In re the Matter of the Termination of the Parent-Child Relationship of L.H. (Minor Child) and N.B. (Mother) and J.H. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Dec 13 2017, 6:57 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT N.B. ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT J.H. Abigail R. Recker
Deputy Attorney General
Michael P. DeArmitt Indianapolis, Indiana
Columbus, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of the December 13, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of L.H. (Minor 03A01-1707-JT-1598
Child) Appeal from the Bartholomew
Circuit Court
and The Honorable Doug E. Van
Winkle, Senior Judge
N.B. (Mother) and J.H. (Father), Trial Court Cause No.
Appellants-Respondents, 03C01-1608-JT-4335
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
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Bradford, Judge.
Case Summary
[1] Both Appellant-Respondent J.H. (“Father”) and Appellant-Respondent N.B.
(“Mother”) (collectively, “Parents”) appeal the juvenile court’s order
terminating their parental rights to L.H. (the “Child”). The Child was removed
from Parents care after Appellee-Petitioner the Indiana Department of Child
Services (“DCS”) received numerous reports alleging drug use by and domestic
violence between Parents. The Child was subsequently determined to be a
child in need of services (“CHINS”) and Parents were ordered to complete
certain services. Parents, however, failed to successfully complete the court-
ordered services.
[2] DCS filed a petition seeking the termination of Parents’ parental rights to the
Child on August 5, 2016. Following an evidentiary hearing, the juvenile court
issued an order granting DCS’s petition. On appeal, Parents contend that DCS
did not provide sufficient evidence to support the termination of their parental
rights. We affirm.
Facts and Procedural History
[3] Father and Mother are the parents of the Child who was born on April 9, 2009.
DCS became involved with the Child in May of 2015 after receiving reports of
drug use by and domestic abuse between Father, Mother, and Mother’s
boyfriend. The Child was not removed from Parents’ care following this initial
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report, but was later removed after DCS received additional reports and a DCS
case worker observed signs of drug use by and domestic violence between the
parties. On August 6, 2015, the Child was found to be a CHINS. As a result of
the CHINS finding, Parents were ordered to complete a number of services.
Parents failed to successfully complete these court-ordered services.
[4] On August 5, 2016, DCS filed a petition seeking the termination of Parents’
parental rights to the Child. The juvenile court conducted a two-day
evidentiary hearing on DCS’s petition on March 31 and May 19, 2017.
[5] During the evidentiary hearing, DCS presented evidence indicating that both
Father and Mother continued to struggle with sobriety, neither had obtained
what DCS considered to be appropriate housing, Father had not seen the Child
since July of 2016, and Mother had not seen the Child since November of 2016.
DCS also presented evidence that neither Father nor Mother had made
significant progress towards reunification, the Child was currently placed in a
“very secure, very stable” home environment, the termination of Parents’
parental rights was in the Child’s best interest, and DCS’s plan was for the
Child’s current pre-adoptive family to adopt the Child. Tr. Vol. II, p. 45.
[6] Following the conclusion of the hearing, the juvenile court took the matter
under advisement. On June 17, 2017, the juvenile court issued an order
terminating Parents’ parental rights to the Child. This appeal follows.
Discussion and Decision
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[7] On appeal, Parents challenge the juvenile court’s order terminating their
parental rights to the Child. The Fourteenth Amendment to the United States
Constitution protects the traditional right of a parent to establish a home and
raise his or her child. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 145 (Ind. 2005). Further, we acknowledge that the parent-child
relationship is “one of the most valued relationships of our culture.” Id.However, although parental rights are of a constitutional dimension, the law
allows for the termination of those rights when a parent is unable or unwilling
to meet his or her responsibility as a parent. In re T.F., 743 N.E.2d 766, 773
(Ind. Ct. App. 2001), trans. denied. Therefore, parental rights are not absolute
and must be subordinated to the child’s interests in determining the appropriate
disposition of a petition to terminate the parent-child relationship. Id.[8] The purpose of terminating parental rights is not to punish the parent but to
protect the child. Id. Termination of parental rights is proper where the child’s
emotional and physical development is threatened. Id. The juvenile court need
not wait until the child is irreversibly harmed such that her physical, mental,
and social development is permanently impaired before terminating the parent-
child relationship. Id.[9] Parents contend that the evidence presented at the evidentiary hearing was
insufficient to support the juvenile court’s order terminating their parental rights
to the Child. In reviewing termination proceedings on appeal, this court will
not reweigh the evidence or assess the credibility of the witnesses. In re
Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct.
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App. 2004). We only consider the evidence that supports the juvenile court’s
decision and reasonable inferences drawn therefrom. Id. Where, as here, the
juvenile court includes findings of fact and conclusions thereon in its order
terminating parental rights, our standard of review is two-tiered. Id. First, we
must determine whether the evidence supports the findings, and, second,
whether the findings support the legal conclusions. Id.[10] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent-child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.[11] In order to involuntarily terminate a parent’s parental rights, DCS must
establish by clear and convincing evidence that:
(A) that one (1) of the following is true:
(i) the child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) a court has entered a finding under IC 31-34-21-
5.6 that reasonable efforts for family preservation or
reunification are not required, including a description
of the court’s finding, the date of the finding, and the
manner in which the finding was made.
(iii) the child has been removed from the parent and
has been under the supervision of a county office of
family and children or probation department for at
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least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child is
removed from the home as a result of the child being
alleged to be a child in need of services or a
delinquent child;
(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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2).
[12] Neither Father nor Mother disputes that DCS presented sufficient evidence to
support the first, third, and fourth elements set forth in Indiana Code section
31-35-2-4(b)(2). Each separately claims, however, that DCS failed to establish
the second element that is required to be proven before a court can order the
involuntary termination of a parent’s parental rights.
Whether Conditions Will Be Remedied
[13] On appeal, Parents separately argue that DCS failed to establish by clear and
convincing evidence both that the conditions leading to the Child’s removal
from their respective homes would not be remedied and that there is a
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reasonable probability that the continuation of the parent-child poses a threat to
the well-being of the Child.
[14] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, the juvenile court need only find either that (1) the conditions
resulting in removal from or continued placement outside the parent’s home
will not be remedied, (2) the continuation of the parent-child relationship poses
a threat to the child, or (3) the child has been adjudicated CHINS on two
separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003),
trans. denied. Therefore, where the juvenile court determines one of the above-
mentioned factors has been proven and there is sufficient evidence in the record
supporting the juvenile court’s determination, it is not necessary for DCS to
prove, or for the juvenile court to find, either of the other two factors listed in
Indiana Code section 31-34-2-4(b)(2)(B). See generally In re S.P.H., 806 N.E.2d
at 882 (providing that because Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive, DCS need only prove and the juvenile court need
only find that one of the factors listed in that sub-section is true).
[15] In order to determine whether the conditions will be remedied, the juvenile
court should first determine what conditions led DCS to place the Child outside
of her parent’s care or to continue the Child’s placement outside parent’s care,
and, second, whether there is a reasonable probability that those conditions will
be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied;
In re S.P.H., 806 N.E.2d at 882. When assessing whether a reasonable
probability exists that the conditions justifying the child’s removal or continued
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placement outside their parent’s care will not be remedied, the juvenile court
must judge the parent’s fitness to care for the child at the time of the
termination hearing, taking into consideration evidence of changed conditions.
In re A.N.J., 690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must
also evaluate the parent’s habitual patterns of conduct to determine whether
there is a substantial probability of future neglect or deprivation. Id. A juvenile
court may properly consider evidence of the parent’s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack
of adequate employment and housing. McBride v. Monroe Cnty. Office of Family &
Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court
“‘can reasonably consider the services offered by [DCS] to the parent and the
parent’s response to those services.’” Id. (quoting In re A.C.C., 682 N.E.2d 542,
544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule out
all possibilities of change; rather, DCS need establish only that there is a
reasonable probability that the parent’s behavior will not change.” In re
Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,
242 (Ind. Ct. App. 2007).
[16] Here, the Child was removed from Parents’ care after DCS received numerous
reports of drug abuse by and domestic violence between Father, Mother, and
Mother’s boyfriend. The investigating DCS case worker was able to
substantiate the reports of drug use by and domestic abuse between the parties.
The DCS case worker also observed that Parents lacked stable housing. In
connection to the underlying CHINS determination,
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20. On August 31, 2015, Mother admitted that a domestic
violence altercation occurred in early June 2015 while the child
was present in the home. Mother also admitted that she had not
submitted to a requested drug screen.
21. On August 31, 2015, Father admitted that he has struggled
with substance use in the last couple of months, specifically
methamphetamine. Father further admitted that his drug use
impacted his ability to parent.
22. On September 1, 2015, the Bartholomew County Juvenile
Court held a Dispositional Hearing as to parents, order file-
stamped January 25, 2016. Mother was ordered to participate in
home based-therapy [sic] to address her substance use and
domestic violence relationships, complete a substance use
assessment and successfully complete any recommended
treatment, and random drug screens.
23. At the same hearing Father was ordered to participate in
home based-therapy [sic] to address his substance use and past
trauma, complete a substance use assessment and successfully
complete any recommended treatment, which included detox,
inpatient and recovery coach services, Fatherhood Engagement
to address parenting skills, housing and employment, and
random screens.
Appellant N.B.’s App. Vol. II, pp. 62–63.
[17] The juvenile court determined that DCS presented sufficient evidence to prove
that it was unlikely that the reasons for the Child’s removal from and continued
placement outside Parents’ care would be remedied, and upon review, we
conclude that the juvenile court’s determination to this effect is supported by
the record. In support of its determination, the juvenile court found as follows:
24. [Family Case Manager (“FCM”)] Stacy Williams received
the case in January 2016.
25. FCM Williams resubmitted Mother’s referrals for
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substance abuse assessment, individual therapy, and a
psychological evaluation as these services had expired due to
Mother not participating.
26. At the time FCM Williams obtained the case, Mother was
homeless and staying with friends.
27. In January 2016, Mother was participating regularly with
her random screens, which were all positive except for one
negative in May 2016.
28. According to FCM Williams, Mother testified that she did
not have issues with substance abuse.
29. Mother completed a substance abuse evaluation which
recommended that Mother participate in [an Intensive
Outpatient Program (“IOP”)], random screens, and individual
therapy.
30. Mother did not engage in individual therapy and refused
to participate in IOP.
31. During the period FCM Williams had the case, Mother
was incarcerated once for 5 to 7 days.
32. FCM Williams stated that Mother participated in
supervised visits with the Child and was appropriate. Mother
was consistent but did miss some visits.
33. FCM Williams testified that Mother never had stable
housing or stable employment during the five months that she
held the case.
34. FCM Williams testified that when she obtained the case
Father was inconsistent with drug screening.
35. FCM Williams testified that Father spent 21 days at Tara
Treatment for inpatient treatment.
36. FCM Williams testified that after Father was released
from Tara, Father was very proactive. He continued his
supervised visits and was looking for employment and housing.
However, in the end of April 2016, Father was very inconsistent
with his services and contact with the department. Father was
never able to find stable housing and never engaged in Father’s
Engagement.
37. In May 2016, FCM Annette Carnes obtained the case
from FCM Williams.
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38. FCM Carnes testified that when she got the case she had a
hard time contacting Father. When she did speak to Father,
Father would say that he would promise to talk to her or come to
the office which he never did. FCM Carnes stated the first time
she met Father was at a supervised visit for Mother, where
Father showed up unannounced attempting to have a visit with
the Child. FCM Carnes was able to screen Father which came
back positive for illegal substances.
39. In July 2016, Father’s visits were suspended due to not
visiting with the child and the positive screen.
40. FCM Carnes testified that Mother has had 17 referrals
expire due to not engaging and 12 open referrals. Mother had
not engaged in individual therapy or completed the psychological
evaluation. Mother’s referral for home based case
management.[1]
41. In September 2016, Mother went to inpatient treatment at
Tara shortly after [DCS] filed [its] Verified Petition to Terminate
Parental Rights. When she was released in October 2016,
Mother had a negative screen.
42. In November 2016, Mother tested positive for
methamphetamine.
43. In November 2016, Mother informed the team that she
was pregnant.
44. FCM Carnes testified that Mother then went eight weeks
without visiting her child. With the concern of her usage, and
not seeing the child, Mother’s visits were suspended until Mother
could produce consistent clean screens.
45. In October 2016, Father was incarcerated. Father was
incarcerated from February 2016 through early January 2017.
Father was again incarcerated in February 2017 through March
2017.
46. FCM Carnes testified that Father had informed her that he
was attending IOP through Centerstone during the weeks
1
This incomplete sentence appears verbatim as it does in the juvenile court’s order.
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between his release in January 2017 and his incarceration in
February 2017. He then informed her that after his release in
March 2017, he continued his IOP.
47. In April 2017, Mother gave birth, and the child tested
positive for illegal substances. [DCS] has since opened a case on
that child and the case was pending.
48. Mother has not screened for the Department since
February 2017.
There is a reasonable probability that continuation of the
parent-child relationship poses a threat to the well-being of the
child in that:[2]
1. Mother’s visits with the Child have been suspended since
November 2016 for substance use, and inconsistent attendance in
visits. Mother went 8 weeks without seeing the Child prior to the
suspension and tested positive for methamphetamine.
2. Father’s visits with the Child have been suspended since
July 2016 due to Father’s going a significant amount of time not
seeing the Child and due to a substance abuse relapse.
****
4. At the time of the fact-finding on May 19, 2017, Mother
did not have stable employment.
5. Mother admits that she has not completed any services
during the CHINS case.
6. Mother testified that she has been sober since November
2016, however, Mother has not provided screens to the
Department or attended any substance abuse treatment.
7. Since the March 31, 2017 hearing, Mother delivered her
child who tested positive for illegal substances.
8. [DCS] has since opened a case on Mother’s new child, in
which Mother again refuses to provide screens.
2
Although the juvenile court lists the following facts as relating to whether the continuation of the parent-
child relationship poses a threat to the well-being of L.H., we believe these facts are also relevant to whether
there is a reasonable probability that the conditions leading to the removal from Parents’ care will be
remedied.
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9. Father is on work-release from jail and does not have
stable housing and is not in a position to be able to have custody
of the Child at the time of the fact-finding.
****
11. Father stated that he will be completing IOP in a few days.
Father admits that this is the first time during the duration of the
CHIN[S] case that he has completed IOP. Father’s participation
in this program has occurred while he is on work release and had
been ongoing for only about two and one-half months at the time
of the hearing.
12. Father admits that he has not completed any other service
except the 21 day inpatient treatment at Tara.
13. Father is hopeful that he will put on home detention after
hiring an attorney to file a modification of his sentencing.
14. Vanessa Smith of NYAP[3] testified that she received a
referral for homebased case work with Mother.
15. During Ms. Smith’s time on the case, Mother never
obtained stable housing, and never had stable employment.
Further, Ms. Smith testified that Mother only met with her three
times for homebased case management.
16. Ms. Smith also received a referral to supervise Mother’s
visits with the child.
17. While that referral was open Mother missed 25 out of 93
visits.
18. Emilee Baker of NYAP received a referral for homebased
case work and supervised visits for [F]ather.
19. Ms. Baker testified that Father has never fully obtained her
goals.
20. Father had housing, employment, and transportation but
in January 2016, he lost it all.
21. Ms. Baker testified that in the end of April 2016, Father’s
compliance had started to lessen. He participated in 2 hours of
3
“NYAP” stands for the “National Youth Advocate Program.” See
http://www.nyap.org/indiana/4576181149 (last visited November 30, 2017).
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case management in May 2016, 30 minutes in June 2016, and did
not participate in July 2016.
22. Ms. Baker testified that she was at the visit in July where
Father appeared during Mother’s visit. Ms. Baker described
Father as disheveled and looking ill.
23. Lori Whaley of Ireland[4] received a referral from [DCS]
for individual therapy for the child.
****
26. Ms. Whaley also testified that inconsistency with the child
would be detrimental to her.
27. GAL testified that throughout the case Mother has stated
that she does not need help.
28. GAL testified that she has concerns that Mother has not
completed substance abuse treatment, and did not follow up on
the recommendations from Tara upon Mother’s release.
29. GAL testified that she has concerns around Mother’s
stability as she has had a lack of housing and employment
throughout the duration of the case, including at the final
hearing.
30. GAL testified that Father always had a plan upon release
from incarceration. However, Father never followed through.
Father was either rearrested or relapsed.
31. GAL also testified that she has concerns surrounding
Father’s sobriety as he has never been able to maintain his
sobriety throughout the duration of the case.
32. According to the GAL, parents had the potential but they
have never done what they needed to do to get the child placed
back with them, and she did not know what would make them.
Therefore, the GAL does not believe giving the parents more
time to complete services would be in the child’s best interest.
33. GAL testified that Mother has made no progress
throughout the case and Father is nowhere further today than he
4
“Ireland” refers to “Ireland Home Based Services.” See http://ihbs.us/indiana-department-of-child-
services/dcs-home-based-therapy/ (last visited November 30, 2017).
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was at the beginning of the case, even though he has made more
efforts than Mother.
Appellant N.B.’s Appendix Vol. II, pp. 61–67. In light of these findings, the
juvenile court concluded that DCS had established by clear and convincing
evidence that the reasons for the Child’s removal from and continued
placement outside Parents’ home would not be remedied.
[18] We note that in claiming that the evidence was insufficient to support the
juvenile court’s order terminating their parental rights, Parents do not challenge
the sufficiency of any particular finding, instead levying only the blanket
assertion that the juvenile court’s conclusion was not supported by the
evidence. As a result, Parents have waived any argument relating to whether
these unchallenged findings are clearly erroneous. See Madlem v. Arko, 592
N.E.2d 686, 687 (Ind. 1992) (providing that when an appealing party fails to
challenge the findings of the trial court, the findings must be accepted as
correct); In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (providing that
failure to challenges findings resulted in waiver of argument that findings were
clearly erroneous), trans. denied.
[19] On appeal, Parents merely assert that the juvenile court failed to consider
evidence that they each claim demonstrates a change in circumstances. For his
part, Father points to evidence that he claims shows that he had begun to make
progress in improving his situation. Specifically, he points to (1) evidence
indicating that he had passed three drug screens while on work release and (2)
his self-serving testimony that he had saved enough money while on work
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release to make a deposit for a stable housing situation for both he and L.H.
following the completion of his work release sentence in December of 2017.
For her part, Mother relies on her self-serving testimony that, as of the date of
the evidentiary hearing, she had secured adequate housing and was sober.
[20] It is well-established that the juvenile court, acting as a trier of fact, was not
required to believe or assess the same weight to the testimony as Parents. See
Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621
N.E.2d 308, 320 (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988);
A.S.C. Corp. v. First Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463
(1960); Haynes v. Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949),
trans. denied. Parents’ challenges to the sufficiency of the evidence to support
the conclusions of the juvenile court effectively amount to invitations for this
court to reassess witness credibility and reweigh the evidence, which, again, we
will not do. See In re S.P.H., 806 N.E.2d at 879.
[21] Upon review, we conclude that the juvenile court did not err in concluding that
the conditions leading to the Child’s removal from and continued placement
outside’s Parents’ care were unlikely to be remedied. Having concluded that
the evidence was sufficient to support the juvenile court’s determination, and
finding no error by the juvenile court, we need not consider whether the
continuation of the parent-child relationship poses a threat to the Child’s well-
being because DCS has satisfied the requirements of Indiana Code section 31-
35-2-4(b)(2)(B) by clear and convincing evidence.
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Conclusion
[22] Having concluded that the evidence is sufficient to support the juvenile court’s
order terminating both Father’s and Mother’s parental rights to the Child, we
affirm the judgment of the trial court.
[23] The judgment of the trial court is affirmed.
Robb, J., and Crone, J., concur.
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