MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   Dec 16 2015, 8:37 am
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, C.H.                              ATTORNEYS FOR APPELLEE
Mark A. Delgado                                           Gregory F. Zoeller
Monticello, Indiana                                       Attorney General of Indiana
ATTORNEY FOR APPELLANT, M.H.
                                                          Robert J Henke
Steven Knecht                                             James D. Boyer
Vonderheide & Knecht, PC                                  Deputies Attorney General
Lafayette, Indiana                                        Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          December 16, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of S.H. (child) and M.H. (father)                         08A02-1505-JT-298
and C.H. (mother);                                        Appeal from the Carroll Superior
                                                          Court
M.H. (father), and                                        The Honorable Kurtis G. Fouts,
C.H. (mother),                                            Judge
Appellants-Respondents,                                   Trial Court Cause No.
                                                          08D01-1408-JT-3
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015         Page 1 of 12
      May, Judge.

[1]   M.H. (Father) and C.H. (Mother) (collectively Parents) appeal the involuntary

      termination of their parental rights to S.H. (Child). Parents argue the

      Department of Child Services (DCS) did not present sufficient evidence the

      conditions under which Child was removed from their care would not be

      remedied and termination was not in the best interest of Child. In addition,

      Mother asserts the trial court erred when it did not dismiss the termination

      proceedings because P.H. (Paternal Grandmother) did not receive notice of the

      hearing. We affirm.


                                    Facts and Procedural History
[2]   Child was born to Mother on November 11, 2012. At birth, Mother and Child

      tested positive for amphetamines for which Mother could not produce a valid

      prescription. Mother and Father were married at the time of Child’s birth.

      DCS substantiated neglect and referred Parents to “intensive home based”

      services, (February 17, 2015 Tr.1 at 57), which they did not successfully

      complete.

[3]   On March 3, 2013, Lafayette police investigated a shoplifting complaint

      involving Father. While Father had not shoplifted, the police discovered him in




      1
        Each hearing has a separately-numbered transcript, so we will refer to the transcript based on the date of the
      hearing. We remind the court reporter of Indiana Appellate Rule 28(A)(2), which requires all volumes of a
      transcript to be consecutively numbered.


      Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015              Page 2 of 12
      a state that rendered him unable to drive because of suspected untreated renal

      failure. Police drove Father to the hotel where he, Mother, and Child were

      staying and discovered in plain view an array of prescription pills and alcohol in

      the room with the four-month-old Child. Mother was not forthcoming with her

      identity, and when police confirmed her name, she was arrested on an

      outstanding warrant. Child was removed by DCS because Mother was arrested

      and Father was unable to care for Child due to his medical condition.


[4]   On March 5, 2013, DCS alleged Child was a Child in Need of Services

      (CHINS). On May 29, 2013, after a hearing, the trial court adjudicated Child a

      CHINS because Mother was arrested while on probation and remained

      incarcerated at the time of the CHINS hearing, Mother had an alcohol abuse

      problem, and Father had acute kidney failure for which he did not seek

      treatment, rendering him unable to care for Child. In its June 24 dispositional

      order and parental participation orders, the trial court ordered Parents to,

      among other things: keep all appointments with DCS staff and service

      providers; maintain appropriate and consistent housing and income; abstain

      from using illegal substances and take prescription medication as directed; not

      use alcohol; visit Child as scheduled; and participate and complete services such

      as intensive family preservation program, parenting assessment and

      recommendations, substance abuse assessment and recommendations, random

      drug screens, and psychological evaluation and recommendations. Father was

      also ordered to participate in a medical evaluation and follow all




      Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 3 of 12
      recommendations, and Mother was ordered to follow the terms of her

      probation.


[5]   The trial court ordered Child placed with Mi.H. and P.H. (collectively Paternal

      Grandparents). That placement was briefly changed to foster care on October

      17, 2013, after DCS learned Parental Grandparents allowed Parents to visit

      with Child unsupervised in violation of the safety plan. Child returned to

      Paternal Grandparents’ care on October 30, but was again removed in

      December after Mi.H.’s death. Placement into foster care was necessary at that

      time because Parents and DCS had concerns regarding Paternal Grandmother’s

      ability to care for Child alone.

[6]   On December 6, 2013, the trial court found Parents in contempt of the

      disposition and parental participation orders because Parents were not

      participating in services and failed several drug screens. Mother was sentenced

      to 120 days and Father was sentenced to 30 days incarceration. On January 13,

      2014, the trial court a second time found Father in contempt because Father

      failed multiple drug screens. Father was sentenced to an additional 120 days.

      On May 22, 2014, Mother and Father were again found in contempt for failing

      multiple drug screens and sentenced to 60 days each.


[7]   On August 29, 2014, DCS filed a petition to involuntarily terminate Parents’

      parental rights to Child. The trial court held fact finding hearings on November

      24, 2014, February 17, 2015, and February 24, 2015. At the beginning of the

      February 17 hearing, Parents’ respective counsels orally moved to dismiss the


      Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 4 of 12
      termination proceedings because they claimed Paternal Grandmother had not

      received notice of the hearing. The trial court denied the motion. On April 13,

      2015, the trial court issued an order involuntarily terminating Parents’ rights to

      Child.


                                      Discussion and Decision
                                              Motion to Dismiss

[8]   During the second fact-finding hearing on February 17, 2015, Parents’

      collective counsels orally moved to dismiss the termination proceedings because

      Paternal Grandmother was not given notice of the hearing. Ind. Code § 31-35-

      2-6.5(f) requires the court to provide “any other suitable relative or person who

      the department knows has had a significant or caretaking relationship to the

      child,” Ind. Code § 31-35-2-6.5(c)(5), “an opportunity to be heard and make

      recommendations to the court at the hearing.” Ind. Code § 31-35-2-6.5(f). The

      trial court denied the motions, finding Paternal Grandmother to be a relative

      not suitable to care for Child due to Paternal Grandmother’s inability to drive

      and numerous health problems and thus not entitled to notice of the hearing

      under Ind. Code § 31-35-2-6.5(c)(5).


[9]   Mother argues:

               Paternal Grandmother was never provided notice of the parental
               rights termination hearing, violating a substantial due process
               right. As a result, [P]aternal [G]randmother was unable to assert
               any right to guardianship or custody of [Child], which would
               permit her to remain within [Mother’s] extended family.


      Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 5 of 12
       (Br. of Appellant Mother at 10). However, as the State points out, Mother does

       not have standing to assert Paternal Grandmother’s rights. In order to establish

       standing, Mother must demonstrate she “sustained or was in immediate danger

       of sustaining some direct injury as a result of the conduct at issue.” State ex rel

       Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005), trans. denied.

       Mother has not done so.2


                                            Sufficiency of the Evidence

[10]   We review termination of parental rights with great deference. In re K.S., D.S.,

       & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

       evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

       Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

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

       juvenile court’s unique position to assess the evidence, we will set aside a

       judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

       717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

       534 U.S. 1161 (2002).


[11]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first



       2
         In addition, the “rights” Mother attempts to assert on behalf of Paternal Grandmother, those of the ability
       to gain guardianship or custody of Child, are not part of the proceedings in front of the termination court.
       See Ind. Code § 29-3-5-1 (guardianship proceedings) and Ind. Code § 31-17-2-3 (custody proceedings by
       someone other than a parent).


       Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015             Page 6 of 12
       whether the evidence supports the findings and second whether the findings

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

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

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences

       support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

       208.


[12]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

       subordinate the interests of the parents to those of the child, however, when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own child should not be terminated solely

       because there is a better home available for the child, id., but parental rights

       may be terminated when a parent is unable or unwilling to meet his or her

       parental responsibilities. Id. at 836.


[13]   To terminate a parent-child relationship, the State must allege and prove:

               (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 08A02-1505-JT-298 | December 16, 2015   Page 7 of 12
                 (iii) The child has been removed from the parent and has
                 been under the supervision of a county office of family and
                 children 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 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.
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

denied. If the court finds the allegations in the petition are true, it must

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

                     Remedy of Conditions Resulting in Child’s Removal




Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 8 of 12
[14]   Parents argue DCS did not present sufficient evidence to prove the conditions

       which resulted in Child’s removal would not be remedied.3 The trial court must

       judge a parent’s fitness to care for his child at the time of the termination

       hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).


[15]   Evidence of a parent’s pattern of unwillingness or lack of commitment to

       address parenting issues and to cooperate with services “demonstrates the

       requisite reasonable probability” that the conditions will not change. Lang v.

       Starke County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007). Mother likens

       her situation to that of the parents in In re J.M., in which our Indiana Supreme

       Court upheld the denial of DCS’s petition to terminate parents’ rights to their

       child despite the fact the parents were incarcerated. 905 N.E.2d 191, 194-96

       (Ind. 2009). Mother’s reliance on In re J.M. is misplaced, as the parents in that

       case had completed all required services and had a stable plan for life post-

       incarceration. In contrast, Mother was repeatedly arrested during the

       proceedings and did not complete services.

[16]   DCS removed Child from Parents’ care because Mother was incarcerated and

       Father had physical ailments rendering him unable to care for Child.

       Throughout the CHINS and TPR proceedings, Parents tested positive for illegal




       3
        DCS does not have to prove both a reasonable probability the conditions that resulted in Child’s removal
       will not be remedied and the continuation of the parent-child relationship between Mother and Child posed a
       threat to the well-being of Child. The statute is written in the disjunctive, and DCS must prove either by
       clear and convincing evidence. See Ind. Code § 31-35-2-4. Because there was a reasonable probability
       conditions leading to Child’s removal would not be remedied, we need not address whether the continuation
       of the parent-child relationship posed a threat to Child’s well-being.


       Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015          Page 9 of 12
       substances multiple times. Mother attended an inpatient substance abuse

       program, but was kicked out when she drank alcohol while on a weekend pass.

       Father claims he takes his prescribed medication as directed, but drug screens

       have indicated varying levels of the substance in his body, which suggests he

       did not comply with the court’s order. Mother habitually did not show up for

       appointments with service providers. Father repeatedly denied having a

       substance abuse problem, despite testing positive for illegal substances.4 In light

       of their continuing problems, we see no error in the court’s determination that

       the circumstances leading to removal would not change. Parents’ arguments to

       the contrary are merely invitations for us to reweigh the evidence, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh

       evidence).

                                                Best Interests of Child


[17]   Parents argue DCS did not prove termination of Parents’ rights was in the best

       interests of Child, as required by Ind. Code § 31-35-2-4(c). In determining what

       is in the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride v.

       Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003). In so doing, the juvenile court must subordinate the interests of the




       4
         Father contends the trial court’s findings regarding his continued substance abuse and propensity towards
       the same behavior in the future are not supported by the evidence. His contention is an invitation for us to
       reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh
       evidence).


       Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015         Page 10 of 12
       parent to those of the child. Id. Recommendations from the case manager and

       child advocate that it would be in the child’s best interest to terminate the

       parent-child relationship, in addition to evidence that the conditions resulting in

       removal will not be remedied, are sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests. In re M.M., 733 N.E.2d

       6, 13 (Ind. Ct. App. 2000).

[18]   Mother analogizes the facts of this case to those in In re G.Y., in which our

       Indiana Supreme Court held termination of parental rights was not in the

       child’s best interests because mother’s incarceration had not resulted from a

       crime committed during the child’s lifetime, mother had completed all services,

       and mother had a good relationship with the child. 904 N.E.2d 1257, 1263-64

       (Ind. 2009), reh’g denied. Mother’s reliance on In re G.Y. is misplaced because

       she was arrested multiple times after Child’s birth, did not complete required

       services, and never progressed beyond supervised visits with Child.


[19]   Child spent only the first four months of her life with Parents. Since December

       2013, Child has been in foster care with a family who is interested in adopting

       her. Parents have repeatedly violated the trial court’s orders, resulting in

       contempt findings and related incarcerations. They have abused drugs and

       have not completed services. Mother’s visitation with Child was inconsistent

       due to incarceration, and Father was reported to have shown aggression toward

       Child during a visit when he became frustrated with Child’s behavior. Child’s

       Guardian ad Litem testified she felt Parents’ behavior “shows that there is a

       substantial probability of future neglect of [Child] or deprivation of [Child’s]

       Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 11 of 12
       needs.” (February 17, 2015 Tr. at 189.) That evidence supports the court’s

       conclusion, and Parents’ arguments to the contrary are invitations for us to

       reweigh the evidence, which we cannot accept. See In re D.D., 804 N.E.2d at

       265 (appellate court cannot reweigh evidence).


                                                  Conclusion
[20]   Mother did not have standing to assert any rights available to Paternal

       Grandmother. Additionally, there was sufficient evidence the conditions under

       which Child was removed from Parents’ care would not be remedied and

       termination was in Child’s best interests. Therefore, involuntary termination of

       Parents’ rights to Child was appropriate. We accordingly affirm the decision of

       the trial court.


[21]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 08A02-1505-JT-298 | December 16, 2015   Page 12 of 12
