MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Feb 28 2019, 11:06 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin R. Wall                                            Curtis T. Hill, Jr.
Huntington, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 28, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          18A-JT-2716
Ky.H. and Ka.H. (Minor                                    Appeal from the Huntington
Children),                                                Circuit Court
                                                          The Honorable Robert R.
and                                                       McCallen, III, Special Judge
C. H. (Father),                                           Trial Court Cause Nos.
Appellant-Respondent,                                     35C01-1711-JT-10 & 35C01-1711-
                                                          JT-11
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019                 Page 1 of 15
      Riley, Judge.


                                  STATEMENT OF THE CASE
[1]   Appellant-Respondent, C.H. (Father), appeals the termination of his parental

      rights to his minor children, Ky.H. and Ka.H. (collectively, Children).


[2]   We affirm.


                                                        ISSUE
[3]   Father raises one issue on appeal, which we restate as: Whether the Indiana

      Department of Child Services (DCS) presented clear and convincing evidence

      to support the trial court’s termination of Father’s parental rights.


                       FACTS AND PROCEDURAL HISTORY
[4]   Father and K.H. (Mother) 1 are the natural parents to Ky.H., born on September

      29, 2008, and Ka.H., born on December 27, 2011. On October 30, 2015, DCS

      received a report alleging that Mother had neglected the Children. The report

      indicated that the house was in a filthy condition with trash and dirt all over,

      with no sheets on the beds, and curtains ripped off the walls. It was also

      claimed that Mother was addicted to methadone, and had recently lost her

      employment.




      1
       Mother passed away on August 29, 2016 from taking an overdose of heroin that was supplied to her by
      Father. Facts pertaining to Mother will be included in so far as these are relevant for the current proceedings.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019                  Page 2 of 15
[5]   On November 5, 2015, Family Case Manager Julie Hobbs (FCM Hobbs)

      unsuccessfully attempted to speak with Mother at her home and by phone. The

      following day, FCM Hobbs returned to the residence where she spoke with

      Mother. The home was clean, but the carpets were heavily stained and soiled.

      Mother denied using illegal substances and volunteered to submit to a drug test.


[6]   Mother’s drug test indicated a positive result for Adderall in excess of the

      maximum therapeutic level for that medicine. FCM Hobbs returned to

      Mother’s residence on November 18, 2015, but Mother was not home, nor did

      she answer her phone. On November 23, 2015, FCM Hobbs again visited

      Mother’s house. This time, Mother answered the door. The home was dirty

      and cluttered. FCM Hobbs discussed with Mother the condition of the home

      and Ky.H.’s issues of playing with her feces. Mother submitted to another drug

      test, and tested positive for cocaine.


[7]   On November 25, 2015, DCS obtained an order to remove the Children from

      Mother’s care. However, before DCS could detain the Children, Mother fled

      with the Children to Florida. Eventually, Mother and the Children were

      located in Florida and returned to Indiana. On December 4, 2015, the Children

      were formally removed from Parents’ care and placed with Maternal

      Grandparents. On December 8, 2015, DCS filed a Child in Need of Services

      (CHINS) petition for each Child. With respect to Father, the petitions alleged

      that Father first tested positive for cocaine on December 7, 2015 and had since

      also tested positive for marijuana. On February 12, 2016, the trial court issued

      an order, adjudicating both Children as CHINS and finding:

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 3 of 15
              Father had random contact with the [Children] prior to DCS’s
              involvement in this matter. Father tested positive for illegal
              drugs on three different occasions and had not visited with his
              [C]hildren as a result of his drug use since this matter has
              opened. Father failed to appear for today’s proceeding and has
              had no contact with DCS since December 2015.


      (Appellant’s App. Vol. II, p. 92).


[8]   On March 17, 2016, after a dispositional hearing, the trial court entered a

      dispositional decree ordering Father to participate in services, including, in part,

      a substance abuse evaluation, random drug screens, supervised visitation with

      the Children, and a parenting assessment. Father was also ordered to follow all

      recommendations resulting from his evaluation and assessment. After the

      disposition was entered, Father completed a substance abuse evaluation. Of the

      32 recommended individual therapy sessions, Father completed 17. Father

      attended supervised visitation with his Children from around September 2016

      through March 2017 and has not visited the Children since. Other than taking

      “one or two” drug screens in June 2017, Father stopped participating in services

      in March 2017 because he had a warrant out for his arrest and “did not want to

      be arrested in front of [his] [C]hildren.” (Transcript pp. 39, 43).


[9]   On March 29, 2017, the State filed an Information, charging Father with two

      Counts of Level 5 felonies dealing in a narcotic drug and one Count of Level 6

      felony possession of a narcotic drug. Father “stayed low for a while until [he]

      got [his] bond money together to bond immediately out.” (Tr. p. 43). On May

      15, 2017, he turned himself in and bonded out the same day. He remained out

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 4 of 15
       on bond until he was sentenced on January 16, 2018. During the sentencing

       hearing, he pleaded guilty to one Count of dealing in a narcotic drug and to one

       Count of possession of a narcotic drug. He was sentenced to eight years in the

       Indiana Department of Correction with no time suspended.


[10]   Ky.H. has been receiving individual therapy from Pamela Rumsey (Rumsey) at

       the Bowen Center since September 2015. During these therapy sessions, Ky.H.

       is learning to communicate her emotions appropriately. Although Ky.H. has

       made progress since starting therapy, Rumsey advised that Ky.H. needs

       “continued stability and consistency” and a stable environment to continue to

       make progress. (Tr. pp. 27-28). The Children also receive in-school and

       homebased services from Patricia Meriwether (Meriwether) at the Bowen

       Center. Ky.H. needed help to stay focused on tasks and to follow directions.

       She is also enrolled in a peer and skills group to work on social skills and

       emotion regulation. Ka.H. receives help in identifying and managing her

       emotions. While both Children have mentioned Father, Meriwether clarified

       that there is “[n]ot a whole lot of emotion involved.” (Tr. p. 35). When Ky.H.

       mentions Father, it is “generally not wanting to talk about him, [and] [s]he has

       mentioned not wanting to see him when she thought she was going to have to

       see him.” (Tr. p. 35).


[11]   On November 3, 2017, DCS filed its verified petitions for involuntary

       termination of the parent-child relationship. Father remained incarcerated at

       the time of the termination hearing on June 8, 2017, with an earliest possible

       release date of July 16, 2023. Father testified that since being incarcerated he

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 5 of 15
       has participated in the Recovery While Incarcerated Program. The program is

       a nine-month intensive rehabilitation program that consists of daily AA/NA

       meetings, program facilitation classes, and random drug screens. Completion

       of the program results in a six-month time cut and might come with a sentence

       modification, if approved by the court.


[12]   On June 8, 2018, the trial court terminated Father’s parental rights to his

       Children, finding, in pertinent part, that:


               [Father] himself testified that the [C]hildren are in a good place
               and well cared for. When asked why his parental rights should
               not be terminated, he testified that he wants to remain a part of
               their lives. While that may be what he wants, he did not indicate
               it is in the [C]hildren’s best interests or that it had anything to do
               with what the [C]hildren want. The evidence overwhelmingly
               supports that what [Father] wants is not in the [Children’s] best
               interests.


               The evidence is clear and convincing that continuation of the
               parent-child relationship with [Father] is not in the [C]hildren’s
               best interests. The [Children] need and deserve permanency, not
               just a placement subject to change.


               DCS’s plan for the [C]hildren is adoption by their current
               placement, their [M]aternal [G]randparents.


       (Appellant’s App. Vol. II, p. 52).


[13]   Father now appeals. Additional facts will be provided if necessary.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 6 of 15
                               DISCUSSION AND DECISION
                                              I. Standard of Review

[14]   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. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “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 (2000)). However, parental rights “are not absolute

       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[15]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 7 of 15
       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                 II. Termination of Parental Rights Statute

[16]   In order to terminate a parent’s rights to his child, DCS must prove:


               (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.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . 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 [CHINS] . . . ;

               (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 [CHINS];

               (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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 8 of 15
       Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to ‘be highly probable.’” Id. On appeal, Father does not

       challenge the trial court’s finding that the Children have been removed from the

       home for the requisite period of time.


                                      A. Conditions have not been remedied 2

[17]   Father claims that there is insufficient evidence to support the trial court’s

       determination that the conditions which resulted in the removal of the Children

       have not been remedied. It is well established that “[a] trial court must judge a

       parent’s fitness as of the time of the termination hearing and take into

       consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of

       Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied.

       In judging fitness, a trial court may properly consider, among other things, a

       parent’s substance abuse and lack of adequate housing and employment.

       McBride v. Monroe Co. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial

       court may also consider a parent’s failure to respond to services. Lang v. Starke

       Co. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual

       patterns of conduct must be evaluated to determine whether there is a




       2
         Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
       only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, the trial court based its
       termination decision on DCS’s satisfaction of Indiana Code section 31-35-2-4(b)(2)(B)(i) & (ii)—that the
       conditions that resulted in the Children’s removal have not been remedied and the continuation of the parent-
       child relationship poses a threat to the Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019                  Page 9 of 15
       substantial probability of future neglect or deprivation.” Stone, 656 N.E.2d at

       828. A trial court “need not wait until the children are irreversibly influenced

       by their deficient lifestyle such that their physical, mental and social growth is

       permanently impaired before terminating the parent-child relationship.” Id.

       Furthermore, “[c]lear and convincing evidence need not reveal that the

       continued custody of the parents is wholly inadequate for the child’s very

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


[18]   In support of his argument that the conditions which resulted in the removal of

       the Children have been remedied, Father contends that his argument is “fairly

       straight-forward.” (Appellant’s Br. p. 21). Specifically, he argues that due to

       his release date of July 16, 2013, and the “fact that the Children were thriving in

       relative care and being well-taken care of,” he insists that “he should [be] given

       time to implement services with DCS upon release from incarceration[.]”

       (Appellant’s Br. p. 21).


[19]   Upon review of the evidence, we find that DCS clearly established that Father

       did not remedy the conditions which resulted in the removal of the Children in

       the first place. From September 2016, through May 15, 2017, prior to Father

       turning himself in on drug-related charges, Father put forth a minimal amount

       of participation with the court-ordered services. Of the 32 scheduled individual

       therapy sessions, he only completed 17. Even though he initially attended

       supervised visits with the Children, he stopped participating in March 2017 and

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 10 of 15
       has not seen the Children since then. Trying to blame DCS for his failure to

       complete his services, Father contends that the was discouraged from

       participating by a DCS family case manager after he bonded out on May 15,

       2017. Making short shrift of this argument, the trial court noted—albeit in a

       footnote—that “[w]hile the [c]ourt finds that hard to believe because of the

       family case manager involved, even if true, [the Children] are his children and

       he was responsible to take any and all steps to pursue reunification. Other than

       submit to a drug test, he did nothing.” (Appellant’s App. Vol. II, p. 51).


[20]   Furthermore, at the time the Children were removed from his care and

       adjudicated as CHINS, Father had tested positive for illegal drugs on three

       different occasions. In August 2016, Father supplied Mother with the heroin

       that she overdosed on, and in March 2017, Father was charged with three drug-

       related Counts. Overall, illegal substances have continued to be an issue for

       Father, and ultimately led to his incarceration.


[21]   Unlike Father, we do not consider his situation similar to K.E. v. Ind. Dep’t of

       Child Servs., 39 N.E.3d 641, 648 (Ind. 2015), in which our supreme court

       reversed the termination of an incarcerated father’s parental rights given father’s

       “substantial efforts towards bettering his life” by participating in twelve

       programs during his incarceration, most of which were voluntary and did not

       result in a sentence reduction. In addition, while father was incarcerated at the

       time of removal and throughout the entire CHINS case, he nevertheless

       participated in visitation with his children every other week and made nightly

       phone calls to his children. Id. 649. Here, however, Father had nine months

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 11 of 15
       prior to his incarceration to participate in services and visit with the Children.

       Other than a minimal effort, Father failed to complete any significant services

       and he has not seen the Children since March 2017. Although Father

       participated in the Recovery While Incarcerated Program during his

       incarceration, the trial court found that Father’s “reasons for doing so do not

       appear to be motivated by a desire to be reunited with his [Children], but

       instead to gain his release from prison as soon as possible.” (Appellant’s App.

       Vol. II, p. 52).


[22]   Accordingly, as the record reflects substantive evidence documenting Father’s

       pattern of inability, unwillingness, and lack of commitment to cooperate with

       services and to address his substance abuse problem, the trial court’s conclusion

       that there is a reasonable probability that the conditions that resulted in the

       Children’s removal from Father’s care have not been remedied was not clearly

       erroneous. 3


                                          B. Best Interests of the Children

[23]   Father also challenges the trial court’s determination that termination of his

       parental rights is in the best interests of the Children. The parent-child

       relationship is “one of the most valued relationships in our culture.” Bester, 839




       3
        Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and we affirmed the trial
       court’s conclusion that the conditions that resulted in the Children’s removal have not been remedied, we
       will not address whether the continuation of the parent-child relationship poses a threat to the Children’s
       well-being.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019                Page 12 of 15
       N.E.2d at 147 (quoting Neal v. DeKalb Cnty. Div of Family & Children, 796

       N.E.2d 280, 285 (Ind. 2003)). Thus, the purpose of terminating a parent-child

       relationship is to protect the child, not to punish the parent. In re C.C., 788

       N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied. When considering whether

       termination would be in a child’s best interests, the trial court must “look

       beyond the factors identified by [DCS] and . . . look to the totality of the

       evidence.” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct.

       App. 2013), trans. denied. “The trial court need not wait until the child is

       irreversibly harmed such that the child’s physical, mental and social

       development is permanently impaired before terminating the parent-child

       relationship.” K.T.K., 989 N.E.2d at 1235. Permanency is a central

       consideration in determining a child’s best interests. Id. “[T]he right of parents

       to raise their children should not be terminated solely because there is a better

       home available for the children.” In re K.S., 750 N.E.2d 832, 837 (Ind. Ct. App.

       2001).


[24]   By the time of the termination hearing, the Children had been removed from

       Father’s care for over two and a half years. They have been in their Maternal

       Grandparents’ care since the removal and are thriving. Ky.H. is receiving

       therapy sessions to aid in her emotional health and both Children are receiving

       in-school and homebased services. Ky.H.’s therapist advised that Ky.H. is best

       served with “continued stability and consistency” and a stable environment to

       continue to make progress. (Tr. pp. 27-28).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 13 of 15
[25]   Father alleges that he will be able to provide stability and housing for the

       Children upon his release; however, at the time of the termination hearing his

       release was still five years away. He had not yet completed any services or

       courses which would allow him a possible sentence modification or time cut.

       Moreover, at no point during the CHINS proceeding did Father demonstrate

       that he could provide the Children with a stable environment, nor did he

       demonstrate a continued abstinence from illegal substances. It is well

       established that “[a] parent’s historical inability to provide a suitable

       environment, along with the parent’s current inability to do the same, supports

       a finding that termination of parental rights is in the best interests of the

       children.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).


[26]   Accordingly, based on the totality of the evidence, we find that there is ample

       support for the trial court’s determination that termination of Father’s parental

       rights is in the Children’s best interests.


                                               C. Satisfactory Plan


[27]   As a final contention, Father challenges DCS’s plan for the future care and

       treatment of the Children. In order for the trial court to terminate the parent-

       child relationship, the court must find that there is a satisfactory plan for the

       care and treatment of the children. In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct.

       App. 2008). This plan need not be detailed, so long as it offers a general sense

       of the direction in which the child will be going after the parent-child

       relationship is terminated. Id. Here, DCS’s plan was for the Children to be


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 14 of 15
       adopted by Maternal Grandparents. Therefore, the evidence supports the trial

       court’s finding that DCS had a satisfactory plan for the care and treatment of

       the Children. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004)

       (concluding that the State’s plan for child to be adopted by current foster

       parents or another family constitutes a suitable plan for child’s future care),

       trans. denied.


                                             CONCLUSION
[28]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s order terminating Father’s parental rights to

       the Children.


[29]   Affirmed.


[30]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019   Page 15 of 15
