In the Term. of the Parent-Child Relationship of: P.J.H. & J.H. (Minor Children) and P.H. (Father) v. The Ind. Dept. of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 22 2016, 9:18 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
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- December 22, 2016
Child Relationship of: Court of Appeals Case No.
11A04-1606-JT-1224
P.J.H. & J.H. (Minor Children)
Appeal from the Clay Circuit
and Court
P.H. (Father), The Honorable Joseph Trout,
Appellant-Respondent, Judge
Trial Court Cause Nos.
v. 11C01-1510-JT-208
11C01-1510-JT-209
The Indiana Department of
Child Services,
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016 Page 1 of 10
Case Summary and Issue
[1] P.H. (“Father”) appeals the juvenile court’s termination of his parental rights to
eight-year-old P.J.H. and seven-year-old J.H. (“Children”), raising a sole
restated issue: whether the juvenile court’s termination order is supported by
clear and convincing evidence. Concluding the termination order is not clearly
erroneous, we affirm.
Facts and Procedural History
[2] In 2013, Father, a veteran, and A.A. (“Mother”) were dating and living
together with the Children in a residence in Brazil, Indiana. 1 Also living in the
home were Mother’s three other children (“Half-Siblings”) and their father,
T.A.2 In February 2013, the Indiana Department of Child Services (“DCS”)
received a report alleging two of the Half-Siblings were underweight, the family
sometimes had no food in the home, a law enforcement K-9 unit recently
searched the home, and Mother abused drugs. A week later, DCS confirmed
law enforcement discovered a methamphetamine lab in the garage and
marijuana in an upstairs bedroom; DCS then removed the Children from
Mother’s and Father’s care. On March 4, DCS filed petitions alleging the
1
Mother is not part of this appeal.
2
Although not clear from the record, it appears Mother and T.A. were married, but Father and Mother were
dating.
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Children were children in need of services (“CHINS”),3 and on June 25, 2013,
the juvenile court entered an order adjudicating the Children as CHINS and
ordering Father to participate in reunification services.
[3] On January 28, 2014, the juvenile court held a permanency hearing and DCS
presented evidence that Father did not engage with the Children during
visitation, failed two drug screens and skipped other screenings, missed
parenting sessions, and failed to follow through with initial efforts to seek
treatment through the Veterans Administration. The juvenile court then
approved concurrent plans of reunification and termination of parental rights
against Father.
[4] In the summer and early fall of 2014, DCS allowed the Children to return to
Mother’s and Father’s care on a home trial visit. On November 3, 2014, the
juvenile court granted DCS’ motion to discharge the CHINS adjudication as to
P.J.H., but not J.H.4 However, on January 23, 2015, DCS filed another
petition alleging P.J.H. as a CHINS, citing Mother’s methamphetamine use.
Both Mother and Father admitted to the material allegations set forth in the
petition and the juvenile court adjudicated P.J.H. as a CHINS. Several months
later, DCS requested leave to cease all reunification services, citing Mother’s
3
DCS also filed a petition alleging the Half-Siblings were CHINS, but Father is not the father of the Half-
Siblings and neither Mother nor the Half-Siblings are subject to this appeal.
4
The record indicates the reasons for the discharge as to P.J.H. were Mother’s and Father’s reasonable
compliance with the dispositional decree. As to J.H., DCS noted his condition “declin[ed] drastically”
during the home trial visit. Transcript at 117.
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and Father’s inability to comply with the case plans. As to Father, DCS noted
Father did not comply with his substance abuse treatment, failed to attend drug
screenings, and participated in visitation sporadically. DCS also did not believe
Father could care for the Children. The juvenile court granted DCS’ request
and ordered the Children’s permanency plan be amended to adoption.
[5] Around the same time, DCS filed a petition to terminate Father’s and Mother’s
parental rights to the Children. At an evidentiary hearing, both the family case
manager and the court-appointed special advocate (“CASA”) opined Father’s
parental rights should be terminated. Following the evidentiary hearing, the
juvenile court issued an order terminating Mother’s and Father’s parental
rights, finding in relevant part,
19. According to the testimony and the exhibits proffered by
[DCS], a . . . CHINS case was filed in October 2008. The
Children, [P.J.H.] and [J.H.] were out of the home for 6 months
as a result of that CHINS Action. At that time, [Father] and
[Mother] resided together. In that case, [J.H.] was born with
methamphetamine in his system and [Mother] tested positive for
methamphetamine at the time of the birth. The safety of the
children living in a home with a parent who uses
methamphetamine and has a history of drug addiction was the
basis for removal. Also of record in that file is [Father] refused to
be drug screened.
20. [The present CHINS] action was brought against both
parents in March 2013 . . . . In a fact finding hearing as to
[Mother], it was found and concluded that “there is clear
evidence that a methamphetamine lab was in operation in the
garage on the parents’ property which garage is within 15 ft.-30
ft. of the [C]hildren’s residence, the presence of the lab with its
chemical component is dangerous to the [C]hildren, [Mother]
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has a history of prior cases with the department with the
presenting issue in both cases being [M]other’s use of
methamphetamine, [M]other admitted to using
methamphetamine during the investigation of this case and has
tested positive for methamphetamine since the investigation of
this case.[”] It should be noted that a similar findings of fact and
conclusion of law was found as to fathers, T.A. and [Father].
***
22. As to [J.H.] and the 2013 case . . . [Father] has not been fully
compliant with the child’s case plan in that he has only
sporadically participated in visits, drugs screens, and services.
Further, neither [F]ather nor [M]other have enhanced their
ability to fulfill their parental obligations . . . .
23. In light of the fact that the 2013 [P.J.H.] CHINS case had
been dismissed as to that child, it was refiled in January 2015.
The report indicated that in 2014, DCS made an unannounced
visit to the home. [Mother] and [Father] had completed drug
screens and signed a safety plan that stated . . . [Father] would
not allow the [C]hildren to be alone with [Mother] if he thought
or knew she was under the influence of drugs. Thereafter, in
January 2015, [Mother] began testing positive for
methamphetamine. All parties admitted and disposition was on
April 22, 2015. Once again, [Mother] and [Father], by
disposition decree, was [sic] not to allow the use of or consume,
manufacture, trade, or distribute any illegal controlled substances
and not permit the possession or consumption of any illegal
controlled substances in the home or in the presence of the
[C]hildren.
***
25. According to the testimony, [P.J.H.] does not trust his
parents to parent and does not feel safe. He has not had visits
from his mom for a year. Father was incarcerated twice in 2015
and visited one time after he was most recently released from jail.
It was the opinion of the supervisors of parenting time that
[Father] has an inability to watch both [C]hildren. Visits were
voluntarily stopped by Father due to the emotional impact it was
having on the [C]hildren, in fact [J.H.] wet the bed every night
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after visiting with his father.
26. It has been the testimony from multiple witnesses that,
through no fault of his own, [Father] has cognitive disabilities
that prevent him from effectively parenting young children
including one that is autistic. Father himself is under a legal
guardianship and, according to the witnesses, lacks parenting
skills and would not be able to take care of these [C]hildren.
***
36. The [C]hildren would be severely traumatized if required to
visit with their biological parents.
37. Parents have had multiple prior contacts with DCS and the
[C]hildren have been removed from their parents by DCS on at
least three (3) prior occasions.
38. Father is cognitively unable to parent these [C]hildren, due
to his own mental health needs.
39. Father has not complied with the terms of the dispositional
decree, and was incarcerated a substantial part of the time of the
pendency of the CHINS matters.
40. Father has been convicted and put on probation twice for
possessing controlled substances. [Father] violated the terms of
that probation by possessing/abusing controlled substances.
41. The [C]hildren are traumatized and act out behaviorally
whenever they visit their father.
42. Father does not engage with [C]hildren during visits and will
sometimes leave during the visits. Father loves the [C]hildren
but due to his disability and theirs (especially [J.H.]), he cannot
provide the necessary education or supervision.
***
45. The [C]hildren are well settled in their current foster family.
The [C]hildren have a bond with their foster family and their
foster family with them.
46. It would severely traumatize the [C]hildren to remove them
from that home. The [C]hildren have a right to permanency and
it is in their best interest to be adopted by the foster family. The
foster family is willing to adopt the [C]hildren.
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Appellant’s Appendix at 18-21. Father now appeals. Additional facts will be
added as necessary.
Discussion and Decision
I. Standard of Review
[6] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
(citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be
proven in order to terminate parental rights, which we quote in relevant part:
(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.
***
(C) that termination is in the best interests of the child . . . .
The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile
court determines that the allegations of the petition are true, then the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
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II. Children’s Best Interests
[7] Father contends the juvenile court’s termination order is clearly erroneous,
arguing DCS failed to present clear and convincing evidence to establish
termination of his parental rights is in the best interests of the Children. 5
In determining what is in the best interests of the Children, the
trial court is required to look beyond the factors identified by the
Indiana Department of Child Services and to look to the totality
of the evidence. In so doing, the court must subordinate the
interests of the parent to those of the children. The court need
not wait until the children are irreversibly harmed before
terminating the parent-child relationship. Moreover, we have
previously held that the recommendation by both the case
manager and child advocate to terminate parental rights, in
addition to evidence that the conditions resulting in removal will
not be remedied, is sufficient to show by clear and convincing
evidence that termination is in the child’s best interests.
5
Specifically, it appears Father argues the trial court erred in considering his mental health issues when
it found Father is cognitively unable to parent the Children due to his mental health needs. We
acknowledge Father suffers cognitively and note “[m]ental [disability] of the parents, standing alone, is
not a proper ground for terminating parental rights.” In re V.A., 51 N.E.3d 1140, 1147 (Ind. 2016)
(alteration in original) (citations and internal quotation marks omitted). However, in cases where
parents are “incapable of or unwilling to fulfill their legal obligations in caring for their children,”
mental disability may be considered. Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1234 (Ind. 1992). We further note, the focus in determining what is in the best interests of the Children
is the Children, not the parents, and although we commend and thank Father for his service to this
country and hope he can receive the treatment he seeks, the evidence in this case—including his
arrests, lack of participation in services, dependency on others for care and support, and substance
abuse issues—overwhelmingly establishes Father has not provided the Children with the necessary
care and support and is incapable of doing so. Thus, the trial court did not err in considering Father’s
mental health issues in terminating his parental rights.
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A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App.
2013) (citations omitted), trans. denied.
[8] Here, Father does not challenge the juvenile court’s conclusion that there is a
reasonable probability the conditions resulting in the Children’s removal will
not be remedied, and both the CASA and the family case manager opined it
would be in the Children’s best interests for Father’s parental rights to be
terminated. Accordingly, these findings are sufficient to show by clear and
convincing evidence that termination is in the Children’s best interests. See id.[9] Further, we note “[p]ermanency is a central consideration in determining the
best interests of a child.” Id. at 1159 (alteration in original) (citation omitted).
The findings establish the Children, both of whom have special needs, have
been removed from Father’s care on multiple occasions. Moreover, DCS
expressed concern because after one of the trial home visits, the Children “each
lost at least one or two clothing sizes . . . they had lost so much weight they
were emaciated and quite undernourished.” Tr. at 116. Since the Children
have been in their foster home, “They have done well. They attend school
regularly . . . . And they’re progressing. They’re maturing. They look healthy.
They’ve gained weight. They look well.” Id. at 44.
[10] We therefore conclude DCS established by clear and convincing evidence that
termination of Father’s parental rights is in the best interests of the Children.
Conclusion
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[11] DCS established by clear and convincing evidence the elements necessary to
support the termination of Father’s parental rights. The judgment of the
juvenile court terminating Father’s parental rights is affirmed.
[12] Affirmed.
Kirsch, J., and Barnes, J., concur.
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