In re the Termination of the Parent-Child Relationship of T.H. (Minor Child), and J.H. (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
Apr 05 2017, 6:54 am
court except for the purpose of establishing
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 ATTORNEYS FOR APPELLEE
Jennifer L. Harmeyer Curtis T. Hill, Jr.
Jeffersonville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the April 5, 2017
Parent-Child Relationship of Court of Appeals Case No.
10A01-1608-JT-1947
T.H. (Minor Child),
Appeal from the Clark Circuit
and Court
J.H. (Father), The Honorable Vicki L.
Appellant-Respondent, Carmichael, Judge
The Honorable Joni L. Grayson,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 10C04-1511-JT-22
Child Services,
Appellee-Petitioner

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 Mathias, Judge.

[1] The Clark Circuit Court terminated J.H.’s (“Father”) parental rights to T.H.,

his minor child. Father appeals and raises several issues, which we restate as

whether the trial court’s findings were supported by the evidence and whether

the trial court erred when it terminated Father’s parental rights.

[2] We affirm.

Facts and Procedural History

[3] T.H. was born on November 11, 2012, to Father and B.H. (“Mother”), who are

married. Mother is a drug addict, and T.H. tested positive for opiates at birth.

T.H., who was born in Kentucky, was removed from her parents’ care because

Father was homeless and Mother was a drug addict. The child was placed in

foster care, and the State of Kentucky ordered Father to participate in

numerous services.

[4] T.H. was returned to Father’s care on April 11, 2014, but the State of Kentucky

issued a no-contact order between Mother and T.H. Mother did not participate

in services and continued to use drugs. The State of Kentucky then closed its

case. Shortly thereafter, Mother and Father moved to Sellersburg, Indiana.

[5] On July 15, 2014, Mother’s sister discovered twenty-month-old T.H. alone in

the house. Father left T.H. in Mother’s care while he was at work, and Mother

left the house to get cigarettes. DCS removed T.H. from Father’s care and

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 placed her with her maternal aunt, but she was eventually returned to the care

of her former foster parents.

[6] Mother and Father admitted that T.H. was a child in need of services

(“CHINS”) in September 2014. Father was ordered to participate in numerous

services including participation in parenting classes, counseling, and supervised

visitation with T.H., and maintaining contact with his family case manager.

[7] Father initially participated in services and supervised visitation. The visitation

supervisor did not have any concerns with Father’s interaction with T.H.

Father completed a psychological evaluation, but four of the tests were returned

as invalid and could not be scored. Father does not use illegal substances, and

his drug screens were negative. Father attended parenting classes but did not

complete the twelve-week program.

[8] Mother was also ordered to participate in numerous services. Mother

participated in some services, but also continued to use illegal substances.

Mother acknowledged her substance abuse problem but refused to refrain from

using illegal substances.

[9] In April 2015, Father’s employment ended when the company he worked for

shut down. In May 2015, Father’s vehicle broke down and he did not have

reliable transportation. Father’s participation in services and visitation with

T.H. ceased after Father no longer had a vehicle. The trial court ordered

visitation with T.H. suspended in November 2015 because Father failed to

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 exercise visitation with T.H. from May 2015 to November 2015. Father also

failed to maintain contact with his family case manager.

[10] On November 10, 2015, DCS filed a petition to terminate Mother’s and

Father’s parental rights. Evidentiary hearings were held on the petition on

March 3, April 7, April 21, and June 9, 2016. On July 27, 2016, the trial court

issued an order terminating parents’ parental rights. The trial court found in

pertinent part:

4. On May 28, 2015, a permanency hearing was held . . . .
Mother and Father did not appear. . . . The Court found that
Father was not in compliance with the plan. Father had
completed a psychological evaluation, but the majority of the
results were not considered valid due to reporting by Father that
was minimized. Father had attended five (5) to six (6) parenting
classes. Father attended counseling on March 2, 2015, but
cancelled on April 9, 2015 and no-showed on April 19, 2015.
Father had clean drug screens during the report period. . . .

5. On August 20, 2015, a periodic case review hearing was held, .
. . . Mother and Father failed to appear. . . . At that time, the
Court also found that Father had not complied with Child’s case
plan. Father had not attended counseling since March 2015.
Father attended five (5) to six (6) parenting classes, but had not
completed the course. Father was unemployed. Father had not
visited Child since May 8, 2015. Father had failed to maintain
contact with the Family Case Manager since May 2015. . . . The
Court found that Mother and Father had not enhanced their
ability to fulfill their parental obligations, had not cooperated
with DCS, and had not visited Child since May 8, 2015.

6. On November 19, 2015, a periodic case review hearing was
held . . . . Mother and Father failed to appear. . . . Father was not
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 participating in any services, submitting to random drug screens,
or maintaining contact with the Family Case Manager. He had
not visited Child since May 8, 2015. . . .

7. On May 19, 2016, a permanency hearing was held . . . .
Mother and Father failed to appear. . . . Mother had housing
with Father. Visitation was suspended by the Court in November
2015 due to failure of the Parents to attend visitation since May
of 2015. . . . Father had not participated in services, including
parenting classes or counseling. Father had not maintained
contact with the Family Case Manager, including updating her
on his telephone number. Father had screened negative for all
substances on screens he had submitted to. Father had recently
obtained employment, but did not provide such information to
the Family Case Manager. He continues to live with Mother. . . .

***

76. Father failed to maintain consistent contact with [Family
Case Manger] Martin, including responding to correspondences
and telephone messages within a reasonable amount of time.

77. Father failed to contact FCM Martin by telephone at least
once per week.

78. FCM Martin would communicate with Father via telephone
calls, text messages, letters, and home visits.

***

81. When FCM Martin did speak with Father, he would often
get angry with FCM Martin and hang up the phone.

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 82. As of May 2015, Father stopped all contact with FCM
Martin.

83. FCM Martin’s telephone number and work address ha[ve]
been the same for the entirety of this CHINS matter.

84. On August 24, 2015, Father stated to FCM Martin to leave
him alone and not to contact him anymore.

***

101. Father completed a psychological assessment, but the
majority of the results of Father’s evaluation were not considered
valid and he failed to follow all the recommendations of the
assessment.

***

105. Father’s results from the Incomplete Sentence Blank-Adult
Form revealed a theme of blaming Mother and lack of concern
for Child. Father’s “responses suggest a man who likely placed
too much of the blame onto his spouse for the loss of custody of
his daughter. That being said, he also fears for his wife’s safety
and is generally concerned for her well-being. Overall, there is a
lack of concern expressed for [T.H.’s] well-being.”

***

110. Dr. Sheppard summarized the following based on the
psychological evaluation: “However, [J.H.] appears unwilling
and unable to accept additional responsibility himself for
ensuring his daughter’s safety. He seems to care about her and
want to be a good father, but he struggles with the specifics of
how to do that. Further, there is some question about his ability
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 to truly connect and bond with his child. He expresses missing
her, but largely from the perspective of what she provides to him
(being able to hold her, having a happy family, etc.). [J.H.]
clearly expresses love for his family, but might be lacking a
deeper connection with his child. He might not fully understand
all that is involving [sic] in taking care of and nurturing an
infant/toddler. This examinee is also likely in denial about his
wife’s serious substance abuse issues. This can lead to enabling
and denying real risks that exists [sic].”

111. Dr. Sheppard diagnosed Father with Relationship Distress
with Spouse or Intimate Partner and Parent-Child Relationship
Problem based upon the relationship problems presenting in the
family.

***

113. Based on the psychological evaluation, Dr. Sheppard
recommended the following:

a. Father to only have access to Child if he can ensure that
she will not be around Mother when she is under the
influence and that Father must realize he is responsible for
providing a safe and nurturing environment for Child;

b. Father would benefit from attending Al-Anon and/or Nar-
Anon;

c. Visitation to be supervised:

d. Family therapy to occur once Mother is actively engaged
in substance abuse treatment;

e. Father to submit to random drug screens;

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 f. That those working with the family should be aware of
signs of domestic violence and report any suspicious
activity due to it appearing such has happened in the past:

g. Father would benefit from hands-on parenting services;
and

h. Ongoing case management.

114. FCM Martin discussed the finding and recommendations of
the psychological assessment with Father in January of 2015.

115. Father failed to follow the recommendations of the
evaluation by failing to attend Al-Anon and failing to complete
parenting classes offered to him.

116. On February 19, 2015, Father stated to Mother’s ACP
therapist, Lori Paris, that he bought drugs for Mother and
provided Mother money to purchase drugs.

117. Lori Paris believed Father was enabling Mother’s use.

118. Father failed to complete parenting classes and demonstrate
knowledge and skills learned in the classes.

119. Father stated in FCM Martin that he did not need parenting
classes.

***

126. Father failed to participate in individual counseling at a
frequency and duration as recommended by the therapist.

***

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 128. FCM Martin reminded Father at a home visit on January
22, 2015 that he needed to schedule a counseling appointment to
address his anger management. Father denied having an anger
problem and denied needing counseling.

***

133. Father participated in supervised visitation with Child from
July 2014 until May 2015.

134. Father was offered supervised visitation with Child on
Mondays and Sundays while Child was placed in relative care
from July 15, 2014 to October of 2014. Father visited Child only
on Mondays.

135. After Child was placed in kinship care in October 2014, a
referral for supervised visitation was made to Family Time, Inc.
on October 17. 2014.

136. Family Time, Inc. provided Father fully supervised
visitation with Child at a frequency of two (2) times per week for
two (2) hours at each visit.

137. Father failed to attend thirteen (13) visitations from October
2014 to May 2015 . . . .

138. Father failed to attend any further visitations with Child
after May 12, 2015.

139. Between May 12, 2015 to November 19, 2015 (when visits
were ordered suspended by the Court due to a failure of Father to
visit with Child), no visit was ever denied to Father.

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 140. Father stated to Melina Olivas that he stopped visiting the
child because vehicle was not working properly and also stated
concerns with gas money.

141. Melina Olivas provided Father resources for transportation
and resources to get his vehicle fixed.

142. Melina Olivas provided Father a gas card in May of 2015
and offered him a ride to Court.

143. In late May or early June of 2015, Melian Olivas went to the
home of Mother and Father to provide groceries. There was no
electricity in the home at that time.

144. In late June 2015, Melina Olivas went to the home of
Mother and Father to provide groceries.

145. Father never asked Melina Olivas about Child during her
encounters with him after he stopped visiting Child in May 2015.

***

151. Father has criminal history in Kentucky.

***

164. Mother stated to Child’s maternal aunt, Angela Carwile,
that Father was physically abusive to her in their relationship.

165. Angela Carwile advised Mother to file a police report.

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 166. Mother described to Angela Carwile an incident where she
had wanted money from Father for drugs, that Father made her
perform sexual acts, that Father hit her while this occurred, that
father put her in the basement, pinned her up, and threatened her
with a machete.

167. Angela Carwile witnessed Mother with a black eye in the
summer of 2014 and Mother stated Father had caused the injury.

168. In March of 2015, FCM Martin observed a photo of Mother
with a black eye.

***

197. Guardian ad Litem, Michael Forsee (“GAL Forsee”) agrees
that it is in Child’s best interest for termination of parental rights
and adoption. GAL Forsee makes this recommendation due to
Mother’s inability to maintain sobriety, Father’s enabling of
Mother, Mother and Father’s failure to visit Child, Mother and
Father’s failure to comply with any services or request from the
Department of Child Services, that Mother and Father have been
non-existent in Child’s life for many months, and due to Child’s
current foster parents providing for Child and being the only
parents Child has bonded with. Mother and Father failed and
refused to make an appointment with GAL Forsee.

Appellant’s App. pp. 22-40.

[11] The trial court then concluded that the conditions that resulted in T.H.’s

removal and continued placement outside Father’s home would not be

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

T.H.’s well-being. The court also concluded that termination of Father’s rights

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 was in T.H.’s best interests. Father now appeals the order terminating his

parental rights to T.H.1

Discussion and Decision

[12] The purpose of terminating parental rights is not to punish parents but instead

to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

Although parental rights have a constitutional dimension, the law allows for

their termination when the parties are unable or unwilling to meet their

responsibilities as parents. Id. Indeed, parental interests must be subordinated to

the child’s interests in determining the proper disposition of a petition to

terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).

[13] Indiana Code section 31-35-2-4(b)(2) provides that 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.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

1
The trial court also terminated Mother’s parental rights, but Mother has not appealed the trial court’s order.

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 (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.

[14] DCS must prove each element by clear and convincing evidence. Ind. Code §

31-37-14-2; G.Y., 904 N.E.2d at 1261. However, because Indiana Code section

31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find

that only one prong of subsection (b)(2)(B) has been established by clear and

convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

[15] Clear and convincing evidence need not establish that the continued custody of

the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead

sufficient to show by clear and convincing evidence that the child’s emotional

and physical development are put at risk by the parent’s custody. Id. If the court

finds the allegations in a petition are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

[16] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). We neither reweigh the evidence nor assess witness credibility. Id. We

consider only the evidence and reasonable inferences favorable to the trial court's

judgment. Id. In deference to the trial court's unique position to assess the

evidence, we will set aside a judgment terminating a parent-child relationship

only if it is clearly erroneous. Id. Clear error is that which leaves us with a

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 definite and firm conviction that a mistake has been made. J.M. v. Marion Cnty.

Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans. denied.

[17] Finally, where, as here, the trial court includes findings of fact and conclusions

thereon in its order terminating parental rights, our standard of review is two-

tiered. S.P.H., 806 N.E.2d at 879. First, we must determine whether the

evidence supports the findings, and, second, whether the findings support the

legal conclusions. Id.

The Trial Court’s Findings

[18] Father argues that the trial court’s findings of fact concerning his prior criminal

history from the State of Kentucky and that finding of fact number 99

concerning his income are not supported by the evidence.

[19] The DCS presented certain exhibits concerning Father’s criminal history to the

trial court, but the exhibits were not admitted after Father objected on the

grounds of relevance. However, Father himself testified concerning his criminal

history, and the GAL’s report discussed it as well. Tr., Vol. II, pp. 32, 37, 39,

40, 43; Ex. Vol., DCS Ex. 27. This evidence is sufficient to support the findings

describing Father’s criminal history.

[20] Father also challenges finding number 99, which states that “Father failed to

have a legal source of income after losing his job at Swifty’s gas station in spring

of 2015 until obtaining current employment at AutoZone on January 29, 2016.”

Appellant’s App. p. 30. The DCS presented evidence that Father had no

income for twelve weeks between the date the gas station closed and the date
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 Father began collecting unemployment. Therefore, the finding is not supported

by the evidence to the extent it states that Father had no income until January

29, 2016. However, as Father was employed on the date of the termination

hearing, the inaccuracy in this finding does not require reversal of the trial

court’s judgment.

Sufficient Evidence

[21] Next we address Father’s argument that the trial court clearly erred when it

concluded that there is a reasonable probability that continuation of the parent-

child relationship poses a threat to T.H.’s well-being and that termination of his

parental rights was in T.H.’s best interests.

I. Threat to T.H.’s Well-Being

[22] Father argues that the trial court clearly erred when it found there is a

reasonable probability that continuation of the parent-child relationship poses a

threat to T.H.’s well-being. When considering subsection 31-35-2-4(b)(2)(B)(ii),

the trial court must examine the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child. A.D.S. v.

Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013). The trial

court may consider evidence of a parent’s prior history of neglect, failure to

provide support, and lack of adequate housing and employment. Id. DCS is not

required to provide evidence ruling out all possibilities of change. Id. Instead it

needs to establish only that a “reasonable probability” exists that the parent’s

behavior will not change. Id.

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[23] Father argues that the DCS failed to prove a continued threat to T.H.’s well-

being because he has a stable home, he does not use illegal substances, and he

appropriately cared for T.H. during supervised visitations. Father also partially

complied with the services ordered and had difficulty maintaining his

participation in services after he lost his job and his car broke down.

[24] However, even when Father was employed and had a working vehicle, he did

not participate in all services ordered and missed several supervised visitations.

He told his family case manager that he did not need parenting classes or

counseling. After he lost his job and no longer had a working vehicle, in May

and June 2015, DCS provided resources to Father so that he could attend

supervised visitation with T.H., but Father failed to do so and has not visited

with T.H. since May of 2015. He has not participated in any services since May

of 2015. He also never requested information about T.H.’s welfare from DCS

service providers. Father’s failure to exercise his right to visit T.H. demonstrates

a “lack of commitment to complete the actions necessary to preserve [the]

parent-child relationship.” Lang v. Starke County Office of Family and Children, 861

N.E.2d 366, 372 (Ind. Ct. App. 2007).

[25] Father is still married to Mother, who admits to abusing illegal substances.

DCS also presented evidence that Father enables Mother’s drug use, and

Mother admitted she will continue to use illegal substances. Before T.H. was

removed from Father’s care, Father allowed Mother to care for T.H. even

though Mother is a drug addict. For all these reasons, we conclude the trial

court’s conclusion that there is a reasonable probability that continuation of the

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 parent-child relationship poses a threat to T.H.’s well-being is supported by the

evidence.2

II. T.H.’s Best Interests

[26] In determining the best interests of a child, the trial court must look beyond the

factors identified by DCS and consider the totality of the evidence. In re J.S.,

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In so doing, the trial court must

subordinate the interests of the parent to those of the child.” Id. Children have a

paramount need for permanency, which our supreme court has deemed a

central consideration in determining a child's best interests. In the Matter of E.M.,

4 N.E.3d 636, 647-48 (Ind. 2014). Courts “need not wait until a child is

irreversibly harmed such that the child’s physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship.” Id. at 648 (citation omitted). We have previously determined that

the testimony of the case worker or guardian ad litem regarding the child’s need

for permanency supports a finding that termination is in the child's best

interests. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203

(Ind. Ct. App. 2003).

2
Father also argues that there was insufficient evidence to support the trial court's conclusion that there is a
reasonable probability that 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. Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires clear and convincing evidence of only one of the circumstances listed
in subsection (B). See R.J. v. Ind. Dep't. of Child Servs., 56 N.E.3d 729 (Ind. Ct. App. 2016). Therefore, we need
not address this argument.

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[27] Here, the GAL testified that termination of Father’s parental rights was in

T.H.’s best interests. Tr. pp. 96, 100-01. On the date of the final termination

hearing, T.H. had been in Father’s care for only three of her forty-three months

of life. At the time of that hearing, Father had not seen, much less cared for,

T.H. in over a year. Moreover, Father and Mother are still married, and Father

has historically enabled Mother’s illegal substance abuse. T.H. deserves the

permanency and stability she now has with her foster family, and her foster

parents wish to adopt her.3

[28] For these reasons and those expressed in the trial court’s termination order, we

conclude that the trial court’s finding that termination of Father’s parental

rights to T.H. is in her best interests is supported by clear and convincing

evidence.

Conclusion

[29] Clear and convincing evidence supports the trial court’s order terminating

Father’s parental rights to T.H.

[30] Affirmed.

Kirsch, J., and Altice, J., concur.

3
Father also argues that the DCS did not prove that it has a satisfactory plan for the care and treatment of
T.H. Adoption by the foster parents, who have taken care of T.H. most of her life is a more than satisfactory
plan for her care and treatment. The fact that the foster parents inquired about T.H.’s welfare after they
learned that she was returned to Father’s care does not negate their suitability as adoptive parents.

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