In re the Termination of the Parental Rights of E.H. and K.H. (Minor Children) H.W. (Mother) and P.H. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 14 2019, 8:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
MOTHER Curtis T. Hill, Jr.
Steven Knecht Attorney General
Vonderheide & Knecht, P.C. Indianapolis, Indiana
Lafayette, Indiana Robert J. Henke
ATTORNEY FOR APPELLANT FATHER Deputy Attorney General
Indianapolis, Indiana
Amanda McIlwain
Legal Aid Corp. of Tippecanoe Co.
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the August 14, 2019
Parental Rights of E.H. and Court of Appeals Case No.
K.H. (Minor Children) 19A-JT-311
H.W. (Mother) and P.H. Appeal from the Tippecanoe
(Father), Superior Court
The Honorable Faith A. Graham,
Appellants-Respondents,
Judge
v. Trial Court Cause Nos.
79D03-1805-JT-71
79D03-1805-JT-72
Indiana Department of Child
Services,
Appellee-Petitioner
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May, Judge.
[1] H.W. (“Mother”) and P.H. (“Father”) (collectively, “Parents”) appeal the
involuntary termination of their parental rights to E.H. and K.H. (collectively,
“Children”). Mother argues the Department of Child Services (“DCS”)
violated her due process rights when it allegedly violated the trial court’s order
to reinstate Mother’s visitation with Children. Father argues DCS did not offer
certain services to him and termination of his parental rights was not in
Children’s best interests. We affirm.
Facts and Procedural History
[2] Parents are the biological parents of E.H. and K.H., born February 15, 2016,
and May 28, 2017, respectively. On February 3, 2017, DCS received a report
that Parents were using methamphetamine. The family could not be located on
that date. On February 14, 2017, DCS received a report that Mother was at the
courthouse with E.H. and was under the influence of drugs. DCS investigated
the claim and found Mother and E.H. at Mother’s court hearing. Mother tested
positive for heroin and methamphetamine. E.H. tested positive for
methamphetamine and was removed from Mother’s care. Father could not be
located.
[3] On February 15, 2017, DCS filed a petition alleging E.H. was a Child in Need
of Services (“CHINS”). On April 6, 2017, the trial court adjudicated E.H. a
CHINS. Mother was incarcerated and Father failed to appear at the hearing.
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On April 25, 2017, the trial court entered its dispositional order. The order
required Mother to participate in “substance abuse assessment and treatment,
mental health assessment, individual counseling, case management, intensive
parenting education, random drug screens, and parenting time.” (Father’s App.
Vol. II at 28.) The order required Father to participate in “substance abuse
assessment and treatment, psychological evaluation, individual counseling,
Character Restoration program, case management and/or Father Engagement
services, random drug screens, and parenting time.” (Id.)
[4] K.H. was born on May 28, 2017, and exhibited symptoms of withdrawal at
birth. Hospital staff reported Mother behaved erratically while in the hospital
and exhibited symptoms of methamphetamine use. At the time, Father was
incarcerated. DCS took K.H. into custody on June 1, 2017, and filed a petition
to declare K.H. a CHINS on June 2, 2017. On July 27, 2017, the trial court
declared K.H. a CHINS based on Mother’s drug use and Father’s incarceration.
The same day, the trial court entered its dispositional order, requiring Parents to
participate in the services ordered in its dispositional order regarding E.H.
[5] At first, Parents complied with services. However, over time Parents relapsed
into drug use and ceased participating in services. On October 30, 2017, the
trial court issued a Writ of Attachment for Parents for failure to appear at the
status hearing. At that hearing, the trial court suspended Father’s visitation
until Father tested negative for methamphetamine. On November 16, 2017,
Mother’s visitation was suspended because she was not taking “constructive
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[safety] suggestions appropriately.” (Ex. Vol. I at 155.) The trial court
eventually reinstated visitation for both Parents.
[6] Parents did not appear at the February 12, 2018, permanency hearing. At that
hearing, the trial court suspended Parents’ visitation pending their completion
of thirty days of clean drug screens. In addition, the trial court indicated that if
visitations were reinstated, Parents would be required to submit drug screens
prior to each visit in addition to the previously-ordered random drug screens.
Visitation was never reinstated for Parents.
[7] On April 23, 2018, the trial court changed Children’s permanency plan from
reunification to termination of parental rights and adoption. On May 22, 2018,
DCS filed petitions to terminate Parents’ parental rights to Children. On July
31 and August 14, 2018, the trial court held hearings regarding the termination
petitions. On January 8, 2019, the trial court issued an order terminating
Parents’ rights to Children.
Discussion and Decision
Due Process
[8] In a termination of parental rights proceeding, parents have certain due process
rights:
When a State seeks to terminate the parent-child relationship, it
must do so in a manner that meets the requirements of the due
process clause. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
71 L.Ed.2d 599 (1982). Although due process has never been
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precisely defined, the phrase embodies a requirement of
“fundamental fairness.” E.P. v. Marion County Office of Family &
Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting
Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,
68 L.Ed.2d 640 (1981).
J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.
App. 2000), reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion
Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004) (abrogation
based on underperformance of counsel). In addition, “procedural irregularities
in a CHINS proceedings [sic] may be of such import that they deprive a parent
of procedural due process with respect to the termination of his or her parental
rights.” A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112-13
(Ind. Ct. App. 2000), reh’g denied, trans. denied.
Mother
[9] On June 22, 2018, approximately one month after DCS filed its petition to
terminate Parents’ rights to Children, Mother requested the trial court reinstate
her parenting time with Children, as parenting time had been suspended in
January 2018 because Parents were unable to maintain sobriety. The trial court
ordered Mother to submit to a hair follicle test that day, and
[s]hould Mother’s drug screens return positive, Mother may not
commence parenting time and matters regarding visitation will
be addressed on the below date and time. Should Mother’s drug
screens return negative, Mother may commence supervised
parenting time and said parenting may continue so long as
Mother is submitting to all drug screens as requested and remains
drug and alcohol free.
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(Ex. Vol. I at 6.) 1 The record is silent regarding the outcome of Mother’s hair
follicle test on that date, but the trial court indicated in its findings that she
tested positive for buprenorphine, or suboxone, on June 26, 2018.
[10] On July 31, 2018, the trial court held a hearing on DCS’s termination petitions,
and Mother again requested visitation. The trial court expressed concern that
Mother had tested positive for buprenorphine, but Mother told the trial court
that she had a prescription for that substance. The trial court told Mother it did
not have time to consider the visitation issue at the July 31 hearing and if the
parties could not agree regarding whether visitation should be reinstated, the
issue would have to be addressed at the August 14, 2018, hearing.
[11] DCS did not reinstate visitation for Mother. At the August 14 hearing, Mother
again argued she was entitled to visitation with Children and claimed the trial
court was violating her due process rights by denying her visitation with her
Children. DCS argued Mother had not seen Children since January 2018,
when visits were stopped due to Mother’s drug use; that Mother was not
currently participating in a drug treatment program; and that Mother did not
have stable housing and employment. The trial court said it would take the
matter under advisement. The trial court did not reinstate Mother’s visitation
and terminated her parental rights to Children on January 18, 2019.
1
The page numbers for the Exhibit Volumes are based on the electronic page numbers and not those noted
on the document.
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[12] Mother contends her due process rights were violated when the trial court
allowed DCS to violate the trial court’s order to reinstate Mother’s visitation
with Children following a negative drug test. Mother does not challenge any of
the findings of the trial court, which state, relevant to Mother:
12. Mother was convicted of Theft (Class D Felony) and
Trespass (Class A Misdemeanor) on April 22, 2014. Mother was
convicted of Theft (Class D Felony), Check Fraud (Class D
Felony), and Intimidation (Level 6 Felony) on April 1, 2015.
Various Petitions to Revoke Probation and Motions to Commit
were filed.
13. Mother was incarcerated at the onset of the CHINS
proceeding. Mother was released from jail in March 2017
directly to inpatient substance abuse treatment at Lifespring
Incorporated. Mother completed treatment on May 24, 2017.
14. Mother completed an initial clinical intake assessment and a
substance abuse evaluation in July 2017. Mother disclosed a
history of substance use involving multiple substances. At that
time, Mother was struggling with methamphetamine and opiate
use. Mother reported symptoms of anxiety and depression that
did not meet diagnostic criteria. It was recommended that
Mother participate in intensive outpatient treatment (IOP).
Mother was referred to IOP at Wabash Valley Alliance in July
2017. Mother failed to attend and was discharged unsuccessfully
in December 2017.
15. In the beginning of January 2018, Mother relapsed on
methamphetamine. Mother was admitted for treatment at
Sycamore Springs on February 5, 2018 where she remained for
approximately three (3) weeks. After release from Sycamore
Springs, Mother was prescribed Suboxone. Mother struggled
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with taking Suboxone as prescribed at times even as recently as
August 2018.
16. During the CHINS proceedings, Mother tested positive for
the presence of drugs on 06/28/2017 (opiates), 07/19/2017
(opiates), 07/21/2017 (opiates), 07/31/2017 (tramadol),
08/02/2017 (tramadol/opiates), 08/07/2017 (tramadol),
08/11/2017 (opiates/marijuana), 08/24/2017 (opiates),
09/19/2017 (buprenorphine/opiates), 09/21/2017
(buprenorphine/opiates), 10/02/2017 (marijuana), 10/12/2017
(buprenorphine/tramadol/opiates/oxymorphone), 10/16/2017
(marijuana), 11/01/2017 (opiates), 01/19/2018
(methamphetamine), 01/29/2018 (methamphetamine),
06/13/2018 (buprenorphine), 06/14/2018 (buprenorphine),
06/21/2018 (buprenorphine), and 06/26/2018 (buprenorphine).
Mother failed to submit to all drugs screens as requested.
17. Mother completed a mental health assessment in July 2017
revealing no cognitive or developmental barriers to reunification.
Mother failed to regularly attend or participate in recommended
counseling.
18. Mother was unsuccessfully discharged from case
management services by several providers. Mother failed to
make progress toward goals of stable employment, stable
housing, financial management, enhanced parenting, and
sobriety.
19. Mother was initially consistent in participating in services.
However, Mother’s attendance and participation in services
deteriorated as the case progressed. Mother failed to maintain
consistent contact with DCS. Mother was incarcerated again
from March 15, 2018 to May 2018. After release from
incarceration in May 2018, Mother was unable to be located until
June 2018.
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20. At the time of the termination hearing, Mother had not
obtained adequate housing. Mother reported renting a room
from a friend for $100.00 per week. Mother has reported
sporadic employment at various times although Mother has
failed to provide verification of employment as requested.
Mother relies on the bus system or rides from friends and family.
Mother has no independent means of transportation.
21. Mother initially participated in supervised parenting time.
Mother provided primary care for the children during visits and
was prepared with appropriate supplies. Mother was capable of
meeting the children’s basic needs and demonstrated positive
interactions. Mother was bonded with the children. Mother’s
parenting time was transitioned to the home and the level of
supervision was decreased.
22. However, Mother’s parenting time was thereafter returned to
a fully supervised level at a facility after Mother was observed
driving the children. Mother’s request to transport the children
had been denied as Mother had no valid driver’s license or child
restraint systems. Father arrived at Mother’s home during a visit
at which time he became angry and verbally abusive to the extent
law enforcement was contacted.
23. Eventually, Mother’s parenting time was suspended for
continued methamphetamine use. Mother failed to submit to
drug screens to demonstrate a thirty (30) day period of sobriety in
order to resume parenting time. Mother has had no contact with
the children since January 2018.
(Father’s App. Vol. II at 29.) As Mother does not challenge the findings, we
accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)
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(“Because Madlem does not challenge the findings of the trial court, they must
be accepted as correct.”).
[13] Mother alleges the trial court violated her due process rights when it did not
reinstate visitation after DCS filed a petition to termination Parents’ parental
rights to Children, but she has not alleged she was prejudiced by this State
action. See In re T.W., 831 N.E.2d 1242, 1247 (Ind. Ct. App. 2005) (rejecting
mother’s argument regarding an alleged due process violation because she had
not demonstrated the alleged violation prejudiced her). Mother’s non-
compliance with services, habitual drug use, and inability to maintain
employment and housing would not have changed had the trial court allowed
her to restart supervised visitation with Children, whom she had not seen in at
least six months. Nor can we see how, under such circumstances, visitation
with Mother could have been in Children’s best interests. We reject Mother’s
assertion that the trial court denied her due process.
Father
[14] Father asserts his due process rights were violated in three ways: (1) that K.H.
should not have been adjudicated a CHINS; (2) that DCS did not accurately
report Father’s progress in services to the trial court; and (3) that DCS did not
make referrals for services as ordered by the trial court. We will address each
issue separately.
[15] First, Father challenges K.H.’s CHINS adjudication. However, Father did not
argue before the trial court, as he does appeal, that “[t]he findings of fact issued
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in K.H.’s case do not raise to the level of a child in need of services
adjudication.” (Id. at 16.) Therefore, the issue is waived, as a party may not
raise an argument for the first time on appeal. N.C. v. Indiana Dept. of Child
Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans. denied. Further, the time for
Father to appeal the validity of K.H.’s CHINS adjudication has long passed, as
the disposition order in the matter was issued August 14, 2017. See Matter of
N.C., 72 N.E.3d 519, 526 n.6 (Ind. Ct. App. 2017) (noting long line of appellate
cases that declare the dispositional order in a CHINS case the “final judgment”
required for appeal); see also Indiana Rules of Appellate Procedure 9(A)(1)
(appeal of a final judgment must be initiated no more than thirty days after the
entry of the final judgment).
[16] Second, Father argues DCS did not provide “accurate written documentation
of the outcomes of his services.” (Br. of Father at 18.) However, Father has
not directed us to where this inaccurate documentation or lack of accurate
documentation occurred during the proceedings, and therefore we are unable to
consider his argument. See Indiana Rules of Appellate Procedure 48(A)(8)(a)
(argument must include citations to the record relied on); see also Thomas v.
State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012) (appellate court will not
search the record to find the basis for a party’s argument), trans. denied.
[17] Finally, Father argues DCS did not provide a referral for a psychological
evaluation as ordered in the trial court’s dispositional order in the CHINS case.
However, we have long held “failure to provide services does not serve as a
basis on which to attack a termination order as contrary to law.” In re H.L., 915
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N.E.2d 145, 148 n.3 (Ind Ct. App. 2009). Additionally, Father may not “sit
idly by without asserting a need or desire for services” and then successfully
argue on appeal that he was denied services. In re B.D.J., 728 N.E.2d 195, 201
(Ind. Ct. App. 2000). As Father did not contact DCS to inquire regarding the
required psychological evaluation ordered by the trial court, he cannot now
assert the non-occurrence of that evaluation as error.
Termination of Parental Rights
[18] Father also challenged the termination of his parental rights to Children. We
review termination of parental rights with great deference. In re K.S., 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).
[19] “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. However, a trial
court must subordinate the interests of the parents to those of the children 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
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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.
[20] 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.
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.
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[21] 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.
Father does not challenge the trial court’s findings, and thus we accept them as
true. See Madlem, 592 N.E.2d at 687 (“Because Madlem does not challenge the
findings of the trial court, they must be accepted as correct.”). Parents argue
the trial court’s findings do not support its conclusion that termination was in
Children’s best interests.
Best Interests of Children
[22] In determining what is in Children’s best interests, a trial court is required to
look beyond the factors identified by DCS and consider the totality of the
evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.
A parent’s historical inability to provide a suitable environment, along with the
parent’s current inability to do so, supports finding termination of parental
rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 900
(Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-
appointed advocate to terminate parental rights, in addition to evidence that
conditions resulting in removal will not be remedied, are sufficient to show by
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clear and convincing evidence that termination is in Children’s best interests. In
re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[23] Regarding Children’s best interests, the trial court found:
24. Father has a lengthy criminal history. Father was convicted
of Residential Entry and Theft in April 2001, Confinement and
Battery in August 2001, Theft in March 2004, Theft in April
2004, Residential Entry and Possession of Marijuana with Prior
Conviction in January 2007, Habitual Traffic Violator in August
2009. Father was convicted of Burglary (Class B felony) on
February 24, 2012. Various Petitions to Revoke Probation were
filed. At the onset of the CHINS cases, Father remained on
probation.
25. Father participated in an initial clinical assessment in July
2017 at which time Father disclosed a long-term history of
substance use involving multiple substances. Father had just
completed a fourteen (14) day inpatient rehabilitation program at
Salvation Army Harbor Light Center. It was recommended that
Father complete intensive outpatient treatment as well as
Fatherhood Engagement to address employment, anger
management, parenting skills, and developing supports to
remains [sic] sober.
26. Father completed a substance abuse assessment in September
2017. At that time, Father was struggling with
methamphetamine and opiate use. Father reported his longest
period of sobriety was approximately three and one-half (3 ½)
years while in prison. It was recommended that Father
participate in intensive outpatient treatment (IOP) and individual
counseling.
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27. Father failed to participate in intensive outpatient treatment
as recommended. Father failed to regularly attend individual
counseling as scheduled. In January 2018, Harbor Lights
reported Father had returned for detoxification only but refused
additional recommended treatment.
28. During the CHINS proceedings, Father tested positive for
the presence of drugs on 07/27/2017
(amphetamine/methamphetamine), 10/12/2017
(cocaine/amphetamine/methamphetamine), 10/25/2017
(amphetamine/methamphetamine), and 01/29/2018
(methamphetamine). Father failed to submit to all drug screens
as requested.
29. Father failed to complete a recommended psychological
evaluation.
30. Father’s overall participation in case management services
was limited. Father failed to regularly attend sessions as
scheduled. When present, Father was generally disengaged.
Father failed to make progress toward goals of stable
employment, stable housing, financial management, enhanced
parenting skills, and sobriety. Father was unsuccessfully
discharged from several providers.
31. Father only sporadically attended parenting time as
scheduled. Father was capable of meeting the basic needs of the
children. However, Father was often distracted and disengaged
from the children. Father was easily frustrated and regularly
redirected to remain calm in front of the children. Father was
unsuccessfully discharged from parenting time services for lack of
attendance. Father failed to attend a scheduled visit on
December 15, 2017 and has had no contact with the children
since that time.
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32. CASA, Kelsey Andrews, supports termination of parental
rights and adoption in the best interests of the children. The
children require a safe and stable environment. The parents have
failed to maintain stable employment or housing to provide for
the children. The parents have continued sporadic substance
abuse. Father has ceased all efforts toward reunification.
Although initial separation of the siblings was not an ideal
situation, the children are bonded with their respective
placements and doing very well. The respective placements have
arranged for ongoing contact between the siblings.
(Father’s App. Vol. II at 30.)
[24] Father argues termination of his parental rights is not in Children’s best
interests because even though he “allegedly cannot provide the perfect home[,]”
that fact is irrelevant because he “loves his children” and “has a strong bond
with his children.” (Br. of Father at 20.) However, the trial court’s findings tell
a much different story. As Father does not challenge those findings and they
stand as true, see Madlem, 592 N.E.2d at 687 (unchallenged findings determined
to be true), and those findings support the trial court’s conclusion that
termination of Father’s parental rights was in Children’s best interests, we find
no error. See Prince v. Dept. of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App.
2007) (termination in children’s best interests based on Mother’s habitual
pattern of drug use and non-compliance with services).
Conclusion
[25] Mother has not demonstrated she suffered prejudice when the trial court did not
require DCS to reinstate visitation with Children following the filing of the
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petition for termination, and we conclude her due process rights were not
violated. Additionally, Father’s due process rights were not violated for the
reasons he advances. Finally, the trial court’s findings support its conclusion
that the termination of Father’s rights to Children were in Children’s best
interests. Accordingly, we affirm.
[26] Affirmed.
Najam, J., and Bailey, J., concur.
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