MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Nov 26 2019, 6:53 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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office                                        Attorney General of Indiana
Logansport, Indiana
                                                         Benjamin M.L. Jones
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        November 26, 2019
Child Relationship of A.H.,                              Court of Appeals Case No.
B.H., and C.H. (Minor                                    19A-JT-1259
Children);                                               Appeal from the Cass Circuit
J.H. (Father),                                           Court
                                                         The Honorable Stephen Roger
Appellant-Respondent,
                                                         Kitts, Judge
        v.                                               Trial Court Cause Nos.
                                                         09C01-1903-JT-1
                                                         09C01-1903-JT-2
The Indiana Department of
                                                         09C01-1903-JT-3
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019             Page 1 of 11
                                           Statement of the Case
[1]   J.H. (“Father”) appeals the termination of the parent-child relationship with his

      sons A.H.(“A.H.”), B.H. (“B.H.”), and C.H. (“C.H.”).1 He contends that there

      is insufficient evidence to support the terminations. Specifically, Father argues

      that the Department of Child Services (“DCS”) failed to prove by clear and

      convincing evidence that: (1) a continuation of the parent-child relationship

      poses a threat to the children’s well-being; and (2) termination of the parent-

      child relationship is in the children’s best interests. Concluding that there is

      sufficient evidence to support the termination of the parent-child relationships,

      we affirm the trial court’s judgment.


[2]   We affirm.


                                                        Issue2
               Whether there is sufficient evidence to support the terminations.


                                                          Facts
[3]   Father is the parent of A.H., who was born in April 2011; B.H., who was born

      in September 2013; and C.H., who was born in August 2016. In February




      1
        The children’s mother’s (“Mother”) parental rights were also terminated. However, she is not a party to
      this appeal.
      2
       Father also argues that six of the trial court’s sixty-two detailed findings are clearly erroneous because they
      are not supported by the evidence. However, because the fifty-six unchallenged detailed findings “provide
      ample support for the trial court’s ultimate conclusion,” any error in the six challenged findings is “merely
      harmless surplusage.” See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019                    Page 2 of 11
      2017, DCS Family Case Manager James Steele (“FCM Steele”) was assigned to

      assess allegations of neglect in Mother and Father’s home. When FCM Steele

      arrived at the home, law enforcement officers were in the process of arresting

      Mother and Father. The officers had found paraphernalia and more than three

      grams of methamphetamine in an area of the home that was accessible to the

      children. Father admitted that he had manufactured methamphetamine in the

      home for his own use. Father, who refused a drug screen, was arrested and

      subsequently charged with Level 5 felony burglary, Level 6 felony possession of

      methamphetamine, Level 6 felony maintaining a common nuisance, and Class

      B misdemeanor possession of marijuana. As law enforcement officers were

      leading Mother and Father out of the home, an officer asked the parents if they

      wanted to give three-year-old B.H. a hug. Both parents declined and asked the

      officer for a cigarette.


[4]   While law enforcement officers were with the parents, FCM Steele looked

      around the house and noticed that it was infested with cockroaches. FCM

      Steele specifically noticed cockroaches in the kitchen drawers and cabinets. He

      also noticed both dead and living cockroaches in the refrigerator. The bedroom

      that the three brothers shared upstairs had food, trash, broken toys, and urine

      on the floor. Based on these findings, FCM Steele believed that the children

      had been isolated in their room for long periods of time.


[5]   The three children were removed from the home that day and placed in foster

      care. DCS Family Case Manager Laura Knutson (“FCM Knutson”) was

      assigned to the children’s cases. In March 2017, the parents admitted that their

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 3 of 11
      three sons were children in need of services (“CHINS”). The following month,

      April 2017, the trial court ordered Father to: (1) keep all appointments with

      service providers; (2) provide safe and stable housing for his children; (3) obey

      the law; (4) abstain from the use of illegal substances; (5) attend visitation with

      his children; and (6) obtain a substance abuse assessment and follow all

      recommendations.


[6]   Father, however, failed to comply with the court-ordered home-based,

      parenting, and addiction services. Further, he failed to attend eighteen of

      twenty scheduled visits with his children, including A.H.’s birthday visit.

      Parents also failed to notify FCM Knutson of changes in their address, and

      often the only way that the case manager could locate that parents was at their

      criminal court appearances.


[7]   A bench warrant was issued in May 2017 when Father failed to appear in court

      for the February 2017 charges. In September 2017, Father pled guilty to the

      four February 2017 charges, and the trial court sentenced him to an aggregate

      sentence of six years, with an earliest release date of 2022.


[8]   Eighteen months later, a March 2019 review hearing revealed that Father “had

      not enhanced his ability to fulfill [his] parental obligations [before his

      incarceration] [and] [had] not completed any parenting curriculum as offered by

      the Department of Correction facility.” (Exhibits Vol. at 49, 95, 141). DCS

      filed a petition to terminate Father’s parental rights two days later.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 4 of 11
[9]    Testimony at the April 2019 termination hearing revealed that Father had not

       seen the children since April 2017. DCS Family Case Manager Jessica Risher

       (“FCM Risher”), who had been assigned to the case in December 2017,

       testified that the children had expressed several times that they were afraid of

       Father. FCM Risher further testified that even if Father were to be released

       before 2022, the children could not be immediately reunited with him.

       According to FCM Risher, “there would have to be a lot of therapy before

       [DCS] could even integrate [Father] into visits.” (Tr. at 93). FCM Risher also

       testified that the children had been in foster care for two years and that the

       current plan for them was adoption. According to FCM Risher, termination of

       Father’s parental rights was in the children’s best interests.


[10]   Guardian Ad Litem Jeff Stanton (“GAL Stanton”) also testified that

       termination was in the children’s best interests. GAL Stanton further explained

       that the children were afraid of their father. According to GAL Stanton, the

       children were relaxed and comfortable in their foster home and removal from

       the foster parents would be traumatic for them. In addition, GAL Stanton

       testified that his recommendation would not change even if Father were to be

       released from incarceration the following day.


[11]   Father testified that he was “currently taking a program of therapeutic

       rehabilitation” while incarcerated. (Tr. at 107). According to Father, he was

       scheduled to complete the nine-month program in four months and would then

       be eligible for a sentence modification. Father testified that he had also been

       taking an Inside Outside Dad class for two weeks. In addition, Father testified

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 5 of 11
       that he did not want the trial court to terminate his parental rights because “it

       would be in [the children’s] best interest[s] to be with their mom and their dad.”

       (Tr. at 110). Father further testified that he “would like to have [his] children

       back, yeah.” (Tr. at 111).


[12]   Following the hearing, the trial court explained its decision to terminate

       Father’s parental rights as follows:


               What the record indicates to me is that we have a situation in
               which there were opportunities to participate [and] the father
               failed to and now as a result of whatever circumstances he may
               be in, effectively, you know, he would like a do-over, and that
               places the court in a position of having to weigh the father’s
               interest in a do-over against the interests of the children and
               subjecting [the] children to several more years of limbo while this
               works out or doesn’t. And by several more years of limbo, I am
               not referring to an out date of, that may or may not be true, but
               [what] I am referring to is also, the years of rehabilitation
               suggested as being necessary in best case scenario, [by] [DCS] in
               order to [e]ffect reunification. The suggestion is not in the best of
               all possible roles that this would happen upon release, it’s a
               suggestion that the children and the foster care family should be
               subjected to several more years in any set of circumstances and I
               can’t find that that is in the best interest of the children in this
               case either.


       (Tr. at 115). Father now appeals the termination.


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

       protected by the Fourteenth Amendment to the United States Constitution. In


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 6 of 11
       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[14]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:


               (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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 7 of 11
       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[15]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[16]   Father first argues that DCS failed to prove by clear and convincing evidence

       that a continuation of the parent-child relationship poses a threat to the

       children’s well-being. The continuation of the parent-child relationship poses a

       threat to children’s well-being when: (1) their parents engage in destructive and

       dangerous behavior; (2) the behavior is ongoing without any serious sign of

       improvement; and (3) the behavior poses a threat to their children. In re A.I.,

       825 N.E.2d 798, 807 (Ind. Ct. App. 2005), trans. denied.


[17]   In A.I., parents appealed the termination of their parental rights and argued

       that there was insufficient evidence to support the trial court’s finding that the

       continuation of the parent-child relationship posed a threat to A.I. This Court

       responded as follows:


               Although there was no specific testimony that either parent had
               physically abused A.I., there can be little doubt that the parties’
               serious substance abuse addictions detrimentally affected or
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 8 of 11
               greatly endangered her. The parties’ failure to maintain stable
               employment and housing, as well as the constant drug use and
               sporadic domestic violence, renders the environment for A.I.
               destructive at best and dangerous at worst. We need not wait
               until A.I. suffer[s] permanent psychological or physical injury
               before intervening. There is sufficient evidence to support the
               trial court’s finding.


       Id. at 811.


[18]   Here, as in A.I., where Father manufactured methamphetamine in the family

       home and left the drug in an area of the home that was accessible to the

       children, there can be little doubt that Father’s drug manufacturing

       detrimentally affected or greatly endangered the children. In addition, a kitchen

       infested with both living and dead cockroaches and a shared bedroom with

       food, trash, and urine on the floor also detrimentally affected or greatly

       endangered the children.


[19]   We further note that Father failed to engage in any services and visited the

       children only two times before he was incarcerated for three felony convictions

       during the pendency of the CHINS proceedings. At the time of the termination

       hearing, he had not seen his children, who were scared of him, for two years.

       There is also no evidence that he had attempted to contact DCS during his

       incarceration to inquire about his children. Further, Father was incarcerated

       for over a year before he engaged in any therapeutic programs, and there was

       no evidence regarding Father’s progress in the programs he was attending. In

       addition, Father’s sole stated reason for wanting his children back was because


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 9 of 11
       he simply believed that it was in their best interests to be with him. This

       evidence, which reveals that Father has engaged in destructive and dangerous

       behavior that posed a threat to his children without any serious sign of

       improvement, supports the trial court’s conclusion that the continuation of the

       parent-child relationship poses a threat to the children’s well-being.


[20]   Father also argues that there is insufficient evidence that the termination was in

       the children’s best interests. In determining whether termination of parental

       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 10 of 11
[21]   Here, our review of the evidence reveals that Father has historically been

       unable to provide housing, stability, and supervision for his children and was

       unable to provide the same at the time of the termination hearing. In addition,

       FCM Risher and GAL Stanton both testified that termination was in the

       children’s best interests. The testimony of these service providers, as well as the

       other evidence previously discussed, supports the trial court’s conclusion that

       termination was in the children’s best interests.


[22]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[23]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1259 | November 26, 2019   Page 11 of 11
