In Re the Involuntary Termination of S.H. and E.H., N.H. v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Mar 04 2013, 9:41 am
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: ATTORNEYS FOR APPELLEE:
DEIDRE L. MONROE ROBERT J. HENKE
Public Defender’s Office DCS Central Administration
Gary, Indiana Indianapolis, Indiana
ALEJANDRO ROSILLO
DCS, Lake County Office
Gary, Indiana
ATTORNEY FOR COURT APPOINTED
SPECIAL ADVOCATE:
DONALD W. WRUCK
Wruck Paupore PC
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE INVOLUNTARY TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF )
S.H. and E.H.: )
)
N.H., )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1207-JT-313
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner, )
)
and )
)
LAKE COUNTY COURT APPOINTED )
SPECIAL ADVOCATE, )
)
Co-Appellee. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Judge
Cause No. 45D06-1104-JT-99
Cause No. 45D06-1104-JT-100
March 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
N.H. (Father) appeals from the involuntary termination of his parental rights to his
children, S.H. and E.H. Father challenges the sufficiency of the evidence supporting the trial
court’s termination order.
We affirm.
The State filed a Petition Alleging A Child to be in Need of Services (CHINS
Petition) for both S.H. and E.H. A detention hearing was held, at the conclusion of which the
juvenile court continued the detention of the children, ordered the parents to participate in
services, and entered a denial of the allegations on the part of the parents. On December 18,
2009, the juvenile court found S.H. and E.H. to be CHINS after Mother and Father admitted
to the allegations in the CHINS Petitions. The juvenile court then proceeded to disposition
and entered its dispositional decree and parental participation decree.
On April 9, 2010, August 16, 2010, and November 10, 2010, the juvenile court held a
review hearing where the permanency plan was maintained in an attempt to reunify the
children with their parents. On February 4, 2011, the juvenile court suspended the parents’
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visitation with S.H. and E.H. on the recommendations of the LCDCS and the court appointed
special advocate (CASA). On February 23, 2011, the juvenile court held a review hearing
during which the Lake County Department of Child Services (LCDCS) recommended a
permanency plan terminating the parental rights of Mother and Father to S.H. and E.H. and to
pursue foster parent adoption. The trial court took that recommendation under advisement
and then entered its order to that effect on February 25, 2011.
On April 1, 2011, the LCDCS filed its petitions for the termination of parental rights,
and an initial hearing on those petitions was held on June 29, 2011. On April 18, 2012, the
juvenile court held an evidentiary hearing on the termination petitions, at which Father and
Mother appeared with counsel. The court took the matter under advisement, issuing its
dispositional order on May 24, 2012 terminating the parental rights of Father and Mother as
to S.H. and E.H.
Father is the biological father of S.H., born in October 2005 and E.H., born in May
2008. 1 The facts most favorable to the trial court’s judgment reveal that on November 11,
2009, LCDCS received a referral regarding S.H. and E.H., who at the time were ages four
and one, respectively. The children had been present in the home when Mother struck Father
on the head with a lamp during a domestic disturbance between the two. Father was taken to
the hospital where he received stitches for his injuries. LCDCS Family Case Manager
(FCM) Veronica Martinez interviewed Mother and Father at the hospital. FCM Martinez
1
The parental rights of S.H. and E.H.’s biological mother, M. H. (Mother), were involuntarily terminated by
the trial court in its May 2012 termination order. Mother does not participate in this appeal. We therefore limit
our recitation of the facts to those pertinent solely to Father’s appeal.
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went to the home and found it to be filthy, filled with trash, and infested with cockroaches.
The children had not been bathed and had dirt on their faces, hands, legs, and feet. The
condition of the home was such that the children would have been removed on that basis
alone.
S.H. and E.H. were removed from the home and placed in Carmelite Home on
November 11, 2009 due to the domestic violence that had occurred and health and safety
issues. At the detention hearing during which the children were made temporary wards of the
State, the trial court ordered both parents to submit to a psychological evaluation, submit to
drug and alcohol evaluations, attend parenting classes, individual and family counseling for
domestic violence, and supervised visitation. On December 18, 2009, the children were
made wards of the State retroactively to November 11, 2009. The children had not been
returned to the care of either parent.
The original case plan for the family was reunification. Father completed some
services, including parenting classes and ten sessions of individual therapy. Father attended
family therapy with Mother in addition to submitting to a psychological evaluation and drug
and alcohol assessments. During Father’s psychological evaluation, Father revealed that he
had a history of sexual abuse as both a victim and a perpetrator. Father alleged that he had
been inappropriately touched by his grandfather, but that no charges were brought against the
grandfather. Father was convicted at the age of seventeen after inappropriately touching a
young boy. Father failed to comply with the terms of his probation and was incarcerated at
the age of twenty-three. Father is a registered sex offender.
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The main recommendations that were made after Father’s completion of the
psychological evaluation on November 30, 2009, were as follows: 1) Individual therapy to
address depression and possible pain from medical issues; 2) anger management counseling;
3) parenting classes; 4) address issues of self-obsession and dependency on others; 5) marital
counseling due to relationship issues with Mother, his wife; 6) expert sexual offender
evaluation to gauge the potential for future sexual abuse perpetration; 7) learning to care for
himself before reunification with and care of the children; and 8) reunification with children
after adequate progress in therapy, progress with sexual abuse issues, and economic and
emotional adjustment.
Case Manager Melissa Humpher recommended that Father complete a psychosexual
evaluation because she believed it was necessary for his reunification with the children.
Humpher testified that the psychosexual evaluation would accurately assess Father’s needs
concerning therapy and rehabilitation. Father was referred to Dr. Tiffany Simpson for the
evaluation and he agreed to undergo the evaluation in February 2010. Although Father
testified at the fact-finding hearing that he completed the evaluation with Dr. Simpson, Dr.
Simpson informed Humpher that Father failed to complete the evaluation. Father told
Humpher that he would complete a psychosexual evaluation on his own with another agency.
Father also claimed that he was ordered to undergo sex offender therapy when he was
incarcerated, and agreed in March 2010 to obtain verification. Father failed to provide
Humpher or his subsequent case manager, Anabel Quiroz-Aguilar, with the necessary
verification information.
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Both parents attended therapy to address the domestic violence issues present in their
relationship, but they were not progressing in their therapy. The violence in the relationship
escalated such that Father attempted to choke Mother in May 2010. Father and Mother
argued during supervised visitation with their children, and that behavior negatively affected
their children’s behavior. In particular, S.H. began exhibiting aggressive behavior and would
often push and hit his sister, E.H. S.H.’s aggressive behavior would escalate immediately
following visitations with Father and Mother.
After their initial placement in Carmelite home, the children were placed in two foster
homes prior to their current placement with foster parents in a pre-adoptive home on
December 6, 2010. The behavior that led to the children’s removal from the two prior foster
homes included S.H. ripping the television off the wall, tearing his room apart at night, and
urinating on the floor, his coat, and towels.
Father’s visitation was stopped in January 2011 when the foster parents reported the
following about the children’s behavior: 1) S.H. placed a stick in the dog’s anus and touched
the dog’s penis; 2) S.H. asked Foster Mother if the dog was allowed to lick his privates; 3)
S.H. masturbated very often at bedtime, bath time, and in the living room; 4) E.H. had to be
taken to the emergency room because she was holding her vagina and buttocks, yelling and
crying “ouchie” after a visit from Father and Mother during which Father was briefly left
alone with her; 5) S.H. opened his legs and told E.H. to touch him when they were both at
daycare; and 6) S.H. explained to Foster Mother that he engaged in the behavior at daycare
because “old dad” made him do that.
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LCDCS received the report regarding sexual abuse of S.H. by his Father. When S.H.
and E.H. were at daycare, S.H. asked his sister, E.H. to touch his genitals. On two separate
occasions, S.H. told the case manager and Foster Mother that Father used to ask S.H. to touch
his genitals. S.H. touched his penis in order to show Humpher what he did at the daycare
with E.H. S.H. identified Father as “old daddy” and explained that he did this “[b]ecause old
daddy did it.” Transcript at 62. Humpher did not believe that sexual abuse occurred in a
foster home or the Carmelite Home because S.H. consistently claimed Father was the
perpetrator.
When the matter was subsequently investigated at the FAB Center, and during his
forensic interview observed by Humpher and a detective, S.H. became very anxious, climbed
the furniture, asked for something to drink, and in general did not cooperate. At one point,
S.H. climbed over the interviewing detective and put his hands on the detective’s genitals.
The detective told Humpher that he had never been touched by a child before and that the
child would likely become a perpetrator himself and soon. Because there were no
eyewitnesses to acts of sexual abuse alleged by S.H. and because Father denied the
allegations, the allegations were classified as unsubstantiated.
In March 2011, Mother, maternal aunt, and maternal grandmother confessed that they
knew Father touched S.H. prior to the involvement of the LCDCS because S.H. had told
them. Mother also described an incident where Father took E.H. to the bedroom, locked the
door, and Mother could hear E.H. screaming. Mother pounded on the door in an attempt to
stop Father, but was told to mind her own business. Father threatened to harm Mother so she
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did not report the incident. FCM Quiroz-Aguilar believed that Mother was not capable of
protecting the children from further abuse.
In October 2010, Father participated in some therapy, but struggled to apply what he
had learned and displayed tendencies to be dishonest. Although Father was receiving some
therapy to address his sexual abuse history, the lack of the psychosexual evaluation prevented
Father from receiving more tailored treatment to rehabilitate Father. Ultimately, the juvenile
court terminated Father’s parental rights to S.H. and E.H. Father now appeals the juvenile
court’s order terminating his parental rights.
Initially, we note that when reviewing the termination of parental rights, we will not
reweigh the evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258(Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and reasonable
inferences that are most favorable to the judgment. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside the court’s judgment terminating a
parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204 (Ind. Ct.
App. 1999), trans. denied. Thus, if the evidence and inferences support the trial court’s
decision, we must affirm. Id.Here, the trial court made detailed findings in its order terminating Father’s parental
rights. Where the trial court enters 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 (Ind. 2005). First, we determine whether the evidence supports the findings, and
second we determine whether the findings support the judgment. Id. “Findings are clearly
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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). A judgment is clearly
erroneous only if the findings do not support the trial court’s conclusions or the conclusions
do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d 98.
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. Although parental rights are of a
constitutional dimension, the law provides for the termination of these rights when parents
are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144(Ind. Ct. App. 2008). In addition, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding the termination. In re K.S.,
750 N.E.2d 832 (Ind. Ct. App. 2001).
Before an involuntary termination of parental rights may occur in Indiana, the State is
required to allege and prove, among other things:
(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. . . .
Ind. Code Ann. § 31–35–2–4(b)(2) (West, Westlaw current through 2012 2nd Reg. Sess.).
The State’s burden of proof for establishing these allegations in termination cases “is one of
‘clear and convincing evidence.”’ In re G.Y., 904 N.E.2d 1257, 1260–61 (Ind. 2009)
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(quoting Ind. Code Ann. § 31–37–14–2 (West, Westlaw current through 2012 2nd Reg.
Sess.)). If the court finds that the allegations in a petition described in section 4 of this
chapter are true, the court shall terminate the parent-child relationship. I.C. § 31–35–2–8
(West, Westlaw current through 2012 2nd Reg. Sess.).
Father concedes that both S.H. and E.H. have been removed from the parent and have
been under the supervision of the LCDCS for at least fifteen months of the most recent
twenty-two months, beginning with the date the children were removed as the result of the
CHINS determination. See I.C. § 31-35-2-4(b)(2)(A)(iii). Likewise, Father concedes that
there is a satisfactory plan for the care and treatment of S.H. and E.H. by foster parents who
wish to adopt them. See I.C. § 31-35-2-4(b)(2)(D). Furthermore, Father does not challenge
the juvenile court’s findings of fact. Rather, Father challenges the weight given to the facts
and the legal conclusions drawn by juvenile court’s dispositional order.
Father contends that the juvenile court erred by concluding from the facts presented at
the evidentiary hearing that there was a reasonable probability that the conditions resulting in
S.H.’s and E.H.’s removal or placement outside the parents’ home will not be remedied. He
claims that the juvenile court “failed to give any weight to testimony that father completed
parenting classes[,] counseling, home base[d] services, individual counseling, domestic
violence counseling, psychological evaluation and completed his psychosexual evaluation.”
Appellant’s Brief at 10. Father further contends that the juvenile court failed to consider the
evidence that Father and Mother were divorced and Father was living in Kentucky at the time
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of the evidentiary hearing, and “failed to give any weight to the fact that he had complied in
totality with his case plan.” Id. at 11.
When determining whether a reasonable probability exists that the conditions
justifying a child’s removal and continued placement outside the home will not be remedied,
the juvenile court must judge a parent’s fitness to care for his or her children at the time of
the termination hearing, taking into consideration evidence of changed conditions. In re J.T.,
742 N.E.2d 509 (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the
parent’s habitual patterns of conduct to determine whether there is a substantial probability of
future neglect or deprivation of the children. M.M. v. Elkhart Office of Family & Children,
733 N.E.2d 6 (Ind. Ct. App. 2000).
Father’s argument with respect to the juvenile court’s finding appears to be a request
for this court to reweigh the evidence, a task we are forbidden to undertake. The trial court
acknowledged that Father did complete some of the services provided for him, but he was not
progressing in those services. Father did testify that he had completed the psychosexual
evaluation necessary for reunification with the children; however, Humpher testified that
Father had not completed the evaluation. The juvenile court was thus left with a credibility
determination, which we will not disturb on review.
We do not agree with Father that the juvenile court’s conclusions were clearly
erroneous. The record reveals that S.H. was acting out in a sexually inappropriate manner
and displayed anger issues, which we have set forth in detail above. S.H. would act out
aggressively against E.H., his sister, after visitations with Mother and Father. That behavior
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has been greatly reduced since visitation with the parents has ceased. Foster Mother testified
that the children are thriving in their pre-adoptive foster home and have bonded with those
family members.
Neither Mother nor Father was providing emotional or financial support for the
children and neither parent was in a position to properly parent the children. At the time of
the evidentiary hearing, Father and Mother were divorced and Mother had remarried. The
domestic violence between the two, however, continued after the dissolution of their
marriage, with Father threatening to kill Mother, her new husband, and the maternal
grandmother. Mother obtained a protective order against Father because of those threats and
his threat to burn down their house. In 2012, Father was living in a trailer park in Kentucky
where both the paternal grandfather and paternal great-grandfather live. Father was
concerned with the option of placing S.H. and E.H. in the paternal grandmother’s home in
Kentucky, because Father alleged that paternal grandfather was an abusive alcoholic who had
molested a child without being prosecuted. The juvenile court’s conclusion that there was a
reasonable probability that the conditions resulting in S.H.’s and E.H.’s removal or placement
outside the parents’ home will not be remedied was supported by the findings which were
established by clear and convincing evidence.
Father also challenges the juvenile court’s conclusion that a continuation of the
parent-child relationship posed a threat to the well-being of S.H. and E.H. Father contends
that the juvenile court “failed to mention or give any credit to [Father’s], suitable housing,
parenting classes completion, completing counseling, consistent visitation, consistent court
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attendance, employment status, and completion of his psychological evaluation.” Appellant’s
Brief at 11.
The record reveals that certain conditions in the parent-child relationship remained
unchanged. In particular, Father was a registered sex offender and S.H. identified Father as
his perpetrator. S.H.’s inappropriate sexual behavior resulted from his exposure to sexual
abuse. Father never supplied evidence of his completion of sexual offender treatment and
failed to comply with a psychosexual assessment. Father continued to threaten Mother with
violence post-dissolution, and the negative behavior exhibited by the children after visits with
their parents stopped once visitation was ceased. S.H. and E.H. were exposed to harm while
they remained in Father’s care. “When the evidence shows that the emotional and physical
development of [] child[ren] in need of services is threatened, termination of the parent-child
relationship is appropriate.” In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). The
juvenile court’s conclusion is supported by the findings, which were established by clear and
convincing evidence.
Father also argues that the juvenile court’s conclusion that termination of his parental
rights to S.H. and E.H. would be in their best interests is clearly erroneous. Father supports
this argument by stating that “[t]he trial court failed to address the pain and suffering that
these children will have to endure, when they realize that they will never see their parents
again. . . . Certainly, mental abuse is not in the best interest of S.H. and E.H. . . .”
Appellant’s Brief at 11.
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The evidence established that FCM Quiroz-Aguilar believed that termination of
parental rights and adoption by the current foster family was in the best interests of S.H. and
E.H. She supported her opinion by the evidence of Father’s unresolved sexual abuse issues
and lack of progress in the services provided. S.H.’s behavior greatly improved after the
visits with Mother and Father stopped in January 2011, and the instances of S.H.’s sexually
inappropriate behavior had greatly reduced while in his current placement. S.H. is receiving
therapy and the foster parents have a safety plan in their home in order to prevent S.H. from
being unsupervised with his little sister, E.H. The foster parents wish to adopt S.H. and E.H.
When E.H. was placed with her current foster family she was two and one-half years
old and could not speak. Since living with her foster parents, E.H., who is now four years
old, can speak and read. At the time of the hearing, S.H.’s sexual behavior had decreased
from approximately eight instances per day to two incidents in the past four months. A
bonding assessment revealed that S.H. and E.H. perceive the foster parents to be their
parents. Mother admitted at the hearing that the foster parents are the only parents the
children know.
At the time of the evidentiary hearing, Father was receiving SSI disability benefits and
was living in a two-bedroom mobile home trailer in Kentucky near his family members.
Father’s family has a history of physical and sexual abuse.
A juvenile court must subordinate a parent’s interests to those of the child. In re J.S.,
906 N.E.2d 226 (Ind. Ct. App. 2009). S.H. and E.H. have been in foster care since
November 12, 2009 and have thrived in that environment. They have bonded with the
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members of a foster family who wish to adopt them. The juvenile court’s conclusion that
termination of the parent-child relationship is in the best interest of S.H. and E.H. is
supported by the findings, which were established by clear and convincing evidence. Father
has failed to demonstrate how termination of his parental relationship with S.H. and E.H.
would constitute either mental abuse or clear error.
We will reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake has been
made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Father’s parental rights to S.H. and E.H. was clearly
erroneous. We therefore affirm the juvenile court’s judgment.
Judgment affirmed.
NAJAM, J., and BRADFORD, J., concur.
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