their situations with the hopes of one day being in the
    position to provide adequate care for the Child. On January 23, 2018, the
    juvenile court issued an order terminating Parents’ parental rights to the Child.
    Discussion and Decision
    [6]   The Fourteenth Amendment to the United States Constitution protects the
    traditional right of parents to establish a home and raise their child. Bester v.
    Lake Cnty. Office of Family & Children, 
    839 N.E.2d 143
    , 145 (Ind. 2005).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 4 of 11
    Although parental rights are of a constitutional dimension, the law allows for
    the termination of those rights when parents are unable or unwilling to meet
    their parental responsibilities. In re T.F., 
    743 N.E.2d 766
    , 773 (Ind. Ct. App.
    2001), trans. denied. Parental rights, therefore, are not absolute and must be
    subordinated to the best interests of the child. 
    Id. Termination of
    parental
    rights is proper where the child’s emotional and physical development is
    threatened. 
    Id. The juvenile
    court need not wait until the child is irreversibly
    harmed such that his physical, mental, and social development is permanently
    impaired before terminating the parent-child relationship. 
    Id. [7] Parents
    contend that the evidence is insufficient to sustain the termination of
    their parental rights to the Child. In reviewing termination proceedings on
    appeal, this court will not reweigh the evidence or assess the credibility of the
    witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 
    806 N.E.2d 874
    , 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the
    juvenile court’s decision and reasonable inferences drawn therefrom. 
    Id. Where, as
    here, the juvenile court includes findings of fact and conclusions
    thereon in its order terminating parental rights, our standard of review is two-
    tiered. 
    Id. First, we
    must determine whether the evidence supports the
    findings, and, second, whether the findings support the legal conclusions. 
    Id. [8] In
    deference to the juvenile court’s unique position to assess the evidence, we
    set aside the juvenile court’s findings and judgment terminating a parent-child
    relationship only if they are clearly erroneous. 
    Id. A finding
    of fact is clearly
    erroneous when there are no facts or inferences drawn therefrom to support it.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 5 of 11
    
    Id. A judgment
    is clearly erroneous only if the legal conclusions made by the
    juvenile court are not supported by its findings of fact, or the conclusions do not
    support the judgment. 
    Id. [9] Parents
    claim that DCS failed to present sufficient evidence to prove by clear
    and convincing evidence that:
    (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[; or]
    (ii) There is a reasonable probability that the
    continuation of the parent-child relationship poses a
    threat to the well-being of the child.…
    (C) termination is in the best interests of the child[.]
    [10]   Ind. Code § 31-35-2-4(b)(2).1 Because Parents have filed separate appellate
    briefs and have addressed their claims separately, we will do the same.
    I. Mother
    A. Indiana Code Section 31-35-2-4(b)(2)(B)
    [11]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
    in the disjunctive, the juvenile court need only find either that (1) the conditions
    resulting in removal from or continued placement outside the parents’ home
    1
    Neither Mother nor Father dispute that DCS presented sufficient evidence to support the first and fourth
    elements set forth in Indiana Code section 31-35-2-4(b)(2).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                     Page 6 of 11
    will not be remedied, (2) the continuation of the parent-child relationship poses
    a threat to the child, or (3) the child has been adjudicated CHINS on two
    separate occasions. See In re C.C., 
    788 N.E.2d 847
    , 854 (Ind. Ct. App. 2003),
    trans. denied. Therefore, where the juvenile court determines that one of the
    above-mentioned factors has been proven and there is sufficient evidence in the
    record supporting the juvenile court’s determination, it is not necessary for DCS
    to prove, or for the juvenile court to find, either of the other two factors listed in
    Indiana Code section 31-34-2-4(b)(2)(B). See In re 
    S.P.H., 806 N.E.2d at 882
    .
    [12]   In this case, the juvenile court concluded as follows:
    There is a reasonable probability the conditions that resulted in
    removal of the child from the home or the reasons for continued
    placement outside the home will not be remedied. Neither
    parent has demonstrated an ability or willingness to make lasting
    changes from past behaviors. There is no reasonable probability
    that either parent will be able to maintain stability to care and
    provide adequately for the child.
    Mother’s App. Vol. II, p. 10. In reaching this conclusion, the juvenile court
    found that Mother failed to refrain from using drugs, testing positive for drugs
    on fifteen occasions and failing to submit to other drug screens as requested.
    The juvenile court also found that Mother (1) has displayed a pattern of and
    continued to engage in delinquent and criminal behavior; (2) demonstrated
    hostile and threatening behavior toward service provides, even in the Child’s
    presence; and (3) refused to fully engage in services. Mother does not challenge
    the accuracy of any of the juvenile court’s findings, but rather points to evidence
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 7 of 11
    that she claims demonstrates that she had begun to take the steps necessary to
    improve her situation.
    [13]   The juvenile court acknowledged Mother’s recent progress, but found that
    Mother had “since made reckless decisions demonstrating an inability to
    sustain such progress long-term.” Mother’s App. Vol. II, p. 9. In this vein,
    Laura Houze, a therapist who worked with Mother, expressed concerns about
    whether Mother could sustain her recent progress because Mother had not
    displayed “a motivation or commitment to making positive changes” or taken
    ownership of the actions that led to the Child’s removal from her care. Tr. Vol.
    II, p. 67. In addition, Mother continued to engage in angry outbursts aimed at
    those attempting to help her, including her attorney, up until the start of the
    evidentiary hearing. Mother has failed to prove that she can maintain stable
    employment or housing. She has also indicated that she sees nothing wrong
    with the use of marijuana. Mother’s pattern of unwillingness to address the
    highlighted issues and cooperate with those providing services, in conjunction
    with her failure to exhibit an ability to make lasting progress, is sufficient to
    support the juvenile court’s finding that the conditions which led to the Child’s
    removal from her care are not likely to change. See Lang v. Stark Cty. Office of
    Family & Children, 
    861 N.E.2d 366
    , 372 (Ind. Ct. App. 2007) (providing that “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”). Mother’s claim to the contrary merely amounts to an invitation
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 8 of 11
    for this court to reweigh the evidence, which we will not do. See In re 
    S.P.H., 806 N.E.2d at 879
    .
    B. Indiana Code Section 31-35-2-4(B)(2)(C)
    [14]   We are mindful that in considering whether termination of parental rights 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, 798 N.E.2d at 203
    . In doing so, the juvenile court must subordinate the interests of
    the parent to those of the child involved. 
    Id. Furthermore, this
    court has
    previously determined that the testimony of the case worker, guardian ad litem
    (“GAL”), or a court appointed special advocate (“CASA”) regarding the child’s
    need for permanency supports a finding that termination is in the child’s best
    interests. Id.; see also Matter of M.B., 
    666 N.E.2d 73
    , 79 (Ind. Ct. App. 1996),
    trans. denied.
    [15]   DCS family case manager (“FCM”) Christopher LaMar testified that
    termination of Parents’ parental rights was in the best interests of the Child.
    FCM LaMar based his opinion on Mother’s “non-compliance throughout most
    of the case, um, and [Father’s] lack of engagement with services.” Tr. Vol. II,
    p. 156. He noted that he was not convinced that Mother understood how to
    meet the Child’s needs and that he did not believe that the Child “could safely
    be returned to the primary care, custody, and control of either parent.” Tr. Vol.
    II, p. 156. Likewise, Suzanne Magnante, the CASA assigned to the Child’s
    case, testified that she believed that termination of Parents’ parental rights was
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 9 of 11
    in the Child’s best interests. This testimony is sufficient to sustain the juvenile
    court’s finding to that effect.
    II. Father
    A. Indiana Code Section 31-35-2-4(b)(2)(B)
    [16]   Father claims that the evidence is insufficient to sustain the juvenile court’s
    determination that the conditions resulting in the Child’s removal from the
    home would not be remedied. In making this claim, Father presents no
    argument relating to himself. Instead, he relies solely on evidence relating to
    Mother. We concluded above that, with respect to Mother, the evidence
    demonstrated that it was not likely that the conditions resulting in the Child’s
    removal would be remedied. Because Father relies only on these same facts, we
    reach the same conclusion, i.e., that the evidence is sufficient to sustain the
    juvenile court’s finding that the condition will not be remedied. 2
    B. Indiana Code Section 31-35-2-4(B)(2)(C)
    [17]   Father also claims that the evidence is insufficient to sustain the juvenile court’s
    determination that termination of his parental rights was in the Child’s best
    interests. In making this claim, Father argues that he was the “forgotten
    parent” and suggests that the juvenile court’s determination was based solely on
    2
    Again, because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not consider
    whether the evidence is sufficient to sustain the juvenile court’s finding regarding whether the continued
    relationship poses a threat to the Child’s well-being. See In re 
    S.P.H., 806 N.E.2d at 882
    .
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018                    Page 10 of 11
    testimony relating to Mother. Father’s Br. p. 14. Contrary to Father’s
    suggestion, however, both FCM LaMar and the Child’s CASA testified that
    termination of the Parents’ parental rights was in the Child’s best interests.
    Their opinions were given in relation to both Mother and Father and were not
    limited to one parent. As we concluded above, their testimony was sufficient to
    prove that the termination of Father’s parental rights was in the Child’s best
    interests.
    Conclusion
    [18]   In sum, we conclude that neither Mother nor Father have established that the
    evidence presented by DCS was insufficient to sustain the juvenile court’s order
    terminating their parental rights to the Child. Accordingly, we affirm.
    [19]   The judgment of the trial court is affirmed.
    Baker, J., and Kirsch, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-423 | July 17, 2018   Page 11 of 11