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.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020               Page 1 of 12
[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.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020                   Page 2 of 12
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 3 of 12
[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


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 4 of 12
       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:



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 5 of 12
               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;

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 6 of 12
               (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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 7 of 12
                                     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).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 8 of 12
[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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020                     Page 9 of 12
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020                    Page 10 of 12
                                             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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 11 of 12
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2011 | April 30, 2020   Page 12 of 12
