In the Matter of the Involuntary Termination of the Parent-Child Relationship of: C.H. (Minor Child) C.C. (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 Oct 05 2017, 10:32 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 ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 5, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: C.H. (Minor 49A04-1705-JT-1144
Child) Appeal from the Marion Superior
C.C. (Father), Court
The Honorable Marilyn A.
Appellant-Respondent,
Moores, Judge
v. The Honorable Larry E. Bradley,
Magistrate
Trial Court Cause No.
The Indiana Department of
49D09-1609-JT-1070
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] C.C. (Father) appeals the juvenile court’s order terminating his parent-child
relationship with C.H. (Child). Father argues that there is insufficient evidence
supporting the juvenile court’s conclusion that continuation of the parent-child
relationship poses a threat to Child’s well-being. Finding the evidence
sufficient, we affirm.
Facts
[2] On May 31, 2012, Child was born to Father and Ce.H. (Mother).1 At birth,
Child’s meconium tested positive for illegal substances. As a result, the
Department of Child Services (DCS) became involved with the family. Mother
and Father entered into a program of Informal Adjustment (IA) to address
substance use, and the IA closed successfully on May 1, 2013. Mother and
Child resided with Child’s Maternal Grandmother as a condition of the IA; as
soon as the IA closed, Mother and Child moved in with Father.
[3] In 2013, Child and parents moved at least twice; one of those moves occurred
after the parents were evicted from their residence for failing to make timely
rent payments. At some point during that year, conflict arose in the parents’
relationship and they resumed using illegal drugs.
1
Mother has consented to Child’s adoption and is not a party to this appeal.
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[4] In May 2015, the parents asked Child’s Paternal Grandmother to care for
Child.2 Paternal Grandmother has a history of dealing in illicit substances, a
history of substance abuse, and a current prescription for suboxone—a
medication used to help wean people off addictive substances.
[5] On September 19, 2015, DCS filed a petition alleging that Child was a Child in
Need of Services (CHINS) because of parents’ drug use, unstable housing, and
failure to care for Child. At the initial hearing, Child was removed from
Paternal Grandmother and placed with Maternal Grandmother. Child has
been placed with Maternal Grandmother since that time, and Maternal
Grandmother plans to adopt Child if the termination order becomes final. On
September 25, 2015, Father admitted that Child was a CHINS because Father
needed “assistance maintaining a stable home free from substance abuse . . . .”
DCS Ex. 20 p.2. The CHINS court ordered Father to submit to random drug
screens, to complete substance abuse and parenting assessments and comply
with any recommendations stemming from those assessments, and to complete
home based therapy and case management.
[6] At the time the CHINS petition was filed, Child was defiant, oppositional,
disruptive, and inappropriate. The three-year-old was not potty-trained and had
become dependent on suppositories to defecate. Child was placed in therapy,
and her therapist diagnosed her with general anxiety disorder, separation
2
Father claims that they granted “temporary legal guardianship” to Paternal Grandmother, but there is no
documentation in the record establishing that any action was taken in a court of law. Appellant’s Br. p. 8.
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anxiety disorder, and oppositional defiant disorder. Child’s therapist found that
Child was inappropriately clingy and afraid to be away from Maternal
Grandmother, that Child’s anxiety about Mother’s safety was very high, and
that her fear of abandonment by a caregiver was significant.
[7] Generally, the therapist testified that Child has experienced trauma as a result
of “not having consistency and stability in her life and . . . being fearful and
uncertain that people are going to stay.” Tr. p. 12. While in therapy, Child
made progress towards goals of decreasing negative behaviors and dealing with
issues related to separation anxiety. The therapist believed that the progress
was the result of the “consistency and the stability” in her living environment
with Maternal Grandmother, id. at 16, and that Child experienced significant
regressions in behavior “when visits started and ended with her dad,” id. When
Child regressed, “[s]he started defecating on herself quite a bit. More tantrums
and more defiance and more opposition.” Id. The therapist testified that Child
needs “that stability and that consistency, that is really important. She needs to
feel secure and safe.” Id. at 17. If Child did not have stability and consistency,
she would be harmed because “it would be difficult for her to learn how to
function in a normal way if she constantly has anxiety and doesn’t feel safe and
secure where she is.” Id. at 20.
[8] The therapist testified that Father never completed the parenting assessment
and did not stay in contact about Child’s therapy. The therapist had not heard
from Father between May 2016 and the time of the termination hearing in
March 2017. As a result of the lack of contact with Father, the therapist was
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unable to determine whether there was a bond between Father and Child or
whether there were appropriate interactions between them.
[9] During the CHINS case, Father did not submit to regular random drug screens,
though he did so sporadically. He was discharged from home based therapy
and case management for failure to participate. He started a parenting
assessment but did not complete it.
[10] Father was using illegal substances when the case opened, continued to use
until early 2016, was sober for three months, resumed using in the summer of
2016, and last used when he was participating in substance abuse treatment in
November 2016. Although he technically completed an intensive outpatient
program, DCS did not believe he had completed it successfully because he
admitted that he had used heroin and/or prescription drugs for which he did
not have a prescription during the program. At the time of the termination
hearing, Father was successfully participating in a relapse prevention program
and individual therapy.
[11] During the CHINS case, Father’s parenting time with Child has always been
supervised. His parenting time has been suspended twice—first, in January
2016, after Father admitted to ongoing substance abuse. His visits were
reinstated after thirty days of consistent participation in services and negative
drug screens. His visits again ceased in May 2016 and were officially
suspended in September 2016 after Father provided positive drug screens and
admitted that he had relapsed. Tr. p. 62. He was not able to provide thirty
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days of consistent participation in services and negative drug screens after that
time, so at the time of the March 2017 termination hearing, he had not seen
Child since May 2016.
[12] In September 2016, the CHINS court changed Child’s permanency plan to
adoption over Father’s objection because, among other things, Father “has been
sporadic in his participation in services and is still testing positive for illicit
substances.” DCS Ex. 7 p.2. On September 26, 2016, DCS filed a petition to
terminate the parent-child relationship between Father and Child. The juvenile
court held an evidentiary hearing on the petition on March 8 and April 13,
2017. On May 5, 2017, the juvenile court granted the petition, finding, in
relevant part, as follows:
11. [Father] completed two intensive outpatient programs but
lapsed at least three times in 2016. His last lapse, with
opiates, did occur at the end of his intensive outpatient
substance abuse program.
***
17. [Father] has not maintained independent stable housing,
and is currently residing with a roommate without a lease.
***
21. [Father] has not seen [Child] since May of 2016. He has
not requested visits although he did participate in services.
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22. [Child] has had weekly therapy sessions for the past year
with India Anderson to decrease her display of negative
behavior, and to explore trauma.
23. [Child] presented to her therapist with oppositional
defiance disorder and separation anxiety.
24. Therapist Anderson believes [Child] would regress from
progress if visits with [Father] started and stopped again.
25. [Father] has not contacted [Child’s] therapist since May of
2016.
26. [Child] has been placed with her maternal grandmother for
the past eighteen months. She has been around her
grandmother her whole life and [s]pent the first eight
months of her life residing in grandmother’s home.
27. [Father] has not contacted grandmother to inquire as to
[Child’s] well-being.
***
29. [Child] needs to feel safe and secure to thrive.
Grandmother is providing the needed consistency,
stability, love and special attention [Child] requires.
30. [Child] has been observed as being attached and bonded
with her grandmother.
31. The Court cannot find that a parent-child bond exists
between [Child] and [Father] at this time.
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32. Continuation of the parent-child relationship poses a threat
to [Child’s] well-being in that it would pose as a barrier to
obtaining permanency for her in a stable and consistent
environment and one where she has bonded and is having
all her needs, including special needs[,] met.
***
34. Based on [Father’s] inconsistency over time, and the
progress [Child] has made in her stable placement,
[Child’s] Guardian ad Litem recommends adoption as
being in [Child’s] best interests.
35. Termination is in the best interests of [Child].
Termination would allow her to be adopted into a stable
and permanent home where she can continue to progress
and have her needs met.
Appellant’s App. p. 17-18. Father now appeals.
Discussion and Decision
I. Standard of Review
[13] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
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court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[14] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
parental rights for a CHINS must make the following allegations:
(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 local office or
probation department for at 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;
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(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) 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.
DCS must prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
[15] Father’s only argument on appeal is that there is insufficient evidence
supporting the trial court’s conclusion that there is a reasonable probability that
the continuation of the parent-child relationship poses a threat to Child’s well-
being. Therefore, we need not and will not consider the trial court’s
conclusions that termination is in Child’s best interests or that the remaining
statutory elements have been satisfactorily met.
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II. Threat to Child’s Well-Being
[16] It is well established that a trial court need not wait until a child’s physical,
mental, and social growth are permanently impaired before terminating the
parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). Therefore, termination is appropriate “[w]hen the evidence shows that
the emotional and physical development of a [CHINS] is threatened . . . .” Id.In evaluating whether the continuation of the parent-child relationship poses a
threat to the child, a trial court “should consider a parent’s habitual pattern of
conduct to determine whether there is a substantial probability of future neglect
or deprivation” while also judging a parent’s fitness to care for his child as of
the time of the termination proceedings, taking into consideration evidence of
changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012).
[17] In this case, there is a wealth of evidence that Child’s emotional and physical
development are threatened if her relationship with Father continues. The
instability of her first few years of life resulted in a variety of diagnoses,
including separation anxiety disorder and oppositional defiant disorder, and in
significant challenges related to toilet training. With regular therapy and a
stable home environment, Child’s physical and emotional health began to
improve in many ways, but she experienced significant regressions whenever
visits with Father resumed. Child’s therapist testified that if Child did not have
stability and consistency in her life, she would be harmed because “it would be
difficult for her to learn how to function in a normal way if she constantly has
anxiety and doesn’t feel safe and secure where she is.” Tr. p. 20.
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[18] And even as Child desperately needs stability and consistency, the record
reveals that Father has a history of neither. During the CHINS case, he
participated inconsistently with most court-ordered services, with multiple
services being closed out unsuccessfully because of his lack of participation.
Furthermore, although he completed substance abuse treatment, he relapsed at
least three times during the life of the CHINS case. The longest period of time
during which he was able to maintain sobriety was three months. Father also
has a history of unstable housing, and while he had a place to live at the time of
the termination hearing, he was not on a lease and was living with his mother,
who has a history of dealing in illicit substances, a history of substance abuse,
and a current prescription for suboxone.
[19] The record also reveals that Father and Child did not have a significant bond by
the time of the termination hearing. When she was removed from his care and
custody at the beginning of the CHINS case, she had lived with a grandparent
for more than half of her life. And during the CHINS case, Father’s visits were
suspended twice because of his ongoing substance abuse. Although he
completed the court-ordered requirements after the first suspension such that
visits were reinstated, he was unable to fulfill those same requirements after the
second suspension. Therefore, his visits were not reinstated, and at the time of
the termination hearing, he had not seen Child for the previous ten months. He
attended only two of the many child and family team meetings during the
CHINS case and did not make a significant effort to stay in touch with Child’s
therapist or Maternal Grandmother.
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[20] We acknowledge and applaud the success Father seems to have had in the few
months leading up to the termination hearing. He was participating in
individual therapy and a relapse prevention program, apparently achieving
success in both arenas. Unfortunately, however, he failed to take advantage of
the opportunity to show an ability to maintain such successes and stability over
a longer period of time during the CHINS case. The juvenile court was
reasonable in concluding that Father’s long history of instability and
inconsistency outweighs the recent gains he had made at the time of the
termination hearing. Given Child’s need for stability and consistency and
Father’s inability to assure either, the juvenile court did not err by finding that
DCS had proved by clear and convincing evidence that the continuation of the
parent-child relationship posed a threat to Child’s well-being. In other words,
we find the evidence sufficient to support the juvenile court’s termination order.
[21] The judgment of the juvenile court is affirmed.
Bailey, J., and Altice, J., concur.
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