MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                           Mar 21 2018, 10:53 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
Mark K. Leeman                                           Curtis T. Hill. Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                      Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 21, 2018
Child Relationship of:                                   Court of Appeals Case No.
M.H. and B.H. (Minor                                     09A04-1709-JT-2106
Children),                                               Appeal from the Cass Circuit
                                                         Court
        and,                                             The Honorable Leo T. Burns,
                                                         Judge
B.H. (Father),                                           Trial Court Cause No.
Appellant-Respondent,                                    09C01-1611-JT-10
                                                         09C01-1611-JT-11
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018         Page 1 of 14
      Barnes, Judge.


                                             Case Summary
[1]   B.H. (“Father”) appeals the termination of his parental rights to his children,

      M.H. and Br.H. We affirm.


                                                     Issue
[2]   Father raises one issue, which we restate as whether the evidence is sufficient to

      support the termination of his parental rights.


                                                     Facts
[3]   Twins M.H. and Br.H. (“Children”) were born in April 2013 to Father and

      C.H. (“Mother”). In January 2016, the Children were residing with Mother

      and her boyfriend. Father saw the Children “only sparingly.” Tr. Vol. II p.

      124. On January 5, 2016, Mother met with representatives of the Cass County

      Office of the Department of Child Services (“DCS”), and she appeared to be

      under the influence of alcohol and admitted to having a few beers before the

      meeting. On January 7, 2016, DCS removed the Children from Mother’s care

      after Mother and the Children tested positive for marijuana. DCS filed

      petitions alleging that the Children were Children in Need of Services

      (“CHINS”). Father and Mother admitted that the Children were CHINS.


[4]   The dispositional orders required Father, among other things, to obtain safe and

      stable housing, obtain a legal and stable source of income, refrain from using

      illegal controlled substances, complete a parenting assessment and follow all

      Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 2 of 14
      recommendations, complete a substance abuse assessment and follow all

      recommendations, submit to random drug screens, and complete a

      psychological evaluation and follow all recommendations.


[5]   In November 2016, DCS filed petitions to terminate Father and Mother’s

      parental rights to the Children. On June 26, 2017, Mother voluntarily

      relinquished her parental rights to the Children, and she is not involved in this

      appeal. After a hearing, the trial court entered findings of fact and conclusions

      thereon terminating Father’s parental rights to the Children. Father now

      appeals.


                                                  Analysis
[6]   Father challenges the termination of his parental rights to the Children. The

      Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. In re

      I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

      custody, and control of his or her children is ‘perhaps the oldest of the

      fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

      120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

      most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

      Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

      course, that parental interests are not absolute and must be subordinated to the

      child’s interests when determining the proper disposition of a petition to

      terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when


      Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 3 of 14
      the parents are unable or unwilling to meet their parental responsibilities.’” Id.

      (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[7]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. Id. We consider only the evidence and

      reasonable inferences that are most favorable to the judgment. Id. We must

      also give “due regard” to the trial court’s unique opportunity to judge the

      credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

      court entered findings of fact and conclusions thereon in granting DCS’s

      petition to terminate Father’s parental rights, as required by Indiana Code

      Section 31-35-2-8. When reviewing findings of fact and conclusions thereon

      entered in a case involving a termination of parental rights, we apply a two-

      tiered standard of review. First, we determine whether the evidence supports

      the findings, and second, we determine whether the findings support the

      judgment. Id. We will set aside the trial court’s judgment only if it is clearly

      erroneous. Id. A judgment is clearly erroneous if the findings do not support

      the trial court’s conclusions or the conclusions do not support the judgment. Id.


[8]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

      allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

      the court shall terminate the parent-child relationship.” Indiana Code Section

      31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

      involving a child in need of services must allege, in part:


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


      Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 4 of 14
                               (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 establish these allegations by clear and convincing evidence. Egly v.

      Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                                        A. Trial Court’s Findings

[9]   Father argues that several of the trial court’s findings are clearly erroneous. He

      first challenges Finding No. 3, which states: “At the time of the Initial Hearing,

      . . . . Father failed to appear.” Appellant’s App. Vol. II pp. 222, 228.

      According to Father, the finding is clearly erroneous because there is no

      evidence that Father had notice of the hearing. Although the finding does not

      explain the reasons for Father’s failure to appear, the trial court’s finding is

      technically correct because Father did not appear at that hearing. Moreover, as


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       DCS points out, Father’s failure to appear at this hearing was not a factor in the

       trial court’s conclusion regarding Father’s parental rights. The finding is not

       clearly erroneous, and even if it is erroneous, any error is harmless.


[10]   Next, Father challenges Finding No. 14, which provides: “By November 2016,

       Father’s attendance at supervised visits since May 2016 was interrupted after

       the original service provider noted several incidents of aggressive behavior or

       threatening comments during visits and home based case management

       sessions.” Id. Father argues that there were only two or possibly three

       incidents of concerning statements. However, on appeal, DCS pointed out at

       least four incidents of Father’s aggressive behavior or threatening comments

       that are supported by the record. The finding is not clearly erroneous.


[11]   Father also challenges Findings Nos. 20, 22, and 23. Finding No. 20 states:

       “Father blamed his inability to maintain employment on his diagnosis which he

       claimed to include dwarfism, bipolar disorder and an explosive disorder.

       Father went on to state that he does not maintain treatment for these

       condition[s] as he believes he does not need medication to control his various

       disorder[s].” Id. at 223, 229. Finding No. 22 provides: “Instead of taking

       responsibility for maintaining his own mental health, Father consistently

       blames other people and refuses to follow the treatment recommendations of

       those who are in a position to identify Father’s mental health needs.” Id.

       Finding No. 23 states: “Father’s testimony indicates that he wants to be a

       parent to these children. However, while Father can identify this wish, he

       continues to blame others for this current situation in life.” Id. According to

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       Father, he has acknowledged his difficulties and does not blame others.

       However, DCS presented evidence that Father blamed his lack of sufficient

       employment on his mental health diagnosis and lack of education. Father

       refused to take medication for his mental health diagnosis and refused to

       participate in therapy. When Father was denied certain housing that he

       wanted, he responded by threatening people. Given the evidence presented by

       DCS, we cannot say that the trial court’s finding is clearly erroneous.


[12]   Next, Father challenges Finding No. 21, which provides: “Father appears to

       possess the ability to identify the issues in his life. However, Father fails to take

       meaningful steps to rectify the identified issues.” Id. According to Father, he

       participated in therapy, applied for housing benefits, and found employment.

       He argues that he has taken “some meaningful steps to change his

       circumstances.” Appellant’s Br. p. 16. Although Father was able to identify

       the issues in his life that are holding him back, he failed to follow through with

       solutions to those issues. Father refused to take medication or participate

       further in therapy, refused a housing option found by his service providers, and

       failed to follow through with obtaining a GED. The trial court’s finding is not

       clearly erroneous.


[13]   Next, Father challenges Finding No. 24, which states: “Father has no

       immediate, concrete plans to obtain any stability in his mental health. Further,

       Father is currently homeless with no inclination to obtain stable housing that

       would be capable of sustaining himself and these twin four year old boys.”

       Appellant’s App. Vol. II pp. 223, 229. Father argues that he has expressed an

       Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 7 of 14
       inclination to obtain housing but struggles to obtain employment that would

       sustain housing to accommodate the Children. Father testified that he was

       “stuck” with his current employment and could not obtain suitable housing

       without a better job. Tr. Vol. II p. 171. Father appeared to have no inclination

       to change his circumstances, and the trial court’s finding is not clearly

       erroneous.


[14]   Next, Father challenges Finding No. 30, which provides: “Mr. Long [the home-

       based case manager] attempted to aid Father in building skills relating to

       parenting but Father was not interested as he believed the proposed approaches

       were outdated.” Appellant’s App. Vol. II pp. 224, 230. Father contends that

       the finding is erroneous because he completed training in the 1, 2, 3 Magic

       disciplinary program. However, Long testified that he suggested the

       disciplinary system, but Father was not interested. Father thought it was an

       “old-fashioned idea” and wanted something “more up to date.” Tr. Vol. II p.

       75. The finding is not clearly erroneous.


[15]   Next, Father challenges Finding No. 38, which states: “Father’s behavior is not

       conducive to parenting young children and when the behavior is displayed in

       the presence of young children, can be detrimental to their mental and

       emotional well-being.” Appellant’s App. Vol. II p. 224, 230. Father argues

       that his aggressive behavior would not damage the Children’s mental or

       emotional well-being. Father repeatedly displayed aggressive, angry behavior

       in front of the Children during supervised visitations. The guardian ad litem

       testified that Father’s mental health “impaired his ability to provide necessary

       Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 8 of 14
       parenting” and ability to take care of the Children. Tr. Vol. II p. 184. The

       record supports the trial court’s finding, and it is not clearly erroneous.


[16]   Father also challenges Finding No. 43, which provides: “Mr. Myers [the

       therapist] reviewed previous treatment records and was able to verify some of

       Father’s own statements concerning Father’s long history of cycling since

       childhood. Some of the cycling behaviors included aggressive behavior,

       suicidal and homicidal ideations.” Appellant’s App. Vol. II pp. 224-25, 231.

       Father contends that Myers did not review historical records that showed a

       history of suicidal or homicidal ideations. However, Myers testified that he

       reviewed Father’s prior records, which demonstrated an “ongoing . . . cycle of

       aggressive behavior, of reports of homicidal and suicidal thoughts, . . .

       distortion of thoughts that this has been something that has been going since

       childhood and then it also spoke of trauma.” Tr. Vol. II p. 112. The trial

       court’s finding is not clearly erroneous.


[17]   Finally, Father also challenges Finding No. 45, which provides:

       “Unfortunately, Father only attended two therapy sessions with Mr. Myers and

       failed to maintain any type of mental health treatment following his final

       session in November 2016.” Appellant’s App. Vol. II pp. 225, 231. Father

       argues that he attended four or five sessions with Myers. DCS concedes that

       Father is correct that he attended four or five sessions. However, Father was

       supposed to attend three sessions a week with Myers, but Father simply refused

       to attend. The trial court’s finding is incorrect as to the number of sessions

       Father attended but correct regarding Father’s failure to maintain mental health

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       treatment. We conclude that the trial court’s minor error is harmless and does

       not impact its ultimate decision here.


                                   B. Threat to Children’s Well-Being

[18]   Father also argues that the trial court’s finding of a reasonable probability that

       the continuation of the parent-child relationship poses a threat to the well-being

       of the Children is clearly erroneous. In making such a decision, the trial court

       must consider a parent’s habitual pattern of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005). At the same time,

       however, a trial court should judge a parent’s fitness to care for his child as of

       the time of the termination proceeding, taking into consideration evidence of

       changed conditions. Id.


[19]   Father argues that his relationship with the Children is not a threat to their well-

       being. According to Father, he was “patient, attentive, affectionate, and

       prepared” when he visited with the Children. Appellant’s Br. p. 18.


[20]   DCS presented evidence that the specific concerns regarding Father are his

       overall stability, including stability in housing, stability in mental health, and

       stability regarding substance abuse. Father has been diagnosed with

       schizophrenia, bipolar disorder, a learning disability, mood swings, an

       explosive disorder, anxiety, depression, and ADHD. When DCS started

       working with Father, he was homeless, and Steven Long, the home-based case

       manager, worked with Father on obtaining housing and employment and


       Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 10 of 14
       parenting skills. Although Long discovered that Father was eligible to live at

       the Emmaus Mission, Father was not interested in living there. When Father

       learned that he had been denied housing with a different program, Father

       became angry and told Long, “maybe it was time to shake things up. Maybe

       time for a little chaos.” Tr. Vol. II p. 77. When Long asked what he meant,

       Father said, “you know, shooting, stabbings, you know, that kind of thing.” Id.

       Long told Father that he did not have the right to take someone’s life, and

       Father disagreed. Long asked if Father was going to “start with me,” and

       Father said, “I think I’ll just not say anything because then people would take

       steps to prevent me from doing so.” Id. at 77-78. The DCS family case

       manager then had a meeting with Father and Long, and Father “doubled-

       down” on the threats. Id. at 136. Father said, “society needed to die,” “there

       was nothing wrong with murder,” and noted that he carried a knife with him in

       his backpack. Id. Long noted that Father’s attitude was “pretty negative,”

       Father is “very defensive” and “not very trusting of other people.” Id. at 79.


[21]   Father’s aggressive and violent tendencies were also on display during

       supervised visits with the Children. Connie White supervised visits between

       Father and the Children. White observed Father kicking toys because he was

       aggravated to be in a small room. White moved the visits to the park and a

       McDonald’s play area. At the park, Father was walking toward White and the

       Children carrying a duffel bag. He dropped the bag, kicked a ball, and threw

       the bag. When White told him that he could not behave in that manner in front

       of the Children, Father said, “well then f’ing [sic] leave, f’ing [sic] leave.” Id. at


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       148. Later that day, as she was leaving the DCS office, White saw Father, and

       he pointed and said, “your [sic] next.” Id. at 149.


[22]   During Father’s substance abuse assessment, he made comments “that sounded

       homicidal in nature,” and he confirmed that “he was having some of those

       thoughts.” Id. at 92. The person performing the assessment brought in another

       therapist to do an emergency survey to assess “suicidal or homicidal ideation.”

       Id. at 93. They recommended an in-patient service, and Father declined. The

       police later did a welfare check to make sure Father was not going to harm

       himself or others. The therapist also recommended individual therapy. Father

       appeared for a few of the individual therapy sessions and then stopped

       attending. Father did not follow through with the recommendation for therapy.

       The therapist reported that Father has had an ongoing cycle of “aggressive

       behavior, of reports of homicidal and suicidal thoughts, . . . distortion of

       thoughts that this has been something that has been going since childhood . . .

       .” Id. at 112.


[23]   DCS family case manager James Steele noted that Father completed only eight

       or nine drugs screens and tested positive in four or five of those screens. He

       then refused to take any more drug screens. Father has been unwilling to talk

       about his substance abuse or admit that he has an issue. Rather, he states that

       “what he does on his time . . . without the children present should not . . . make

       any difference” to DCS and “if he wants to smoke marijuana without the kids

       present, that should be his right to do so.” Id. at 128. Father demonstrated an

       unwillingness to work “with just about anyone that [DCS] put in contact with

       Court of Appeals of Indiana | Memorandum Decision 09A04-1709-JT-2106 | March 21, 2018   Page 12 of 14
       him” due to personality conflicts or just an unwillingness to do the things they

       wanted him to do. Id. at 137. Steele did not believe they had made “almost

       any progress at all” toward Father’s issues. Id. at 139. The GAL opined that

       Father’s mental health “impaired his ability to provide necessary parenting . . .

       .” Id. at 184. The GAL did not believe that the situation was likely to change

       given Father’s history.


[24]   At the time of the termination hearing, Father lived wherever he could and did

       not have stable housing. He was employed at a chicken farm and

       acknowledged that he has trouble finding and maintaining employment. Father

       also acknowledged that he refused to take medications for his conditions and

       had refused therapy. He believed that his lack of stable housing was preventing

       him from caring for the Children and that his lack of stable housing was caused

       by his low-paying job. However, he believed that he was “pretty much stuck”

       with his current employment because he did not have “a GED or high school

       diploma.” Id. at 171. Father also stated that his mental health diagnosis was

       “affecting [him] finding a job and keeping it.” Id. at 168. Father believed that

       smoking marijuana made him “calm” and helped him “cope in life.” Id. at 176-

       77.


[25]   Although Father has received services since February 2016, he has made little

       progress since then. Given his problems with aggressive behavior and

       homicidal and suicidal ideations, his failure to address his mental health issues

       with medication and/or therapy, and his ongoing homelessness and substance

       abuse, we cannot say the trial court’s conclusion that the continuation of

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       Father’s parent-child relationship posed a threat to the Children is clearly

       erroneous.


                                                 Conclusion
[26]   The evidence is sufficient to support the termination of Father’s parental rights

       to the Children. We affirm.


[27]   Affirmed.


       Najam, J., and Mathias, J., concur.




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