                                                                  Sep 23 2015, 9:13 am




ATTORNEY FOR APPELLANT FATHER                              ATTORNEYS FOR APPELLEE
Robert J. Little                                           Gregory F. Zoeller
Brookston, Indiana                                         Attorney General of Indiana
ATTORNEY FOR APPELLANT MOTHER                              Robert J. Henke
                                                           Abigail R. Recker
Steven Knecht
                                                           Deputy Attorneys General
Vonderheide & Knecht, P.C.
                                                           Indianapolis, Indiana
Lafayette, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Termination of                            September 23, 2015
the Parent-Child Relationship of:                          Court of Appeals Case No.
                                                           91A02-1504-JT-213
B.H. and S.H. (Minor Children),
                                                           Appeal from the White Circuit
and                                                        Court
B.H. (Father) and                                          The Honorable Robert W.
M.B. (Mother),                                             Thacker, Judge
Appellants-Repondents,                                     Trial Court Cause Nos.
                                                           91C01-1410-JT-8
        v.                                                 91C01-1410-JT-9

The Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.
Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015             Page 1 of 13
[1]   B.H. (Father) and M.B. (Mother) appeal the juvenile court’s order terminating

      their relationship with their two children. Mother argues that the juvenile court

      should have granted her motions to continue the termination hearing, and both

      parents argue that there is insufficient evidence supporting the termination

      order. Finding no error and sufficient evidence, we affirm.


                                                      Facts
[2]   S.H. was born to Mother and Father on May 5, 2006; B.H. was born to Mother

      and Father on September 22, 2008.


[3]   On April 30, 2013, law enforcement was called after Father stabbed his brother-

      in-law in the presence of the children. DCS received a report on May 2, 2013,

      detailing the incident and alleging that Father was an active methamphetamine

      user and had been arrested. During its assessment, DCS discovered that

      Mother and children were staying in a home that had previously been

      investigated for methamphetamine use. Mother, who was pregnant, refused to

      take a drug screen because she had recently smoked marijuana. As part of the

      assessment, DCS performed drug tests on both children. S.H. tested positive

      for methamphetamine. As a result, DCS removed both children from the

      parents’ care and custody and placed them in relative care.


[4]   On May 24, 2013, DCS filed a petition alleging that the children were children

      in need of services (CHINS). The parents admitted that Father was

      incarcerated, that Mother had recently used marijuana, and that S.H. had tested

      positive for methamphetamine while in the parents’ care. On June 28, 2013,

      Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 2 of 13
      the juvenile court found both children to be CHINS. At the July 19, 2013,

      dispositional hearing, the juvenile court ordered Mother to, among other things:

      maintain stable housing; refrain from drug use; submit to random drug screens;

      and attend all scheduled visitations with children. Because Father was

      incarcerated, the court did not order that he participate in any services.


[5]   Between June and November 2013, Mother attended only fifteen out of twenty-

      eight scheduled visits with the children. Her visits became more regular in

      January 2014, but she reported getting frustrated with the children, and the

      visitation supervisor had to intervene repeatedly because Mother was unable to

      manage the children’s behavior. In July 2014, the children moved to Florida to

      live with their maternal grandparents. Mother was allowed to have two weekly

      phone calls with the children, but during five and one-half months, Mother

      called only eight times and spoke to the children for approximately five minutes

      each time.


[6]   After failing to attend two previous scheduled substance abuse intake

      assessments, in March 2014, Mother attended an intake assessment and was

      referred to an intensive outpatient program (IOP). She attended only four out

      of thirteen sessions and eventually quit attending altogether. Mother tested

      positive for methamphetamine in May 2013, and she tested positive for

      hydrocodone—for which she did not have a prescription—in July 2013, August

      2013, and twice in January 2014. Mother also missed multiple drug screens. In

      August 2014, Mother gave birth to her third child, who tested positive for

      opiates and methamphetamine at birth.

      Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 3 of 13
[7]   In June 2014, Mother was unsuccessfully discharged from homebased case

      management services. Throughout the CHINS case, Mother had unstable

      housing, living in at least six different locations. Mother was also incarcerated

      for theft between October and December 2013. At the time of the termination

      hearing, Mother was on probation, which she had already violated multiple

      times.


[8]   In July 2014, Mother was living with her boyfriend. While the residence itself

      met minimal standards, Mother’s boyfriend was a convicted felon for violent

      crimes, had substance abuse issues, and had previously been involved with

      DCS. As a result, DCS did not approve the children to relocate to that home.

      At the time of the termination hearing, Mother and her boyfriend were still in a

      relationship. As of February 2015, Mother was homeless again.


[9]   In 2000, Father was convicted of armed robbery and received a twenty-year

      sentence, with four years executed and ten years suspended to probation.

      When he was arrested in May 2013, he was still on probation for the armed

      robbery conviction. On May 2, 2013, Father was arrested for dealing

      methamphetamine. As a result of the arrest, Father’s probation was revoked

      and he was ordered to serve two years of the sentence for armed robbery.

      Eventually, Father was convicted of class B felony dealing in

      methamphetamine and class D felony criminal recklessness. He received an

      eleven-year sentence for these convictions. Father’s earliest possible release

      date is November 1, 2019.



      Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 4 of 13
[10]   On October 27, 2014, DCS filed a petition to terminate the parent-child

       relationship between the parents and the children. The first day of the

       termination hearing took place on December 18, 2014. That morning, Mother

       filed a motion to continue, contending that she had to work and risked getting

       fired if she came to court. The juvenile court denied the motion, in part

       because the motion had been filed at the last minute and multiple witnesses had

       traveled from out-of-state to testify. The second day of the termination hearing

       took place on March 3, 2015, and Mother again filed a motion to continue the

       morning of the hearing; the juvenile court again denied the motion. On March

       31, 2015, the juvenile court granted DCS’s petition and terminated the parent-

       child relationship between Mother, Father, and the children. Mother and

       Father now appeal.


                                     Discussion and Decision
                                      I. Motions to Continue
[11]   Mother first argues that the trial court erroneously denied her motions to

       continue. We review a trial court’s ruling on a motion to continue a trial date

       for an abuse of discretion, with a strong presumption that the trial court

       properly exercised its discretion. Parmeter v. Cass Cnty. Dep’t of Child Servs., 878

       N.E.2d 444, 449 (Ind. Ct. App. 2007). The party seeking a continuance must

       show that he or she is free from fault. Danner v. Danner, 573 N.E.2d 934, 937

       (Ind. Ct. App. 1991).




       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 5 of 13
[12]   On the morning of December 18, 2014, the first scheduled day of the

       termination hearing, Mother filed a motion to continue, alleging that she was

       unable to attend because of work and transportation issues and that she had not

       received notice of the hearing. The record reveals, however, that on November

       20, 2014, Mother’s attorney was present when the juvenile court stated that the

       termination hearing would begin on December 18, 2014. Mother’s App. p. 3-4.

       Therefore, Mother had notice of the hearing. Her own failure to make

       arrangements with work is not good cause for a last-minute continuance,

       especially when multiple witnesses had traveled from out of state to testify. We

       find no abuse of discretion in the denial of the December 18, 2014, motion to

       continue.


[13]   On the morning of March 3, 2015, the second day of the termination hearing,

       Mother again filed a motion to continue.1 This time, she alleged that she was

       unable to attend because the person who was to transport her to court had been

       injured. DCS objected, stating that if Mother had notified DCS as soon as there

       was a problem, DCS would have provided transportation to ensure her

       presence at court. The trial court denied the continuance. We find no abuse of

       discretion in this ruling. Additionally, we note that Mother was represented by

       counsel throughout all of the termination proceedings. Her attorney cross-

       examined witnesses and had the opportunity to introduce evidence on her



       1
        The second day of the termination hearing was originally scheduled to take place on January 14, 2015.
       DCS moved for a continuance because the family case manager assigned to the case had a serious illness and
       was unable to testify. Mother did not object to the continuance, which the trial court granted.

       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015                  Page 6 of 13
       behalf. Consequently, we find no reason to conclude that Mother was denied a

       fair hearing, and we decline to reverse on this basis.


                                       II. Termination Order
                                      A. Standard of Review
[14]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[15]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:

               (A)      that one (1) of the following is true:
       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 7 of 13
                 (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.


                 (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 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


Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 8 of 13
               (D)      that there is a satisfactory plan for the care and treatment
                        of the child.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                B. Termination Between Mother and Children
[16]   Mother argues that the juvenile court erred in concluding that there is a

       reasonable probability that the conditions resulting in the children’s placement

       outside the home will not be remedied; that continuation of the parent-child

       relationship poses a threat to the children’s well-being; and that termination is

       in the children’s best interests.


[17]   First, with respect to the conditions resulting in the children’s removal from

       Mother, we note that the children were removed as a result of Mother’s

       admitted drug use and S.H.’s positive drug test for methamphetamine. Over

       the course of the CHINS case, Mother repeatedly failed to take a substance

       abuse intake assessment, and once she did so, she failed to complete the

       recommended IOP program. She also repeatedly tested positive for opiates for

       which she did not have a prescription and failed to show up for multiple

       random drug screens. During the CHINS proceedings, Mother gave birth to a

       third child, who tested positive for opiates and methamphetamine at birth. It is

       clear, therefore, that despite multiple opportunities to address her substance

       abuse issues, Mother has failed to do so. We find that the evidence in the

       record supports the juvenile court’s conclusion that there is a reasonable


       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015    Page 9 of 13
       probability that the conditions that resulted in the children’s removal from

       Mother’s care and custody would not be remedied.


[18]   Second, with respect to the juvenile court’s conclusion that continuation of the

       parent-child relationship poses a threat to the children’s well-being, we again

       emphasize the above-described evidence of Mother’s ongoing substance abuse

       issues that have never been remedied. Furthermore, the record reveals that

       Mother has been wholly unable to maintain stable housing. She directs our

       attention to the residence in which she was living on the first day of the

       termination hearing. While that residence met minimal standards, her live-in

       boyfriend—a convicted violent felon with substance abuse issues and prior DCS

       history—did not. Furthermore, as of February 2015, Mother was homeless

       again. We find that this evidence readily supports the trial court’s conclusion

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

       children’s well-being.


[19]   Finally, with respect to the best interests of the children, we highlight all of the

       above-described evidence. Additionally, we note that the record reveals that

       Mother did not maintain consistent contact with the children, either in person

       when they lived in Indiana, or by telephone after they moved to Florida. The

       children are in a loving, stable placement with their maternal grandparents,

       who plan to adopt them. Given Mother’s wholesale inability or refusal to

       address her issues and improve her parenting skills, we find that the juvenile

       court did not err by finding that termination of the parent-child relationship is in

       the best interests of the children.

       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 10 of 13
                 C. Termination Between Father and Children
[20]   Father argues that we should reverse the termination order with respect to him

       because the sole reason supporting termination is the fact of his incarceration.

       Indeed, our Supreme Court has emphasized that “incarceration is an

       insufficient basis for terminating parental rights.” K.E. v. Ind. Dep’t of Child

       Servs., No. 82S04-1508-JT-491, at *1 (Ind. Aug. 20, 2015).


[21]   We find both K.E. and an earlier case, In re G.Y., 904 N.E.2d 1257 (Ind. 2009),

       to be instructive. Turning first to G.Y., the mother in that case was incarcerated

       for an offense she had committed before her child was born. The G.Y. Court

       emphasized that “all of Mother’s criminal history consists of offenses that were

       committed before G.Y.’s conception in 2003. After that time and for the first

       20 months of his life, the record gives no indication that Mother was anything

       but a fit parent.” Id. at 1262. While incarcerated, Mother completed an eight-

       week drug rehabilitation program and a fifteen-week parenting class, and was

       actively participating in a job program, actively working towards an associate’s

       degree, and had regular and consistent visitation with the child. Finally,

       Mother’s release from prison was “imminent.” Id. at 1265. Given all of these

       factors, among others, our Supreme Court reversed the termination.


[22]   In K.E., while Mother was pregnant with the child, Father was charged with

       multiple drug-related criminal offenses. 82S04-1508-JT-491, at *1. Father was

       already incarcerated at the time of the child’s birth, and his earliest possible

       release date was over two years from the date of the termination hearing. Our


       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015   Page 11 of 13
       Supreme Court noted that Father had housing and employment plans upon his

       release from incarceration; that Father had completed twelve programs while

       incarcerated and had attended Alcoholics Anonymous and Narcotics

       Anonymous; and that he visited with the child every week and spoke on the

       phone with the child every night. Thus, even though his release date was two

       years away, he had made “substantial efforts . . . to improve his life by learning

       to become a better parent, establishing a relationship with K.E. . . . , and

       attending substance abuse classes[.]” Id. at *7. In the end, our Supreme Court

       reversed the termination order.


[23]   We find the instant case to be distinguishable from both G.Y. and K.E. In both

       of those cases, the incarcerated parent had committed the criminal acts prior to

       the births of their children. Here, in contrast, Father’s children were five and

       seven years old when he stabbed their uncle in their presence. He was also

       dealing in methamphetamine and using methamphetamine, contributing to an

       environment that led to his seven-year-old testing positive for

       methamphetamine. Furthermore, Father’s release date was nearly five years

       away from the date of the termination hearing.2 Father did not testify regarding

       housing or employment plans following his release and he did not testify that he

       had completed any substance abuse programs while incarcerated despite

       admitting that he had abused methamphetamine during the children’s lifetimes.



       2
         Father testified that he was participating in a program that would potentially cut two years off of his
       sentence. But he had not completed the program at the time of the hearing, and currently his release date is
       still November 1, 2019.

       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015                    Page 12 of 13
       Therefore, the fact of Father’s incarceration was not the sole evidence

       supporting termination.


[24]   The K.E. Court noted that there is no bright line rule regarding when release

       must occur to maintain parental rights, instead stating that courts must consider

       whether other evidence, coupled with the expected release date, supports a

       termination order. Id. at *6. In this case, the expected release date is far in the

       future—five years from the date of the termination hearing. When coupled

       with the circumstances of the criminal activity, which directly affected Father’s

       children, and the absence of evidence regarding future plans and participation

       in substance abuse treatment, we find that the evidence demonstrates that the

       juvenile court did not err by concluding that termination is in the best interests

       of the children.3


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


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




       3
         Father does not address the specific statutory elements required to be proved to support a termination;
       instead, he makes a general argument regarding the best interests of the children. To the extent that Father
       argues that reversal is warranted because DCS did not provide him with services during his incarceration, we
       note that it is well established that DCS is not required to provide services before commending termination
       proceedings. E.g., In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015                   Page 13 of 13
