In the Matter of the Termination of the Parent-Child Relationship of K.H., J.H., & Ke.H. (Children) and A.H. (Mother) A.H. (Mother) 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 Mar 28 2018, 9:10 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 28, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of K.H., J.H., & Ke.H. 48A02-1709-JT-2253
(Children) and A.H. (Mother); Appeal from the Madison Circuit
A.H. (Mother), Court
The Honorable G. George Pancol,
Appellant-Defendant,
Judge
v. Trial Court Cause No.
48C02-1608-JT-70
The Indiana Department of 48C02-1608-JT-71
48C02-1608-JT-72
Child Services,
Appellee-Plaintiff
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 1 of 14
[1] A.H. (“Mother”) appeals the termination of her parental rights to K.H, J.H.,
and Ke.H. (collectively, “Children”). She argues the trial court’s findings do
not support its conclusions: (1) there was a reasonable probability the
conditions that resulted in Children’s removal would not be remedied; (2)
termination is in Children’s best interests; and (3) DCS had presented a
satisfactory plan for the care and treatment of Children following termination.
We affirm.
Facts and Procedural History
[2] Mother and R.H. (“Father”) 1 are the biological parents of K.H., born January
12, 2009; J.H., born December 1, 2010; and Ke.H., born April 9, 2012
(collectively, “Children”). In April 2014, the Department of Child Services
(“DCS”) received a report of domestic violence between Mother and Father,
and DCS staff observed unexplained bruises on Children. That same month,
Mother and Father agreed to an Informal Adjustment to address those issues.
[3] On August 8, 2014, Children were removed from Mother’s care after DCS
substantiated a report that Children were victims of physical abuse and neglect.
DCS staff observed an abrasion on J.H.’s face, a severe burn on Ke.H.’s thumb,
a long cut on K.H.’s inner thigh, and various other bruises and cuts on
1
Father consented to Children’s adoptions and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 2 of 14
Children. Children were placed in foster care, where they have remained
throughout these proceedings. 2
[4] On August 11, 2014, DCS filed petitions alleging each of Children was a Child
in Need of Services (“CHINS”). On October 7, 2014, the trial court
adjudicated Children as CHINS after Mother admitted Children were in need
of services “due to the unexplained bruising to the [C]hildren and the necessity
of services to address parenting deficiencies[.]” (App. Vol. II at 15.) 3 On
December 17, 2014, the trial court entered dispositional orders for each child
and ordered Mother to refrain from using illegal drugs and alcohol; complete
random drug screens; complete a substance abuse assessment and follow all
recommendations; obtain and maintain stable housing and employment; keep
all appointments with service providers; and participate in visitation with
Children.
[5] In its order, the trial court made detailed findings regarding the progress of the
CHINS case. Those findings illustrate Mother’s inconsistent compliance with
services throughout the proceedings:
[7a.] [As of the review hearing on February 10, 2015,] [Mother]
had made some strides to enhance parenting capabilities at this
stage of the case. Mother had completed a parenting assessment
2
As noted in the trial court’s findings, Children were in separate foster homes for a portion of the
proceedings, but at the time of the termination hearing, they were in the same foster home.
3
The trial court entered a separate order for each child. The language in each order is virtually identical.
We will cite the order concerning J.H. unless otherwise noted.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 3 of 14
and participated in recommended home[-]based therapy. She
was consistently trying to obtain stable employment, had a
substance abuse assessment scheduled, and had provided
negative screens to this point;
*****
[8b.] [As of the review hearing on August 5, 2015,] [Mother] had
now been unsuccessfully closed out of home-based services due
to multiple failures to attend or unexcused cancellations.
Visitations by Mother with [Children] were also unsuccessfully
closed by the engaged service provider due to consecutive missed
sessions without valid excuses;
*****
[9b.] [As of the review hearing on February 3, 2016,] Mother had
not finished parenting classes recommended from her previously
completed parenting assessment, [but] was participating in home-
based therapy again after her original referral had been
unsuccessfully closed;
[9c.] Mother tested positive for an illegal controlled substance in
October of 2015, necessitating further substance abuse treatment;
*****
[10b.] [As of the review hearing on August 3, 2016,] Mother was
not participating in substance abuse treatment and was not
responding consistently to [drug] screen requests. Mother was
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 4 of 14
[not]4 consistently participating in home based therapy, instead
having multiple failures to attend scheduled sessions or
cancelling sessions without authorization[.]
(Id. at 16-17) (footnote added) (brackets added for clarity).
[6] Based on Mother’s non-compliance with services and multiple positive drug
screens, DCS filed petitions to terminate her parental rights to Children on
August 26, 2016. Despite those filings, DCS offered Mother services until
February 2017. Mother refused to take any further drug screens after October
16, 2016, and the court suspended her visitation with Children at that time.
The trial court agreed to allow Mother to resume visitation in February 2017 if
she completed substance abuse treatment, but Mother did not fulfill that
condition. The trial court held hearings on the termination petitions on July 26
and August 1, 2017. Based on the evidence presented at those hearings, the
trial court issued orders terminating Mother’s parental rights to Children on
August 29, 2017.
Discussion and Decision
[7] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
4
It would seem, based on the remainder of the sentence, the trial court inadvertently omitted the word “not”
in this sentence.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 5 of 14
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[8] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(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.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 6 of 14
(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). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[10] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[11] Mother argues the trial court’s findings do not support its conclusion there was
a reasonable probability the conditions that resulted in Children’s removal from
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 7 of 14
her care would not be remedied. However, she does not contest whether the
trial court’s findings support its conclusion that the continuation of the parent-
child relationship posed a threat to the well-being of Children. DCS does not
have to prove both threat to well-being and reasonable probability conditions
will not be changed because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, such that DCS must prove only one by clear and convincing
evidence. See Ind. Code § 31-35-2-4(b)(2)(B) (listing three options and noting
DCS has to prove “one”). Because Mother does not present an argument
challenging the trial court’s conclusion the continuation of the parent-child
relationship posed a threat to Children’s well-being, we may affirm under that
portion of the statute and, thus, need not address her argument about the
probability that conditions will be remedied. See In re L.S., 717 N.E.2d at 209(because Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive, court needs
to find only one requirement to terminate parental rights).
Best Interests of Children
[12] In determining what is in Children’s best interests, a juvenile court is required
to look beyond the factors identified by DCS and consider the totality of the
evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.
A parent’s historical inability to provide a suitable environment, along with the
parent’s current inability to do so, supports finding termination of parental
rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990
(Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-
appointed advocate to terminate parental rights, in addition to evidence that
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 8 of 14
conditions resulting in removal will not be remedied, are sufficient to show by
clear and convincing evidence that termination is in Children’s best interests. In
re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[13] Mother does not challenge findings related to the trial court’s conclusion that
termination was in Children’s best interests. Therefore, those unchallenged
findings stand proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)
(“Because Madlem does not challenge the findings of the trial court, they must
be accepted as correct.”). Thus, we consider whether the trial court’s findings
support its conclusion that termination was in Children’s best interests.
[14] Mother argues the trial court’s findings did not support its conclusion that
termination was in Children’s best interests for a variety of reasons. First, she
notes her multiple evictions but states, “[M]other has acquired a home for the
[C]hildren, in which she cannot be evicted from. Stability of environment is an
important factor in the matter of raising children but in and of itself does not
serve as a valid basis for terminating parental rights.” (Br. of Appellant at 17)
(citation to the record omitted). Second, Mother argues many of her positive
drug screens “can be attributed to her dental issues [for] which she had valid
prescriptions.” (Id.) Finally, Mother asserts: “While the [C]hildren are thriving
in [their current] placement, little harm, if any, would come to the [C]hildren if
the Court allowed [M]other the opportunity to progress in her suboxone
treatment and restore the family home.” (Id.)
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 9 of 14
[15] Mother is correct that instability of housing or environment cannot be the sole
basis for terminating parental rights. See In re G.Y., 904 N.E.2d at 1265 (child’s
need for stability or permanency not dispositive when considering child’s best
interests). However, the trial court found many other reasons to support its
conclusion that termination of Mother’s parental rights was in Children’s best
interests, including Mother’s non-compliance with services and her continued
use of illegal drugs. The trial court also found Mother provided false
information about her participation in a substance abuse rehabilitation
program; Mother refused drug screens after October 16, 2016; Mother failed to
demonstrate the progress required to reinstate visitation with Children after
visitation was suspended in October 2016; and Mother had been evicted from
different residences four times and has multiple civil judgments against her for
non-payment of rent. In addition to the findings involving Mother, trial court
found the Children were doing well in placement, that their foster mother was
helping Children resolve their behavioral issues, and Children wanted to be
adopted by foster family.
[16] Regarding the home Mother had acquired by the time of the termination
hearings, Mother testified she had a house she had been “working on” since
January 2017. (Tr. Vol. II at 45.) When asked for the address of the house,
Mother stated, “I don’t really want to say where it’s at right this second because
it’s not ready[.]” (Id. at 44.) When asked how she came to own the house,
Mother first said a friend gave it to her and when asked that friend’s name,
Mother stated, “It’s just a friend of mine. I’m not giving you his name.” (Id. at
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 10 of 14
45.) Mother finally stated her father gave her the house. The trial court was
not required to infer from Mother’s ambiguous testimony that Mother had a
house; nor would such fact resolve the numerous other problems that prohibited
Mother from being reunited with Children.
[17] Mother’s additional arguments regarding her drug screens and alleged
compliance with services are invitations for us to reweigh the evidence, which
we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot
reweigh evidence or judge the credibility of witnesses). We conclude the trial
court’s findings supported its conclusion that termination was in Children’s best
interests. See Prince v. Dept. of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App.
2007) (termination in children’s best interests based on Mother’s habitual
pattern of drug use and non-compliance with services).
Satisfactory Plan for Care and Treatment
[18] Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be
terminated unless DCS provides sufficient evidence of a satisfactory plan for the
care and treatment of the children following termination. We have held “[t]his
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 D.D., 804 N.E.2d at 268.
[19] Mother argues DCS did not present a plan for Children after the termination of
Mother’s parental rights. She states in her brief, “[t]he DCS case manager and
the CASA worker hoped the [C]hildren would remain with the current foster
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 11 of 14
placement and they would adopt but that plan was not set in stone.” (Br. of
Appellant at 18.) The trial court found:
[21g.] [Children] are placed in pre-adoptive placement with the
licensed foster mother, [S.G.]. [J.H.] has been placed with the
foster mother since July of 2015; [Ke.H.] and [K.H.] joining [sic]
that foster home in April of 2017;
[21h.] [Children] are all appropriately cared for and foster
mother works hard on [J.H.’s] behavioral issues. There are no
concerns for criminal conduct, substance abuse, or chronic
inability to provide basic necessities for [Children] while in the
care of the foster mother, who is willing and desiring to adopt the
sibling group;
[21i.] Adoption of [Children] is a satisfactory plan for
[Children’s] permanency.
*****
[22d.] [Children] all report that they wish to stay in their current
foster home permanently;
*****
28. The description of the care, love, and attention given to
[Children] by the foster family, as well as the opinions [of service
providers] cited above [in the order], also demonstrate that
adoption is a satisfactory plan for the care and treatment of
[Children], which is now also found for purposes of these
termination proceedings.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 12 of 14
(App. Vol. II at 25-8.) Based on those findings, the trial court concluded, “The
plan of DCS for the care and treatment of [Children], that being adoption of
[Children] is acceptable and satisfactory.” (Id. at 29.)
[20] Mother does not cite case law to support her contention that Children’s post-
termination plan needed to be “set in stone.” (Br. of Appellant at 18.) As such,
Mother’s argument is only an invitation for us to reweigh the evidence and
judge the credibility of witnesses, which we cannot do. See In re D.D., 804
N.E.2d at 265 (appellate court cannot reweigh evidence or judge the credibility
of witnesses). We conclude the trial court’s findings support its conclusion that
there existed a satisfactory plan for the care and treatment of Children after the
termination of Mother’s parental rights. See In re S.L.H.S., 885 N.E.2d 603, 618
(Ind. Ct. App. 2008) (adoption is satisfactory post-termination plan).
Conclusion
[21] We need not address Mother’s argument regarding whether there was a
reasonable probability the conditions that resulted in Children’s removal would
be remedied, because Mother did not challenge the continuation of her
relationship with Children poses a threat to Children and proof of one of the
elements in Indiana Code section 31-35-2-4(b)(2)(B) is sufficient to support
termination. Further, the trial court’s findings support its conclusions
termination was in Children’s best interests and a satisfactory plan existed for
Children’s care and treatment following termination. Accordingly, we affirm.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 13 of 14
[22] Affirmed.
Riley, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018 Page 14 of 14