MEMORANDUM DECISION
                                                                 Sep 18 2015, 8:44 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael B. Troemel                                       Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 18, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of:                                                      79A05-1412-JT-602
Br.H. & Be.H. (Minor Children),                          Appeal from the Tippecanoe
                                                         Superior Court
and
                                                         The Honorable Faith A. Graham,
C.H. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause Nos.
                                                         79D03-1405-JT-19
        v.                                               79D03-1405-JT-20

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 1 of 10
      Baker, Judge.


[1]   Father appeals the judgment of the juvenile court terminating his parental

      relationship with two of his children, Br.H. and Be.H., arguing that there is

      insufficient evidence supporting the order. Finding sufficient evidence

      supporting the termination order, we affirm.


                                                          Facts
                                               Prior DCS History
[2]   In July 2009, the Indiana Department of Child Services (DCS) received a report

      regarding two of Father’s children, K.H. and C.N.H.1 DCS found them

      physically abused, dirty, and unkempt. They were living in a trailer that lacked

      all utilities other than a generator used to power the television and the water

      heater. When K.H. and C.N.H. were removed a week later, they tested

      positive for methamphetamine and cocaine. The children were found to be

      children in need of services (CHINS), and Father tested positive for drugs

      throughout the CHINS case. On February 25, 2011, the trial court

      involuntarily terminated Father’s parental rights over K.H. and C.N.H., finding

      that he had failed to participate in services and court hearings; had missed ten

      out of twelve visits with K.H. and C.N.H.; was discharged from services due to




      1
          These children are not at issue in this case.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 2 of 10
      non-compliance; and had an extensive history of failure to maintain sobriety.

      Tr. Ex. 25 p. 4.


[3]   Mother and Father are the parents of Br.H., born in June 2010, and Be.H., born

      in June 2013.2 A month after Br.H.’s birth, DCS filed a petition alleging that he

      was a CHINS after he was born testing positive for opiates and was suffering

      from withdrawal symptoms. Father refused to participate in a drug screen and

      indicated that he was homeless. Based on the parent’s admissions, the juvenile

      court adjudicated Br.H. to be a CHINS on July 29, 2010. In August 2010, the

      court ordered Father to participate in services. Eventually, the juvenile court

      closed the CHINS case in January 2012, despite finding in December 2011 that

      Father had been essentially non-compliant.


                                              Current DCS Case
[4]   On June 17, 2013, DCS removed Br.H and Be.H. three days after Be.H. was

      born testing positive for drugs and suffering from withdrawal symptoms. DCS

      filed a CHINS petition for both children on June 19, 2013, which the court

      granted based on the parents’ admissions of drug use.


[5]   The juvenile court held a hearing on July 8, 2013, and issued parental

      participation and dispositional decrees. The juvenile court ordered

      reunification services with Father, including substance abuse assessments and




      2
          Mother is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 3 of 10
      treatment, parenting assessments, home-based case management services,

      individual counseling, random drug screens, and supervised visits. In August

      2013, the court found Father in contempt, finding that he had failed to

      participate in a substance abuse assessment, failed to attend visitation, failed to

      participate in individual counseling, provided a diluted urine sample, tested

      positive for suboxone, failed to participate in a “supportive living facility,”

      failed to participate in home-based case management, and had an outstanding

      warrant. Tr. Ex. 1 at p. 33. Father was incarcerated for contempt from

      November 2013 to January 2014. After his release, Father was again found in

      contempt of court on April 3, 2014, because he had tested positive for

      methamphetamine in March 2014.


[6]   On May 19, 2014, DCS filed a termination of parental rights petition regarding

      Br.H. and Be.H. The juvenile court conducted factfinding hearings on August

      13, October 17, and November 3, 2014. On December 9, 2014, the juvenile

      court granted the termination petition, finding, among other things, that

      “Father has a long-standing history of instability, substance abuse, and criminal

      behavior.” Appellant’s Br. 15.3 It further concluded, “[t]he parents have




      3
        We would ordinarily cite the Termination Order from the Appendix, rather than Appellant’s brief.
      However, while Father’s counsel did comply with Indiana Appellate Rule 46(A)(10)—“The brief shall
      include any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to
      the issues raised on appeal”—he did not comply with Indiana Appellate Rule 50(A)(2)(b)—the appendix
      shall contain “the appealed judgment or order, including any written opinion, memorandum of decision, or
      findings of fact and conclusions thereon relating to the issues raised on appeal”—because he left out every
      other page of the termination order. We encourage counsel to pay closer attention in the future to the
      documents he submits to this Court.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015       Page 4 of 10
      demonstrated short-term periods of stability and sobriety followed by longer

      periods of instability and drug use. Any recent short-term improvements do not

      outweigh the long-term, repetitive history of these parents failing to maintain

      stability and sobriety.” Appellant’s Br. 17. Moreover, the court found that

      Father did not have independent housing suitable for the children. His job

      takes him out of state for three weeks every month and he lives in a hotel when

      not working. The juvenile court concluded that termination is in the children’s

      best interests. Father now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[7]   The Fourteenth Amendment to the United States Constitution protects the right

      of parents to raise their children. Bester v. Lake Cnty. Office of Family & Children,

      839 N.E.2d 143, 147 (Ind. 2005). However, parental interests are not absolute,

      and if parents are unable or unwilling to meet their parental responsibilities,

      their interests must be subordinated to those of their children. Id. In

      appropriate circumstances, a juvenile court may order the parent-child

      relationship terminated. Id. The purpose of terminating a parent-child

      relationship is not to punish the parents but to protect their children. In re

      S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004). A juvenile court “need not

      wait until a child is irreversibly harmed before terminating the parent-child

      relationship.” In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App. 2013).




      Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 5 of 10
[8]    When reviewing a decision to terminate parental rights, we neither reweigh the

       evidence nor judge the credibility of witnesses. In re K.T.K., 989 N.E.2d 1225,

       1229 (Ind. 2013). We consider only the evidence and any reasonable inferences

       therefrom that support the judgment. Id.


[9]    When, as here, the trial court enters findings of fact and conclusions of law, we

       employ a two-tiered standard of review. Bester, 839 N.E.2d at 147. We first

       determine whether the evidence supports the findings, and then determine

       whether the findings support the judgment. Id. We will only set aside the

       juvenile court’s judgment if it is clearly erroneous. Id. A judgment is clearly

       erroneous if the findings do not support the conclusions or the conclusions do

       not support the judgment. Id.


[10]   Indiana Code section 31-35-2-4 sets out the elements for a petition to terminate

       a parent-child relationship:


               (2)      The petition must allege:

                        (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.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 6 of 10
                                (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;

                        (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 of 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.


[11]   Father does not challenge the juvenile court’s conclusions that the children have

       been removed from his care for the requisite period of time, I.C. § 31-35-2-

       4(b)(2)(A)(i), or that there is a satisfactory plan for the children’s care and

       treatment, I.C. § 31-35-2-4(b)(2)(D). His only arguments on appeal are that

       DCS did not adequately prove 1) that there is a reasonable probability that the

       conditions that resulted in the child’s removal or the reasons for placement

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 7 of 10
       outside the home of the parents will not be remedied, or 2) that termination is

       in the best interests of the children.


                      I. Reasonable Probability That Conditions Will
                                    Not Be Remedied
[12]   In arguing that the juvenile court erred by concluding there is a reasonable

       probability that conditions will not be remedied, Father first requests this Court

       to “review his testimony,” to determine his current sobriety and employment.

       Appellant’s Br. 3-5. He argues that he has been sober since March 2014 and has

       been gainfully employed in the construction business since July 2014. He also

       points to testimony from some DCS case managers indicating that he

       demonstrated good parenting skills during visitations.


[13]   Father’s argument is a request to reweigh the evidence heard at the juvenile

       court, which we will not do. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014).

       Confining ourselves to the evidence that supports the judgment, we find

       substantial evidence to support the juvenile court’s finding of fact that the

       conditions that led to the children’s removal will not be remedied.


[14]   The primary condition leading to the children’s removal was Father’s history of

       drug abuse. Father has admitted to the following drug history: he used drugs

       prior to 2005; completed drug treatment in September 2005, but relapsed and

       continued to use drugs for the next five years; stopped in July 2010, but relapsed

       around June 2013; cleaned up in June 2013, but relapsed by August; was clean

       during his incarceration from November 2013 to January 2014, but tested

       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 8 of 10
       positive for methamphetamine in January after his release; started trying not to

       use drugs in February 2014, but relapsed by March, again testing positive for

       methamphetamine; engaged in an intensive outpatient substance abuse

       treatment from March to July 2014, but tested positive for marijuana use in

       May. He has not provided DCS with a drug screen since July 25, 2014. Given

       this history, there was substantial evidence to support the finding of a

       reasonable likelihood that Father’s drug use will continue.


[15]   In addition, there is substantial evidence from which the trial court could find

       that Father was not participating in court-ordered services. He has been found

       in contempt twice, and almost all of the services he has been ordered to

       complete have been terminated because of his lack of contact and missed

       appointments. Father also testified at the hearings that he still did not have

       adequate housing, as he was living out of a hotel.


[16]   In sum, there was substantial evidence from which the juvenile court could find

       that the conditions that led to the removal of the children would not be

       remedied.


                              II. Best Interests of the Children
[17]   Father next takes issue with the juvenile court’s finding that termination of the

       parent-child relationship would be in the children’s best interests. He points to

       evidence showing an attachment between him and Br.H. and argues that

       children have a right to be raised by their biological parent.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 9 of 10
[18]   While it is certainly true that “[a] parent has a fundamental right to direct the

       upbringing of his or her child . . . there exists a corresponding duty of the parent

       to provide for the child’s physical and mental well-being.” Lake Cnty Div. of

       Family and Children Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind. Ct. App. 1994).

       “When the parents fail to fulfill their duty, the state has the authority, pursuant

       to its parens patriae power, to intervene.” Id.


[19]   Here, the same history of drug abuse and lack of housing recited above provides

       substantial evidence from which the juvenile court could find that termination

       of the parent-child relationship was in the best interests of the children. While

       some DCS workers gave positive testimony about Father, the DCS case

       manager and the court appointed special advocate both testified that

       termination was in the children’s best interests.


[20]   Father concedes that “[t]his determination is a close call.” Appellant’s Br. 10.

       That fact alone would foreclose Father’s appeal, as “close call” is the antithesis

       of “clearly erroneous.” Consequently, his arguments must fail.


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


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1412-JT-602 | September 18, 2015   Page 10 of 10
