MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 05 2017, 10:32 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
Lisa M. Johnson                                           Curtis T. Hill, Jr.
Brownsburg, Indiana                                       Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          October 5, 2017
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: C.H. (Minor                              49A04-1705-JT-1144
Child)                                                    Appeal from the Marion Superior
C.C. (Father),                                            Court
                                                          The Honorable Marilyn A.
Appellant-Respondent,
                                                          Moores, Judge
        v.                                                The Honorable Larry E. Bradley,
                                                          Magistrate
                                                          Trial Court Cause No.
The Indiana Department of
                                                          49D09-1609-JT-1070
Child Services,
Appellee-Petitioner



Baker, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017            Page 1 of 13
[1]   C.C. (Father) appeals the juvenile court’s order terminating his parent-child

      relationship with C.H. (Child). Father argues that there is insufficient evidence

      supporting the juvenile court’s conclusion that continuation of the parent-child

      relationship poses a threat to Child’s well-being. Finding the evidence

      sufficient, we affirm.


                                                          Facts
[2]   On May 31, 2012, Child was born to Father and Ce.H. (Mother).1 At birth,

      Child’s meconium tested positive for illegal substances. As a result, the

      Department of Child Services (DCS) became involved with the family. Mother

      and Father entered into a program of Informal Adjustment (IA) to address

      substance use, and the IA closed successfully on May 1, 2013. Mother and

      Child resided with Child’s Maternal Grandmother as a condition of the IA; as

      soon as the IA closed, Mother and Child moved in with Father.


[3]   In 2013, Child and parents moved at least twice; one of those moves occurred

      after the parents were evicted from their residence for failing to make timely

      rent payments. At some point during that year, conflict arose in the parents’

      relationship and they resumed using illegal drugs.




      1
          Mother has consented to Child’s adoption and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 2 of 13
[4]   In May 2015, the parents asked Child’s Paternal Grandmother to care for

      Child.2 Paternal Grandmother has a history of dealing in illicit substances, a

      history of substance abuse, and a current prescription for suboxone—a

      medication used to help wean people off addictive substances.


[5]   On September 19, 2015, DCS filed a petition alleging that Child was a Child in

      Need of Services (CHINS) because of parents’ drug use, unstable housing, and

      failure to care for Child. At the initial hearing, Child was removed from

      Paternal Grandmother and placed with Maternal Grandmother. Child has

      been placed with Maternal Grandmother since that time, and Maternal

      Grandmother plans to adopt Child if the termination order becomes final. On

      September 25, 2015, Father admitted that Child was a CHINS because Father

      needed “assistance maintaining a stable home free from substance abuse . . . .”

      DCS Ex. 20 p.2. The CHINS court ordered Father to submit to random drug

      screens, to complete substance abuse and parenting assessments and comply

      with any recommendations stemming from those assessments, and to complete

      home based therapy and case management.


[6]   At the time the CHINS petition was filed, Child was defiant, oppositional,

      disruptive, and inappropriate. The three-year-old was not potty-trained and had

      become dependent on suppositories to defecate. Child was placed in therapy,

      and her therapist diagnosed her with general anxiety disorder, separation




      2
       Father claims that they granted “temporary legal guardianship” to Paternal Grandmother, but there is no
      documentation in the record establishing that any action was taken in a court of law. Appellant’s Br. p. 8.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017           Page 3 of 13
      anxiety disorder, and oppositional defiant disorder. Child’s therapist found that

      Child was inappropriately clingy and afraid to be away from Maternal

      Grandmother, that Child’s anxiety about Mother’s safety was very high, and

      that her fear of abandonment by a caregiver was significant.


[7]   Generally, the therapist testified that Child has experienced trauma as a result

      of “not having consistency and stability in her life and . . . being fearful and

      uncertain that people are going to stay.” Tr. p. 12. While in therapy, Child

      made progress towards goals of decreasing negative behaviors and dealing with

      issues related to separation anxiety. The therapist believed that the progress

      was the result of the “consistency and the stability” in her living environment

      with Maternal Grandmother, id. at 16, and that Child experienced significant

      regressions in behavior “when visits started and ended with her dad,” id. When

      Child regressed, “[s]he started defecating on herself quite a bit. More tantrums

      and more defiance and more opposition.” Id. The therapist testified that Child

      needs “that stability and that consistency, that is really important. She needs to

      feel secure and safe.” Id. at 17. If Child did not have stability and consistency,

      she would be harmed because “it would be difficult for her to learn how to

      function in a normal way if she constantly has anxiety and doesn’t feel safe and

      secure where she is.” Id. at 20.


[8]   The therapist testified that Father never completed the parenting assessment

      and did not stay in contact about Child’s therapy. The therapist had not heard

      from Father between May 2016 and the time of the termination hearing in

      March 2017. As a result of the lack of contact with Father, the therapist was

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 4 of 13
       unable to determine whether there was a bond between Father and Child or

       whether there were appropriate interactions between them.


[9]    During the CHINS case, Father did not submit to regular random drug screens,

       though he did so sporadically. He was discharged from home based therapy

       and case management for failure to participate. He started a parenting

       assessment but did not complete it.


[10]   Father was using illegal substances when the case opened, continued to use

       until early 2016, was sober for three months, resumed using in the summer of

       2016, and last used when he was participating in substance abuse treatment in

       November 2016. Although he technically completed an intensive outpatient

       program, DCS did not believe he had completed it successfully because he

       admitted that he had used heroin and/or prescription drugs for which he did

       not have a prescription during the program. At the time of the termination

       hearing, Father was successfully participating in a relapse prevention program

       and individual therapy.


[11]   During the CHINS case, Father’s parenting time with Child has always been

       supervised. His parenting time has been suspended twice—first, in January

       2016, after Father admitted to ongoing substance abuse. His visits were

       reinstated after thirty days of consistent participation in services and negative

       drug screens. His visits again ceased in May 2016 and were officially

       suspended in September 2016 after Father provided positive drug screens and

       admitted that he had relapsed. Tr. p. 62. He was not able to provide thirty


       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 5 of 13
       days of consistent participation in services and negative drug screens after that

       time, so at the time of the March 2017 termination hearing, he had not seen

       Child since May 2016.


[12]   In September 2016, the CHINS court changed Child’s permanency plan to

       adoption over Father’s objection because, among other things, Father “has been

       sporadic in his participation in services and is still testing positive for illicit

       substances.” DCS Ex. 7 p.2. On September 26, 2016, DCS filed a petition to

       terminate the parent-child relationship between Father and Child. The juvenile

       court held an evidentiary hearing on the petition on March 8 and April 13,

       2017. On May 5, 2017, the juvenile court granted the petition, finding, in

       relevant part, as follows:


               11.      [Father] completed two intensive outpatient programs but
                        lapsed at least three times in 2016. His last lapse, with
                        opiates, did occur at the end of his intensive outpatient
                        substance abuse program.


                                                        ***


               17.      [Father] has not maintained independent stable housing,
                        and is currently residing with a roommate without a lease.


                                                        ***


               21.      [Father] has not seen [Child] since May of 2016. He has
                        not requested visits although he did participate in services.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 6 of 13
        22.      [Child] has had weekly therapy sessions for the past year
                 with India Anderson to decrease her display of negative
                 behavior, and to explore trauma.


        23.      [Child] presented to her therapist with oppositional
                 defiance disorder and separation anxiety.


        24.      Therapist Anderson believes [Child] would regress from
                 progress if visits with [Father] started and stopped again.


        25.      [Father] has not contacted [Child’s] therapist since May of
                 2016.


        26.      [Child] has been placed with her maternal grandmother for
                 the past eighteen months. She has been around her
                 grandmother her whole life and [s]pent the first eight
                 months of her life residing in grandmother’s home.


        27.      [Father] has not contacted grandmother to inquire as to
                 [Child’s] well-being.


                                                 ***


        29.      [Child] needs to feel safe and secure to thrive.
                 Grandmother is providing the needed consistency,
                 stability, love and special attention [Child] requires.


        30.      [Child] has been observed as being attached and bonded
                 with her grandmother.


        31.      The Court cannot find that a parent-child bond exists
                 between [Child] and [Father] at this time.


Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 7 of 13
               32.      Continuation of the parent-child relationship poses a threat
                        to [Child’s] well-being in that it would pose as a barrier to
                        obtaining permanency for her in a stable and consistent
                        environment and one where she has bonded and is having
                        all her needs, including special needs[,] met.


                                                        ***


               34.      Based on [Father’s] inconsistency over time, and the
                        progress [Child] has made in her stable placement,
                        [Child’s] Guardian ad Litem recommends adoption as
                        being in [Child’s] best interests.


               35.      Termination is in the best interests of [Child].
                        Termination would allow her to be adopted into a stable
                        and permanent home where she can continue to progress
                        and have her needs met.


       Appellant’s App. p. 17-18. Father now appeals.


                                    Discussion and Decision

                                       I. Standard of Review
[13]   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 of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 8 of 13
       court entered findings of fact and conclusions of law, we will not set aside the

       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).


[14]   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 49A04-1705-JT-1144 | October 5, 2017   Page 9 of 13
               (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.


[15]   Father’s only argument on appeal is that there is insufficient evidence

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

       the continuation of the parent-child relationship poses a threat to Child’s well-

       being. Therefore, we need not and will not consider the trial court’s

       conclusions that termination is in Child’s best interests or that the remaining

       statutory elements have been satisfactorily met.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 10 of 13
                             II. Threat to Child’s Well-Being
[16]   It is well established that a trial court need not wait until a child’s physical,

       mental, and social growth are permanently impaired before terminating the

       parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.

       2002). Therefore, termination is appropriate “[w]hen the evidence shows that

       the emotional and physical development of a [CHINS] is threatened . . . .” Id.

       In evaluating whether the continuation of the parent-child relationship poses a

       threat to the child, a trial court “should consider a parent’s habitual pattern of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation” while also judging a parent’s fitness to care for his child as of

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

       changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012).


[17]   In this case, there is a wealth of evidence that Child’s emotional and physical

       development are threatened if her relationship with Father continues. The

       instability of her first few years of life resulted in a variety of diagnoses,

       including separation anxiety disorder and oppositional defiant disorder, and in

       significant challenges related to toilet training. With regular therapy and a

       stable home environment, Child’s physical and emotional health began to

       improve in many ways, but she experienced significant regressions whenever

       visits with Father resumed. Child’s therapist testified that if Child did not have

       stability and consistency in her life, she would be harmed because “it would be

       difficult for her to learn how to function in a normal way if she constantly has

       anxiety and doesn’t feel safe and secure where she is.” Tr. p. 20.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 11 of 13
[18]   And even as Child desperately needs stability and consistency, the record

       reveals that Father has a history of neither. During the CHINS case, he

       participated inconsistently with most court-ordered services, with multiple

       services being closed out unsuccessfully because of his lack of participation.

       Furthermore, although he completed substance abuse treatment, he relapsed at

       least three times during the life of the CHINS case. The longest period of time

       during which he was able to maintain sobriety was three months. Father also

       has a history of unstable housing, and while he had a place to live at the time of

       the termination hearing, he was not on a lease and was living with his mother,

       who has a history of dealing in illicit substances, a history of substance abuse,

       and a current prescription for suboxone.


[19]   The record also reveals that Father and Child did not have a significant bond by

       the time of the termination hearing. When she was removed from his care and

       custody at the beginning of the CHINS case, she had lived with a grandparent

       for more than half of her life. And during the CHINS case, Father’s visits were

       suspended twice because of his ongoing substance abuse. Although he

       completed the court-ordered requirements after the first suspension such that

       visits were reinstated, he was unable to fulfill those same requirements after the

       second suspension. Therefore, his visits were not reinstated, and at the time of

       the termination hearing, he had not seen Child for the previous ten months. He

       attended only two of the many child and family team meetings during the

       CHINS case and did not make a significant effort to stay in touch with Child’s

       therapist or Maternal Grandmother.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 12 of 13
[20]   We acknowledge and applaud the success Father seems to have had in the few

       months leading up to the termination hearing. He was participating in

       individual therapy and a relapse prevention program, apparently achieving

       success in both arenas. Unfortunately, however, he failed to take advantage of

       the opportunity to show an ability to maintain such successes and stability over

       a longer period of time during the CHINS case. The juvenile court was

       reasonable in concluding that Father’s long history of instability and

       inconsistency outweighs the recent gains he had made at the time of the

       termination hearing. Given Child’s need for stability and consistency and

       Father’s inability to assure either, the juvenile court did not err by finding that

       DCS had proved by clear and convincing evidence that the continuation of the

       parent-child relationship posed a threat to Child’s well-being. In other words,

       we find the evidence sufficient to support the juvenile court’s termination order.


[21]   The judgment of the juvenile court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-JT-1144 | October 5, 2017   Page 13 of 13
