In Re the Termination of the Parent-Child Relationship of N.H. (Minor Child) T.H. (Mother) and J.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as
Sep 12 2018, 6:25 am
precedent or cited before any court except for
the purpose of establishing the defense of res CLERK
Indiana Supreme Court
judicata, collateral estoppel, or the law of the Court of Appeals
and Tax Court
case.
ATTORNEY FOR APPELLANT (FATHER) ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General
Huntington, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLANT (MOTHER)
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the Parent- September 12, 2018
Child Relationship of N.H. (Minor Court of Appeals Case No.
Child); 18A-JT-410
T.H. (Mother) and J.H. (Father), Appeal from the Wells Circuit Court
Appellants-Respondents, The Honorable Kenton W. Kiracofe,
Judge
v. Trial Court Cause No.
90C01-1707-JT-18
The Indiana Department of Child
Services
Appellee-Petitioner.
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Pyle, Judge.
Statement of the Case
[1] T.H. (“Mother”) and J.H. (“Father”) each appeal the termination of the parent-
child relationship with their daughter, N.H. (“N.H.”), claiming that there is
insufficient evidence to support the termination. Both parents argue that
Department of Child Services (“DCS”) failed to prove by clear and convincing
evidence that there was a reasonable probability that the conditions that
resulted in N.H.’s removal would not be remedied and that termination was in
N.H.’s best interests. Father also argues that there is insufficient evidence to
support the termination because DCS failed to prove by clear and convincing
evidence that adoption was a satisfactory plan for N.H.’s care and treatment.
Concluding there is sufficient evidence to support the termination of the parent-
child relationships, we affirm the trial court’s judgment.
[2] We affirm.
Facts
[3] Mother and Father are the parents of N.H., who was born in February 2010. In
2015, while on probation and home detention, Father was charged with,
convicted of, and incarcerated for operating a motor vehicle after forfeiture of
his license for life and for being an habitual traffic violator. N.H. was removed
from Mother’s care and placed in foster care in June 2016 after the then-six-
year-old girl showed neighbors the needles that Mother used to take drugs and
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explained how Mother used the needles to feel better when she was sick. At the
time, Mother lacked stable housing and was living with N.H. in the home of a
registered sex offender who had previously molested his young daughters.
[4] The trial court adjudicated N.H. to be a child in need of services (“CHINS”) the
following month. A September 2016 dispositional order required Mother to
successfully complete several services, including a psychological evaluation, a
substance abuse assessment, supervised visitation, and random drug screens.
Because Father was incarcerated during the CHINS proceeding, his court-
ordered services were deferred until his release.
[5] In July 2017, after Mother failed to comply with the trial court’s order to
participate in the court-ordered services, and while Father was still incarcerated,
DCS filed a petition to terminate both parents’ parental rights. The evidence
presented at the November 2017 termination hearing revealed that Mother had
not successfully completed the court-ordered services. For example, during the
first four months of 2017, Mother tested positive fourteen times for a variety of
substances, including cocaine, fentanyl, oxycodone, methadone,
methamphetamine, amphetamine, and morphine. At the time of the hearing,
Mother also lacked stable housing and employment and had been incarcerated
for the previous seven months for a probation violation. Although she had
attended visitation with N.H. following the CHINS adjudication, Mother had
not seen her daughter for the prior seven months. Mother had also been
charged with theft while she was incarcerated.
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[6] Also at the hearing, Father testified that he had been incarcerated since
September 2015. Over the past two years, he had written N.H. two or three
letters and had sent her a birthday card. He had also spoken to her on the
phone three or four times during Mother’s supervised visitations. Father had
made no other attempts to contact N.H. He had also not contacted the DCS
case manager to request additional calls or visits. Father further testified that he
had completed Mothers Against Meth and literacy programs while incarcerated
but offered no documents in support of his testimony. He testified that his
earliest release date was March 2018.
[7] DCS Family Case Manager Lindsey Feinberg (“Case Manager Feinberg”)
testified that the conditions that resulted in N.H.’s removal had not been
remedied “due to the family’s substance use history . . . [and] issues with their
stability in housing.” (Tr. 60). Case Manager Feinberg further testified that
Father had significant criminal and substance abuse histories and had not had
any substance abuse counseling while incarcerated. 1 Case Manager Feinberg
agreed that the “major issues that got both of these parents involved in this case
ha[d]n’t been addressed.” (Tr. 72). She further explained that N.H. had not
been in either parent’s care for the previous seventeen months, and she
explained that the plan for N.H. was foster parent adoption.
1
The trial court’s termination order provides that “Father has a substantial criminal history which includes
possession with intent to deal, legend drug deception, receiving stolen property, operating a vehicle as a
habitual traffic violator, and driving while never receiving a license.” (Mother’s App. at 49). Father does not
challenge the trial court’s finding.
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[8] Guardian Ad Litem Beth Webber (“GAL Webber”) testified that the reasons
for N.H.’s removal were not likely “to be fixed at this point.” (Tr. 93). GAL
Webber specifically testified as follows:
[A]s we sit her today, none of it’s fixed. They’re not even out to
be able to start services. The – the problem is you have to look at
the past history because that’s the best predictor of future
behavior, and the past history is in and out of incarceration.
[Mother] even has a new criminal charge from a time while she
was incarcerated for theft.
(Tr. 94). According to GAL Webber, termination of both parental relationships
and adoption was in N.H.’s best interests.
[9] Following the hearing the trial court found that “neither parent had stable
housing, employment, or the financial means to provide food, clothing, shelter,
medical care, or support to the minor child.” (Mother’s App. at 50). The trial
court further concluded that “Mother and Father ha[d] had over one year and
five months to accomplish the steps necessary to have their child returned to
their care. Children cannot wait indefinitely for their parents to work toward
preservation and reunification.” (Mother’s App. 53). The trial court
terminated the parental rights of both parents, and both parents now appeal the
terminations.
Decision
[10] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
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termination of that right when parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The
purpose of terminating parental rights is not to punish the parents but to protect
their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.
[11] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[12] A petition to terminate parental rights must allege:
(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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[13] Here, both parents argue that there is insufficient evidence to support the
termination of their parental rights. Specifically, they first contend that the
evidence is insufficient to show that there is a reasonable probability that the
conditions that resulted in N.H.’s removal or the reasons for placement outside
the home will not be remedied.
[14] 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, 642-43 (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. at 643. 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. DCS need not
rule out all possibilities of change. In re Kay. L., 867 N.E.2d 236, 242 (Ind. Ct.
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App. 2007). Rather, DCS need establish only that there is a reasonable
probability that the parent’s behavior will not change. Id.[15] Here, our review of the evidence reveals that N.H. was removed from Mother
because of Mother’s drug use and unstable housing. Evidence presented at the
termination hearing revealed that Mother had failed to successfully complete
any of the court-ordered services. Specifically, during the first four months of
2017, Mother tested positive fourteen times for a variety of substances,
including cocaine, fentanyl, oxycodone, methadone, methamphetamine,
amphetamine, and THC. At the time of the termination hearing, Mother also
lacked stable housing and employment and had been incarcerated for the
previous seven months for a probation violation. Mother had also been charged
with theft while she was incarcerated. This evidence supports the trial court’s
conclusion that there was a reasonable probability that the conditions that
resulted in N.H.’s removal from Mother would not be remedied.
[16] Our review of the evidence further reveals that N.H. could not have been placed
with Father because he was incarcerated at the time she was removed from
Mother. Father argues that there is insufficient evidence to support the
termination of his parental rights in light of K.E. v. Indiana Dep’t of Child Servs.,
39 N.E.3d 641 (Ind. 2015). In the K.E. case, the father was incarcerated at the
time of the child’s birth, and his release date was over two years away at the
time of the termination hearing. After the trial court terminated the father’s
parental relationship with his child, the Indiana Supreme Court reversed the
termination order. Id. at 649. Specifically, the Indiana Supreme Court noted
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the positive steps that the father had taken while incarcerated, which included:
(1) completing twelve inmate programs; (2) attending alcoholics and narcotics
anonymous meeting; (3) making plans for housing and employment upon his
release from incarceration; and (4) maintaining frequent and meaningful
contact with his child, including weekly visits with the child and calling the
child every night to speak with him on the telephone. Based on these specific
facts and circumstances, the Indiana Supreme Court held that the father had
made “substantial efforts . . . to improve his life by learning to become a better
parent, establishing a relationship with [his child] . . . and attending substance
abuse classes[.]” Id.
[17] Although K.E. and the present case have some similarities, there are substantial
differences. First, the father in K.E. had made significant efforts to better
himself while incarcerated. He had specifically completed twelve different
programs that “particularly targeted parenting and life skills, along with
addressing substance abuse.” Id. Here, although Father testified that he had
completed both Moms against Meth and literacy programs, he had no
documentation to support his testimony and he had completed no parenting
skills programs. Further, and notably, despite Father’s substance abuse issues,
he had not completed any substance abuse programs.
[18] More important is that the father in K.E. made significant efforts to maintain a
meaningful relationship with his child. Specifically, he visited the child weekly
and telephoned the child every night. As a result, the father and his child were
bonded. Here, the only contact that Father has had with N.H. following her
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removal from Mother has been talking to her on the phone three or four times
total during Mother’s supervised visits and sending her two or three letters and
a birthday card. In addition, Father never contacted DCS to request additional
calls or visits. For these reasons, Father’s reliance on K.E. is misplaced, and the
evidence supports the trial court’s conclusion that there was a reasonable
probability that the conditions that resulted in N.H.’s removal would not be
remedied.
[19] Next, Mother and Father both argue that there is insufficient evidence that the
termination was in N.H.’s best interests.2 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
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.
2
Mother points out that the trial court failed to make a specific finding that termination was in N.H.’s best
interests. However, we agree with the State that the “court’s order is sufficient, taken as a whole, to
determine the court found termination of the parent-child relationship[s] was in [N.H.’s] best interests.”
(State’s Br. 20).
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App. 2000) (quoting Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct.
App. 1992), trans. denied, superceded by rule on other grounds). 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, GAL Webber testified that termination was in the N.H.’s
best interests. The testimony of this service provider, as well as the other
evidence previously discussed, supports the trial court’s conclusion that
termination was in the children’s best interests.
[21] Last, Father argues that DCS does not have a satisfactory plan for N.H.’s care
and treatment. This Court has previously explained that the plan for the care
and treatment of the child 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 L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008).
Here, the DCS caseworker testified the plan for the care and treatment of N.H.
is foster parent adoption. This is a satisfactory plan. See In re A.N.J., 690
N.E.2d 716, 722 (Ind. Ct. App. 1997).
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[22] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
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