In Re the Termination of the Parent-Child Relataionship of D.H. (Minor Child), F.H. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 30 2020, 8:12 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
Kyle D. Gobel Curtis T. Hill, Jr.
Collier Gobel Homann, LLC Attorney General of Indiana
Crawfordsville, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the April 30, 2020
Parent-Child Relationship of Court of Appeals Case No.
D.H. (Minor Child), 19A-JT-2011
F.H. (Father), Appeal from the Montgomery
Superior Court
Appellant-Respondent,
The Honorable Heather L. Barajas,
v. Judge
Trial Court Cause No.
Indiana Department of 54D01-1808-JT-251
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] F.H. (Father) appeals the juvenile court’s order terminating his parent-child
relationship with D.H. (Child), arguing that the evidence is insufficient to
support the order. Finding the evidence sufficient, we affirm.
Facts
[2] Child was born to Father and J.A. (Mother) on May 21, 2017.1 The next day,
Department of Child Services (DCS) assessor Jonathan Chadd received a report
alleging that Mother had tested positive for marijuana in the hospital while she
was giving birth. There were suspicions that Father had been using illegal
substances as well. Chadd spoke with Father and Mother, both of whom
admitted to using marijuana. They submitted to a drug screen and tested
positive for marijuana. Therefore, on June 23, 2017, DCS filed a petition
alleging that Child was a Child in Need of Services (CHINS). 2 At that time,
Child remained in the care and custody of Father and Mother.
[3] Family Case Manager (FCM) Kimberly Whitus began working with the family.
Father, Mother, and Child had been living with paternal grandmother, but they
soon moved into a hotel. Father confided in FCM Whitus that Mother had
been using heroin and methamphetamine. FCM Whitus then contacted the
police, who went to the hotel room and found methamphetamine and heroin
1
This Court, in a separate appeal, already affirmed the order terminating Mother’s parent-child relationship
with Child. In re M.A., Cause No. 19A-JT-1744 (Ind. Ct. App. Feb. 28, 2020). Therefore, Mother is not a
party to this appeal.
2
Child has an older sibling, M.A., who is the offspring of Mother and a different man. The termination order
at issue here pertains only to Father’s relationship with his own biological child, D.H.
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alongside Child. Child was removed from his parents’ care and custody on
August 5, 2017, and placed with his paternal grandmother.
[4] On September 12, 2017, following a hearing, the juvenile court adjudicated
Child to be a CHINS and entered a dispositional decree on November 7, 2017.
Per that dispositional decree, Father was required to (1) maintain a legal and
stable source of income; (2) obtain adequate housing; (3) complete a substance
abuse assessment and treatment; (4) abstain from alcohol and any illegal
controlled substances; (5) submit to random drug screens; (6) complete a
psychological evaluation; and (7) attend all scheduled visitations. The initial
permanency plan was for reunification of Father and Child.
[5] At first, Father complied with the terms of the dispositional decree. However,
Father started testing positive for both marijuana and methamphetamine. FCM
Whitus then recommended additional random drug screens and a shift towards
intensive outpatient relapse prevention. Father quickly became uncooperative,
missed multiple drug screens, and did not engage in recommended services. In
fact, on February 2, April 18, April 20, April 26, and April 30, 2018, Father
tested positive for one or many of the following substances: marijuana,
amphetamine, and/or methamphetamine. According to clinical psychologist
Dale Crowder, who ran Father’s outpatient therapy sessions, Father attended
only one individual session and did not complete the group therapy program.
Thus, the outpatient facility closed Father’s case and dismissed him.
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[6] Lifeline Youth and Family Services (Lifeline) started working with Father on
obtaining stable housing, employment, and childcare. According to Lifeline
family consultant Jennifer Fortney, Father was eager to get his GED and a
better job. However, Father changed his mind, lost interest in pursuing any
form of higher employment, and deemed Lifeline’s services to be unnecessary.
Lifeline eventually discharged Father.
[7] DCS scheduled visits and had Child’s paternal grandmother supervise them. It
took approximately one month for Father to visit Child, and thereafter, Father
only visited Child approximately four or five times over the course of six
months. And during those visits, Father showed no interest in establishing a
strong and durable bond with Child that would continue after the court-ordered
proceedings.
[8] Moreover, throughout the entirety of the CHINS case, Father was routinely
unemployed. Though he had interviewed with and been hired by various fast-
food restaurants, Father either turned down the offers or left his positions just
after starting, claiming that the pay was too low or that the restaurants were too
“high maintenance.” Tr. Vol. II p. 145. Father and Mother were either
homeless or lived in and out of hotel rooms. The two had a chaotic and
sometimes violent relationship, prompting both Father and Mother to testify
that there were domestic violence issues between them. See id. at 67, 143.
[9] FCM Whitus kept in regular contact with Child’s paternal grandmother for
updates on Child’s placement. FCM Whitus testified that Child had “met his
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development milestones” and that “[h]e’s very close and bonded to his
grandmother and to his uncles[.]” Id. at 221-22. On July 9, 2018, the
permanency plan changed to adoption by Child’s paternal grandmother.
[10] On August 29, 2018, DCS filed a petition for involuntary termination of the
parent-child relationship between Father and Child. The juvenile court held
termination hearings on November 9, 2018, and February 19, 2019, at which
FCM Whitus testified that termination of parental rights would be in Child’s
best interests. As FCM Whitus attested, Child’s paternal grandmother is ready
and able to adopt Child and has already formed a strong and lasting bond with
him. According to FCM Whitus, Father’s repeated drug use, instability,
homelessness, lack of income, violent behavior in the home, and unwillingness
to commit to rehabilitative services further support the necessity of termination.
Court-Appointed Special Advocate (CASA) James McBee echoed FCM
Whitus’s recommendations and opined that paternal grandmother’s adoption of
Child was in Child’s best interests. The juvenile court then took the matter
under advisement.
[11] On July 19, 2019, the juvenile court issued an order terminating the parent-
child relationship between Father and Child. Father now appeals.
Discussion and Decision
I. Standard of Review
[12] When reviewing an order on the termination of a parental relationship:
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We do not reweigh the evidence or determine the credibility of
witnesses, but consider only the evidence that supports the
judgment and the reasonable inferences to be drawn from the
evidence. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then
whether the findings clearly and convincingly support the
judgment.
Reviewing whether the evidence “clearly and convincingly”
supports the findings, or the findings “clearly and convincingly”
support the judgment, is not a license to reweigh the evidence.
In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some
internal quotations omitted). We must give “due regard” to the juvenile court’s
ability to judge witness credibility firsthand, and we will not set aside its
findings or judgment unless clearly erroneous. Id.
[13] Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the
following in order to terminate the parent-child relationship
(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 (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 these allegations by clear and convincing evidence. In re N.G.,
51 N.E.3d 1167, 1170 (Ind. 2016).
II. Sufficiency
[14] Father’s sole argument on appeal is that the evidence is insufficient to support
the order terminating his parent-child relationship with Child. Specifically,
Father contends that DCS failed to prove by clear and convincing evidence that
the conditions that led to Child’s removal will not be remedied; that
continuation of the parent-child relationship poses a threat to Child’s well-
being; and that termination is in Child’s best interests.
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Conditions Resulting in Removal
[15] First, we must consider what conditions led to Child’s initial and continued
removal and second, whether DCS proved that there is a reasonable probability
that those conditions will not be remedied. In re I.A., 934 N.E.2d 1127, 1134
(Ind. 2010). Child was initially removed from Father’s care and custody after
police officers arrived at Father and Mother’s hotel room and discovered illegal
controlled substances inside and within reach of the children. Plus, according to
both Father and Mother, Child was living in an unstable home where there was
domestic violence. Child continued to be removed from Father’s care because
of continued drug use, failure to participate in court-ordered services, and
unstable employment and housing
[16] Upon review of the record, we find that there was ample evidence supporting
the juvenile court’s conclusion that the conditions resulting in removal would
not be remedied. While he cooperated in the beginning, Father quickly stopped
complying with services. Father consistently failed to attend both individual
and group therapy sessions for his mental health and substance abuse issues.
And even when Father did comply, he returned mostly positive drug screens—a
clear violation of the terms of the CHINS dispositional decree. Any time Father
showed some indicia of progress, he regressed and directly violated the juvenile
court’s orders. See, e.g., Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d
366, 372 (Ind. Ct. App. 2007) (holding that the juvenile court may “consider the
parent’s response to the services offered through . . . DCS[]” in CHINS
proceedings).
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[17] Father also failed to make any meaningful efforts to establish a bond with Child
from the moment of birth. This failure to exercise a parental right to visit one’s
child demonstrates a “lack of commitment to complete the actions necessary to
preserve [the] parent-child relationship[.]” In re A.L.H., 774 N.E.2d 896, 900
(Ind. Ct. App. 2002). Based on the record, we can only find that the evidence is
sufficient to support the juvenile court’s conclusion that there is a reasonable
probability that the conditions resulting in Child’s removal will not be
remedied.
Threat to Child’s Well-Being3
[18] To meet this statutory element, “[c]lear and convincing evidence need not
reveal that ‘the continued custody of the parents is wholly inadequate for the
child’s very survival.’” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d
143, 148 (Ind. 2005) (quoting Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592
N.E.2d 1232, 1233 (Ind. 1992)). “Rather, 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.” Id. (quoting Egly, 592 N.E.2d
at 1234).
[19] In evaluating the well-being of the child, “[juvenile] courts have properly
considered evidence of a parent’s prior criminal history, drug and alcohol
3
We note that the termination statute is phrased in the disjunctive, and because we find that the element of
showing that there is a reasonable probability that the conditions that led to Child’s removal will not be
remedied has been satisfied, we are not required to address this issue. However, we choose to do so briefly.
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abuse, history of neglect, failure to provide support, and lack of adequate
housing and employment.” A.F. v. Marion Cty. Office of Family & Children, 762
N.E.2d 1244, 1251 (Ind. Ct. App. 2002). Here, Father has a long history of
substance abuse issues, unemployment, an inability to obtain adequate housing,
and even domestic violence.4 The evidence shows that despite the availability of
various outpatient programs willing to assist Father with his myriad issues,
Father remains uncooperative. And as it stands, Father does not have adequate
housing or employment, even though he applied for—and turned down—
various jobs throughout the CHINS proceedings.
[20] Moreover, we are not convinced that Father has obviated his drug issues or his
potential to become violent in the home—the two most troubling aspects of this
case. Should Child return to Father’s home, the evidence shows that there is a
high likelihood that the unstable environment therein will have a deleterious
and prolonged effect on Child’s future. Therefore, we find that the juvenile
court did not err when it concluded that DCS proved by clear and convincing
evidence that continuation of the parent-child relationship would be a threat to
Child’s well-being.
4
We do not imply that those suffering from substance abuse issues, those that are unemployed, and those
that are homeless are per se inadequate parents. Rather, we believe that in this particular case, the cumulative
effect of these problems, coupled with Father’s unwillingness to participate in services designed to ameliorate
these problems, is a threat to Child’s well-being.
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Best Interests of Child
[21] “The purpose of terminating parental rights is not to punish parents but to
protect their children.” In re T.F., 743 N.E.2d 766, 773 (Ind. CT. App. 2001).
“[I]n determining what is in the best interests of the children, the court is
required to look . . . to the totality of the evidence.” Id. at 776. In so doing, the
juvenile court must subordinate the interests of the parents to those of the
children involved. Id.
[22] Here, the juvenile court determined that:
The DCS has proven by clear and convincing evidence that
termination is in the best interests of [Child]. None of the parents
are in any better position to provide [Child] with appropriate care,
supervision or a safe, nurturing and stable home than they were at
the beginning of DCS’ involvement with the family. None of the
parents can meet [Child’s] needs. [Child] need[s] a stable and
nurturing home to meet [his] many needs. Both the DCS case
manager and the CASA believe that termination is in the best
interest of the child.
Appellant’s App. Vol. II p. 15. FCM Whitus and CASA McBee both testified at
the termination hearings that it is in Child’s best interests to be adopted by his
paternal grandmother. They testified that Child is thriving in a safe,
comfortable, and healthy environment and that Child needs this stability in
order to grow and prosper.
[23] Given the wealth of evidence already discussed, we find that the juvenile court
did not err by concluding that termination of the parent-child relationship is in
Child’s best interests. At multiple instances, Father failed to complete even the
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most routine tasks as mandated by the CHINS proceedings. He also failed to
take advantage of the numerous mental health and substance abuse treatment
programs available to him, despite multiple opportunities for participation.
[24] Child needs and deserves to have a loving and stable household in which to
thrive, and he has that with his paternal grandmother. With all of this in mind
and given that DCS has established a solid permanency plan for Child’s
adoption, we find that the juvenile court did not err by concluding that DCS
proved by clear and convincing evidence that termination is in Child’s best
interests.
[25] The judgment of the juvenile court is affirmed.
Bradford, C.J., and Pyle, J., concur.
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