MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Feb 05 2019, 9:41 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
MOTHER                                                    Curtis T. Hill, Jr.
R. Patrick Magrath                                        Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP                       Robert J. Henke
Madison, Indiana                                          Deputy Attorney General
ATTORNEY FOR APPELLANT                                    Indianapolis, Indiana
FATHER
Jeremy L. Seal
Seymour, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 5, 2019
of Parental Rights of:                                    Court of Appeals Case No.
                                                          18A-JT-2336
B.H. & A.M. (Minor Children)
and                                                       Appeal from the Jackson Superior
                                                          Court
J.H. (Mother) & C.M. (Father),
                                                          The Honorable Bruce A.
Appellants-Respondents,                                   MacTavish

        v.                                                Trial Court Cause Nos.
                                                          36D02-1801-JT-1
                                                          36D02-1801-JT-2
The Indiana Department of
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019                 Page 1 of 10
      Baker, Judge.


[1]   J.H. (Mother) appeals the trial court’s order terminating her parent-child

      relationship with her minor children, B.H. and A.M.; and C.M. (Father)

      appeals the order terminating his parent-child relationship with A.M. Mother

      and Father both argue that there is insufficient evidence supporting the

      termination order. Finding the evidence sufficient, we affirm.


                                                       Facts
[2]   B.H. was born to Mother and D.S. in August 2004.1 A.M. was born to Mother

      and Father in January 2016.


[3]   In December 2016, Mother, Father, and the children became homeless and

      were living in a hotel. The Department of Child Services (DCS) received a

      report alleging that the parents had failed to appropriately supervise the children

      because of active drug use, that they had engaged in domestic violence while

      caring for the children, and that the parents were failing to meet the children’s

      medical needs. During the investigation, Mother and Father tested positive for

      methamphetamine and marijuana and reported that they were struggling to

      afford their hotel accommodations.


[4]   On December 7, 2016, DCS removed the children from parents’ care and

      custody and the next day, filed a petition alleging that the children were




      1
          D.S. did not appeal the termination order.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 2 of 10
      children in need of services (CHINS). The children have been in foster care

      since that time. At the time of the termination hearing, they were in separate

      preadoptive placements.


[5]   On January 11, 2017, Mother admitted that the children were CHINS based on

      the following facts:


              6.       Mother and [Father] have substance abuse issues that have
                       a negative impact on the children.

              7.       Mother and [Father] do not have stable housing or a stable
                       means to financially support the children.

              8.       There has been domestic violence within the home.


      Tr. Ex. Vol. p. 35. Father entered a separate stipulation that was identical with

      respect to the admitted facts supporting the CHINS adjudication. Id. at 86. At

      the dispositional hearing, the trial court ordered parents to complete substance

      abuse assessments, submit to random drug screens, attend all scheduled

      visitations, and participate with home-based case management.


[6]   Throughout the CHINS case, Father failed and often refused drug screens. He

      repeatedly tested positive for methamphetamine, amphetamine, and marijuana.

      He was incarcerated from March 16 to April 4, 2017, August 1 to 22, 2017, and

      again from September 21, 2017, to March 2, 2018; each of these incarcerations

      was related to drug use and possession. Less than a week after he was released

      on March 2, 2018, he tested positive for methamphetamine. Despite multiple

      referrals, he never completed a substance abuse assessment. Likewise, he never


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 3 of 10
      participated consistently with home-based case management, with each referral

      terminated unsuccessfully. When not incarcerated, Father’s visits with A.M.

      were inconsistent. He frequently failed to attend, and when he did attend, he

      was at times hostile and inappropriate and was threatening towards the

      visitation supervisor. On one occasion, he and Mother permitted A.M. to eat

      food off the floor of a public building; they refused to accept advice from the

      visitation supervisor because “we know what we are doing[.]” Tr. Vol. I p. 13.


[7]   Mother also failed and often refused drug screens, repeatedly testing positive for

      methamphetamine and amphetamine. She also frequently failed to appear at

      drug screens. In the months leading up to the termination hearing, she tested

      positive for amphetamine and methamphetamine and then stopped

      participating with drug screens altogether. She failed to participate in a

      substance abuse assessment until after the termination petitions were filed. At

      that point, she completed the assessment but failed to engage in any services

      recommended by the assessment. She failed to participate with home-based

      case management until after the termination petitions were filed, when she

      attended four out of eight sessions and the service was closed unsuccessfully.

      Mother’s visits were inconsistent throughout most of the CHINS case until the

      termination petitions were filed, when she began visiting consistently. Mother

      failed to attend any individual therapy sessions until after the termination

      petitions were filed. At that time, she attended sporadically, and the therapist

      was not able to provide therapeutic support regarding Mother’s domestic

      violence issues.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 4 of 10
[8]    On January 2, 2018, DCS filed petitions to terminate the parent-child

       relationship between Mother and both children and between Father and A.M.

       An evidentiary fact-finding hearing took place on May 2 and 30, 2018, and on

       August 28, 2018, the trial court issued termination orders granting DCS’s

       petitions. The parents now separately appeal.2


                                        Discussion and Decision
[9]    Mother and Father each argue that the evidence does not support a conclusion

       that termination is in the children’s best interests. Father also argues that the

       evidence does not support a conclusion that there is a reasonable probability

       that the conditions resulting in the children’s removal will not be remedied.


                                          I. Standard of Review
[10]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the




       2
           The parents’ cases have been consolidated on appeal.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 5 of 10
       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. 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.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[11]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (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 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 child in need of services or a delinquent child;


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 6 of 10
                (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 the alleged circumstances by clear and convincing evidence.

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


               B. Remedy of Conditions Resulting in Removal
[12]   Father first argues that DCS did not prove that there is a reasonable probability

       that the conditions resulting in A.M.’s removal will not be remedied. 3 A.M.




       3
         The trial court also found that there is a reasonable probability that the continuation of the parent-child
       relationship poses a threat to A.M.’s well-being. As these statutory elements are phrased in the disjunctive
       and Father does not appeal this finding, we need not address his argument regarding the remedy of
       conditions resulting in removal. Given the seriousness of a termination order, however, we will address his
       argument anyway.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019                  Page 7 of 10
       was initially removed and continued to be removed from Father’s care and

       custody based on concerns about drug use, instability, and domestic violence.


[13]   Over the course of the CHINS case, Father was incarcerated at three separate

       times for offenses related to drug use and possession. He repeatedly failed to

       appear for drug screens and tested positive for methamphetamine and

       marijuana. He never completed a substance abuse assessment or participated

       successfully with home-based case management. His visits with A.M. were

       inconsistent and, when he did attend, were often fraught with hostility and poor

       parenting decisions.


[14]   Father argues that his repeated incarcerations did not leave him with enough

       time to complete services. This argument is unavailing. Initially, we note that

       it was Father’s choices that led to his incarcerations. Furthermore, even when

       Father was not incarcerated, he failed to participate with court ordered services

       and repeatedly tested positive for illicit substances. We find that this evidence

       supports the trial court’s conclusion that there is a reasonable probability that

       the conditions resulting in A.M.’s removal will not be remedied.


                                            C. Best Interests
[15]   Both parents argue that the evidence does not support the trial court’s

       conclusion that termination was in the children’s best interests. With respect to

       Father, as noted above, despite nearly one and one-half years to participate with

       services, work towards sobriety and stability, and improve his parenting skills,

       Father failed to make progress in any of these areas.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 8 of 10
[16]   With respect to Mother, for most of the case, she, too, failed to make progress.

       She failed to report for drug screens and when she attended, repeatedly tested

       positive for methamphetamine. She failed to complete a substance abuse

       assessment and failed to participate consistently with home-based case

       management. DCS filed its termination petitions in January 2018, and it

       appeared in February 2018 as though Mother was finally ready to participate.

       She slowly began to make progress. But she attended only half of her home-

       based case management sessions, participated only sporadically with individual

       therapy, and relapsed in April 2018, mere weeks before the termination hearing

       took place. She did not participate in any drug screens in April or May 2018.


[17]   While we acknowledge that Mother had slowly begun to participate in services

       after the termination petitions were filed and had achieved certain markers of

       stability by the time of the hearing, the trial court was permitted to consider

       whether those recent efforts were outweighed by her patterns of conduct

       throughout the vast majority of the CHINS case.


[18]   Both children are thriving in their respective preadoptive placements. The

       Family Case Manager and the children’s court appointed special advocate

       testified that they believed termination is in the best interests of both children.

       Thirteen-year-old B.H. wants to be adopted. Toddler A.M. has been with the

       same family for more than half of his life and has bonded with them.


[19]   Mother and Father had over a year to make progress, and they simply failed to

       do so in time. We find that the evidence in the record supports the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 9 of 10
       conclusion that termination of the parent-child relationship is in the children’s

       best interests.


[20]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2336 | February 5, 2019   Page 10 of 10
