In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.H. (Minor Child), and D.H. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 20 2018, 8:34 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael B. Troemel Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary December 20, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of J.H. (Minor 18A-JT-1663
Child), and Appeal from the Tippecanoe
D.H. (Mother), Superior Court
The Honorable Faith A. Graham,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
79D03-1712-JT-133
The Indiana Department of
Child Services,
Appellee-Petitioner
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018 Page 1 of 13
Case Summary
[1] D.H. (“Mother”) appeals the trial court’s order involuntarily terminating her
parental rights to her minor child, J.H. She argues that the evidence is
insufficient to support the trial court’s termination of her parental rights.
Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] In February 2016, J.H. was removed from the care of Mother and J.H., Sr.
(“Father”),1 on an emergency basis due to allegations of abuse and/or neglect.
The Tippecanoe County Department of Child Services (“DCS”) filed a child in
need of services (“CHINS”) petition regarding J.H. and, following a hearing,
J.H. was adjudicated a CHINS. A dispositional decree was entered in May
2016, and while the initial permanency plan was reunification, that plan
subsequently changed to termination and adoption in November 2017.
Following a termination hearing, the trial court made the following relevant
findings of fact: 2
1. Mother (DOB 06/01/1985) is the Mother and Father (DOB
07/09/1982) is the Father of J.H. (DOB 01/08/2016).
….
1
The trial court also terminated Father’s parental rights as part of its order here, but Father does not
participate in this appeal.
2
The trial court’s order references the parents and the minor child by their full names at times, and refers
often to J.H. simply as “the child.” We use “Mother,” “Father,” and “J.H.” where appropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1663 | December 20, 2018 Page 2 of 13
5. The reasons for the third CHINS case[3] included ongoing
concerns related to drug use after J.H. tested positive for
methamphetamine on February 15, 2016. Both Mother and
Father denied drug use but were unable to provide an
explanation for the child’s exposure to methamphetamine.…
6. J.H. was placed in protective custody pursuant to a CHINS
Detention Hearing Order issued on February 29, 2016. At that
time, Mother was seventeen (17) weeks pregnant. A CASA was
appointed to represent the best interests of J.H. J.H. was found
to be a Child in Need of Services (“CHINS”) and a dispositional
order was issued on May 20, 2016. J.H. has remained out of the
parents’ care continuously since that date except for an
unsuccessful trial home visit. In fact, J.H. has been out of the
care of parents for over fifteen (15) of the most recent twenty-two
(22) months.
….
8. During the third CHINS case, Mother was offered the
following services: abuse assessment and treatment, parenting
assessment, case management, random drug screens, and
parenting time. Mother was offered additional services including
parent education, individual therapy, medication management,
domestic violence assessment.… These services have been
exhaustive and have been designed to address the difficulties that
resulted in J.H.’s removal and continued placement outside the
home.
….
10. At the onset of the third CHINS case, the parents were
3
Because Father had been involved in two prior CHINS proceedings regarding his three older children, for
clarity, the trial court’s termination order refers to the underlying CHINS proceeding here as “the third
CHINS case.” Appealed Order at 2.
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married and residing together. Neither parent was employed,
neither had housing, and both were dependent upon others to
meet their own needs let alone the needs of J.H.
11. Initially, both parents maintained contact with DCS and
commenced assessments as required. The parents participated in
services as recommended and regularly attended parenting time
as scheduled. Father still struggled with substance use. After the
parents obtained an appropriate residence, by order issued
January 9, 2017, J.H. was placed with Mother on a trial home
visit conditioned upon Father vacating the family home and
adhering to a safety plan. Father was subsequently authorized to
return to the home and participate in the trial home visit.
12. During the trial home visit, concerns arose regarding
substance use. Father tested positive for synthetic cannabinoids
due to using “spice” twice daily. Father failed two (2) drug
screens for alcohol, in February 2017 and March 2017. Mother
tested positive for marijuana in June 2017. Mother admitted
Father was using “spice” even when Father’s drug screens
returned negative. Mother’s medication counts were not
consistent with Mother’s prescriptions. Mother appeared to be
under the influence when the children were in Mother’s care
demonstrated by slurred speech and inability to focus. There
were also reports of domestic violence in the home.
13. The trial home visit was terminated on July 5, 2017 after
Father was arrested in the family home. A large amount of spice
and a one-hitter pipe was observed on a table in plain view.
Despite Mother and J.H. being in the home at the time of
Father’s arrest, Mother denied observing said items. Mother
admitted taking more than the prescribed amount of her
medication. DCS also took custody of the younger sibling (Ja.H.)
born during the third CHINS case who is not a subject of this
termination proceeding. Mother has other prior born children
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(ages 9 and 11) who reside in the care of their father and who are
not subjects of this termination proceeding.
14. After the trial home visit was terminated, participation of the
parents in services declined. Mother filed for divorce in July
2017. The family was evicted on August 10, 2017. Father was
incarcerated from September 1, 2017 to November 6, 2017.
Mother admitted herself for inpatient mental health treatment on
November 16, 2017 due to depression and homicidal ideations.
Upon release from the hospital on November 24, 2017, Mother
disappeared until approximately January 5, 2018 during which
time Mother failed to maintain contact with DCS, failed to
participate in services, and failed to attend any visits after
November 10, 2017. Father was arrested again on February 17,
2018 and has since remained incarcerated.
15. A permanency hearing was held on November 16, 2016 at
which time the permanent plan remained reunification. A second
permanency hearing was held on February 3, 2017 at which time
the permanent plan remained reunification. A third permanency
hearing was held on May 15, 2017 at which time the permanent
plan remained reunification. A final permanency hearing was
held on November 29, 2017 at which time the permanent plan
was determined to be the initiation of proceedings for
termination of parental rights and adoption.
16. DCS filed its petitions in the above-referenced cause on
December 11, 2017. The evidentiary hearing on the Verified
Petitions to Terminate Parental Rights was held on March 7,
2018.
17. Mother has a history of unstable housing with four (4) or five
(5) prior evictions. During most of the third CHINS case, Mother
periodically resided with Maternal Grandmother, in her vehicle,
and with various friends. Mother admitted Maternal
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Grandmother, Maternal Step Grandfather, and Maternal Aunt
were all drug users who would steal Mother’s medication.
18. Mother was prescribed a variety of medications at different
times. At times, Mother was adamant she was taking
medications as prescribed although she also reported a lapse in
obtaining such medication due to an insurance issue. Mother
allowed medication counts but there were frequently either more
or less pills than expected according to the prescription. At times,
Mother admitted forgetting to take medications as well as
intentionally taking more of certain medications. Mother was
observed to be under the influence at times demonstrated by
swaying, inability to stand, slurred speech, slow reactions, and
memory loss. Mother has at least two (2) other prior mental
health admissions for suicidal ideations. Mother reports
attending private therapy since June 2015.
19. At the time of the termination hearing, Mother had been
residing with a boyfriend since January 2018 who provides
Mother with transportation. The boyfriend conducts
maintenance at his apartment complex in exchange for rent.
Mother obtained employment at various locations but failed to
maintain a long-term position. Mother failed to consistently
provide verification of employment or work schedules. At the
time of the termination hearing, Mother reported employment at
a grocery store starting January 28, 2018 but again failed to
provide verification.
20. Mother completed a substance abuse assessment. Mother
consistently denied drug use despite testing positive for “spice”
and marijuana. During the third CHINS case, Mother tested
positive for the presence of drugs on 9/26/2016 (synthetic
cannabinoids), 11/14/2016 (tramadol), 11/15/2016 (tramadol),
12/19/2016 (tramadol), 12/28/2016 (tramadol), 01/10/2017
(tramadol), 04/21/2017 (oxycodone), 04/26/2017 (oxycodone),
06/05/2017 (marijuana), 06/30/2017 (alprazolam), 08/17/2017
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(tramadol), 08/18/2017 (tramadol), 08/21/2017 (tramadol),
08/24/2017 (synthetic cannabinoids), 08/28/2017 (synthetic
cannabinoids), 09/06/2017 (synthetic cannabinoids),
09/26/2017 (alprazolam/tramadol), October 10, 2017
(alprazolam/tramadol), October 19, 2017 (tramadol),
11/01/2017 (tramadol), 11/02/2017 (alprazolam), 11/08/2017
(tramadol), 11/11/2017 (hydrocodone/tramadol), 11/27/2017
(tramadol) and 02/19/2018 (tramadol). Mother failed to take all
drug screens as requested.
21. Mother has not successfully completed any service. Mother
participated in case management including parenting education.
Since July 2017, Mother failed to attend sessions regularly and
little progress was made. Mother was unsuccessfully discharged
from case management services.
22. Mother completed a parenting assessment and participated in
parenting education. Mother was not receptive to parenting
education or redirection during parenting time. Mother
demonstrated angry and aggressive behaviors with Father and, at
times, with the children who would then scream themselves. For
example, Mother stated at a visit that she would stab
Grandmother in the heart for cutting the children’s hair. Mother
was observed co-sleeping with the younger child despite safety
warnings. On some occasions, Mother’s visits were ended early
when Mother failed to provide necessary supplies. Mother was
discharged from fully-supervised parenting time in approximately
October 2017 due to lack of consistent attendance.
23. After resurfacing in January 2018, Mother resumed
participation in home-based case management, private
therapy/medication management, and random drug screens.
However, Mother has maintained very limited contact with
DCS. Mother’s parenting time is fully supervised at a facility
twice per week for three (3) hours each visit. Mother’s recent re-
engagement and short-term improvement does not outweigh an
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otherwise long-term demonstrated pattern of instability and
neglect.
Appealed Order at 2-5.
[3] Based upon these findings of fact, the trial court concluded that: (1) there is a
reasonable probability that the conditions that resulted in J.H.’s removal and
continued placement outside the home will not be remedied by Mother; (2)
there is a reasonable probability that the continuation of the relationship
between Mother and J.H. poses a threat to his well-being; (3) termination of the
parent-child relationship between Mother and J.H. is in his best interests; and
(4) DCS has a satisfactory plan for the care and treatment of J.H., which is
adoption. Accordingly, the trial court determined that DCS had proven the
allegations of the petition to terminate parental rights by clear and convincing
evidence and therefore terminated Mother’s parental rights. This appeal
ensued.
Discussion and Decision
[4] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
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other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent 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.
(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). DCS must prove that termination is appropriate by
a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
(Ind. 2016). If the trial court finds that the allegations in a petition are true, the
court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[5] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
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the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
[6] Mother challenges the trial court’s conclusion that there is a reasonable
probability that the conditions that led to J.H.’s removal and continued
placement outside the home will not be remedied. 4 In determining whether
there is a reasonable probability that the conditions that led to a child’s removal
and continued placement outside the home will not be remedied, we engage in
a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231
(Ind. 2013). First, “we must ascertain what conditions led to [his] placement
and retention in foster care.” Id. Second, “we ‘determine whether there is a
reasonable probability that those conditions will not be remedied.’” Id.
4
Mother also challenges the sufficiency of the evidence supporting the trial court’s conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to J.H.’s well-
being. However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly
effectuate the termination of parental rights, the trial court need only find that one of the three requirements
of that subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,
987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Accordingly, we will address the sufficiency of the
evidence regarding only one of the three requirements.
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(quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010) (citing In re A.A.C., 682
N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second step, the trial court must
judge a parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions, and balancing a parent’s recent
improvements against “‘habitual pattern[s] of conduct to determine whether
there is a substantial probability of future neglect or deprivation.’” In re E.M., 4
N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372
(Ind. Ct. App. 2007), trans. denied. The evidence presented by DCS “need not
rule out all possibilities of change; rather, DCS need establish only that there is
a reasonable probability that the parent’s behavior will not change.” In re Kay
L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).
[7] The record indicates that J.H. was initially removed from the parents’ care
because he tested positive for methamphetamine, they lacked stable housing,
and the parents depended on others for support. Although Mother did make
some progress in services which led to J.H.’s return to her care for a trial home
visit, J.H. was again removed in July 2017 due to Mother testing positive for
marijuana, Mother abusing her prescription medication, Father’s drug use in
the home, and domestic violence between Mother and Father.
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[8] Rather than challenging any of the trial court’s specific findings of fact, Mother
simply blames Father for J.H.’s initial removal from the home as well as the
failed trial home visit and asserts that the evidence indicates that there is a
reasonable probability that conditions will be remedied because she has now
divorced Father. First, we reject Mother’s attempt to minimize the ample
evidence of her own harmful behavior which led to J.H.’s removals and
continued placement outside of her care. Specifically, the evidence shows that
Mother failed to successfully complete any service, has never demonstrated
receptivity to parenting education, and has consistently denied her own drug
use despite testing positive on multiple occasions. Moreover, at the time of the
termination hearing, although Mother claimed recent progress and re-
engagement in services, the trial court noted that Mother had maintained very
limited contact with DCS and continued to fail to provide proof of stable
employment. Based on the evidence presented, the trial court concluded that
Mother’s recent re-engagement and short-term improvement did not outweigh
an otherwise long-term demonstrated pattern of instability and neglect. This
was the trial court’s prerogative, and we decline Mother’s invitation to reweigh
the evidence and second-guess that conclusion. See E.M., 4 N.E.3d at 643
(noting that trial court is entrusted with this “delicate balance” and “has
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.”). Clear and convincing evidence supports the trial
court’s conclusion that there is a reasonable probability that the conditions that
led to J.H.’s removal and continued placement outside Mother’s care will not
be remedied, and therefore the trial court’s conclusion is not clearly erroneous.
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Accordingly, we affirm the trial court’s order terminating Mother’s parental
rights.
[9] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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