MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Dec 29 2017, 9:55 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                       Curtis T. Hill, Jr.
Richmond, Indiana                                        Attorney General of Indiana

                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Involuntary Termination of the                           December 29, 2017
Parent-Child Relationship of                             Court of Appeals Case No.
C.H., Minor Child, and A.H.,                             89A01-1708-JT-1781
Appellant-Defendant,                                     Appeal from the Wayne Superior
                                                         Court
        v.                                               The Honorable Darrin M.
                                                         Dolehanty, Judge
Indiana Department of Child                              Trial Court Cause No.
Services,                                                89D03-1703-JT-7
Appellee-Plaintiff



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017         Page 1 of 11
[1]   A.H. (Father) appeals following the termination of his parental rights to his

      daughter, C.H. (Child). On appeal, Father argues that the trial court’s

      judgment is not supported by its findings.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Child was born to Y.H. (Mother) and Father in April 2009. Mother died of a

      drug overdose in November 2015, and Father was incarcerated and therefore

      unavailable to care for Child. As a result, the Department of Child Services

      (DCS) placed Child in a relative foster placement with her uncle (Uncle). Child

      was adjudicated a Child in Need of Services (CHINS) on November 18, 2015.


[4]   At the beginning of the CHINS case, DCS could provide only minimal services

      to Father due to his incarceration. Nevertheless, Father participated in the

      Fatherhood Engagement Program (FEP) during his incarceration, and he also

      voluntarily completed a substance abuse program offered at the jail. Father also

      had regular contact with Child during his incarceration—Uncle brought Child

      to the jail to visit a few times and Father called about twice per week.


[5]   Upon his release from jail in June 2016, Father was referred for additional

      services, including a parenting assessment, case management, a substance abuse

      assessment, and individual counseling. Father, who has struggled with

      addiction for many years, requested substance abuse services and individual

      counseling to help him process his grief over Mother’s death. Father obtained


      Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 2 of 11
      employment in August 2016, working first shift as well as significant overtime.

      Father’s work schedule prevented him from participating in most services until

      February 2017, when he took it upon himself to switch to second shift.

      Thereafter, Father became more engaged in services.


[6]   DCS assisted Father in obtaining housing and paid his first month’s rent and

      deposit in October 2016. Before DCS would provide this assistance, Father was

      required to provide paystubs evidencing his ability to pay his rent going

      forward. Nevertheless, Father got behind in rent almost immediately. Father

      could not explain why he was unable to pay his rent, but he admitted that he

      spent $175 on crack cocaine on one occasion. Father also indicated that he had

      bought cigarettes and other miscellaneous items, as well as gifts for Child.

      Additionally, when Family Case Manager (FCM) Scarlett Hughes visited

      Father’s apartment, she was troubled by its condition. There was dog urine on

      the floors, a can of cigarette butts and cigarette ashes all over the floor, the sink

      was full of dirty dishes, and dirty laundry was piling up. Father was also

      allowing another person to live with him in violation of his lease. Father was

      evicted from his apartment, but refused to vacate and continued to reside there

      at the time of the termination hearing. A new eviction complaint was filed

      against him the day before the termination hearing.


[7]   Father admitted to being an addict for twenty years and that his unresolved

      grief over Mother’s death had contributed to his repeated relapses. After his

      release from jail in June 2016, Father maintained sobriety for a few months.

      On October 2016, one of Father’s visits with Child was cancelled due to

      Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 3 of 11
       Father’s intoxication. Additionally, on one occasion in February 2017, FCM

       Hughes went to Father’s apartment and could not get anyone to answer the

       door, although she could hear people inside. After about thirty minutes of

       knocking, FCM Hughes called the police and asked for a wellness check.

       When officers arrived and got Father to come outside, he was stumbling, his

       eyes were red, and he was very agitated. When Father later discussed the

       incident with FCM Hughes, he blamed his intoxication on his grief and

       inability to cope with Mother’s death.


[8]    After switching to second shift in February 2017, Father began participating in

       an intensive outpatient drug treatment program. During the first phase of the

       program, Father was very engaged and appeared to be responding positively.

       Father abstained from using drugs from February until May 2017. Despite his

       continued participation in drug treatment, however, Father relapsed in May

       and continued to use cocaine and opiates up until a week before the termination

       hearing.


[9]    Additionally, on June 21, 2017, Father was fired from his job for missing work.

       Father claimed he was fired because he missed one day due to illness, but he

       did not seek medical attention. Father declined his FEP case manager’s offers

       to help him find another job, claiming at first that he was too ill and later that

       he was too depressed.


[10]   DCS filed a petition to terminate Father’s parental rights on March 2, 2017. A

       factfinding hearing was held on July 13, 2017, and on July 19, 2017, the trial


       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 4 of 11
       court issued its order terminating the parent-child relationship between Father

       and Child.1 Father now appeals. Additional facts will be provided as

       necessary.


                                             Discussion & Decision


[11]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

       and reasonable inferences most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[12]   The trial court entered findings in its order terminating Father’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

       evidence supports the findings, and second, we determine whether the findings

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen




       1
        The trial court’s order was very detailed and thoughtful, and it has been immensely helpful to our
       consideration of the issues before us.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017         Page 5 of 11
       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[13]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[14]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


                 (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.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 6 of 11
                       (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[15]   Father first challenges the trial court’s finding pursuant to subsection (b)(2)(B)(i)

       that there is a reasonable probability that the conditions resulting in Child’s

       removal and continued placement outside his care will not be remedied. In

       making such a determination, the trial court must judge a parent’s fitness to

       care for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation of the child. Id. The trial court may

       properly consider evidence of a parent’s prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and lack of adequate

       housing and employment. A.F. v. Marion Cnty. Office of Family & Children, 762

       N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The court may also

       consider the parent’s response to the services offered through DCS. Lang v.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 7 of 11
       Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App.

       2007), trans. denied.


[16]   Additionally, DCS need not provide evidence ruling out all possibilities of

       change; rather, it need establish only that there is a reasonable probability the

       parent’s behavior will not change. In re Involuntary Termination of Parent-Child

       Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). Although a

       trial court is required to give due regard to changed conditions, this does not

       preclude a finding that a parent’s past behavior is the best predictor of his or her

       future behavior. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).


[17]   The trial court entered the following relevant findings on this issue:


               There is clear and convincing evidence to conclude that the
               reasons why Child was removed from home originally, and the
               barriers that arose subsequent to that removal, will not be
               remedied. Child was taken into protective custody in November,
               2015, because her mother had died, and her father was
               incarcerated. Even while Father was incarcerated, his substance
               abuse problems were identified, and services were initiated to
               address that barrier to reunification. Of his own, Father enrolled
               in and completed a jailhouse substance abuse program. Once
               Father was released from jail, the DCS referred him to a much
               more intensive substance abuse treatment program. Father
               attended the treatment sessions, and moved into the “relapse
               prevention” stage. Despite these efforts, Father has continued to
               abuse illegal drugs. In so concluding, the Court does not
               surrender Father’s treatment as a hopeless cause, or eternize that
               he will never gain some level of control over his addictions.
               Nonetheless, there exists an identifiable and reasonable
               probability that this major obstruction to reunification will not be
               overcome.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 8 of 11
         The parties stipulated that Father’s absence of transportation,
         housing, and income were originally identified as barriers to
         reunification. Father remains without transportation, however,
         there was really no evidence to show that the absence of
         transportation prevented Father from participating in services,
         attending hearings, working, or exercising parenting time.
         Father was able to obtain housing only through financial
         intervention of the DCS, and even then, he was quickly behind
         on rent, was “evicted” (although not removed) from his
         residence, and is now facing another eviction lawsuit. Father
         was employed for a stretch of several months, but has recently
         lost his job, and seems to have given up on finding another. In
         short, Father is back at square one regarding these three barriers
         to reunification, and the evidence supports a reasonable
         probability that he will not be able to address these issues.


Termination Order at 5, ¶ 3.2 Father does not argue that any of the trial court’s

factual findings are unsupported by the evidence. Instead, he directs our

attention to other findings concerning Father’s participation and progress in

services and his bond with Child in support of an argument that the trial court’s

findings do not support its judgment. In other words, Father invites us to

reweigh the evidence and substitute our judgment for that of the trial court,

which we will not do on appeal. The trial court’s conclusion that there is a

reasonable probability that the conditions resulting in Child’s continued

placement outside Father’s care will not be remedied is well-supported by the

evidence and findings.




2
 Father has not included the trial court’s order in his Appellant’s Appendix, but he did electronically file the
order as an attachment to his brief. We therefore cite the order separately.

Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017            Page 9 of 11
[18]   Father also challenges the trial court’s finding that termination of his parental

       rights is in Child’s best interests. In determining whether termination of

       parental rights is in the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

       must subordinate the interest of the parent to those of the child, and the court

       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

       previously held that the recommendations of the case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that the

       conditions resulting in removal will not be remedied, is sufficient to show by

       clear and convincing evidence that termination is in the child’s best interests.”

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[19]   The trial court had the following to say concerning whether termination was in

       Child’s best interests:


               There is clear and convincing evidence to conclude that
               terminating the parent-child relationship is in Child’s best
               interest. [Child] is eight (8) years old, and has lived outside of
               Father’s care for the most recent twenty percent (20%) of her life.
               As Father was already incarcerated at the time [Child] was taken
               into protective custody, that figure is at the low end. (No
               evidence was presented regarding the duration of Father’s

       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 10 of 11
               incarceration prior to [Child] being taken into protective
               custody.) Father is currently using illegal drugs, appears subject
               to eviction from his residence, and is again unemployed. This
               reality means that [Child] is not likely to be returned to Father’s
               care in the near future.


               At the same time, [Child] is thriving in her current placement.
               She is engaged in services; is bright and cheerful, and is well
               cared for and safe in her uncle’s home. The child loves her
               father, and her father loves her in return. Nonetheless, [Child’s]
               bests interests are met through termination of parental rights.


       Termination Order at 5-6, ¶ 4. The trial court’s assessment of the situation is

       persuasive, and we note further that FCM Hughes and the CASA both

       recommended termination of Father’s parental rights and adoption by Uncle.

       Child needs permanency and stability, and she has found both in Uncle’s home.

       Although we do not doubt that Father loves Child very much and wishes to be

       with her, he has demonstrated time and again that he is unable to care for her.

       Indeed, Father admitted to the CASA that he was not even able to take care of

       himself. The trial court’s finding that termination was in Child’s best interest

       was supported by the evidence and findings, as was its judgment terminating

       Father’s parental rights.


[20]   Judgment affirmed.


[21]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1708-JT-1781 | December 29, 2017   Page 11 of 11
