MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jan 31 2020, 7:43 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
Amy Karozos                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              January 31, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
E.S. (Minor Child) and                                    19A-JT-1767
J.H. (Father),                                            Appeal from the Greene Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Erik C. Allen,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               28C01-1902-JT-3
Services,
Appellee-Petitioner.



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020           Page 1 of 15
[1]   J.H. (“Father”) appeals the Greene Circuit Court’s order terminating his

      parental rights to his minor child, E.S. He raises two issues, which we restate

      as:


        I. Whether Father was denied due process when the trial court drew a
           negative inference from Father’s invocation of his Fifth Amendment
           privilege against self-incrimination; and,

       II. Whether the trial court’s order terminating Father’s parental rights is
           supported by clear and convincing evidence.

[2]   We affirm.


                                  Facts and Procedural History
[3]   K.S. (“Mother”) gave birth to E.S. on May 9, 2016. In October 2017, Mother

      and Father were found unconscious in a vehicle and in possession of

      methamphetamine, marijuana, and syringes. One-year-old E.S. was removed

      from Mother’s and Father’s care due to the parents’ pending drug charges and

      on-going substance abuse issues. In addition, Father was in violation of a no-

      contact order obtained by Mother. On October 24, 2017, DCS filed a petition

      alleging that E.S. was a child in need of services (“CHINS”). E.S. was placed

      with her maternal great grandparents.


[4]   The trial court found that E.S. was a CHINS and issued a parental participation

      order. Father was ordered to refrain from alcohol and drug use, participate in

      homebased counseling, complete a substance abuse assessment, submit to

      random drug screens, maintain stable housing and a legal source of income,

      and comply with any no contact orders. Father did not comply with the ordered
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 2 of 15
      services and failed to appear at three review hearings held on March 19, July 9,

      and October 16, 2018. Father also failed to consistently visit with E.S.


[5]   On June 7, 2018, Father pleaded guilty to Level 6 felony possession of

      methamphetamine and was ordered to serve eighteen months in the Greene

      County Jail with all but 150 days suspended. After Father was released from

      jail, DCS made a referral for supervised visitation, a substance abuse

      assessment, and treatment at the Hamilton Center. Father missed several

      sessions of his substance abuse program and was required to restart the program

      three times between August 2018 and February 2019. Father also had positive

      drug screens in January and February 2019.


[6]   Because Father tested positive for methamphetamine and/or THC, on January

      24, 2019, the State filed a petition to revoke his suspended sentence. In March

      2019, Father admitted to the allegations in the petition and agreed to serve 210

      days in a work release program. Father began to participate in DCS-referred

      services while he was serving his sentence in work release.


[7]   On February 12, 2019, DCS filed a petition to involuntarily terminate Mother’s

      and Father’s parental rights to E.S. Fact-finding hearings were held on April 17

      and June 19, 2019. Prior to the hearing, Mother agreed to voluntarily relinquish

      her parental rights to E.S. With regard to Father, the family case manager

      (“FCM”) and court appointed special advocate (“CASA”) agreed that he failed

      to address his substance abuse issues or demonstrate ability to provide a stable




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 3 of 15
      home for E.S. They also testified that termination of Father’s parental rights

      was in E.S.’s best interests. Tr. pp. 144–45, 171–72.


[8]   On June 10, 2019, the State filed a petition to revoke Father’s probation

      alleging that Father tested positive for methamphetamine in May 2019. On the

      date of the June 19, 2019 hearing Father was incarcerated as a result of the

      petition to revoke. At the hearing, DCS moved to admit the June 10, 2019

      petition to revoke Father’s suspended sentence. Father objected. The trial court

      admitted the exhibit for the limited purpose of establishing that the State had

      filed a petition to revoke Father’s probation. DCS then called Father as a

      witness. Father invoked his Fifth Amendment right against self-incrimination

      and refused to testify because of the pending criminal case.


[9]   On July 3, 2019, the trial court issued its order involuntarily terminating

      Father’s parental rights to E.S. finding in pertinent part:


              6. The father testified at the hearing conducted on April 17, 2019,
              but then asserted his 5th Amendment Privilege and did not testify
              when called by DCS at the hearing conducted on June 19, 2019.
              During his testimony the father acknowledged that he had not
              successfully completed his substance abuse program and was not
              aware that he had been required to re-start the group program 3
              times. The father further acknowledged that he had not
              completed the substance abuse program because he is a
              “struggling addict.” As of April 17, 2019, the father admitted that
              he continues to use methamphetamine and marijuana. The father
              testified that he believes the root of his addiction is childhood
              trauma that involved the loss of his mother when he was 14, and
              he has not had counseling or otherwise addressed this childhood
              issue. The father acknowledged that he did not comply with

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 4 of 15
        services the first 8-9 months of the CHINS case because he felt
        hopeless. More recently the father has attended visits with the
        child and the visits have gone well and without any issues.


        7. Drug screens were admitted that were collected on December
        21, 2018, January 2, 10, 16, 24, and 28, 2019, and February 25,
        2019, and all screens were positive for methamphetamine, and
        several were positive for marijuana as well.


        8. Kent Huber is a therapist with Hamilton Center and a referral
        was made for him to provide services to the father beginning in
        August 2018. Mr. Huber’s services began after the father decided
        to comply with services after being non-compliant the first 8-9
        months of the CHINS case. Mr. Huber’s group program is based
        on the Matrix Program and requires attendance at 2 meetings
        each week for 12 weeks (total of 24 meetings) and a client cannot
        miss more than 3 meetings without having to start over. The
        father was required to start over 3 times due to missing too many
        meetings and never successfully completed Mr. Huber’s program.
        Mr. Huber testified that attendance is paramount to being
        successful in the program. The father had very inconsistent
        attendance at the group meetings and Mr. Huber characterized
        the father’s progress with substance abuse treatment as “fairly
        minimal” until after the first TPR hearing on April 17, 2019.
        After the first TPR hearing on April 17, 2019, the father attended
        15 sessions in a row while he was in the Greene County
        Community Corrections Work Release Program. The father’s
        attendance ended when he was again incarcerated. Mr. Huber
        observed that the father participated well in group when he
        attended, but he has a limited support system and a strong
        support system is important. The father was referred for
        individual therapy at Hamilton Center but only had one session
        due to his work schedule, attending group sessions, and a lack of
        availability of staff at Hamilton Center. Mr. Huber opined that
        the program provided for the father was the appropriate service
        to meet his needs and address his addiction.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 5 of 15
        9. [Father] was charged . . . with Possession of
        Methamphetamine, a Level 6 felony, Invasion of Privacy, a class
        A misdemeanor, and Possession of Marijuana, a class B
        misdemeanor, and pled guilty to and was convicted of Possession
        of Methamphetamine, a Level 6 felony. In this same case a
        Petition to Revoke Suspended Sentence and an Amended
        Petition to Revoke Suspended Sentence have been filed that
        allege a violation of probation due to multiple positive drug
        screens, and a Negotiated Plea Agreement has been filed but an
        admission hearing had not yet been conducted at the time of the
        TPR hearings.


        10. On June 10, 2019, a new Petition to Revoke Suspended
        Sentence was filed . . . that alleges the father tested positive for
        methamphetamine on drug screens administered on May 24,
        2019 and May 29, 2019. This Petition is the basis for the father
        asserting his 5th Amendment Privilege to not testify and DCS
        requested the Court draw an adverse inference against the father
        for asserting this privilege. The Court does draw an adverse
        inference that the father violated probation due to continued
        substance abuse as alleged in the Petition to Revoke Suspended
        Sentence. This alleged substance abuse is during the period of
        time after the first TPR hearing on April 17, 2019, during which
        the father regularly attended group meetings while in work
        release and claims to be finally serious about rehabilitation.


        11. Sahrayah Blackburn was appointed as the child’s Court
        Appointed Special Advocate (“CASA”) on or about July 2, 2018.
        The child was born with a heart defect and continues to have
        significant heart issues that require annual check-ups and close
        monitoring during many activities and in many circumstances.
        The CASA has observed the father to display periodic motivation
        in services with a quick lack of follow through. The CASA
        observed that the father’s only sustained participation in services
        was after the first TPR hearing on April 17, 2019, during the time
        that he was in work release and he was in a structured and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 6 of 15
        monitored environment. However, the father’s sustained
        participation ended when he was re-arrested on the latest
        [petition to revoke] (see paragraph 10 above). During the
        CASA’s involvement the father has not successfully completed
        any services and she testified that he continues to use
        methamphetamine and marijuana. The father has been arrested
        four times during the life of the CHINS case and remains
        incarcerated at the time of the second TPR hearing on June 19,
        2019. The CASA has observed the father to have a consistent
        pattern of short-term sobriety and then return to drug use. The
        CASA acknowledged that there were no concerns noted during
        the father’s visits with the child and that the father and child have
        a bond, but she opined that termination of the parent-child
        relationship is in the best interest of the child. She further opined
        that the child is thriving in a stable and consistent home with the
        maternal grandparents and they are willing to adopt the child.
        The CASA testified that she believes the appropriate services
        have been referred for the father to meet his needs.


        12. Ethan Brown has been the on-going FCM since January 23,
        2019 . . . . FCM Brown has not observed any problems with the
        father interacting with services providers, however, he observed
        that the father was not substantially compliant with substance
        abuse treatment, random drug screens, or visits, during times that
        he was not in jail or work release. Through his involvement in
        the case FCM Brown opined that the father has not made any
        significant progress in addressing the underlying issues of
        substance abuse, transportation, housing, or stability in his life.
        At a case and family team meeting (“CFTM”) on April 25, 2019,
        the father refused to discuss or address an alternative plan if the
        child was in his care and he had a relapse, and the father would
        only say he is not going to use. . . .


        13. The Court finds persuasive the evidence presented by CASA
        and FCM Brown that the father has a history of short term
        sobriety followed by a return to his previous substance abuse, and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 7 of 15
               that the recent compliance with services after the first TPR
               hearing on April 17, 2019, was a result of being a resident in the
               work release program and having the services scheduled into his
               day. Due to the father’s continued pattern of using
               methamphetamine and marijuana, with short periods of
               compliance and sobriety, that has repeatedly resulted in his
               incarceration up to the current time, it is unlikely that the
               conditions that resulted in the child’s removal will be remedied.


       Appellant’s App. pp. 9–11. The trial court also concluded that termination of

       Father’s parental rights was in E.S.’s best interests.


[10]   Father now appeals the trial court’s order involuntarily terminating his parental

       rights to E.S.


                                          Standard of Review
[11]   Indiana appellate courts have long had a highly deferential standard of review

       in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,

       871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness

       credibility. Id. We consider only the evidence and reasonable inferences

       favorable to the trial court’s judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which leaves us with a definite and firm conviction that a mistake has been

       made. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 8 of 15
[12]   Father does not challenge any of the trial court’s factual findings as being

       clearly erroneous. We therefore accept the trial court’s findings as true and

       determine only whether these unchallenged findings are sufficient to support

       the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.

       denied); see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.

       App. 2012) (holding that when the trial court’s unchallenged findings support

       termination, there is no error), trans. denied.


                                         I. Father’s Refusal to Testify

[13]   During the April 2019 fact-finding hearing, Father testified that he was a drug

       addict and continued to use methamphetamine and marijuana. Tr. pp. 24–25.

       The hearing was continued to June 19, 2019, at which DCS called Father to

       testify. Father asserted his Fifth Amendment right against self-incrimination.

       Tr. pp. 126–27. DCS requested “an adverse inference be drawn against [Father]

       for refusing to testify. The adverse inference being that his testimony, if truthful,

       would be harmful to his case in this TPR trial.” Tr. p. 128.


[14]   In addition, over Father’s objection, the trial court admitted DCS Exhibit 4.1

       which contained the State’s June 10, 2019 Petition to Revoke [Father’s]

       Suspended Sentence. Ex. Vol., Ex. 4.1. The State alleged that Father’s

       suspended sentence should be revoked because Father tested positive for

       methamphetamine on May 24 and May 29, 2019. Id. The trial court admitted

       the exhibit for the limited purpose of establishing that the probation revocation

       petition was pending. Tr. p. 131.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 9 of 15
[15]   In its finding of facts and conclusions of law, the trial court drew “an adverse

       inference that the father violated probation due to continued substance abuse as

       alleged in the Petition to Revoke Suspended Sentence. This alleged substance

       abuse is during the period of time after the first TPR hearing on April 17, 2019,

       during which the father regularly attended group meetings while in work release

       and claims to be finally serious about rehabilitation.” Appellant’s App. p. 10.

       Father argues that the trial court violated his due process rights when it drew an

       adverse inference from the invocation of his Fifth Amendment privilege against

       self-incrimination.


[16]   Our supreme court recently addressed this issue in Matter of Ma.H., 134 N.E.3d

       41, 46–47 (Ind. 2019), where they observed that “in any proceeding—civil or

       criminal—the Fifth Amendment protects an individual from being compelled to

       answer questions when the answers might be used in a future criminal

       proceeding.” Id. at 46 (citations omitted). Consequently, “in CHINS and TPR

       proceedings, a court may not compel a parent’s admission to a crime—if the

       admission could be used against him or her in a subsequent criminal

       proceeding—under the threat of losing parental rights.” Id. at 46–47 (citing

       Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977) (“[W]hen a State compels

       testimony by threatening to inflict potent sanctions unless the constitutional

       privilege is surrendered, that testimony is obtained in violation of the Fifth

       Amendment[.]”)); In re A.D.L., 402 P.3d 1280, 1285 (2017) (collecting cases)).


[17]   However, our supreme court has held that in CHINS and termination

       proceedings, a trial court may “draw a negative inference from a claim of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 10 of 15
       Fifth Amendment privilege against self-incrimination.” In re Ma.H., 134 N.E.3d

       at 47. Therefore, it was not improper for the court to infer that Father violated

       his probation in May 2019 by using methamphetamine as alleged in the State’s

       petition to revoke his probation. And, as is addressed below, even without

       considering Father’s most recent probation violation, the evidence is more than

       sufficient to support the trial court’s order terminating Father’s parental rights.

       For this reason, we note that even if the trial court had erred by drawing a

       negative inference from Father’s invocation of his Fifth Amendment right

       against self-incrimination, the error would be harmless. See Everhart v. Scott Cty.

       Office of Family & Children, 779 N.E.2d 1225, 1232 (Ind. Ct. App. 2002), trans.

       denied.


                                     II. Clear and Convincing Evidence

[18]   Father also argues that the trial court’s order involuntarily terminating his

       parental rights is not supported by clear and convincing evidence. Indiana Code

       section 31-35-2-4(b)(2) provides that a petition to terminate parental rights must

       allege:


                 (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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 11 of 15
                        (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.

[19]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). But because Indiana

       Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

       required to find that only one prong of subsection 4(b)(2)(B) has been

       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010).


[20]   Clear and convincing evidence need not establish that the continued custody of

       the parent 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). It is instead

       sufficient to show by clear and convincing evidence that the child’s emotional

       and physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

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


[21]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 12 of 15
       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d at 1259.


[22]   First, Father claims that the trial court clearly erred by concluding that there

       was a reasonable probability that the conditions that resulted in E.S’s removal

       from his care, or the reasons for E.S.’s continued placement outside Father’s

       home, would not be remedied. When considering whether DCS has proven this

       factor by clear and convincing evidence, the trial court must determine a

       parent’s fitness to care for the child at the time of the termination hearing while

       also taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

       Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

       denied. The trial court may disregard efforts made only shortly before

       termination and give more weight to a parent’s history of conduct prior to those

       efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).


[23]   Father argues that the evidence is insufficient to support this factor because he

       “had been consistently participating in visitation and substance abuse treatment

       in the weeks leading up to his arrest.”1 Appellant’s Br. at 22. But Father fails to




       1
         Several pleadings, orders, and the chronological case summary in Father’s pending criminal case were
       admitted into evidence at the fact-finding hearings. Ex. Vol., Exs. 4, 4.1. Therefore, we do not think it would
       be inappropriate to take judicial notice of the updated chronological case summary in Father’s pending
       criminal case. See e.g. Matter of D.P., 72 N.E.3d 976, 984 (Ind. Ct. App. 2017) (citing Horton v. State, 51 N.E.3d
       1154, 1161–62 (Ind. 2016) (discussing judicial notice in light of the fact that court records are now more
       readily available due to implementation of the Odyssey case management system)). The petition to revoke
       Father’s probation alleging that he used methamphetamine twice in May 2019 is still pending, and two
       amended petitions to revoke his probation have been filed. The trial court issued a warrant for Father’s arrest
       after the second amended petition to revoke his suspended sentence was filed. Father also failed to appear for
       an evidentiary hearing on August 21, 2019.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020                   Page 13 of 15
       acknowledge his extensive history of drug abuse, criminal convictions, and

       probation violations. He has not demonstrated ability to refrain from substance

       abuse and criminal conduct for any significant duration. Throughout the

       CHINS and termination proceedings, Father was unable to complete substance

       abuse treatment. He also attended only one session of individual therapy during

       these proceedings. Father has been able to maintain sobriety only when he is in

       structured and monitored environment, such as work release. Father’s habitual

       conduct established that he cannot maintain a law-abiding and sober life. For

       all of these reasons, we conclude that clear and convincing evidence supports

       the trial court’s determination that there is a reasonable probability that the

       conditions that resulted in E.S’s removal from Father’s care, or the reasons for

       E.S.’s continued placement outside his home, would not be remedied.2


[24]   Father also argues that the trial court clearly erred in concluding that

       termination of his parental rights was in E.S.’s best interests. In determining

       what is in the best interests of a child, the trial court must look beyond the

       factors identified by DCS and look to the totality of the evidence. A.D.S., 987

       N.E.2d at 1158. In so doing, the trial court must subordinate the interests of the

       parent to those of the child and need not wait until the child is irreversibly

       harmed before terminating the parent-child relationship. Id. Moreover, a




       2
        Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address
       Father’s additional claim that DCS failed to prove that continuation of the parent-child relationship threatens
       E.S.’s well-being. In re A.K., 924 N.E.2d at 220.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020                 Page 14 of 15
       recommendation by the case manager or a child advocate is sufficient to show

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

       Id. at 1158–59.


[25]   The family case manager and CASA both testified that terminating Father’s

       parental rights was in E.S.’s best interests. Tr. pp. 144–45, 171–72. Father’s

       continued substance abuse and frequent incarcerations demonstrate that he is

       unable to provide and maintain a stable home for himself, much less an

       adolescent child. E.S. has been in her grandparents’ care throughout these

       proceedings and is thriving in that placement. For all of these reasons, we

       conclude that clear and convincing evidence supports the trial court’s finding

       that termination of Father’s parental rights is in E.S.’s best interests.


                                                 Conclusion
[26]   Father has not established that the trial court violated his due process rights by

       drawing an adverse inference from Father’s invocation of his Fifth Amendment

       privilege against self-incrimination. And overwhelming evidence supports the

       trial court’s decision to terminate his parental rights to E.S. We therefore affirm

       the trial court’s order involuntarily terminating Father’s parental rights.


[27]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1767 | January 31, 2020   Page 15 of 15
