In re Termination of the Parent-Child Relationship of: S.H. and A.H., Minor Children, K.H., Mother, and R.H., Father v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 31 2018, 10:59 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 MOTHER ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT FATHER Deputy Attorney General
Indianapolis, Indiana
Matthew J. Lorenzo
Lorenzo Bevers Braman & Connell
Seymour, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Termination of the Parent- December 31, 2018
Child Relationship of: S.H. and Court of Appeals Case No.
A.H., Minor Children, 18A-JT-1657
K.H., Mother, and R.H., Father, Appeal from the Jackson Superior
Court
Appellants,
The Honorable Bruce A.
v. MacTavish, Judge
Trial Court Cause Nos.
The Indiana Department of 36D02-1707-JT-32
Child Services, 36D02-1707-JT-33
Appellee.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1657 | December 31, 2018 Page 1 of 27
[1] K.H. (“Mother”) and R.H. (“Father,” and together with Mother, “Parents”)
appeal the involuntary termination of their parental rights with respect to S.H.
and A.H. We affirm.
Facts and Procedural History
[2] On July 25, 2017, the Indiana Department of Child Services (“DCS”) filed a
petition for termination of Parents’ parental rights as to S.H., born on October
15, 2010, and A.H., born on February 18, 2015. On January 17, 2018, and
February 21, 2018, the court held an evidentiary hearing.
[3] On June 11, 2018, the court entered an order terminating Parents’ parental
rights, which found that there was a reasonable probability that the conditions
that resulted in the children’s removal or the reasons for placement outside of
Parents’ home will not be remedied and provided:
5. On or about 6/4/2016, the family became involved with DCS
when DCS received a report alleging the children were victims of
neglect. More specifically, the facts are the family had been
living in a hotel but were homeless. Mother and Father did not
have a place for the children to stay that evening. Upon
receiving the report, DCS gave Mother and Father an
opportunity to find appropriate housing. Mother and Father
agreed that the children would reside with an acquaintance until
they could find appropriate housing. After five (5) days, the
family still did not have housing and they were then homeless.
Mother admitted methamphetamine use to DCS staff. [S.H.]
reported seeing Mother and Father smoke something that
“looked like flour” to DCS staff. Parents refused two requests for
drug screen[s].
6. The children were removed from [Parents’] care on 6/8/2016.
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7. On 6/10/2016, DCS filed its petition alleging that children
were Children in Need of Services (CHINS).
8. On 6/10/2016, the Court held a detention hearing, and
upheld the removal of the children. Mother and Father denied
the allegations set forth in the petition and an Initial Hearing was
set for 6/20/16. Mother and Father submitted to a drug screen
at that time.
9. On 6/14/2016, DCS received the results of Mother’s and
Father’s drug screens. They were negative.
10. On 6/20/2016, the Court held an initial hearing. Since the
filing of the petition, the parents were able to secure a position at
Anchor House under the stipulation that the children would
reside with them by 6/20/2016 and Mother and Father would
maintain negative drug screens. After DCS advised the Court of
Mother and Father’s drug screen results, Mother and Father’s
housing situation, and the stipulations from Anchor House, the
children were allowed to return home, to Anchor House, and
DCS was pursuing the case as an in-home CHINS. The Court
set a Fact Finding Hearing for 7/23/16. DCS drug-screened
Mother and Father after the hearing.
11. Mother and Father submitted to drug screens at Anchor
House on 6/21/2016. Mother tested positive for
methamphetamine and was kicked out of Anchor House. Father
was allowed to stay at Anchor House with the children.
12. On 6/23/2016, DCS drug screened Mother and Father.
Both Mother and Father tested positive for methamphetamine
and amphetamine. DCS sought and obtained an emergency
custody order for the children, which the Court entered on
6/23/2016. The Court set a detention hearing for 6/27/2016.
13. On 6/27/2016, the Court conducted a Detention Hearing,
upheld the detention of the children, and approved placement of
the children with the children’s sister’s teacher and her husband.
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14. On 6/29/2016, DCS, Mother and Father entered into
stipulations for admission of CHINS and agreed dispositional
orders. Specifically Mother and Father admitted that they both
suffer from substance abuse problems, they have encountered
difficulty providing stable housing for the children and that the
intervention of DCS and the Court is necessary to provide
substance abuse treatment and services to obtain and maintain
stable housing.
15. On 7/5/2016, the Court issued an order accepting the
stipulation of CHINS and agreed dispositional order, adjudicated
the children as Children in Need of Services and issued a
dispositional order according [to] the agreed terms.
16. The Dispositional Order, in which DCS was granted
wardship of the children, and Mother and Father were ordered
to, in relevant part,
a. Participate in weekly visitation with the children,
b. Complete a substance abuse assessment and a parenting
assessment, and follow all recommendations from the
assessments,
c. Participate in home-based case management services
and follow recommendations,
d. Submit to random drug screens,
e. Obtain and maintain appropriate housing,
f. Engage in therapy with [S.H.] if recommended by the
therapist.
FACTS RELATING TO CHILDREN’S CONTINUED
REMOVAL FROM PARENTS’ HOME AND CARE:
REASONABLE PROBABILITY OF PARENTS NOT
REMEDYING REASONS FOR REMOVAL, THREAT TO
CHILDREN’S WELLBEING, CHILDREN’S BEST
INTEREST, & DCS PLAN FOR CARE AND TREATMENT
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17. After the Dispositional Decree of 7/5/2016, the children
were never returned to the parents’ care and custody.
18. On 7/28/16, DCS referred Mother to Centerstone for a
substance abuse evaluation. Mother never completed this
assessment.
19. On 2/13/17, DCS re-referred Mother to Centerstone for a
substance abuse assessment. Mother completed this assessment
on 3/16/2017. Centerstone recommended Mother for the dual
diagnosis program. Centerstone diagnosed with
Methamphetamine Use Disorder, Cannabis Use Disorder,
Borderline Personality Disorder and PTSD.
20. DCS referred Mother for the Dual Diagnosis Treatment on
3/17/17. Mother’s participation in treatment was as follows:
a. March 2017: Participated in assessment on 3/16/17 –
attended 0 of 0 sessions[.]
b. April 2017: Participated in 1 of 7 sessions.
c. May 2017: Referral remains open; Mother attended 0 of
6 sessions.
d. June 2017: Referral remains open; Mother attended 0
sessions.
e. July 2017: Referral remains open; Mother attended 0
sessions.
f. August 2017: Referral remains open; Mother attended 0
sessions this month – 8/23/17 Mother notified FCM that
she wanted services transferred to Jennings County.
Services transferred immediately.
g. September 2017: Scheduled to meet Centerstone on
9/7/17. No showed appointment. Mother attended 0
sessions.
h. October 2017: Referral remains open; Mother attended
0 sessions.
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i. November 2017: Attended Individual Therapy on
11/16/17 – no showed all other appointments.
j. December 2017: Attended 0 sessions.
k. January 2018: Attended 0 sessions.
21. DCS referred Mother to Ireland Home Based Services for
case management on 6/15/2016. Mother’s participation in these
services was as follows:
a. June 2016: Mother met with Ireland on 6/30/16 to go
over paperwork.
b. July 2016: Mother attended 0 sessions.
c. August 2016: Mother attended 0 sessions.
d. September 2016: Mother attended 0 sessions.
e. October 2016: Mother attended 2 of 4 sessions; no
showed 2 sessions.
f. November 2016: Mother attended 1 of 5 sessions.
g. December 2016: Mother attended 2 of 5 sessions.
h. January 2017: Mother attended l of 5 sessions. Mother
no showed CFTM on 1/31/17.
i. February 2017: Mother attended 1 of 3 sessions.
Service was transferred to Lifeline.
j. Referred to Lifeline on 2/15/17 (Robert Hempstead).
k. February 2017: Mother attended 3 of 3 sessions.
l. March 2017: Mother attended 6 of 6 sessions.
m. April 2017: Mother attended 1 of 1 session. Service
was transferred to NYAP due to safety issues.
n. Referred to NYAP on 4/18/2017 (Vanessa Smith,
Sarah Degler).
o. April 2017: Mother attended 1 of 2 sessions. Met with
home-based caseworker on 4/26/2017 for paperwork.
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p. May 2017: Mother attended 0 of 3 sessions.
q. June 2017: Mother attended 0 sessions.
r. July 2017: Mother attended 0 sessions.
s. August 2017: Mother attended 0 sessions.
t. Referred to Centerstone on 8/23/2017 (Maggie
Twomey, Cassandra Lepage).
u. September 2017: Mother attended 0 sessions. Was
scheduled on 9/7/17 but no showed the appointment.
Rescheduled for 9/15/17, but no showed this appointment
also.
v. October 2017: Mother attended 0 sessions.
w. November 2017: Mother attended 0 sessions.
x. December 2017: Mother attended 0 sessions.
z. January 2018: Mother attended 0 sessions.
22. DCS referred Mother to Ireland on 6/15/2016 for supervised
visitation with the children.
a. June 2016: Mother filled out paperwork on 6/30/2016.
b. July 2016: Mother attended 3 of 8 visits.
c. August 2016: Mother attended 2 of 4 visits – Mother
would not go to 1 visit indicating Mother and Father were
not getting along.
d. September 2016: Mother attended 4 of 4 visits.
e. October 2016: Mother attended 6 of 6 visits; 1 visit
ended early due to child’s behavior and parents requested
visit end.
f. November 2016: Mother attended 8 of 8 visits.
h. December 2016: Mother attended 7 of 7 visits.
g. January 2017: Mother attended 3 of 8 visits.
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h. February 2017: Mother attended 0 of 0 visits through
Ireland. Ireland canceled services on 2/1/2017 without
notifying DCS prior. They indicated the inability to
provide a therapeutic level of visits. On 1/31/2017
Ireland and Centerstone attended a CFTM in which the
parents no showed. CFTM was being held due to parents
no showing visits and lack of home-based casework
participation. FCM immediately began looking for a new
provider. FCM offered to supervise a visit on 2/8/2017
and parents denied that option. FCM also offered to
supervise a visitation [on] 2/8/2017 and parents denied
that option.
i. Referred to Lifeline on 2/15/2017 (Robert Hempstead).
j. February 2017: Mother attended 4 of 4 visits.
k. March 2017: Mother attended 8 of 8 visits.
1. April 2017: Mother attended 3 of 3 visits with Lifeline.
On 4/11/2017 it was brought to the attention of DCS that
the Visit Supervisor was enabling the parents to have
unsupervised access to the children. Parents were
threatening the children about a current open sex abuse
assessment. Lifeline was unable to provide another person
for visits.
m. Referred on 4/19/2017 to Ireland for Therapeutic
Visitation (Jeannie Arbuckle).
n. April 2017: Mother attended 1 of 1 visit. Mother met
with Ireland on 4/26/2017 to sign paperwork and had a
visit on 4/29/2017.
o. May 2017: Mother attended 0 of 1 visit. Visit had been
scheduled for every 2 weeks due to children[’s] school
schedules and availability of Ireland – parents had agreed
to this. On 5/20/2017 - Parents canceled visit just a
couple of hours prior to visit. Parents refused to give a
reason.
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p. June 2017: Mother attended 2 of 3 visits. Parents were
late for 1 visit and canceled a visit.
q. July 2017: Mother attended 2 of 3 visits. Parents were
late to one of the visits.
r. August 2017: Mother attended 5 of 5 visits.
s. September 2017: Mother attended 3 of 3 visits. A
fourth visit was offered but 2 children were ill and [S.H.]
refused to go alone.
t. October 2017: Mother attended 3 of 4 visits.
u. November 2017: Mother attended l of 5 visits.
v. December 2017: Mother attended 1 of 4 visits.
w. January 2018: Mother no showed both visits.
23. In October 2017, DCS referred Mother for a Psychological
Evaluation through Connections – Dr Cacciola. Mother’s
participation with these services was as follows:
a. November 2017: Parents had not contacted Connections.
b. December 2017: Mother scheduled for a Psychological
Evaluation on 12/7/2017. She was given a gas card to
help with transportation. Mother did not attend her
appointment and failed to reschedule.
24. On 7/28/2016 DCS referred Father for a substance abuse
assessment through Centerstone. Father never completed this
assessment. DCS re-referred Father to Centerstone on 2/13/2017
for another substance abuse assessment. Father completed this
assessment on 3/16/2017. Centerstone diagnosed Father with
Methamphetamine Use Disorder, Cann[a]bis Use Disorder and
recommended Father for Intensive Outpatient Treatment.
25. On 3/17/2017, DCS referred Father to Centerstone for
Intensive Outpatient Treatment. Father’s participation in these
services was as follows:
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a. March 2017: Father participated in assessment on
3/16/17 – attended 0 of 0 sessions.
b. April 2017: Participated in 0 sessions. Father indicated
he was not going to do Intensive Outpatient Treatment.
c. May 2017: Referral remains open; Father attended 0
sessions.
d. June 2017: Referral remains open; Father attended 0
sessions.
e. July 2017: Referral remains open; Father attended 0
sessions.
f. August 2017: Referral remains open; Father attended 0
sessions this month – 8/23/2017 Father notified FCM that
he wanted services transferred to Jennings County.
Services transferred immediately.
g. September 2017: Scheduled to meet Centerstone on
9/7/2017. No showed appointment. Father attended 0
sessions.
h. October 2017: Referral remains open; Father attended 0
sessions.
i. November 2017: Father attended 0 sessions.
j. December 2017: Father attended 0 sessions.
k. January 2018: Father attended 0 sessions.
26. On 6/15/2016, DCS referred Father to Ireland Home Based
Services for Home-based Case Management. Father’s
participation in these services was as follows:
a. June 2016: Father met with Ireland on 6/30/16 to go
over paperwork.
b. July 2016: Father attended 0 sessions.
c. August 2016: Father attended 0 sessions.
d. September 2016: Father attended 0 sessions.
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e. October 2016: Father attended 2 of 4 sessions. Father
no showed 2 sessions.
f. November 2016: Father attended 1 of 5 sessions.
g. December 2016: Father attended 2 of 5 sessions.
h. January 2017: Father attended 1 of 5 sessions. Father
no showed CFTM on 1/31/17.
i. February 2017: Father attended 1 of 3 sessions. Service
was transferred to Lifeline.
j. Father referred to Lifeline on 2/15/2017 (Robert
Hempstead)[.]
k. February 2017: Father attended 3 of 3 sessions.
1. March 2017: Father attended 6 of 6 sessions.
m. April 2017: Father attended 1 of 1 session. Service
was transferred to NYAP due to safety issues.
n. Father referred to NYAP on 4/18/2017.
o. April 2017: Father attended 1 of 2 sessions. Father met
with home-based caseworker on 4/26/2017 for paperwork.
p. May 2017: Father attended 0 of 3 sessions. Parents
canceled 1 visit and no showed 2 visits.
q. June 2017: Father attended 0 sessions.
r. July 2017: Father attended 0 sessions.
s. August 2017: Father attended 0 sessions.
t. Father Referred to Centerstone on 8/23/2017.
u. September 2017: Father attended 0 Sessions. Father
was scheduled on 9/7/2017, but no showed the
appointment. Rescheduled for 9/15/17, but no showed
this appointment also.
v. October 2017: Father attended 0 sessions.
w. November 2017: Father attended 0 sessions.
x. December 2017: Father attended 0 sessions.
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z. January 2018: Father attended 0 sessions.
27. On 6/15/2016, DCS referred Father to Ireland Home Based
Services for supervised visitation. Father’s participation in these
services was as follows:
a. June 2016: Parents filled out paperwork on 6/30/2016.
b. July 2016: Father attended 3 of 8 visits.
c. August 2016: Father attended 3 of 4 visits.
d. September 2016: Father attended 4 of 4 visits. 1 visit
was shortened at request of parent.
e. October 2016: Father attended 6 of 6 visits; 1 visit ended
early due to child’s behavior and parents requested visit end.
f. November 2016: Father attended 8 of 8 visits.
g. December 2016: Father attended 7 of 7 visits.
h. January 2017: Father attended 3 of 8 visits.
i. February 2017. Father attended 0 of 0 visits through
Ireland. Ireland canceled services on 2/1/2017 without
notifying DCS prior. They indicated the inability to
provide a therapeutic level of visits. On 1/31/2017
Ireland and Centerstone attended a CFTM in which the
parents no showed. CFTM was being held due to parents
no showing visits and lack of home-based casework
participation. FCM immediately began looking for a new
provider. FCM offered to supervise a visit on . . .
2/18/2017 and parents refused that option. FCM also
offered to supervise a visitation [on] 2/8/2017 and parents
refused that option.
j. Referred to Lifeline on 2/15/2017 (Robert Hempstead)[.]
k. February 2017: Father attended 4 of 4 visits.
1. March 2017: Father attended 8 of 8 visits.
m. April 2017: Father attended 3 of 3 visits with Lifeline. On
4/11/2017 it was brought to the attention of DCS that the
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Visit Supervisor was enabling the parents to have
unsupervised access to the children. Parents were threatening
the children about a current open sex abuse assessment.
Lifeline was unable to provide another person for visits.
n. Referred on 4/19/2017 to Ireland for Therapeutic
Visitation (Jeannie Arbuckle).
o. April 2017: On 4/26/2017 Father refused to sign
paperwork for Ireland. He left the building cursing loudly.
Father rescheduled the meeting for 4/28/2017 but no
showed the appointment. Father signed the visit rules on
5/12/2017.
p. May 2017: Father attended 0 of 1 visit. Visit had been
scheduled for every 2 weeks due to children[’s] school
schedules and availability of Ireland – parents had agreed to
this. On 5/20/2017 – Parents canceled visit just a couple of
hours prior to visit. Parents refused to give a reason.
q. June 2017: Father attended 2 of 3 visits. Parents were
late for 1 visit and canceled a visit.
r. July 2017: Father attended 2 of 3 visits. Parents were
late to one of the visits.
s. August 2017: Father attended 5 of 5 visits.
t. September 2017: Father attended 3 of 3 visits. A fourth
visit was offered but 2 children were ill and [S.H.] refused
to go alone.
u. October 2017: Father attended 3 of 4 visits.
v. November 2017: Father attended 0 of 5 visits.
w. December 2017: Father attended l of 4 visits.
x. January 2018: Father attended 0 visits.
28. In October, 2017, DCS referred Father for a Psychological
Evaluation through Connections – Dr Cacciola. Father’s
Participation in these services were as follows:
a. November 2017: Father had not contacted Connections
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b. December 2017: Father scheduled for a Psychological
Evaluation on 12/8/2017. Mother was given a gas card to
help with transportation. Father did not attend his
appointments and failed to reschedule.
29. Mother and Father have failed to maintain consistent
housing. Their housing history is as follows:
a. June 2016: Homeless, Anchor House from 6/16/2016-
6/23/2016. Parents were living in Jeep immediately prior
to removal of the children.
b. July 2016: Homeless.
c. August 2016: Homeless.
d. September 2016: Homeless.
e. October 2016: Homeless.
f. November 2016: Homeless.
g. December 2016: Homeless.
h. January 2017: Homeless.
i. February 2017: Homeless and then temporary housing
arranged through Lifeline.
j. March 2017: Lost housing on 3/27/2017 due to being
disrespectful to the homeowners and unsanitary.
Immediately moved in with Father’s sister in Edinburgh.
k. April 2017: Living with Father’s sister in Edinburgh.
l. May 2017: 5/20/2017 – Notified DCS they had been
kicked out of Father’s sister[’s] home. Refused to indicate
why.
m. June 2017: 6/8/2017 Parents indicated to DCS they
were living in Madison – refused an address.
n. July 2017: Living with friends in Columbus – no
address given.
o. August 2017: Living with friends in Columbus – no
address given.
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p. September 2017: Living with friends in Columbus – no
address given.
q. October 2017: Living with friends in Columbus – no
address given.
r. November 2017: Living with friends in Columbus – no
address given; parents indicate they are not living together.
s. December 2017: Parents are back together. Living with
friends. Refuse to give address[.]
t. January 2018: Homeless – living with friends.
u. Mother and Father appeared at the 2/21/2018
continued Fact Finding Hearing with copy of lease to an
apartment at Arbors at Waters Edge in Columbus, IN.
The parents failed to establish that they had the income to
maintain paying the rent beyond the initial subsidized
period.
30. Mother and Father have failed to maintain consistent
employment. Mother and Father’s employment history is as
follows:
a. June 2016: Unemployed – Father reported he quit job at
Indiana Steel. Parents were observed at time children were
removed to be panhandling in front of Seymour Walmart.
b. July 2016: Unemployed.
c. August 2016: Unemployed.
d. September 2016: Unemployed.
e. October 2016: Unemployed.
f. November 2016: Unemployed.
g. December 2016: Unemployed.
h. January 2017: Unemployed.
i. February 2017: Employed at Steak & Shake.
j. March 2017: Employed at Steak & Shake.
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k. April 2017: Employed at Steak & Shake.
l. May 2017: Employed at Steak & Shake.
m. June 2017: Unemployed.
n. July 2017: Unemployed.
o. August 2017: Unemployed.
p. September 2017: Both reported employment at NVIC.
q. October 2017: Mother reports employment at NVIC;
Father unemployed.
r. November 2017: Father unemployed; Mother was fired
for missing to [sic] many days at the end of November.
s. December 2017: Both parents unemployed. Seen pan
handling at Wal-Mart on 12/26/2017 by FCM Claycamp.
t. January 2018: Parents unemployed.
u. Father appeared for the 2/21/2018 continued Fact
Finding Hearing with paystubs from First Call Temporary
Services, Inc. Father received payment as follows:
i. Week of 1/21/2018, $352.00.
ii. Week of 1/28/2018, $346.50.
iii. Week of 2/4/2018, $324.50.
The Court received evidence that Father is no longer
working due to an injury.
v. Mother appeared for the 2/21/2018 continued Fact
Finding Hearing with paystubs from First Call Temporary
Services, Inc. Mother received payment as follows:
i. 1/25/2018, $352.00.
ii. 2/1/2018, $346.50.
iii. 2/8/2018, $8.25.
31. Mother and Father inconsistently drug screened since the
Court ordered the children be detained. Mother’s drug screen
history is as follows:
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a. 6/10/2016, Negative.
b. 6/20/2016, Positive, Amephetamine [sic], 92.8 ng/mL;
Methamphetamine, 228.5 ng/mL.
c. 8/22/2016, Positive, THC, .08 ng/mL.
d. 10/24/2016, Negative.
e. 3/15/2017, Positive, THC, 1.0 ng/mL.
f. 3/27/2017, Positive, THC, 41.2 ng/mL.
g. 4/6/2017, Positive, THC, 1.4 ng/mL.
h. 4/26/2017, Negative.
i. 7/20/2017, Negative.
j. 8/23/2017, Positive, THC, 1.0 ng/mL.
k. 8/25/2017, Positive, THC, 1.7 ng/mL.
l. 9/27/2017, Positive, THC, 4.4 ng/mL.
m. 10/11/2017, Positive, THC, 4.4 ng/mL.
n. 11/14/2017, Positive, 25.7 ng/mL.
o. 12/5/2017, Positive, 15.0 ng/mL.
Father’s drug screen history is as follows:
a. 6/10/2016, Negative.
b. 6/20/2016, Positive, Amphetamine, 101.0 ng/mL;
Methamphetamine, 357.7 ng/mL.
c. 8/22/2016, Positive, THC, 4.4 ng/mL.
d. 3/17/2017, Positive, THC, 1.9 ng/mL.
e. 3/22/2017, Positive, THC, 55.3 ng/mL.
f. 4/10/2017, Positive, THC, 2.3 ng/mL.
g. 4/26/2017, Positive, THC, 1.0 ng/mL.
h. 7/20/2017, Negative[.]
i. 8/25/2017, Negative[.]
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j. 9/27/2017, Positive, THC, 80.4 ng/mL.
k. 10/11/2017, Positive, Amphetamine, 14.5 ng/mL;
Methamphetamine, 66.0 ng/mL; THC, 8.0 ng/mL.
l. 12/5/2017, Positive, Amphetamine, 27.2 ng/mL;
Methamphetamine, 132.5 ng/mL, THC 14.0 ng/mL.
32. Neither parent has successfully completed the services
ordered in the Dispositional Decree, nor have they taken the
necessary steps to be reunified with their children.
33. Neither parent has visited with the children since
approximately January 2018.
Appellant Mother’s Appendix Volume III at 30-42. The court also found a
reasonable probability that continuation of the parent-child relationship poses a
threat to the well-being of the children, that termination of the parent-child
relationship is in the children’s best interests, and that DCS has a satisfactory
plan for the care and treatment of the children, which is adoption.
Discussion
[4] In order to terminate a parent-child relationship, DCS 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.
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(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). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[5] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id. “Because a case
that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
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when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary
termination statute is written in the disjunctive and requires proof of only one of
the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B)
[6] Mother focuses her argument on whether DCS proved, by clear and convincing
evidence, that there is a reasonable probability that the conditions that resulted
in S.H. and A.H.’s removal and/or continued placement outside the home will
not be remedied. Mother contends that she had made substantial
improvements in her life at the time of the fact-finding hearing and asserts that
she had secured a stable and legal place to live, had recently been employed by
a placement agency at a local factory but had become “temporarily unemployed
due to the need to provide care for Father and due to the need to meet
minimum financial thresholds in order to qualify for housing assistance,” had
been sober from methamphetamine use for eight months and had not consumed
marijuana in several weeks, and had recognized her need for mental health
treatment and began attending Centerstone services more regularly. Appellant
Mother’s Brief at 15.
[7] Father argues that DCS did not present clear and convincing evidence that
there was a reasonable probability that the continuation of the parent-child
relationship posed a threat to the well-being of S.H. or A.H. and that “[t]he
only way that the continuation of the parent-child relationship with Father
could have posed a threat to S.H. and A.H. would be if the conditions that led
to their removal from Father’s custody were unlikely to be remedied.”
Appellant Father’s Brief at 12. He contends that he had sufficiently addressed
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two of the three original reasons for opening the CHINS case, had completed
his substance abuse assessment as a step toward sobriety, and that “although he
fell short in numerous other areas while working with family case managers,”
he was “always consistent about attending supervised visits” and was an
attentive, engaged father. Id.[8] DCS maintains that neither parent specifically challenges any of the court’s
findings of facts and the court’s unchallenged findings support its judgment. It
contends that the court properly discounted recent parental efforts in light of
their habitual patterns of conduct and argues that the evidence of Parents’
pattern of inability, unwillingness, or lack of commitment to address parenting
problems and to cooperate with services, of failing to cooperate with
rehabilitation efforts, and of otherwise failing to follow the participation orders
demonstrate the requisite reasonable probability Parents would not become fit
parents.
[9] In determining whether the conditions that resulted in the children’s removal
will not be remedied, we first identify the conditions that led to removal and,
second, we determine whether there is a reasonable probability that those
conditions will not be remedied. See E.M., 4 N.E.3d at 642-643. In the second
step, the court must judge a parent’s fitness as of the time of the termination
proceeding, taking into consideration evidence of changed conditions,
balancing a parent’s recent improvements against habitual patterns of conduct
to determine whether there is a substantial probability of future neglect or
deprivation. Id. We entrust that delicate balance to the trial court, which has
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discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination. Id. Requiring courts to give due regard to changed
conditions does not preclude them from finding that a parent’s past behavior is
the best predictor of her future behavior. Id. The statute does not simply focus
on the initial basis for a child’s removal for purposes of determining whether a
parent’s rights should be terminated, but also those bases resulting in the
continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.
Ct. App. 2013). A court may consider evidence of a parent’s history of neglect,
failure to provide support, lack of adequate housing and employment, and the
services offered by DCS and the parent’s response to those services, and, where
there are only temporary improvements and the pattern of conduct shows no
overall progress, the court might reasonably find that under the circumstances
the problematic situation will not improve. Id. A parent’s habitual patterns of
conduct must be evaluated to determine the probability of future neglect or
deprivation. See K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office, 989
N.E.2d 1225, 1231 (Ind. 2013).
[10] To the extent Parents do not challenge the trial court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
[11] Mother cites to her testimony that she has “been sober off of methamphetamines
for almost eight months now” and was “not currently still using” marijuana, that
she has attended DCS’s recommended therapy regarding drug use on multiple
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occasions, that she and Father have their own apartment, and that she
voluntarily left her position with employer Kamic to qualify for the apartment.
Transcript Volume III at 27, 34. The record reveals, however, that Mother has
inconsistently drug screened and screened positive for substances on eleven
occasions in the period spanning from June 2016 to December 2017; did not
complete a substance abuse assessment until March 16, 2017, when Centerstone
diagnosed her with methamphetamine use disorder, cannabis use disorder,
borderline personality disorder and PTSD and recommended her for the dual
diagnosis program; and failed to maintain consistent housing and employment.
Further, Mother admits she did not complete her substance abuse therapeutic
services and testified at the termination hearing that marijuana was still in her
system and she uses it because she has mental health issues “that [she] can’t
afford medications for.” Id. at 34.
[12] As for Father, the record reveals that he has inconsistently drug screened and
has screened positive for substances on nine occasions in the period spanning
from June 2016 to December 2017, including screening positive for both
amphetamine and methamphetamine on October 11 and December 5, 2017;
that he did not complete a substance abuse assessment until March 16, 2017,
when he was diagnosed with methamphetamine use disorder and cannabis use
disorder; that he did not participate in the Intensive Outpatient Treatment to
which DCS had referred him on March 17, 2017; and that he failed to maintain
consistent housing and employment.
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[13] Based upon the record and the court’s unchallenged findings, we conclude that
clear and convincing evidence supports the trial court’s determination that there
is a reasonable probability that the conditions leading to the children’s removal
will not be remedied.
[14] Mother and Father additionally argue that termination is not in the best
interests of S.H. and A.H. Mother contends she struggled and failed when she
was provided minimal services, but that she “thrived and exceeded
expectations” when provided with the appropriate services. Appellant Mother’s
Brief at 11. She asserts that, even when she could not meet the threshold goals
set by DCS, she continued to demonstrate her desire to work towards the best
interests of her children, that termination in this case “provides no extra
stability, consistency, or assurance” to S.H. and A.H., and that the “only net
effect, in the short run, is to withdraw any assistance or services that can be
afforded to [her] as she continues to get her life back in order.” Id. at 17-18.
Father contends, without citation to authority, that DCS “must show more
than the generally accepted opinion that children will only succeed in a stable,
permanent environment, because that alone is not sufficient to support the
termination of parental rights.” Appellant Father’s Brief at 14. Father further
asserts that he “made progress, albeit slow progress” over the course of the case
and that his struggles with poverty did not impact his children to a degree
warranting termination. Id. at 15.
[15] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and to the totality of the evidence.
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McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry. Id. at 648.
[16] Court Appointed Special Advocate Bill Fechter testified that “in the best
interest of the children [termination of parental rights] should proceed” and,
when asked to state why, answered in part “my contacts with the kids
specifically with mom and dad in meeting in November and December where
they have been going through a lot of trauma in their marriage,” “they are
having difficulty getting jobs, holding jobs, . . . finding places to live,” and “I
understand there [sic] in a difficult point in their life and I just think it’s going to
be a while for them to recover from that, and get their lives on [the] path they
need to, and I don’t think the kids should have to wait.” Transcript Volume II
at 200-201. Based on the testimony, as well as the totality of the evidence in the
record and set forth in the court’s termination order, we conclude that the
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court’s determination that termination is in the best interests of the children is
supported by clear and convincing evidence.
[17] To the extent Father argues that DCS does not have a satisfactory plan for the
care and treatment of S.H. and A.H., we note that adoption is a “satisfactory
plan” for the care and treatment of a child under the termination of parental
rights statute. In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). This
plan need not be detailed, so long as it offers a general sense of the direction in
which the child will be going after the parent-child relationship is terminated.
In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind.
Ct. App. 2004), trans. denied. DCS Family Case Manager Rebecca Claycamp
indicated that DCS identified a permanent adoption home for S.H. and “several
good possible adoptive homes” for A.H. and sibling, Ra.H.,1 testified that DCS
“like[s] to try and [place] siblings together when at all possible,” answered in
the negative when asked “under what you had discussed previously that’s not
possible at this point in time” and stated “it’s not safe,” and indicated that S.H.
“being able to stay with his siblings is not safe.” Transcript Volume III at 40.
1
As Mother indicates in her brief, DCS initially filed a CHINS action on June 10, 2016, with regard to
Ra.H., born April 9, 2009, and we observe that the trial court stayed the matter at the February 21, 2018
hearing “pending completion of paternity testing” in a collateral paternity case. Transcript Volume III at 3.
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Conclusion
[18] We conclude that the trial court’s judgment terminating the parental rights of
Mother and Father is supported by clear and convincing evidence. We find no
error and affirm.
[19] Affirmed.
Bailey, J., and Bradford, J., concur.
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