In the Matter of the Termination of the Parent-Child Relationship of Ay.H., Ar.H., and C.B. (Minor Children) S.B. (Father) and R.H. (Mother) v. The Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 149 ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 30 2019, 7:42 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 ATTORNEYS FOR APPELLEE
APPELLANT/FATHER Curtis T. Hill, Jr.
Kyle K. Dugger Attorney General of Indiana
Bloomington, Indiana David E. Corey
ATTORNEY FOR Deputy Attorney General
APPELLANT/MOTHER Indianapolis, Indiana
Karen E. Wrenbeck
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 30, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of Ay.H., Ar.H., and C.B. 18A-JT-1119
(Minor Children); Appeal from the Monroe Circuit
S.B. (Father) and R.H. (Mother), Court
The Honorable Kelsey B. Hanlon,
Appellants-Respondents,
Special Judge
v. Trial Court Cause Nos.
53C07-1701-JT-43
53C07-1701-JT-44
The Indiana Department of
53C07-1701-JT-45
Child Services,
Appellee-Petitioner.
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Pyle, Judge.
Statement of the Case
[1] R.H. (“Mother”) and S.B. (“Father”) each appeal the termination of the parent-
child relationship with their child C.B. (“C.B.”). Mother also appeals the
termination of the parent-child relationships with her older children Ay.H.
(“Ay.H.”) and Ar.H. (“Ar.H.”). Both parents claim that there is insufficient
evidence to support the terminations. Specifically, both parents argue that the
Department of Child Services (“DCS”) failed to prove by clear and convincing
evidence that: (1) there is a reasonable probability that the conditions that
resulted in the children’s removal or the reasons for placement outside the
home will not be remedied; and (2) termination of the parent-child relationship
is in the children’s best interests. Father also argues that the trial court abused
its discretion when it denied his motion to continue the termination hearing.
Concluding that the trial court did not abuse its discretion in denying Father’s
motion to continue the termination hearing and that there is sufficient evidence
to support the termination of the parent-child relationships, we affirm the trial
court’s judgment.
[2] We affirm.
Issue
1. Whether the trial court abused its discretion in denying
Father’s motion to continue the termination hearing.
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2. Whether there is sufficient evidence to support the
termination of the parent-child relationships.
Facts
[3] The facts most favorable to the judgment reveal that Mother is the parent of
twin daughters Ay.H. and Ar.H., who were born in 2008 and son C.B., who
was born in 2010. 1 Father is the parent of C.B. Father was incarcerated in
2012 following his convictions for felony burglary and theft.
[4] In September 2015, Mother failed to pick up the children after school. School
officials were unable to reach her so they contacted DCS. When a DCS case
worker spoke with Mother by telephone the following day, the case worker
advised Mother that her children had been placed in foster care. Mother, who
was in the psychiatric unit at a Bloomington hospital, was very emotional on
the phone. Mother explained that she “had had what she called a mental
breakdown due to [] being homeless and reported that she needed to use
marijuana in order to calm down . . . .” (Tr. Vol. 1 at 16). Mother also
admitted that she used marijuana regularly.
[5] DCS filed a petition alleging that Ay.H., Ar.H., and C.B. were children in need
of services (“CHINS”). In November 2015, the trial court adjudicated the
children to be CHINS. Following a dispositional hearing, the trial court
ordered Mother to: (1) complete a substance abuse assessment and follow all
1
The father of Ay.H. and Ar.H. is deceased.
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recommendations with 95% compliance; (2) complete a psychological
evaluation and follow all recommendations with 95% compliance; (3)
participate in individual therapy and follow all recommendations with 95%
compliance; (4) keep her home clean and appropriate; (5) submit to weekly
drug screens; and (6) attend all scheduled supervised visits with her children.
The trial court ordered Father to complete similar services “[u]pon his release
from prison.” (Ex. 48).
[6] In January 2017, DCS filed petitions to terminate both Mother’s and Father’s
parental rights. The trial court scheduled the termination hearing for April
2017. After at least twelve continuances attributable to the parties’ requests, the
trial court’s own motions, the trial court’s grant of Mother’s change of judge
motion, and other reasons, the termination hearing was scheduled for March
2018. One week before the scheduled hearing, Father filed a motion for
another continuance, which the trial court denied. The day of the hearing,
Father renewed his request for a continuance, but the trial court again denied
the motion.
[7] Testimony at the March 2018 termination hearing revealed that, at the time of
the hearing, Mother was unemployed and lacked stable housing. During the
course of the CHINS proceeding, Mother had lived with different family
members and friends in different cities and states. Mother testified that she was
still using marijuana and planned to do so “until [marijuana] gets legal.” (Tr.
Vol. 1 at 110). According to Mother, marijuana would “eventually get
legalized in every state.” (Tr. Vol. 2 at 110). In addition, Mother had not
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participated in any of the court-ordered therapeutic services or visited with her
children during the year before the hearing.
[8] Regarding Father, the testimony at the 2018 hearing revealed that he had been
incarcerated since 2012. Further, in 2017, Father had received three prison
violations. Specifically, in January 2017, Father had had a positive drug test
and had lost ninety days of credit time. In May 2017, Father had received a
violation for unauthorized possession and destruction relating to batteries, and
in July 2017, Father had been removed from a substance abuse treatment
program following another violation. A July 2017 Department of Correction
(“DOC”) record provides that Father’s “motivation was poor” and that he had
“struggled with understanding the rules and developing the willingness to leave
the criminal lifestyle.” (Ex. Vol. 4 at 217). At the March 2018 hearing, Father
testified that he would be released from the DOC between June and November
2018; however, the DOC’s Offender Locator provides that his release date is in
March 2019. See https://www.in.gov/apps/indcorrection/ofs/ofs (last visited
01/10/2019).
[9] Also at the hearing, DCS Family Case Manager Katie Bostic (“FCM Bostic”)
testified that the children had been removed from Mother because of her
housing instability and drug use. FCM Bostic explained that Mother’s housing
instability had not been remedied and that Mother was living in a hotel at the
time of the hearing and was unemployed. In addition, FCM Bostic testified
that Mother’s drug use had not been remedied as demonstrated by Mother’s
failure to complete substance abuse treatment and her continued use of
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marijuana. Regarding Father, the case manager testified that Father had not
been fully compliant with DOC’s programs as demonstrated by his three recent
violations within the prior year. In addition, FCM Bostic pointed out that C.B.
had been only two years old when Father had been sent to DOC, which was six
years prior to the hearing, and that foster mother had provided more care for
C.B. than Father had.
[10] FCM Bostic asked the trial court to terminate the parental rights of both parents
“so that the permanency plan could be achieved for these children.” (Tr. Vol. 2
at 10). According to FCM Bostic, the foster parent planned to adopt the three
children, and the termination of both Mother’s and Father’s parental rights
would provide consistency and stability for them and would be in their best
interests. Lastly, court-appointed special advocate Lester Wadzinski (“CASA
Wadzinski”) also testified that termination was in the children’s best interests.
Specifically, CASA Wadzinski explained that, “It’s just hard on the kids[,] and
they are in a good place with [foster mother].” (Tr. Vol. 2 at 21, 28).
[11] Following the hearing, the trial court issued an order terminating the parental
relationships between Mother and Ay.H., Ar.H., and C.B. In addition, the trial
court terminated the parental relationship between Father and C.B. Each
parent separately appeals the terminations.
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Decision
1. Denial of Father’s Motion to Continue the Termination Hearing
[12] Father first argues that the trial court abused its discretion in denying his
motion to continue the termination hearing. Generally, the decision to grant or
deny a motion to continue is within the sound discretion of the trial court, and
we will reverse only for an abuse of discretion. In re J.E., 45 N.E.3d 1243, 1246
(Ind. Ct. App. 2015), trans. denied. An abuse of discretion occurs when the trial
court’s conclusion is clearly against the logic and effect of the facts and
circumstances before the court or the reasonable and probable deductions to be
drawn therefrom. Id. When a motion to continue has been denied, an abuse of
discretion will be found if the moving party has demonstrated that there was
good cause for granting the motion and that he was prejudiced by the denial.
Id.[13] Here, Father argues that he has demonstrated the requisite good cause and
prejudice because the “denial of [his] motion to continue resulted in the loss of
his parental rights.” (Father’s Br. at 11). We agree with DCS that the
gravamen of this argument is that Father “wanted more time to show he was a
fit parent.” (DCS’s Br. at 19). However, our review of the evidence first reveals
that the termination hearing had already been continued at least twelve times
from its initially scheduled date of April 2017. Father therefore had an
additional year to show his fitness as a parent. Despite this opportunity, Father
continued to use drugs and break rules while incarcerated. He was also
removed from a substance abuse program, and a DOC record noted that, even
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after serving six years in the DOC, Father “struggled with understanding the
rules and developing the willingness to leave the criminal lifestyle.” (Ex. Vol. 4
at 217). Based upon these facts and circumstances, Father has failed to
demonstrate both that there was good cause for granting the motion and that he
was prejudiced by the denial. The trial court did not abuse its discretion in
denying Father’s motion to continue the termination hearing.
2. Sufficiency of the Evidence to Support the Terminations
[14] Both parents argue that there is insufficient evidence to support the termination
of their parental rights. The traditional right of parents to establish a home and
raise their children is protected by the Fourteenth Amendment to the United
States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App.
2015), trans. denied. However, a trial court must subordinate the interests of the
parents to those of the child when evaluating the circumstances surrounding a
termination. Id. at 1188. Termination of the parent-child relationship is proper
where a child’s emotional and physical development is threatened. Id.
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id.
[15] Before an involuntary termination of parental rights may occur, DCS is
required to allege and prove, among other things:
(B) that one (1) of the following is true:
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(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 the alleged circumstances by
clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1230 (Ind. 2013).
[16] When reviewing a termination of parental rights, this Court will not reweigh
the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,
628 (Ind. 2016). We consider only the evidence and any reasonable inferences
to be drawn therefrom that support the judgment and give due regard to the
trial court’s opportunity to judge the credibility of the witnesses firsthand.
K.T.K., 989 N.E.2d at 1229.
[17] Mother and Father both argue that DCS failed to prove by clear and convincing
evidence that there is a reasonable probability that the conditions that resulted
in the children’s removal or the reasons for placement outside the home will not
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be remedied. 2 In determining whether the conditions that resulted in a child’s
removal or placement outside the home will not be remedied, we engage in a
two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify
the conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. The trial court may also consider services offered to the parent by
DCS and the parent’s response to those services as evidence of whether
conditions will be remedied. Id.[18] Here, our review of the evidence and any reasonable inferences to be drawn
therefrom that support the judgment reveals that the children were removed
2
[1] Father also argues that DCS failed to prove by clear and convincing evidence that the continuation of the
parent-child relationships poses a threat to the children’s well-being. However, because INDIANA CODE § 31-
35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to establish by clear and convincing evidence
only one of the three requirements of subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010),
trans. dismissed. We therefore discuss only whether there is a reasonable probability that the conditions that
resulted in the children’s removal or the reasons for their placement outside the home will not be remedied.
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from Mother because of unstable housing and Mother’s drug use. C.B. could
not be placed with Father because Father was incarcerated for several felonies.
At the time of the termination hearing, Mother did not have stable housing and
was unemployed. In addition, she continued to use marijuana and did not
participate in any of the court-ordered therapeutic services or visited with her
children during the year before the hearing. In 2017, after being incarcerated
for five years, Father was still failing to comply with prison regulations.
Specifically, Father had a positive drug test, received a violation for
unauthorized possession and destruction relating to batteries, and was removed
from a substance abuse treatment program. These violations caused Father to
lose accrued credit time that would have led to an earlier release from the DOC.
This evidence supports the trial court’s conclusion that there was a reasonable
probability that the conditions that resulted in the children’s removal would not
be remedied. We find no error.
[19] Next, Mother and Father both argue that there is insufficient evidence that the
termination was in the children’s best interests. In determining whether
termination of parental rights is in the best interests of a child, the trial court is
required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267
(Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the
interests of the parents to those of the child involved. Id. Termination of the
parent-child relationship is proper where the child’s emotional and physical
development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.
2002), trans. denied. “A parent’s historical inability to provide adequate
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housing, stability and supervision coupled with a current inability to provide the
same will support a finding that continuation of the parent-child relationship is
contrary to the child’s best interest.” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct.
App. 2000). Further, the testimony of the service providers may support a
finding that termination is in the child’s best interests. McBride v. Monroe Cty.
Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
[20] Here, our review of the evidence reveals that Mother and Father have
historically been unable to provide housing, stability, and supervision for their
children and were unable to provide the same at the time of the termination
hearing. In addition, FCM Bostic and CASA Wadzinski both testified that
termination was in the children’s best interests. The testimony of these service
providers, as well as the other evidence previously discussed, supports the trial
court’s conclusion that termination was in the children’s best interests.
[21] We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[22] Affirmed.
Najam, J., and Crone, J., concur.
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