MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 27 2017, 10:21 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Abigail Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination October 27, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of E.H. (Child) and R.H. 32A05-1706-JT-01161
(Father) and K.G. (Mother); Appeal from the Hendricks
Superior Court
R.H. (Father), and The Honorable Karen M. Love,
K.G. (Mother), Judge
Appellants-Respondents, Trial Court Cause No.
32D03-1608-JT-4
v.
The Indiana Department of
Child Services,
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Appellee-Petitioner
May, Judge.
[1] K.G. (“Mother”) and R.H. (“Father”) (collectively, “Parents”) appeal the
involuntary termination of their parental rights to E.H. (“Child”). Parents
argue the Department of Child Services (“DCS”) did not present sufficient
evidence the conditions under which Child was removed from their care would
not be remedied and that the continuation of the parent-child relationship posed
a threat to the child. We affirm.
Facts and Procedural History
[2] Child was born on July 28, 2011. On February 16, 2015, DCS received a report
indicating Parents were using illegal substances and were not following the
terms of a Protective Order Mother had against Father. The trial court ordered,
at DCS’s request, Parents to submit to drug screens. Mother tested positive for
methamphetamine, amphetamine, and codeine. Father tested positive for
methamphetamine, amphetamine, and THC. Parents admitted illegal drug use.
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[3] On March 25, 2015, DCS removed Child from Parents’ care and placed her
with Maternal Grandmother, where she has remained throughout the
proceedings. On March 26, DCS filed a petition alleging Child was a Child in
Need of Services (“CHINS”). On April 8, Father admitted Child was a
CHINS. The trial court held a hearing regarding Mother on May 20, but
Mother did not appear. During that hearing, the trial court entered parental
participation and dispositional decrees regarding Father. Then, on June 17, the
trial court adjudicated Child a CHINS and entered parental participation and
dispositional decrees regarding Mother.
[4] As part of the parental participation and dispositional decrees, the trial court
required Father to refrain from using alcohol or illegal substances, submit to
random drug screens, obtain and maintain stable housing, obtain and maintain
a legal source of stable income, complete all terms of his probation, enroll in
and successfully complete any programs recommended by the Family Case
Manager (“FCM”), successfully complete substance abuse treatment, complete
a domestic violence assessment and successfully complete all recommended
treatment, and attend all scheduled visitation with Child. As part of the
parental participation and dispositional decrees, the trial court required Mother
to refrain from using alcohol or illegal substances, submit to random drug
screens, obtain and maintain stable housing, obtain her GED, enroll in and
successfully complete any programs recommended by the Family Case
Manager (“FCM”), successfully complete substance abuse treatment, and
attend all scheduled visitation with Child.
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[5] Parents both initially participated in the required services, but each had periods
of time where they could not be located by the FCM or a service provider.
After over a year of intermittent compliance with services and visitation, DCS
filed a petition to involuntarily terminate Parents’ rights to Child. The trial
court held fact finding hearings on the matter on January 17 and 31, 2017. On
May 2, 2017, the trial court issued an order 1 involuntarily terminating Parents’
rights to Child.
Discussion and Decision
[6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
1
The trial court’s order is very detailed and has aided our review of this complicated matter immensely.
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re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[8] To terminate a parent-child relationship, the State must allege and prove:
(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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Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[9] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[10] Parents challenge the court’s conclusions the conditions under which Child was
removed would not be remedied and the continuation of the parent-child
relationship posed a risk to Child. 2
[11] The trial court must judge parents’ fitness to care for the child at the time of the
termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
2
The trial court found the conditions under which Child was removed would not be remedied and the
continuation of the parent-child relationship posed a threat to Child. DCS does not have to prove both. The
statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. See Ind.
Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability
conditions leading to Child’s removal would not be remedied, we need not address whether the continuation
of the parent-child relationship posed a threat to Child’s well-being. See In re L.S., 717 N.E.2d at 209 (because
statute is written in the disjunctive, court needs to find only one requirement to terminate parental rights).
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Evidence of parents’ pattern of unwillingness or lack of commitment to address
parenting issues and to cooperate with services “demonstrates the requisite
reasonable probability” that the conditions will not change. Lang v. Starke Cty.
OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
[12] When assessing parents’ fitness to care for a child, the trial court should view
the parents as of the time of the termination hearing and take into account the
changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,
854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also
“evaluat[e] the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d
509, 512 (Ind. Ct. App. 2001), trans. denied.
[13] DCS removed Child from Parents’ care because Parents tested positive for
illegal substances and had a history of domestic violence. Throughout the
CHINS proceedings, Parents were offered services ranging from home
management and parenting skills to substance abuse rehabilitation. Father
started many programs, but did not finish any of them. Mother successfully
completed an inpatient substance abuse program, but did not engage in the
recommended outpatient substance abuse program.
[14] Parents also had periods of time when the service providers could not reach
them because Parents had not provided updated contact information. Parents
also did not participate in family case meetings or visitation with Child during
these periods. At one point Parents lived together in Father’s van. Parents also
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frequently relapsed into illegal drug use and refused multiple times to submit to
random drug screens.
[15] Father did not engage in recommended domestic violence treatment. Mother
attended an intake visit for group domestic violence treatment but the service
provider was unable to complete the assessment “because Father kept knocking
on the window of the room they were in.” (App. Vol. II at 23.) Mother also
snuck out of a domestic violence shelter to see Father. Ultimately, the court
concluded:
187. DCS offered numerous services designated to address the
parents’ difficulties.
188. At the time of [sic] the fact finding hearing concluded on
January 31, 2017, neither parent has shown a real investment in
reunification. The circumstance of the parents had not improved
since the child was removed. Neither parent was in a better
position to care for the child.
*****
190. Although the parents love this child, neither has the current
ability to meet the child’s needs. It is not safe for the child to be
in the care of Mother or Father at this time. Mother’s history of
instability and d [sic] substance use continues.
191. Father’s history of instability and substance use continues.
The domestic violence between the parents has not been
addressed. All available services have been offered and nothing
is significantly different in [sic] circumstances since the time of
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removal[. T]o continue the parent-child relationship would be
detrimental to the child. The child needs permanency now.
(Id. at 36.)
[16] Parents argue they were mostly compliant with services and attempt to blame
DCS for their failures to comply with the trial court’s parental participation and
dispositional decrees. The arguments are invitations for us to reweigh the
evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge the credibility of witnesses). The
evidence in the record supports the trial court’s findings and conclusions.
Conclusion
[17] DCS provided sufficient evidence the conditions under which Child was
removed from Parents’ care would not be remedied. We therefore affirm the
involuntary termination of Parents’ parental rights to Child.
[18] Affirmed.
Barnes, J., and Bradford, J., concur.
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The Termination of the Parent-Child Relationship of E.H. (Child) and R.H. (Father) and K.G. (Mother) R.H. (Father), and K.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion