In the Matter of the Termination of the Parent-Child Relationship of Ay.H., Ar.H., and C.B. (Minor Children) S.B. (Father) and R.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 30 2019, 7:42 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR ATTORNEYS FOR APPELLEE
APPELLANT/FATHER Curtis T. Hill, Jr.
Kyle K. Dugger Attorney General of Indiana
Bloomington, Indiana David E. Corey
ATTORNEY FOR Deputy Attorney General
APPELLANT/MOTHER Indianapolis, Indiana
Karen E. Wrenbeck
Bloomington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 30, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of Ay.H., Ar.H., and C.B. 18A-JT-1119
(Minor Children); Appeal from the Monroe Circuit
S.B. (Father) and R.H. (Mother), Court
The Honorable Kelsey B. Hanlon,
Appellants-Respondents,
Special Judge
v. Trial Court Cause Nos.
53C07-1701-JT-43
53C07-1701-JT-44
The Indiana Department of
53C07-1701-JT-45
Child Services,
Appellee-Petitioner.

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 Pyle, Judge.

Statement of the Case
[1] R.H. (“Mother”) and S.B. (“Father”) each appeal the termination of the parent-

child relationship with their child C.B. (“C.B.”). Mother also appeals the

termination of the parent-child relationships with her older children Ay.H.

(“Ay.H.”) and Ar.H. (“Ar.H.”). Both parents claim that there is insufficient

evidence to support the terminations. Specifically, both parents argue that the

Department of Child Services (“DCS”) failed to prove by clear and convincing

evidence that: (1) there is a reasonable probability that the conditions that

resulted in the children’s removal or the reasons for placement outside the

home will not be remedied; and (2) termination of the parent-child relationship

is in the children’s best interests. Father also argues that the trial court abused

its discretion when it denied his motion to continue the termination hearing.

Concluding that the trial court did not abuse its discretion in denying Father’s

motion to continue the termination hearing and that there is sufficient evidence

to support the termination of the parent-child relationships, we affirm the trial

court’s judgment.

[2] We affirm.

Issue
1. Whether the trial court abused its discretion in denying
Father’s motion to continue the termination hearing.

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 2. Whether there is sufficient evidence to support the
termination of the parent-child relationships.

Facts
[3] The facts most favorable to the judgment reveal that Mother is the parent of

twin daughters Ay.H. and Ar.H., who were born in 2008 and son C.B., who

was born in 2010. 1 Father is the parent of C.B. Father was incarcerated in

2012 following his convictions for felony burglary and theft.

[4] In September 2015, Mother failed to pick up the children after school. School

officials were unable to reach her so they contacted DCS. When a DCS case

worker spoke with Mother by telephone the following day, the case worker

advised Mother that her children had been placed in foster care. Mother, who

was in the psychiatric unit at a Bloomington hospital, was very emotional on

the phone. Mother explained that she “had had what she called a mental

breakdown due to [] being homeless and reported that she needed to use

marijuana in order to calm down . . . .” (Tr. Vol. 1 at 16). Mother also

admitted that she used marijuana regularly.

[5] DCS filed a petition alleging that Ay.H., Ar.H., and C.B. were children in need

of services (“CHINS”). In November 2015, the trial court adjudicated the

children to be CHINS. Following a dispositional hearing, the trial court

ordered Mother to: (1) complete a substance abuse assessment and follow all

1
The father of Ay.H. and Ar.H. is deceased.

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 recommendations with 95% compliance; (2) complete a psychological

evaluation and follow all recommendations with 95% compliance; (3)

participate in individual therapy and follow all recommendations with 95%

compliance; (4) keep her home clean and appropriate; (5) submit to weekly

drug screens; and (6) attend all scheduled supervised visits with her children.

The trial court ordered Father to complete similar services “[u]pon his release

from prison.” (Ex. 48).

[6] In January 2017, DCS filed petitions to terminate both Mother’s and Father’s

parental rights. The trial court scheduled the termination hearing for April

2017. After at least twelve continuances attributable to the parties’ requests, the

trial court’s own motions, the trial court’s grant of Mother’s change of judge

motion, and other reasons, the termination hearing was scheduled for March

2018. One week before the scheduled hearing, Father filed a motion for

another continuance, which the trial court denied. The day of the hearing,

Father renewed his request for a continuance, but the trial court again denied

the motion.

[7] Testimony at the March 2018 termination hearing revealed that, at the time of

the hearing, Mother was unemployed and lacked stable housing. During the

course of the CHINS proceeding, Mother had lived with different family

members and friends in different cities and states. Mother testified that she was

still using marijuana and planned to do so “until [marijuana] gets legal.” (Tr.

Vol. 1 at 110). According to Mother, marijuana would “eventually get

legalized in every state.” (Tr. Vol. 2 at 110). In addition, Mother had not

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 participated in any of the court-ordered therapeutic services or visited with her

children during the year before the hearing.

[8] Regarding Father, the testimony at the 2018 hearing revealed that he had been

incarcerated since 2012. Further, in 2017, Father had received three prison

violations. Specifically, in January 2017, Father had had a positive drug test

and had lost ninety days of credit time. In May 2017, Father had received a

violation for unauthorized possession and destruction relating to batteries, and

in July 2017, Father had been removed from a substance abuse treatment

program following another violation. A July 2017 Department of Correction

(“DOC”) record provides that Father’s “motivation was poor” and that he had

“struggled with understanding the rules and developing the willingness to leave

the criminal lifestyle.” (Ex. Vol. 4 at 217). At the March 2018 hearing, Father

testified that he would be released from the DOC between June and November

2018; however, the DOC’s Offender Locator provides that his release date is in

March 2019. See https://www.in.gov/apps/indcorrection/ofs/ofs (last visited

01/10/2019).

[9] Also at the hearing, DCS Family Case Manager Katie Bostic (“FCM Bostic”)

testified that the children had been removed from Mother because of her

housing instability and drug use. FCM Bostic explained that Mother’s housing

instability had not been remedied and that Mother was living in a hotel at the

time of the hearing and was unemployed. In addition, FCM Bostic testified

that Mother’s drug use had not been remedied as demonstrated by Mother’s

failure to complete substance abuse treatment and her continued use of

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 marijuana. Regarding Father, the case manager testified that Father had not

been fully compliant with DOC’s programs as demonstrated by his three recent

violations within the prior year. In addition, FCM Bostic pointed out that C.B.

had been only two years old when Father had been sent to DOC, which was six

years prior to the hearing, and that foster mother had provided more care for

C.B. than Father had.

[10] FCM Bostic asked the trial court to terminate the parental rights of both parents

“so that the permanency plan could be achieved for these children.” (Tr. Vol. 2

at 10). According to FCM Bostic, the foster parent planned to adopt the three

children, and the termination of both Mother’s and Father’s parental rights

would provide consistency and stability for them and would be in their best

interests. Lastly, court-appointed special advocate Lester Wadzinski (“CASA

Wadzinski”) also testified that termination was in the children’s best interests.

Specifically, CASA Wadzinski explained that, “It’s just hard on the kids[,] and

they are in a good place with [foster mother].” (Tr. Vol. 2 at 21, 28).

[11] Following the hearing, the trial court issued an order terminating the parental

relationships between Mother and Ay.H., Ar.H., and C.B. In addition, the trial

court terminated the parental relationship between Father and C.B. Each

parent separately appeals the terminations.

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 Decision
1. Denial of Father’s Motion to Continue the Termination Hearing

[12] Father first argues that the trial court abused its discretion in denying his

motion to continue the termination hearing. Generally, the decision to grant or

deny a motion to continue is within the sound discretion of the trial court, and

we will reverse only for an abuse of discretion. In re J.E., 45 N.E.3d 1243, 1246

(Ind. Ct. App. 2015), trans. denied. An abuse of discretion occurs when the trial

court’s conclusion is clearly against the logic and effect of the facts and

circumstances before the court or the reasonable and probable deductions to be

drawn therefrom. Id. When a motion to continue has been denied, an abuse of

discretion will be found if the moving party has demonstrated that there was

good cause for granting the motion and that he was prejudiced by the denial.

Id.

[13] Here, Father argues that he has demonstrated the requisite good cause and

prejudice because the “denial of [his] motion to continue resulted in the loss of

his parental rights.” (Father’s Br. at 11). We agree with DCS that the

gravamen of this argument is that Father “wanted more time to show he was a

fit parent.” (DCS’s Br. at 19). However, our review of the evidence first reveals

that the termination hearing had already been continued at least twelve times

from its initially scheduled date of April 2017. Father therefore had an

additional year to show his fitness as a parent. Despite this opportunity, Father

continued to use drugs and break rules while incarcerated. He was also

removed from a substance abuse program, and a DOC record noted that, even

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 after serving six years in the DOC, Father “struggled with understanding the

rules and developing the willingness to leave the criminal lifestyle.” (Ex. Vol. 4

at 217). Based upon these facts and circumstances, Father has failed to

demonstrate both that there was good cause for granting the motion and that he

was prejudiced by the denial. The trial court did not abuse its discretion in

denying Father’s motion to continue the termination hearing.

2. Sufficiency of the Evidence to Support the Terminations

[14] Both parents argue that there is insufficient evidence to support the termination

of their parental rights. The traditional right of parents to establish a home and

raise their children is protected by the Fourteenth Amendment to the United

States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App.

2015), trans. denied. However, a trial court must subordinate the interests of the

parents to those of the child when evaluating the circumstances surrounding a

termination. Id. at 1188. Termination of the parent-child relationship is proper

where a child’s emotional and physical development is threatened. Id.

Although the right to raise one’s own child should not be terminated solely

because there is a better home available for the child, parental rights may be

terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id.

[15] Before an involuntary termination of parental rights may occur, DCS is

required to allege and prove, among other things:

(B) that one (1) of the following is true:

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 (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.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

[16] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[17] Mother and Father both argue that DCS failed to prove by clear and convincing

evidence that there is a reasonable probability that the conditions that resulted

in the children’s removal or the reasons for placement outside the home will not

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 be remedied. 2 In determining whether the conditions that resulted in a child’s

removal or placement outside the home will not be remedied, we engage in a

two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify

the conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id.

[18] Here, our review of the evidence and any reasonable inferences to be drawn

therefrom that support the judgment reveals that the children were removed

2
[1] Father also argues that DCS failed to prove by clear and convincing evidence that the continuation of the
parent-child relationships poses a threat to the children’s well-being. However, because INDIANA CODE § 31-
35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to establish by clear and convincing evidence
only one of the three requirements of subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010),
trans. dismissed. We therefore discuss only whether there is a reasonable probability that the conditions that
resulted in the children’s removal or the reasons for their placement outside the home will not be remedied.

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 from Mother because of unstable housing and Mother’s drug use. C.B. could

not be placed with Father because Father was incarcerated for several felonies.

At the time of the termination hearing, Mother did not have stable housing and

was unemployed. In addition, she continued to use marijuana and did not

participate in any of the court-ordered therapeutic services or visited with her

children during the year before the hearing. In 2017, after being incarcerated

for five years, Father was still failing to comply with prison regulations.

Specifically, Father had a positive drug test, received a violation for

unauthorized possession and destruction relating to batteries, and was removed

from a substance abuse treatment program. These violations caused Father to

lose accrued credit time that would have led to an earlier release from the DOC.

This evidence supports the trial court’s conclusion that there was a reasonable

probability that the conditions that resulted in the children’s removal would not

be remedied. We find no error.

[19] Next, Mother and Father both argue that there is insufficient evidence that the

termination was in the children’s best interests. In determining whether

termination of parental rights is in the best interests of a child, the trial court is

required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267

(Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the

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

parent-child relationship is proper where the child’s emotional and physical

development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

2002), trans. denied. “A parent’s historical inability to provide adequate

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 housing, stability and supervision coupled with a current inability to provide the

same will support a finding that continuation of the parent-child relationship is

contrary to the child’s best interest.” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct.

App. 2000). Further, the testimony of the service providers may support a

finding that termination is in the child’s best interests. McBride v. Monroe Cty.

Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

[20] Here, our review of the evidence reveals that Mother and Father have

historically been unable to provide housing, stability, and supervision for their

children and were unable to provide the same at the time of the termination

hearing. In addition, FCM Bostic and CASA Wadzinski both testified that

termination was in the children’s best interests. The testimony of these service

providers, as well as the other evidence previously discussed, supports the trial

court’s conclusion that termination was in the children’s best interests.

[21] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[22] Affirmed.

Najam, J., and Crone, J., concur.

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