In the Matter of the Termination of Parental Rights of: B.H. & A.M. (Minor Children) and J.H. (Mother) & C.M. (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 Feb 05 2019, 9:41 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
MOTHER Curtis T. Hill, Jr.
R. Patrick Magrath Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP Robert J. Henke
Madison, Indiana Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
FATHER
Jeremy L. Seal
Seymour, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 5, 2019
of Parental Rights of: Court of Appeals Case No.
18A-JT-2336
B.H. & A.M. (Minor Children)
and Appeal from the Jackson Superior
Court
J.H. (Mother) & C.M. (Father),
The Honorable Bruce A.
Appellants-Respondents, MacTavish

v. Trial Court Cause Nos.
36D02-1801-JT-1
36D02-1801-JT-2
The Indiana Department of
Child Services,
Appellee-Petitioner

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 Baker, Judge.

[1] J.H. (Mother) appeals the trial court’s order terminating her parent-child

relationship with her minor children, B.H. and A.M.; and C.M. (Father)

appeals the order terminating his parent-child relationship with A.M. Mother

and Father both argue that there is insufficient evidence supporting the

termination order. Finding the evidence sufficient, we affirm.

Facts
[2] B.H. was born to Mother and D.S. in August 2004.1 A.M. was born to Mother

and Father in January 2016.

[3] In December 2016, Mother, Father, and the children became homeless and

were living in a hotel. The Department of Child Services (DCS) received a

report alleging that the parents had failed to appropriately supervise the children

because of active drug use, that they had engaged in domestic violence while

caring for the children, and that the parents were failing to meet the children’s

medical needs. During the investigation, Mother and Father tested positive for

methamphetamine and marijuana and reported that they were struggling to

afford their hotel accommodations.

[4] On December 7, 2016, DCS removed the children from parents’ care and

custody and the next day, filed a petition alleging that the children were

1
D.S. did not appeal the termination order.

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 children in need of services (CHINS). The children have been in foster care

since that time. At the time of the termination hearing, they were in separate

preadoptive placements.

[5] On January 11, 2017, Mother admitted that the children were CHINS based on

the following facts:

6. Mother and [Father] have substance abuse issues that have
a negative impact on the children.

7. Mother and [Father] do not have stable housing or a stable
means to financially support the children.

8. There has been domestic violence within the home.

Tr. Ex. Vol. p. 35. Father entered a separate stipulation that was identical with

respect to the admitted facts supporting the CHINS adjudication. Id. at 86. At

the dispositional hearing, the trial court ordered parents to complete substance

abuse assessments, submit to random drug screens, attend all scheduled

visitations, and participate with home-based case management.

[6] Throughout the CHINS case, Father failed and often refused drug screens. He

repeatedly tested positive for methamphetamine, amphetamine, and marijuana.

He was incarcerated from March 16 to April 4, 2017, August 1 to 22, 2017, and

again from September 21, 2017, to March 2, 2018; each of these incarcerations

was related to drug use and possession. Less than a week after he was released

on March 2, 2018, he tested positive for methamphetamine. Despite multiple

referrals, he never completed a substance abuse assessment. Likewise, he never

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 participated consistently with home-based case management, with each referral

terminated unsuccessfully. When not incarcerated, Father’s visits with A.M.

were inconsistent. He frequently failed to attend, and when he did attend, he

was at times hostile and inappropriate and was threatening towards the

visitation supervisor. On one occasion, he and Mother permitted A.M. to eat

food off the floor of a public building; they refused to accept advice from the

visitation supervisor because “we know what we are doing[.]” Tr. Vol. I p. 13.

[7] Mother also failed and often refused drug screens, repeatedly testing positive for

methamphetamine and amphetamine. She also frequently failed to appear at

drug screens. In the months leading up to the termination hearing, she tested

positive for amphetamine and methamphetamine and then stopped

participating with drug screens altogether. She failed to participate in a

substance abuse assessment until after the termination petitions were filed. At

that point, she completed the assessment but failed to engage in any services

recommended by the assessment. She failed to participate with home-based

case management until after the termination petitions were filed, when she

attended four out of eight sessions and the service was closed unsuccessfully.

Mother’s visits were inconsistent throughout most of the CHINS case until the

termination petitions were filed, when she began visiting consistently. Mother

failed to attend any individual therapy sessions until after the termination

petitions were filed. At that time, she attended sporadically, and the therapist

was not able to provide therapeutic support regarding Mother’s domestic

violence issues.

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[8] On January 2, 2018, DCS filed petitions to terminate the parent-child

relationship between Mother and both children and between Father and A.M.

An evidentiary fact-finding hearing took place on May 2 and 30, 2018, and on

August 28, 2018, the trial court issued termination orders granting DCS’s

petitions. The parents now separately appeal.2

Discussion and Decision
[9] Mother and Father each argue that the evidence does not support a conclusion

that termination is in the children’s best interests. Father also argues that the

evidence does not support a conclusion that there is a reasonable probability

that the conditions resulting in the children’s removal will not be remedied.

I. Standard of Review
[10] 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

2
The parents’ cases have been consolidated on appeal.

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 findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

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

[11] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

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

(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.

(iii) The child has been removed from the parent and
has been under the supervision of a local office or
probation department for at least fifteen (15) months
of the most recent twenty-two (22) months,
beginning with the date the child is removed from
the home as a result of the child being alleged to be
a child in need of services or a delinquent child;

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

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons
for placement outside the home of the parents will
not be remedied.

(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.

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

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment
of the child.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

B. Remedy of Conditions Resulting in Removal
[12] Father first argues that DCS did not prove that there is a reasonable probability

that the conditions resulting in A.M.’s removal will not be remedied. 3 A.M.

3
The trial court also found that there is a reasonable probability that the continuation of the parent-child
relationship poses a threat to A.M.’s well-being. As these statutory elements are phrased in the disjunctive
and Father does not appeal this finding, we need not address his argument regarding the remedy of
conditions resulting in removal. Given the seriousness of a termination order, however, we will address his
argument anyway.

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 was initially removed and continued to be removed from Father’s care and

custody based on concerns about drug use, instability, and domestic violence.

[13] Over the course of the CHINS case, Father was incarcerated at three separate

times for offenses related to drug use and possession. He repeatedly failed to

appear for drug screens and tested positive for methamphetamine and

marijuana. He never completed a substance abuse assessment or participated

successfully with home-based case management. His visits with A.M. were

inconsistent and, when he did attend, were often fraught with hostility and poor

parenting decisions.

[14] Father argues that his repeated incarcerations did not leave him with enough

time to complete services. This argument is unavailing. Initially, we note that

it was Father’s choices that led to his incarcerations. Furthermore, even when

Father was not incarcerated, he failed to participate with court ordered services

and repeatedly tested positive for illicit substances. We find that this evidence

supports the trial court’s conclusion that there is a reasonable probability that

the conditions resulting in A.M.’s removal will not be remedied.

C. Best Interests
[15] Both parents argue that the evidence does not support the trial court’s

conclusion that termination was in the children’s best interests. With respect to

Father, as noted above, despite nearly one and one-half years to participate with

services, work towards sobriety and stability, and improve his parenting skills,

Father failed to make progress in any of these areas.

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[16] With respect to Mother, for most of the case, she, too, failed to make progress.

She failed to report for drug screens and when she attended, repeatedly tested

positive for methamphetamine. She failed to complete a substance abuse

assessment and failed to participate consistently with home-based case

management. DCS filed its termination petitions in January 2018, and it

appeared in February 2018 as though Mother was finally ready to participate.

She slowly began to make progress. But she attended only half of her home-

based case management sessions, participated only sporadically with individual

therapy, and relapsed in April 2018, mere weeks before the termination hearing

took place. She did not participate in any drug screens in April or May 2018.

[17] While we acknowledge that Mother had slowly begun to participate in services

after the termination petitions were filed and had achieved certain markers of

stability by the time of the hearing, the trial court was permitted to consider

whether those recent efforts were outweighed by her patterns of conduct

throughout the vast majority of the CHINS case.

[18] Both children are thriving in their respective preadoptive placements. The

Family Case Manager and the children’s court appointed special advocate

testified that they believed termination is in the best interests of both children.

Thirteen-year-old B.H. wants to be adopted. Toddler A.M. has been with the

same family for more than half of his life and has bonded with them.

[19] Mother and Father had over a year to make progress, and they simply failed to

do so in time. We find that the evidence in the record supports the trial court’s

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 conclusion that termination of the parent-child relationship is in the children’s

best interests.

[20] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.

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