In re the Termination of the Parent-Child Relationship of: A.H. & P.H. (Minor Children) and T.S. (Mother) and D.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Sep 30 2016, 8:13 am
this Memorandum Decision shall not be
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 APPELLANT ATTORNEYS FOR APPELLEE
Andrew J. Sickmann Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester Attorney General of Indiana
Richmond, Indiana Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the September 30, 2016
Parent-Child Relationship of: Court of Appeals Case No.
A.H. & P.H. (Minor Children) 89A01-1601-JT-53
and T.S. (Mother) and D.H. Appeal from the Wayne Superior
(Father) Court
Appellants-Respondents, The Honorable Darrin M.
Dolehanty, Judge.
v. Trial Court Cause Nos.
89D03-1509-JT-29
The Indiana Department of 89D03-1509-JT-30
Child Services,
Appellee-Petitioner

Mathias, Judge.

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[1] T.S. (“Mother”) and D.H. (“Father”) appeal the involuntary termination of

their parental rights to minor daughter A.H. and minor son P.H (collectively

“the Children”). Mother and Father raise one issue, which we restate as

whether the State presented sufficient evidence to support the trial court’s

termination order.

[2] We affirm.

Facts and Procedural History

[3] The Children were born on June 30, 20141 to Mother and Father. On August

15, 2014, the Children were removed from Mother’s and Father’s care by an

emergency custody order after it was discovered that P.H.’s meconium tested

positive for morphine and the Children were both experiencing symptoms of

withdrawal. The Department of Child Services (“DCS”) filed petitions alleging

that the Children were Children in Need of Services (“CHINS”) on August 19,

2014. At this time, the Children were placed in the care of their paternal

grandmother.

[4] On the same day, the trial court held an initial hearing and adjudicated the

Children as CHINS based on Mother’s and Father’s admissions. In its

September 16, 2014 dispositional order, the court ordered Mother and Father to

participate in reunification services, which included: notifying the DCS case

1
Children are fraternal twins.

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 manager of any arrest or criminal charges, keeping all appointments with DCS,

Court Appointed Special Advocate (CASA)/Guardian ad litem (GAL), and

service providers, not using or consuming illegal controlled substances,

submitting to random drug screens with results being positive if failure to timely

submit, completing a substance abuse assessment and following all

recommendations, and attending all visitation with the Children.

[5] On October 9, 2014, DCS filed a petition for contempt due to lack of parental

participation. The trial court held a hearing on the petition on October 27,

2014, and Mother and Father admitted that they had tested positive for drugs

and failed to comply with the court’s dispositional order. The court sentenced

Mother and Father to each serve fourteen days in jail.

[6] The court held a review hearing on February 20, 2015, and found that Mother

and Father continued to use drugs, failed to participate in services, and failed to

notify DCS of their location for weeks at a time. Further, Father was arrested

and incarcerated on armed robbery charges on April 29, 2015. On May 15,

2015, Mother overdosed on drugs while she was at paternal grandmother’s

home—a place she was not supposed to be. As a result, DCS removed the

Children from paternal grandmother’s care and placed them in a foster home.

[7] On August 12, 2015, the trial court held a review and permanency hearing

where it changed the plan to termination and adoption. The court made this

determination after discovering that Father was still incarcerated and that

Mother was not routinely participating in visitation with Children and was not

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 complying with substance abuse counseling services. DCS filed its termination

petitions on September 8, 2015. The trial court held an evidentiary hearing on

DCS’s termination petitions on December 8, 2015.

[8] Meridian Services clinical addiction counselor, Jessica Cate (“Cate”) worked

with Mother for a brief period of time. Cate stated that Mother never completed

the twelve-week intensive outpatient treatment program, but when she did

attend, she was receptive to feedback and participated in group discussions.

Mother attempted to complete the program three times but was discharged each

time based on her lack of attendance. Meridian Services clinical addiction

counselor, Tom Pennington (“Pennington”), worked with Father twice at the

intensive outpatient treatment program, but because of his failure to attend,

Father was also discharged from the program. Pennington noted that Father

had limited engagement when he did attend and that he had a significant need

for substance abuse services.

[9] Family case manager, Emily Graham (“Graham”), knew Mother from a

previous CHINS case dating back to May 2014 and became acquainted with

Father in August 2014 after the Children were removed. Graham stated that

Mother had voluntarily terminated her parental rights to another child involved

in a prior CHINS case in June 2014.2 Graham also noted Mother and Father’s

2
Apparently, a total of two prior CHINS cases involved two of Mother’s other children. In the first CHINS
case, the child was removed from Father’s care, but DCS would not place the child with Mother due to her
substance abuse issues. The second CHINS case involved Mother overdosing in February 2014 in front of
child. That child’s grandmother is now his guardian.

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 lack of participation in services. Father completed only the substance abuse

assessment, while Mother was referred for substance abuse treatment as early as

January 2013, but she began participatation in rehab services just before the

termination hearing. Graham stated that Mother’s original service provider

cancelled all future visitation because Mother continuously missed visits with

Children. Graham then held the visitation at the DCS office between June and

September 2015, but Mother missed more visits than she attended.

[10] Graham stated that termination of parental rights is in the Children’s best

interests. She expressed that the Children were removed due to noncompliance

with substance abuse and the situation has not been remedied. Mother only

recently went to rehab, and Father maintains sobriety due to his incarceration.

Graham noted that Mother has not shown consistently maintained sobriety,

and before Father was incarcerated, he failed eight out of nine drug screens

between August 2014 and February 2015. She stated that the Children are well

bonded to their foster parents and call them “mama” and “dada.” Tr. p. 53.

[11] Deborah Walcott (“Walcott”) provided supervised visitation to Mother through

the Extra Special Parents program. Walcott stated that she began providing

Mother with visitation services twice per week in September 2015. Walcott

reported that Mother interacted with the Children at the visits and never was

under the influence of alcohol or drugs. Children’s Bureau case worker, Tom

Brazell (“Brazell”) stated that he had been working with Father since August

2015 through the Engaging Father’s Program, which focuses on improvement

in fatherhood. Brazell testified that Father is always friendly, kind, considerate,

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 and ready to engage. Brazell also stated that Father has anger issues that he is

working to remedy and has made progress during the time Brazell has worked

with him.

[12] Mother reported that she recently completed inpatient rehab at Harbor Lights,

which consisted of two weeks’ inpatient treatment and one week of detox. She

admitted that she had not successfully completed the substance abuse program

at Meridian Services but recently enrolled again. Mother also noted that she

plans to attend “90 meetings in 90 days” to maintain her sobriety. Tr. p. 89.

Mother reported having a job lined up at Kroger and that she was waiting on an

apartment at Carriage House but presented no verification of either

employment or housing to the court. She also explained that the reason she

terminated her parental rights to the child involved in one of the prior CHINS

cases was because he had mental and behavioral issues that she could not

handle, especially with her own substance abuse issues.3

[13] CASA Director Karen Bowen (“Bowen”) also testified that termination of

parental rights is in the best interests of the Children. Bowen noted that the

Children were removed shortly after birth and were eighteen months old at the

time of the termination hearing. Bowen emphasized the importance of the

3
Mother has five children: (1) the oldest child lives with his father; (2) another child lives with paternal
grandmother who has guardianship; (3) Mother voluntarily terminated parental rights to a child with mental
and behavioral issues; and (4) the twins that are the subject of the trial court’s termination order. It is not
clear whether any of these children have the same father. However, from the record it appears that Father is
only the biological father of the Children.

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 Children developing trust and having stability from their caregivers, which she

believed Mother and Father could not provide. Bowen stated that Mother has a

history of substance abuse and housing insecurity. Bowen expressed that three

weeks of sobriety was not enough to indicate whether Mother intends to make a

permanent lifestyle change. She further noted that Father remains incarcerated

and only started participating in services after his incarceration. Like Graham

expressed, Bowen stated that the Children are well bonded to their foster

parents and the foster parents are able to meet their needs.

[14] On December 11, 2015, the trial court entered an order terminating Mother and

Father’s parental rights to the Children. Mother and Father now appeal.

Discussion and Decision

[15] 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. Where the trial court enters findings of fact and

conclusions thereon, we apply a two-tiered standard of review: we first

determine whether the evidence supports the findings and then determine

whether the findings support the 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 definite and firm conviction that a mistake has been

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 made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

Ct. App. 2004), trans. denied.

[16] “The purpose of terminating parental rights is not to punish parents but to

protect their children. Although parental rights have a constitutional dimension,

the law allows for their termination when parties are unable or unwilling to

meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

App. 2004) (citation omitted). 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).

[17] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

rights must meet the following requirements:

(2) The petition 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;

(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.

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[18] However, Indiana Code section 4(b)(2)(B) is written in the disjunctive;

therefore, the trial court is required to find that only one prong of subsection

(2)(B) has been established by clear and convincing evidence. In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every

element” by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind.

Code § 31-37-14-2. 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). Rather, it is sufficient to show by clear and convincing evidence

that the child’s emotional development 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).

[19] Mother and Father argue that DCS failed to present sufficient evidence that

they were unable to remedy the conditions and situation that led to Children’s

removal and that termination of their parental rights was in the Children’s best

interests. Specifically, Mother and Father claim that several of the trial court’s

findings do not support the two conclusions. The challenged findings are as

follows:

22. Tom Brazell is a case worker with the Children’s Bureau. He
has worked with father, through an August 2015 referral from
DCS. Mr. Brazell visits with father once each week, while father
remains incarcerated. Mr. Brazell has been using an individual
enrichment program referred to as “Being the Best Father You
Can Be.” The program focuses on the importance of fathers in a
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 child’s life, and how to parent as a father. The program is
administered through workbooks and discussion. Mr. Brazell has
observed father to be appropriate, kind, considerate, and
receptive.

29. The DCS has not requested that father submit to drug screens
since he has been incarcerated.

30. Father’s incarceration has also kept FCM Graham from
being able to determine if father is able to apply skills he may
have acquired as a result of the services being provided.

33. FCM Graham made arrangements for mother to participate
in an inpatient substance abuse program, as early as January,
2015.[4] Mother did not participate in any inpatient program as a
result of those referrals. Mother reports that she very recently
attended an inpatient program through the Salvation Army,
known as “Harbor Lights.” Mother reported that the program
consisted of one (1) week of “detox” and then two (2) weeks of
inpatient therapy. Mother was very vague about the dates when
she participated in this program, and no evidence was presented
to verify mother’s claim that she completed the program or
completed it successfully.

39. Mother reports that she has been “sober” for forty-one (41)
days.

Appellant’s Br. at 24-26.

4
Graham’s testimony in the transcript indicates that Mother was offered substance abuse services as early as
January 2013. See Tr. p. 49.

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[20] Based on these findings, among others, the trial court concluded that: (1) DCS

has shown by clear and convincing evidence, that it is a reasonable probability

that the conditions that resulted in the children’s removal from and placement

outside of the home of the parents will not be remedied; and (2) clear and

convincing evidence was presented to show that termination of parental rights

is in the best interest of these children. Appellant’s Br. at 26-27.

A. Conditions that Led to Removal

[21] When making a determination as to whether a reasonable probability exists that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must judge a parent’s fitness

to care for her child at the time of the termination hearing while also taking into

consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the court can

“disregard the efforts. . . made only shortly before termination and to weigh

more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,

989 N.E.2d 1225, 1234 (Ind. 2013).

[22] The trial court is also required to consider the parent’s habitual patterns of

conduct in order to determine the probability of future neglect or deprivation of

the child. ADS, 987 N.E.2d at 1157. 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. The trial court may consider the services offered

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

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 whether conditions will be remedied. 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.

1. Mother

[23] Mother specifically challenges finding numbers thirty-three and thirty-nine,

which relate to her recent participation in rehab and forty-one days of sobriety

at the time of the termination hearing. Mother contends that shortly before the

termination hearing, she remedied this condition by completion of an inpatient

rehab program, took steps to secure stable housing, and expected to start job

orientation the day after the hearing.

[24] In this situation, the Children were removed from Mother and Father’s home

after the Children were experiencing withdrawal symptoms and P.H.’s

meconium tested positive for morphine. Mother had a prior history of

substance abuse issues, and DCS was familiar with Mother from prior CHINS

cases. In the 2012 and 2014 CHINS cases, Mother was offered substance abuse

services and treatment but acknowledged that she never successfully completed

any of these programs. It was not until DCS filed its termination petitions to the

Children that Mother enrolled in substance abuse treatment. The trial court can

“disregard the efforts. . . made only shortly before termination and to weigh

more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,

989 N.E.2d at 1234. The trial court acknowledged Mother’s self-reported

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 progress, and it weighed it accordingly. Mother’s argument is simply a request

that we reweigh witness credibility and the evidence, which is not within our

role as an appellate court. See In re D.B., 942 N.E.2d at 871.

2. Father

[25] Father challenges finding numbers twenty-two, twenty-nine, and thirty, which

relate to Father’s participation in services while incarcerated, his sobriety while

incarcerated, and demonstration of skills learned from the provided services.

Father specifically argues that he has remedied the conditions that led to

removal of the Children because he has participated in services in jail, has

maintained his sobriety, and has not been given an opportunity to demonstrate

the parenting skills that he has learned.

[26] Although Father participated in a DCS-referred service while he was

incarcerated, he failed to consistently participate in substance abuses services

and visitation with the Children prior to incarceration. Further, before Father

was incarcerated, he failed eight out of nine drug screens. The court’s finding

regarding DCS not drug testing Father while in prison assumes that Father’s

sobriety is a result of incarceration, not that he has overcome his substance

abuse issues. It is within the trial court’s discretion to give more weight to a

parent’s habitual patterns of conduct in order to determine the probability of

future neglect or deprivation of the child. See ADS, 987 N.E.2d at 1157. The

trial court’s finding that case manager Graham stated she was unable to

determine if Father could apply the learned parenting skills did not unfairly

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 penalize Father. Individuals who pursue criminal activity run the risk of being

denied the opportunity to develop positive and meaningful relationships with

their children. Castro v. State OFC, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006).

Just like he could not participate in visitation with Children due to his

incarceration, case manager Graham could not assess whether Father had made

progress in parenting due to Father’s incarceration.

B. Best Interests of the Child

[27] When determining what is in the best interests of a child, the trial court must

look beyond the factors identified by DCS and look to the totality of the

evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate

the interests of the parent to those of the child. Id. The court need not wait until

the child is irreversibly harmed before terminating the parent-child relationship.

Id. A recommendation by the case manager or child advocate to terminate

parental rights is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. Id. at 1158-59. Permanency is a

central concern in determining the best interests of a child. Id. at 1159.

[28] Mother and Father argue that they have made progress with their substance

abuse issues and challenge the court’s conclusion that termination of their

parental rights is in the Children’s best interests.

[29] The Children were six weeks old when they were removed from Mother’s and

Father’s care. Father basically has had no interaction with the Children since

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 they were removed, and while Mother attended visitation during the CHINS

proceedings, she often missed visits, which led to cancellation of these services.

[30] Both case manager Graham and CASA Bowen expressed that termination of

parental rights was in the Children’s best interests. Case manager Graham

emphasized that Mother has had many years to seek treatment for her

substance abuse issues but had failed to do so until immediately before the

termination hearing. Graham further noted that Father was also ordered to

participate in substance abuse services and visitation with the Children prior to

incarceration but failed to do so. CASA Bowen stated that the Children are well

bonded to their foster parents and the Children are at a critical age to establish

permanency and stability. Based on the recommendations from Graham and

Bowen, we cannot conclude that the trial court erred in determining that

termination of Mother and Father’s parental rights to the Children was in the

best interests of the Children.

Conclusion

[31] Although Mother and Father have recently attempted to make positive changes

in their lives, it is simply too late in the lives of these children. Mother only

recently completed a rehab program after several years of failed attempts.

Although she reported maintaining sobriety for forty-one days and having

housing and a job lined up after the termination hearing, we defer to the trial

court’s discretion on the weight given to that evidence. Father remains

incarcerated and arguably sober, but this is largely due to the nature of his

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 incarceration. He has engaged in services while in jail but failed to comply with

the Children’s case plan prior to incarceration. Applying our highly deferential

standard of review in this situation, we cannot conclude that the trial court’s

decision to terminate Mother and Father’s parental rights to Children was

clearly erroneous.

[32] Affirmed.

Robb, J., and Brown, J., concur.

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