MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Dec 22 2016, 9:18 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        December 22, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         11A04-1606-JT-1224
P.J.H. & J.H. (Minor Children)
                                                         Appeal from the Clay Circuit
and                                                      Court
P.H. (Father),                                           The Honorable Joseph Trout,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause Nos.
v.                                                       11C01-1510-JT-208
                                                         11C01-1510-JT-209
The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016    Page 1 of 10
                                     Case Summary and Issue
[1]   P.H. (“Father”) appeals the juvenile court’s termination of his parental rights to

      eight-year-old P.J.H. and seven-year-old J.H. (“Children”), raising a sole

      restated issue: whether the juvenile court’s termination order is supported by

      clear and convincing evidence. Concluding the termination order is not clearly

      erroneous, we affirm.



                                 Facts and Procedural History
[2]   In 2013, Father, a veteran, and A.A. (“Mother”) were dating and living

      together with the Children in a residence in Brazil, Indiana. 1 Also living in the

      home were Mother’s three other children (“Half-Siblings”) and their father,

      T.A.2 In February 2013, the Indiana Department of Child Services (“DCS”)

      received a report alleging two of the Half-Siblings were underweight, the family

      sometimes had no food in the home, a law enforcement K-9 unit recently

      searched the home, and Mother abused drugs. A week later, DCS confirmed

      law enforcement discovered a methamphetamine lab in the garage and

      marijuana in an upstairs bedroom; DCS then removed the Children from

      Mother’s and Father’s care. On March 4, DCS filed petitions alleging the




      1
          Mother is not part of this appeal.
      2
       Although not clear from the record, it appears Mother and T.A. were married, but Father and Mother were
      dating.

      Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016     Page 2 of 10
      Children were children in need of services (“CHINS”),3 and on June 25, 2013,

      the juvenile court entered an order adjudicating the Children as CHINS and

      ordering Father to participate in reunification services.


[3]   On January 28, 2014, the juvenile court held a permanency hearing and DCS

      presented evidence that Father did not engage with the Children during

      visitation, failed two drug screens and skipped other screenings, missed

      parenting sessions, and failed to follow through with initial efforts to seek

      treatment through the Veterans Administration. The juvenile court then

      approved concurrent plans of reunification and termination of parental rights

      against Father.


[4]   In the summer and early fall of 2014, DCS allowed the Children to return to

      Mother’s and Father’s care on a home trial visit. On November 3, 2014, the

      juvenile court granted DCS’ motion to discharge the CHINS adjudication as to

      P.J.H., but not J.H.4 However, on January 23, 2015, DCS filed another

      petition alleging P.J.H. as a CHINS, citing Mother’s methamphetamine use.

      Both Mother and Father admitted to the material allegations set forth in the

      petition and the juvenile court adjudicated P.J.H. as a CHINS. Several months

      later, DCS requested leave to cease all reunification services, citing Mother’s




      3
       DCS also filed a petition alleging the Half-Siblings were CHINS, but Father is not the father of the Half-
      Siblings and neither Mother nor the Half-Siblings are subject to this appeal.
      4
       The record indicates the reasons for the discharge as to P.J.H. were Mother’s and Father’s reasonable
      compliance with the dispositional decree. As to J.H., DCS noted his condition “declin[ed] drastically”
      during the home trial visit. Transcript at 117.

      Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016          Page 3 of 10
      and Father’s inability to comply with the case plans. As to Father, DCS noted

      Father did not comply with his substance abuse treatment, failed to attend drug

      screenings, and participated in visitation sporadically. DCS also did not believe

      Father could care for the Children. The juvenile court granted DCS’ request

      and ordered the Children’s permanency plan be amended to adoption.


[5]   Around the same time, DCS filed a petition to terminate Father’s and Mother’s

      parental rights to the Children. At an evidentiary hearing, both the family case

      manager and the court-appointed special advocate (“CASA”) opined Father’s

      parental rights should be terminated. Following the evidentiary hearing, the

      juvenile court issued an order terminating Mother’s and Father’s parental

      rights, finding in relevant part,

              19. According to the testimony and the exhibits proffered by
              [DCS], a . . . CHINS case was filed in October 2008. The
              Children, [P.J.H.] and [J.H.] were out of the home for 6 months
              as a result of that CHINS Action. At that time, [Father] and
              [Mother] resided together. In that case, [J.H.] was born with
              methamphetamine in his system and [Mother] tested positive for
              methamphetamine at the time of the birth. The safety of the
              children living in a home with a parent who uses
              methamphetamine and has a history of drug addiction was the
              basis for removal. Also of record in that file is [Father] refused to
              be drug screened.
              20. [The present CHINS] action was brought against both
              parents in March 2013 . . . . In a fact finding hearing as to
              [Mother], it was found and concluded that “there is clear
              evidence that a methamphetamine lab was in operation in the
              garage on the parents’ property which garage is within 15 ft.-30
              ft. of the [C]hildren’s residence, the presence of the lab with its
              chemical component is dangerous to the [C]hildren, [Mother]

      Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 4 of 10
        has a history of prior cases with the department with the
        presenting issue in both cases being [M]other’s use of
        methamphetamine, [M]other admitted to using
        methamphetamine during the investigation of this case and has
        tested positive for methamphetamine since the investigation of
        this case.[”] It should be noted that a similar findings of fact and
        conclusion of law was found as to fathers, T.A. and [Father].
        ***
        22. As to [J.H.] and the 2013 case . . . [Father] has not been fully
        compliant with the child’s case plan in that he has only
        sporadically participated in visits, drugs screens, and services.
        Further, neither [F]ather nor [M]other have enhanced their
        ability to fulfill their parental obligations . . . .
        23. In light of the fact that the 2013 [P.J.H.] CHINS case had
        been dismissed as to that child, it was refiled in January 2015.
        The report indicated that in 2014, DCS made an unannounced
        visit to the home. [Mother] and [Father] had completed drug
        screens and signed a safety plan that stated . . . [Father] would
        not allow the [C]hildren to be alone with [Mother] if he thought
        or knew she was under the influence of drugs. Thereafter, in
        January 2015, [Mother] began testing positive for
        methamphetamine. All parties admitted and disposition was on
        April 22, 2015. Once again, [Mother] and [Father], by
        disposition decree, was [sic] not to allow the use of or consume,
        manufacture, trade, or distribute any illegal controlled substances
        and not permit the possession or consumption of any illegal
        controlled substances in the home or in the presence of the
        [C]hildren.
        ***
        25. According to the testimony, [P.J.H.] does not trust his
        parents to parent and does not feel safe. He has not had visits
        from his mom for a year. Father was incarcerated twice in 2015
        and visited one time after he was most recently released from jail.
        It was the opinion of the supervisors of parenting time that
        [Father] has an inability to watch both [C]hildren. Visits were
        voluntarily stopped by Father due to the emotional impact it was
        having on the [C]hildren, in fact [J.H.] wet the bed every night

Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 5 of 10
        after visiting with his father.
        26. It has been the testimony from multiple witnesses that,
        through no fault of his own, [Father] has cognitive disabilities
        that prevent him from effectively parenting young children
        including one that is autistic. Father himself is under a legal
        guardianship and, according to the witnesses, lacks parenting
        skills and would not be able to take care of these [C]hildren.
        ***
        36. The [C]hildren would be severely traumatized if required to
        visit with their biological parents.
        37. Parents have had multiple prior contacts with DCS and the
        [C]hildren have been removed from their parents by DCS on at
        least three (3) prior occasions.
        38. Father is cognitively unable to parent these [C]hildren, due
        to his own mental health needs.
        39. Father has not complied with the terms of the dispositional
        decree, and was incarcerated a substantial part of the time of the
        pendency of the CHINS matters.
        40. Father has been convicted and put on probation twice for
        possessing controlled substances. [Father] violated the terms of
        that probation by possessing/abusing controlled substances.
        41. The [C]hildren are traumatized and act out behaviorally
        whenever they visit their father.
        42. Father does not engage with [C]hildren during visits and will
        sometimes leave during the visits. Father loves the [C]hildren
        but due to his disability and theirs (especially [J.H.]), he cannot
        provide the necessary education or supervision.
        ***
        45. The [C]hildren are well settled in their current foster family.
        The [C]hildren have a bond with their foster family and their
        foster family with them.
        46. It would severely traumatize the [C]hildren to remove them
        from that home. The [C]hildren have a right to permanency and
        it is in their best interest to be adopted by the foster family. The
        foster family is willing to adopt the [C]hildren.



Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 6 of 10
      Appellant’s Appendix at 18-21. Father now appeals. Additional facts will be

      added as necessary.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   “[T]he involuntary termination of parental rights is an extreme measure that is

      designed to be used as a last resort when all other reasonable efforts have failed

      . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)

      (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be

      proven in order to terminate parental rights, which we quote in relevant part:

                      (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.
              ***
                      (C) that termination is in the best interests of the child . . . .


      The State must prove each element by clear and convincing evidence. Ind.

      Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile

      court determines that the allegations of the petition are true, then the court shall

      terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).




      Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 7 of 10
                                   II. Children’s Best Interests
[7]   Father contends the juvenile court’s termination order is clearly erroneous,

      arguing DCS failed to present clear and convincing evidence to establish

      termination of his parental rights is in the best interests of the Children.                         5




               In determining what is in the best interests of the Children, the
               trial court is required to look beyond the factors identified by the
               Indiana Department of Child Services and to look to the totality
               of the evidence. In so doing, the court must subordinate the
               interests of the parent to those of the children. The court need
               not wait until the children are irreversibly harmed before
               terminating the parent-child relationship. Moreover, we have
               previously held that the recommendation by both the case
               manager and child 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.




      5
        Specifically, it appears Father argues the trial court erred in considering his mental health issues when
      it found Father is cognitively unable to parent the Children due to his mental health needs. We
      acknowledge Father suffers cognitively and note “[m]ental [disability] of the parents, standing alone, is
      not a proper ground for terminating parental rights.” In re V.A., 51 N.E.3d 1140, 1147 (Ind. 2016)
      (alteration in original) (citations and internal quotation marks omitted). However, in cases where
      parents are “incapable of or unwilling to fulfill their legal obligations in caring for their children,”
      mental disability may be considered. Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
      1234 (Ind. 1992). We further note, the focus in determining what is in the best interests of the Children
      is the Children, not the parents, and although we commend and thank Father for his service to this
      country and hope he can receive the treatment he seeks, the evidence in this case—including his
      arrests, lack of participation in services, dependency on others for care and support, and substance
      abuse issues—overwhelmingly establishes Father has not provided the Children with the necessary
      care and support and is incapable of doing so. Thus, the trial court did not err in considering Father’s
      mental health issues in terminating his parental rights.



      Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016            Page 8 of 10
       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App.

       2013) (citations omitted), trans. denied.


[8]    Here, Father does not challenge the juvenile court’s conclusion that there is a

       reasonable probability the conditions resulting in the Children’s removal will

       not be remedied, and both the CASA and the family case manager opined it

       would be in the Children’s best interests for Father’s parental rights to be

       terminated. Accordingly, these findings are sufficient to show by clear and

       convincing evidence that termination is in the Children’s best interests. See id.


[9]    Further, we note “[p]ermanency is a central consideration in determining the

       best interests of a child.” Id. at 1159 (alteration in original) (citation omitted).

       The findings establish the Children, both of whom have special needs, have

       been removed from Father’s care on multiple occasions. Moreover, DCS

       expressed concern because after one of the trial home visits, the Children “each

       lost at least one or two clothing sizes . . . they had lost so much weight they

       were emaciated and quite undernourished.” Tr. at 116. Since the Children

       have been in their foster home, “They have done well. They attend school

       regularly . . . . And they’re progressing. They’re maturing. They look healthy.

       They’ve gained weight. They look well.” Id. at 44.


[10]   We therefore conclude DCS established by clear and convincing evidence that

       termination of Father’s parental rights is in the best interests of the Children.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 9 of 10
[11]   DCS established by clear and convincing evidence the elements necessary to

       support the termination of Father’s parental rights. The judgment of the

       juvenile court terminating Father’s parental rights is affirmed.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A04-1606-JT-1224 | December 22, 2016   Page 10 of 10
