In the Termination of the Parent-Child Relationship of: S.H. & L.H., (Children), and Sa.H. (Mother), and R.H. (Father) v. 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 May 23 2017, 6:01 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
SA.H. Curtis T. Hill, Jr.
Frederick A. Turner Attorney General of Indiana
Bloomington, Indiana
Robert J. Henke
David E. Corey
ATTORNEY FOR APPELLANT
Deputy Attorneys General
R.H.
Indianapolis, Indiana
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- May 23, 2017
Child Relationship of: Court of Appeals Case No.
60A05-1608-JT-1842
S.H. & L.H., (Children), Appeal from the Owen Circuit
Court
and, The Honorable Kelsey B. Hanlon,
Judge
Sa.H. (Mother), and R.H. The Honorable David Holt, Senior
(Father), Judge
Trial Court Cause No.
Appellants-Respondents, 60C02-1603-JT-64
60C02-1603-JT-65

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 v.

Indiana Department of Child
Services,
Appellee-Petitioner.

Barnes, Judge.

Case Summary
[1] R.H. (“Father”) and Sa.H. (“Mother”) appeal the termination of their parental

rights to their children S.H. and L.H. We affirm.

Issue
[2] Although they filed separate Appellants’ briefs, Father and Mother both argue

that the evidence is insufficient to support the termination of their parental

rights.

Facts
[3] Father and Mother are married and are the parents of S.H., who was born in

June 2009, and L.H., who was born in April 2008. At some point Father and

Mother separated, and Father moved to South Carolina. The children visited

Father during the summer of 2014, and upon their return to Indiana, Mother

believed that Father had sexually abused S.H. In November 2014, Mother was

arrested for battery after she had a physical altercation with maternal
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 grandmother. Mother was intoxicated at the time and was physically

disciplining L.H. “in an excessive manner,” and maternal grandmother

intervened. Tr. p. 14. Mother told Department of Child Services (“DCS”)

workers that she had substance abuse and mental health issues, including

“hearing voices and multiple personality disorder,” that she was fearful of L.H.,

that she had consumed alcohol and then drove to the grocery store with L.H.,

that Father had physically and sexually abused her, that Father was physically

abusive to the children, and that she believed Father had sexually abused S.H.

Id. at 12. Father denied physically abusing the children and sexually abusing

S.H. Although DCS was concerned because S.H. had disclosed the alleged

abuse to several family members, DCS was unable to substantiate the sexual

abuse due to S.H.’s lack of verbal skills.

[4] DCS filed petitions alleging that S.H. and L.H. were children in need of

services (“CHINS”), and the children were initially placed with their maternal

grandmother. In February 2015, after a fact-finding hearing, the trial court

found the children to be CHINS and made the following findings:

1. Respondent Mother engaged in a physical altercation [sic]
family members in the children’s presence, and was arrested for
battery.

2. Respondent Mother is currently incarcerated and unable to
care for the children.

3. Respondent Mother has untreated mental health concerns
that impair her ability to appropriately supervise and care for the
children.
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 4. Respondent Mother has untreated substance issues that
impair her ability to appropriately supervise and care for the
children.

5. Respondent Father has been physically violent with [L.H.]
and there is some evidence of sexual impropriety between
Respondent Father and [S.H.]. [S.H.’s] speech difficulties have
made the allegations of sexual abuse difficult to investigate and
raise additional concerns about her safety in any setting.

Respondent’s Ex. A. The trial court ordered Father and Mother to participate

in a psychological evaluation, supervised visitation, a parenting assessment, and

ordered Mother to participate in a substance abuse assessment and to complete

random drug screens.

[5] Also in February 2015, Mother told DCS that she was moving to South

Carolina to live with Father. DCS informed parents that reunification with the

children was going to be difficult if they were not in Indiana to engage in

visitations and services and that DCS was unable to pay for them to engage in

services in South Carolina. Mother and Father said they would return once a

month to visit the children and that they would do the services in South

Carolina. However, the monthly visits did not occur.

[6] Father and Mother participated in a psychological assessment at Centerstone.

During his assessment, Father was “guarded and didn’t give a lot of

information,” and the therapist was unable to make a diagnosis or referral. Tr.

p. 25. Mother has a “significant trauma history” in both her childhood and as

an adult that affects her functioning. Id. at 95. She has been diagnosed with

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 alcoholism, borderline personality disorder, PTSD, and sexual masochism.

Mother was referred to intensive outpatient addictions counseling for her

alcoholism and methamphetamine use and mental health therapy for sexual

abuse. Mother participated in some counseling in South Carolina and started

participating in an IOP substance abuse program, but she did not complete the

program. Although Father completed the Centerstone assessment and a few

supervised visitations, he has refused to participate in any other services

because “he does not feel he needs to participate because he has not done

anything wrong.” Id. at 116.

[7] During supervised telephone visitations, the children became anxious and

agitated and would sometimes run out of the room. The children would also

bury their heads in the couch during the calls and complain that they did not

want to talk. Father participated in only one of the calls. During one call,

Mother’s speech was very slurred. After the calls, L.H. would have outbursts at

home, and S.H. would be withdrawn.

[8] Mother’s relationship with Father is marked by physical and verbal abuse. In

April 2016, Mother and Father again separated. At the time of the termination

hearing, Mother was living with friends in Illinois. The Illinois home, however,

was very unstable, volatile, and unsuitable for children. During May and June

2016, Mother had three crisis episodes that required the intervention of her

therapist. During one of the episodes, Mother relapsed and drank a fifth of

vodka in an hour and was having suicidal thoughts. Her therapist called the

police, and Mother was taken to the hospital. Although Mother has engaged in

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 services, she has made little progress in obtaining stable housing, obtaining

employment, improving her mental health, or ending her substance abuse.

[9] In March 2016, DCS filed petitions to terminate Father’s and Mother’s parental

rights. After a hearing in June 2016, the trial court terminated Father’s and

Mother’s parental rights. Father and Mother now appeal.

Analysis
[10] Father and Mother challenge the termination of their parental rights to S.H.

and L.H. The Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their

children. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in

the care, custody, and control of his or her children is ‘perhaps the oldest of the

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

course, that parental interests are not absolute and must be subordinated to the

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

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

the parents are unable or unwilling to meet their parental responsibilities.’” Id.

(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).

[11] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. Id. We consider only the evidence and

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 reasonable inferences that are most favorable to the judgment. Id. We must

also give “due regard” to the trial court’s unique opportunity to judge the

credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

court entered findings of fact and conclusions thereon in granting DCS’s

petition to terminate Father’s and Mother’s parental rights. When reviewing

findings of fact and conclusions thereon entered in a case involving a

termination of parental rights, we apply a two-tiered standard of review. First,

we determine whether the evidence supports the findings, and second, we

determine whether the findings support the judgment. Id. We will set aside the

trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly

erroneous if the findings do not support the trial court’s conclusions or the

conclusions do not support the judgment. Id.

[12] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(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.

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 (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 establish these allegations by clear and convincing evidence. Egly v.

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

I. Factual Findings

[13] Father argues that three of the trial court’s findings are not supported by the

evidence. First, Father contends that the following finding is erroneous:

Mother was released from incarceration on February 18, 2015.
On February 24, 2015, both parents met with Meagan Berkebile-
Guy, the DCS Family Case Manager assigned (“FCM”) and her
supervisor, Ashley Collins, regarding the Pre-Dispositional
Report of DCS and the proposed plan of DCS for the family. At
that time, Mother and Father informed DCS that they intended
to leave the State of Indiana where the children were placed, to
reside in the State of South Carolina. At that time, the FCM
advised the parents that this move would make it extremely
difficult for the parents to complete necessary reunification
services, and that, while the parents expressed their intent to
engage in services in South Carolina, Indiana DCS could not pay

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 for such services. Mother and Father chose to reside in South
Carolina despite this information.

Father’s App. Vol. II p. 63. According to Father, this finding is erroneous

because he was already living in South Carolina in February 2015. Although

this finding does not mention that Father was already living in South Carolina,

the evidence presented at the hearing shows that nothing in the finding is

technically incorrect—both parents did go to South Carolina after the February

2015 meeting, DCS did inform both parents that it would be difficult for them

to participate in services while living in South Carolina, and the parents chose

to live in South Carolina anyway.

[14] Next, Father argues that the following finding is erroneous: “The children

exhibited behaviors tending to reflect fear of their parents and reluctance to

have contact with them.” Id. at 65. Father contends there was no evidence

presented that the children were afraid of Father and Mother. During

supervised telephone visitations, the children became anxious and agitated and

would sometimes run out of the room. The children would also bury their

heads in the couch during the calls and complain that they did not want to talk.

The trial court could have reasonably inferred that the children were fearful of

the parents.

[15] Father also argues that the following finding is clearly erroneous:

Father testified that he does not feel the need to engage in
services since he has done nothing wrong. He did acknowledge
attempting to enroll in an on-line parenting education course, but

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 was told that DCS would not consider that service as successful
completion of the requirement, and felt that DCS should have
researched South Carolina service providers to refer for him. He
has done nothing to address the allegations of sexual misconduct
with [S.H.] that were made, despite understanding that was an
impediment to reunification.

Id. at 66. Father contends that he did participate in the psychological

evaluation and supervised visitations and that he tried to find service providers

in South Carolina but DCS would not accept them. Father blames DCS for

failing to find an acceptable service provider. Father also argues that the sexual

abuse allegations were unsubstantiated. Father contends that he “completed all

but one of his requirements for reunification with his children, but DCS

thwarted any attempt he made to compete the last requirement.” Father’s

Appellant’s Br. p. 19.

[16] DCS presented evidence that Father was ordered to participate in a

psychological evaluation, supervised visitation, and a parenting assessment.

Although Father participated in a psychological assessment, Father was

“guarded and didn’t give a lot of information,” and the therapist was unable to

make a diagnosis or referral. Tr. p. 25. Father made it clear that “he does not

feel he needs to participate [in services] because he has not done anything

wrong.” Id. at 116. Father participated in only one of the telephone visitation

calls with the children. As for the services in South Carolina, the DCS case

manager testified that Mother and Father sent her information for an online

parenting assessment that was “more for people that are going through divorce

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 cases.” Id. at 117. She informed Mother and Father that the online class would

not be acceptable for DCS as a parenting assessment. She was unaware of any

other services that Father attempted to do in South Carolina. Finally, as for the

molestation allegation, DCS acknowledges that it could not substantiate the

allegation. However, DCS was concerned because S.H. had disclosed the

alleged abuse to several family members and S.H.’s lack of verbal skills

impeded the investigation. Father made no attempt to resolve the issue despite

these concerns. We cannot say that the trial court’s finding is clearly erroneous.

II. Changed Conditions

[17] Both Father and Mother challenge the trial court’s finding of a reasonable

probability that the conditions resulting in S.H. and L.H.’s removals or the

reasons for placement outside the home of the parents will not be remedied. 1 In

making this determination, the trial court must judge a parent’s fitness to care

for his or her child at the time of the termination hearing and take into

consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

1
Father and Mother also argue the trial court’s conclusion that the continuation of the parent-child
relationship poses a threat to the well-being of the children is clearly erroneous. We need not address this
argument. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Subsection (b)(2)(B)(iii),
which concerns repeated CHINS adjudications, is inapplicable here. Consequently, DCS was required to
demonstrate by clear and convincing evidence a reasonable probability that either: (1) the conditions that
resulted in the children’s removal or the reasons for placement outside the home of the parents will not be
remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the
children. The trial court found a reasonable probability that the conditions that resulted in the children’s
removal and continued placement outside Father’s and Mother’s homes would not be remedied, and there is
sufficient evidence in the record to support the trial court’s conclusion. Thus, we need not determine whether
there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the
well-being of the children. See, e.g., Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 148 n.5
(Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans. denied.

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 (Ind. Ct. App. 2001), trans. denied. However, the trial court must also “evaluate

the parent’s habitual patterns of conduct to determine the probability of future

neglect or deprivation of the child.” Id.

[18] On this factor, the trial court found:

The Court finds clear and convincing evidence that there is a
reasonable probability that the conditions that resulted in the
children’s removal and the reasons for their placement outside
the homes of their parents will not be remedied.

a. The conditions that resulted in removal of these children
were domestic violence in the home perpetrated by Mother,
while Mother was intoxicated, and while Children were in the
home; Mother’s untreated mental health issues and substance
abuse issues; and Father’s physical violence and possible sexual
molestation committed against Children.

b. Mother has not made any significant, meaningful progress
toward alleviating any of those conditions. At the time of
removal Mother had a serious, long-standing issue with
alcoholism that interfered with her ability to make safe, sound
decisions for herself or for her children. Mother continues to this
date to have a serious issue with alcoholism that interferes with
her ability to make safe, sound decisions for herself or for her
children. The Court finds uncontroverted evidence that as
recently as two weeks before this hearing she was recklessly and
dangerously abusing alcohol and expressed suicidal ideations.
She continues to have a serious issue with alcohol abuse even
after completing a rehabilitation program and even after a
Petition was filed to terminate her parental rights. She continues
to reside in an unsafe, unstable home where drug use and other
criminal behavior has occurred. Mother continues to exhibit
serious mental health issues, including threatening self-harm, and

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 engaging in self-harming behavior. While she is receiving
therapeutic treatment for her mental health issues, the evidence is
clear and convincing that she is nowhere near gaining any kind
of meaningful or lasting control over those issues. At the time of
removal, she had untreated mental health issues that caused her
to make poor decisions both for herself and for her children; poor
decisions like getting out of jail and immediately moving more
than 600 miles away from her children to be with the man who
she says has been physically and emotionally abusive to her and
who she believes sexually molested their daughter; poor decisions
like drinking and continuing to consider suicide. It is more than
reasonable to conclude based on the foregoing that she will never
be able to manage the lives of these children.

c. Father has failed to make any significant, meaningful
progress toward alleviating any of these conditions. Father has
denied the need for his participation in a reunification plan
throughout the underlying CHINS proceeding, and has therefore
not engaged in any services that would permit the Court to
consider placing these children in his care. He has engaged in no
services designed to improve his parenting skills or decision-
making. He has chosen to provide no financial support for the
children despite having been ordered to do so, and despite his
ability to contribute. This is another example of the father
attending to his own interests rather than those of these children.

Father’s App. Vol. II p. 69.

[19] On appeal, Father argues that the conditions resulting in the children’s removal

from him—Mother’s allegations that he had molested S.H.—were

unsubstantiated and cannot form the basis for termination of his parental rights.

Father also argues that he completed the psychological evaluation and

participated in telephone visits with the children. Father contends that he only

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 failed to complete the parenting assessment, but he blames DCS’s refusal to

accept providers that he found in South Carolina. Finally, Father argues that

he, in fact, had been paying child support.

[20] DCS presented evidence that Father consistently denied that he needed to

participate in services because he did not believe that he had done anything

wrong. Although Father participated in a psychological assessment, Father was

“guarded and didn’t give a lot of information,” and the therapist was unable to

make a diagnosis or referral. Tr. p. 25. His participation in visitations, even

telephone visitations, was very limited. Although DCS was unable to

substantiate the molestation allegations due to S.H.’s speech impediment, there

were still concerns about the allegations. As for Father’s failure to pay child

support, the evidence demonstrated that Father paid child support during the

dissolution proceedings, but after the dissolution proceedings were dismissed,

he failed to pay child support to the relative care placement. In general, Father

simply refused to comply with the trial court’s orders and refused to participate

in the necessary services to have the children returned to him. The trial court’s

finding is not clearly erroneous.

[21] As for Mother, she concedes that there were issues with domestic violence,

mental health, substance abuse, and Father’s physical violence and possible

sexual molestation of the children. However, she claims that she had been

making progress, had moved away from Father, had abstained from alcohol for

six months, and was participating in therapy. The evidence demonstrated that

Mother had a significant substance abuse issue, that she had significant mental

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 health concerns, and that she still did not have a stable living environment or

employment. Although she had made minor progress, she had also relapsed

and consumed shortly before the termination hearing. It was clear that Mother

simply was not in a position to parent the children and will not be for the

foreseeable future. The trial court’s finding is not clearly erroneous.2

II. Best Interests

[22] Father and Mother also challenge the trial court’s finding that termination of

their parental rights is in the children’s best interests. In determining what is in

the best interests of a child, the trial court is required to look at the totality of

the evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must

subordinate the interests of the parents to those of the child involved. Id.

[23] On this issue, the trial court found:

The Court finds by clear and convincing evidence that
termination is in the best interests of each of the children. The
children have now been out of the care of their parents since
November, 2014, a period of more than eighteen (18) months.
During the bulk of that time, they have been in the home of their
aunt and uncle, and their behaviors have improved dramatically
in that home. They have been safe, happy, nurtured and

2
Mother also argues that her due process rights were violated. She contends that DCS should have provided
her with therapy services earlier in the CHINS proceedings when she was still living in South Carolina. DCS
had informed Mother when she moved to South Carolina that providing out-of-state services to her would be
a problem, but Mother moved anyway. She also argues that the CHINS court indicated that the children
would be returned in November 2015, but in November 2015, the trial court indicated that reunification
might not happen. In June 2015, the trial court listed a “projected date” for the children’s return as
November 2015. Ex. 4. The date was “projected” not promised, and the parents lack of progress changed
the plan. Mother’s due process argument fails.

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 protected. They are entitled to the permanency that termination
and adoption will provide them.

Father’s App. Vol. II p. 69.

[24] Father argues that DCS failed to “fulfill its statutory obligation to assist Father

in reunifying with his children.” Father’s Appellant’s Br. p. 23. Mother argues

that it was in the children’s best interests that she be given more time to

improve her circumstances. Neither parent focuses on the best interests of the

children; rather, they focus on themselves and the services DCS has allegedly

failed to provide. The totality of the evidence, however, shows that termination

is in the children’s best interests. After the children were removed, both

children were withdrawn. L.H. was very angry and aggressive, and S.H. had a

speech impediment. The children are now well adjusted, outgoing, happy, and

playful in their current placement. Neither parent has made much progress

with services or demonstrating an ability to care for the children. Both the DCS

case manager and the guardian ad litem recommended termination of Father’s

and Mother’s parental rights. Under these circumstances, the trial court’s

finding is not clearly erroneous.

III. Satisfactory Plan

[25] Father and Mother also argue that the trial court’s conclusion that there is a

satisfactory plan for the care and treatment of the children is clearly erroneous.

In order for the trial court to terminate the parent-child relationship the trial

court must find that there is a satisfactory plan for the care and treatment of the

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 child. D.D., 804 N.E.2d at 268. This 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. Id.

[26] In addressing this factor, the trial court found:

The plan for the children is adoption by their relative caregivers.
The Court finds by clear and convincing evidence that this is a
satisfactory plan. Although the Court in the underlying CHINS
proceedings initial [sic] had sufficient reservations about the aunt
and uncle to order the children removed, the Court had a
subsequent hearing at which it heard significant evidence that
resulted in the Court ordering that they be returned to the aunt
and uncle’s care.

Father’s App. Vol. II p. 69.

[27] Father and Mother argue that the children’s placement in the home of their

maternal aunt and uncle is unsatisfactory, and they question the mental health

and disciplinary techniques of the aunt and uncle. The focus, however, on this

factor is whether DCS’s general plan is satisfactory, not whether the specific

placement is satisfactory. DCS’s general plan is the adoption of the children,

and this is a satisfactory plan. See D.D., 804 N.E.2d at 268 (holding that DCS’s

plan for the child to be adopted gave a general sense of direction for the child’s

care).

Conclusion
[28] The evidence is sufficient to support the termination of Father’s and Mother’s

parental rights to S.H. and L.H. We affirm.
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[29] Affirmed.

Kirsch, J., and Robb, J., concur.

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