In the Matter of Term. of the Parent-Child Relationship of: B.H. and S.H., and B.H. and M.B. v. The Ind. Dept. of Child Services

Sep 23 2015, 9:13 am

ATTORNEY FOR APPELLANT FATHER ATTORNEYS FOR APPELLEE
Robert J. Little Gregory F. Zoeller
Brookston, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT MOTHER Robert J. Henke
Abigail R. Recker
Steven Knecht
Deputy Attorneys General
Vonderheide & Knecht, P.C.
Indianapolis, Indiana
Lafayette, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of Termination of September 23, 2015
the Parent-Child Relationship of: Court of Appeals Case No.
91A02-1504-JT-213
B.H. and S.H. (Minor Children),
Appeal from the White Circuit
and Court
B.H. (Father) and The Honorable Robert W.
M.B. (Mother), Thacker, Judge
Appellants-Repondents, Trial Court Cause Nos.
91C01-1410-JT-8
v. 91C01-1410-JT-9

The Indiana Department of
Child Services,
Appellee-Petitioner

Baker, Judge.
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[1] B.H. (Father) and M.B. (Mother) appeal the juvenile court’s order terminating

their relationship with their two children. Mother argues that the juvenile court

should have granted her motions to continue the termination hearing, and both

parents argue that there is insufficient evidence supporting the termination

order. Finding no error and sufficient evidence, we affirm.

Facts
[2] S.H. was born to Mother and Father on May 5, 2006; B.H. was born to Mother

and Father on September 22, 2008.

[3] On April 30, 2013, law enforcement was called after Father stabbed his brother-

in-law in the presence of the children. DCS received a report on May 2, 2013,

detailing the incident and alleging that Father was an active methamphetamine

user and had been arrested. During its assessment, DCS discovered that

Mother and children were staying in a home that had previously been

investigated for methamphetamine use. Mother, who was pregnant, refused to

take a drug screen because she had recently smoked marijuana. As part of the

assessment, DCS performed drug tests on both children. S.H. tested positive

for methamphetamine. As a result, DCS removed both children from the

parents’ care and custody and placed them in relative care.

[4] On May 24, 2013, DCS filed a petition alleging that the children were children

in need of services (CHINS). The parents admitted that Father was

incarcerated, that Mother had recently used marijuana, and that S.H. had tested

positive for methamphetamine while in the parents’ care. On June 28, 2013,

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 the juvenile court found both children to be CHINS. At the July 19, 2013,

dispositional hearing, the juvenile court ordered Mother to, among other things:

maintain stable housing; refrain from drug use; submit to random drug screens;

and attend all scheduled visitations with children. Because Father was

incarcerated, the court did not order that he participate in any services.

[5] Between June and November 2013, Mother attended only fifteen out of twenty-

eight scheduled visits with the children. Her visits became more regular in

January 2014, but she reported getting frustrated with the children, and the

visitation supervisor had to intervene repeatedly because Mother was unable to

manage the children’s behavior. In July 2014, the children moved to Florida to

live with their maternal grandparents. Mother was allowed to have two weekly

phone calls with the children, but during five and one-half months, Mother

called only eight times and spoke to the children for approximately five minutes

each time.

[6] After failing to attend two previous scheduled substance abuse intake

assessments, in March 2014, Mother attended an intake assessment and was

referred to an intensive outpatient program (IOP). She attended only four out

of thirteen sessions and eventually quit attending altogether. Mother tested

positive for methamphetamine in May 2013, and she tested positive for

hydrocodone—for which she did not have a prescription—in July 2013, August

2013, and twice in January 2014. Mother also missed multiple drug screens. In

August 2014, Mother gave birth to her third child, who tested positive for

opiates and methamphetamine at birth.

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[7] In June 2014, Mother was unsuccessfully discharged from homebased case

management services. Throughout the CHINS case, Mother had unstable

housing, living in at least six different locations. Mother was also incarcerated

for theft between October and December 2013. At the time of the termination

hearing, Mother was on probation, which she had already violated multiple

times.

[8] In July 2014, Mother was living with her boyfriend. While the residence itself

met minimal standards, Mother’s boyfriend was a convicted felon for violent

crimes, had substance abuse issues, and had previously been involved with

DCS. As a result, DCS did not approve the children to relocate to that home.

At the time of the termination hearing, Mother and her boyfriend were still in a

relationship. As of February 2015, Mother was homeless again.

[9] In 2000, Father was convicted of armed robbery and received a twenty-year

sentence, with four years executed and ten years suspended to probation.

When he was arrested in May 2013, he was still on probation for the armed

robbery conviction. On May 2, 2013, Father was arrested for dealing

methamphetamine. As a result of the arrest, Father’s probation was revoked

and he was ordered to serve two years of the sentence for armed robbery.

Eventually, Father was convicted of class B felony dealing in

methamphetamine and class D felony criminal recklessness. He received an

eleven-year sentence for these convictions. Father’s earliest possible release

date is November 1, 2019.

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[10] On October 27, 2014, DCS filed a petition to terminate the parent-child

relationship between the parents and the children. The first day of the

termination hearing took place on December 18, 2014. That morning, Mother

filed a motion to continue, contending that she had to work and risked getting

fired if she came to court. The juvenile court denied the motion, in part

because the motion had been filed at the last minute and multiple witnesses had

traveled from out-of-state to testify. The second day of the termination hearing

took place on March 3, 2015, and Mother again filed a motion to continue the

morning of the hearing; the juvenile court again denied the motion. On March

31, 2015, the juvenile court granted DCS’s petition and terminated the parent-

child relationship between Mother, Father, and the children. Mother and

Father now appeal.

Discussion and Decision
I. Motions to Continue
[11] Mother first argues that the trial court erroneously denied her motions to

continue. We review a trial court’s ruling on a motion to continue a trial date

for an abuse of discretion, with a strong presumption that the trial court

properly exercised its discretion. Parmeter v. Cass Cnty. Dep’t of Child Servs., 878

N.E.2d 444, 449 (Ind. Ct. App. 2007). The party seeking a continuance must

show that he or she is free from fault. Danner v. Danner, 573 N.E.2d 934, 937

(Ind. Ct. App. 1991).

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[12] On the morning of December 18, 2014, the first scheduled day of the

termination hearing, Mother filed a motion to continue, alleging that she was

unable to attend because of work and transportation issues and that she had not

received notice of the hearing. The record reveals, however, that on November

20, 2014, Mother’s attorney was present when the juvenile court stated that the

termination hearing would begin on December 18, 2014. Mother’s App. p. 3-4.

Therefore, Mother had notice of the hearing. Her own failure to make

arrangements with work is not good cause for a last-minute continuance,

especially when multiple witnesses had traveled from out of state to testify. We

find no abuse of discretion in the denial of the December 18, 2014, motion to

continue.

[13] On the morning of March 3, 2015, the second day of the termination hearing,

Mother again filed a motion to continue.1 This time, she alleged that she was

unable to attend because the person who was to transport her to court had been

injured. DCS objected, stating that if Mother had notified DCS as soon as there

was a problem, DCS would have provided transportation to ensure her

presence at court. The trial court denied the continuance. We find no abuse of

discretion in this ruling. Additionally, we note that Mother was represented by

counsel throughout all of the termination proceedings. Her attorney cross-

examined witnesses and had the opportunity to introduce evidence on her

1
The second day of the termination hearing was originally scheduled to take place on January 14, 2015.
DCS moved for a continuance because the family case manager assigned to the case had a serious illness and
was unable to testify. Mother did not object to the continuance, which the trial court granted.

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 behalf. Consequently, we find no reason to conclude that Mother was denied a

fair hearing, and we decline to reverse on this basis.

II. Termination Order
A. Standard of Review
[14] 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

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 Cnty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[15] 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:
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 (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;

(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

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 (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.

B. Termination Between Mother and Children
[16] Mother argues that the juvenile court erred in concluding that there is a

reasonable probability that the conditions resulting in the children’s placement

outside the home will not be remedied; that continuation of the parent-child

relationship poses a threat to the children’s well-being; and that termination is

in the children’s best interests.

[17] First, with respect to the conditions resulting in the children’s removal from

Mother, we note that the children were removed as a result of Mother’s

admitted drug use and S.H.’s positive drug test for methamphetamine. Over

the course of the CHINS case, Mother repeatedly failed to take a substance

abuse intake assessment, and once she did so, she failed to complete the

recommended IOP program. She also repeatedly tested positive for opiates for

which she did not have a prescription and failed to show up for multiple

random drug screens. During the CHINS proceedings, Mother gave birth to a

third child, who tested positive for opiates and methamphetamine at birth. It is

clear, therefore, that despite multiple opportunities to address her substance

abuse issues, Mother has failed to do so. We find that the evidence in the

record supports the juvenile court’s conclusion that there is a reasonable

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 probability that the conditions that resulted in the children’s removal from

Mother’s care and custody would not be remedied.

[18] Second, with respect to the juvenile court’s conclusion that continuation of the

parent-child relationship poses a threat to the children’s well-being, we again

emphasize the above-described evidence of Mother’s ongoing substance abuse

issues that have never been remedied. Furthermore, the record reveals that

Mother has been wholly unable to maintain stable housing. She directs our

attention to the residence in which she was living on the first day of the

termination hearing. While that residence met minimal standards, her live-in

boyfriend—a convicted violent felon with substance abuse issues and prior DCS

history—did not. Furthermore, as of February 2015, Mother was homeless

again. We find that this evidence readily supports the trial court’s conclusion

that a continuation of the parent-child relationship poses a threat to the

children’s well-being.

[19] Finally, with respect to the best interests of the children, we highlight all of the

above-described evidence. Additionally, we note that the record reveals that

Mother did not maintain consistent contact with the children, either in person

when they lived in Indiana, or by telephone after they moved to Florida. The

children are in a loving, stable placement with their maternal grandparents,

who plan to adopt them. Given Mother’s wholesale inability or refusal to

address her issues and improve her parenting skills, we find that the juvenile

court did not err by finding that termination of the parent-child relationship is in

the best interests of the children.

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 C. Termination Between Father and Children
[20] Father argues that we should reverse the termination order with respect to him

because the sole reason supporting termination is the fact of his incarceration.

Indeed, our Supreme Court has emphasized that “incarceration is an

insufficient basis for terminating parental rights.” K.E. v. Ind. Dep’t of Child

Servs., No. 82S04-1508-JT-491, at *1 (Ind. Aug. 20, 2015).

[21] We find both K.E. and an earlier case, In re G.Y., 904 N.E.2d 1257 (Ind. 2009),

to be instructive. Turning first to G.Y., the mother in that case was incarcerated

for an offense she had committed before her child was born. The G.Y. Court

emphasized that “all of Mother’s criminal history consists of offenses that were

committed before G.Y.’s conception in 2003. After that time and for the first

20 months of his life, the record gives no indication that Mother was anything

but a fit parent.” Id. at 1262. While incarcerated, Mother completed an eight-

week drug rehabilitation program and a fifteen-week parenting class, and was

actively participating in a job program, actively working towards an associate’s

degree, and had regular and consistent visitation with the child. Finally,

Mother’s release from prison was “imminent.” Id. at 1265. Given all of these

factors, among others, our Supreme Court reversed the termination.

[22] In K.E., while Mother was pregnant with the child, Father was charged with

multiple drug-related criminal offenses. 82S04-1508-JT-491, at *1. Father was

already incarcerated at the time of the child’s birth, and his earliest possible

release date was over two years from the date of the termination hearing. Our

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 Supreme Court noted that Father had housing and employment plans upon his

release from incarceration; that Father had completed twelve programs while

incarcerated and had attended Alcoholics Anonymous and Narcotics

Anonymous; and that he visited with the child every week and spoke on the

phone with the child every night. Thus, even though his release date was two

years away, he had made “substantial efforts . . . to improve his life by learning

to become a better parent, establishing a relationship with K.E. . . . , and

attending substance abuse classes[.]” Id. at *7. In the end, our Supreme Court

reversed the termination order.

[23] We find the instant case to be distinguishable from both G.Y. and K.E. In both

of those cases, the incarcerated parent had committed the criminal acts prior to

the births of their children. Here, in contrast, Father’s children were five and

seven years old when he stabbed their uncle in their presence. He was also

dealing in methamphetamine and using methamphetamine, contributing to an

environment that led to his seven-year-old testing positive for

methamphetamine. Furthermore, Father’s release date was nearly five years

away from the date of the termination hearing.2 Father did not testify regarding

housing or employment plans following his release and he did not testify that he

had completed any substance abuse programs while incarcerated despite

admitting that he had abused methamphetamine during the children’s lifetimes.

2
Father testified that he was participating in a program that would potentially cut two years off of his
sentence. But he had not completed the program at the time of the hearing, and currently his release date is
still November 1, 2019.

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 Therefore, the fact of Father’s incarceration was not the sole evidence

supporting termination.

[24] The K.E. Court noted that there is no bright line rule regarding when release

must occur to maintain parental rights, instead stating that courts must consider

whether other evidence, coupled with the expected release date, supports a

termination order. Id. at *6. In this case, the expected release date is far in the

future—five years from the date of the termination hearing. When coupled

with the circumstances of the criminal activity, which directly affected Father’s

children, and the absence of evidence regarding future plans and participation

in substance abuse treatment, we find that the evidence demonstrates that the

juvenile court did not err by concluding that termination is in the best interests

of the children.3

[25] The judgment of the juvenile court is affirmed.

Bailey, J., and Mathias, J., concur.

3
Father does not address the specific statutory elements required to be proved to support a termination;
instead, he makes a general argument regarding the best interests of the children. To the extent that Father
argues that reversal is warranted because DCS did not provide him with services during his incarceration, we
note that it is well established that DCS is not required to provide services before commending termination
proceedings. E.g., In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009).

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