Pursuant to Ind. Appellate R ule 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 : ATTORNEY S FOR APPELLEE :

THOMAS C. ALLEN GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana

ROBERT J. HENKE
DAVID E. COREY Deputy Attorneys General Indianapolis, Indiana



## IN THE COURT OF A PPEALS OF INDIANA

IN RE THE TERMINATION OF THE )
PARENT

- CHILD RELATIONSHIP OF )
D.H . (Minor Child ) and ) )
M.H

. ( Father ), ) ) Appellant

- Respondent, ) )

vs. ) No. 02A03

- 1311

- JT

- 462 )
THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee

- Petiti oner. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
Cause No. 02D08

- 1305

- JT

- 29

June 25, 2014

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge2 Case Summary

M.H . (“ Father ”) appeals the trial court’s inv oluntary termination of his parental rights

to his child

, D.H

. W e affirm.

Facts and Procedural History

In its termination order, the trial court made the following factual findings :

2

. [ Father is the legal father of D.H

., who was born on May 7, 2012 .]

3

. A Preliminary Inquiry was held in the Child In Need of Services case
02D08

- 1205

- JC

- 159 on May 11, 2012.

4

. A Factfinding H earing was held in the underlying Child in Need of
Services case. The court adjudicated the child a Child in Need of Service s ( CHINS ) based on the findings that:

a. The mother’s intellectual limitations have affected her ability to provide the child with necessary care and shelter.

b. The father is without housing and has a history of domestic violence; and alcohol use ; and,

c. At t he time of the child’s birth the mother and father had not secured appropriate it ems for the care of an infant.

5. A Dispositional Decree was entered on August 8, 2012, and the child was placed in licensed foster care. The Respondent parents’ contact w ith the child was restricted to supervised visits.

....

7. Father was ... placed under a Parent Participation Plan [“Plan”]

. He
was ordered to:

a. Refrain from all criminal activity;
b. Maintain clean, safe, and appropriate housing at all times;

... . d

. Cooperate with all caseworkers, and Guardian ad Litem or CASA;3 e. Attend all case conferences as directed; maintain contact with the Department, and accept announced and unannounced home visits by all caseworkers, the Guardian ad Litem or CASA;

... . k. Enroll in drug and alcohol counseling at Caring About People, Inc. by September 8, 2012, attend all sessions, and successfully co mplete the counseling program.
l. Enroll in parenting classes at SCAN by September, 8, 2012, attend all sessions, and suc cessfully complete the

program.

... .
n. Submit to random urinalysis testing, drug screens, and/or oral swabs as required by [“DCS”] caseworkers and refrain from use of alcohol, illegal drugs, and other
substance abuse.

o. Attend and appropriately part icipate in all visits with your child as directed.

p. Attend all medical and health care appointments for [D.H.] and foll ow all recommendations by [ D.H. ’s ] medical and health care providers.

q. Enroll in and successfully complete Sexual Offender
Trea tment with Family and Children’s Services.

8. A Review Hearing was hel d on October 17, 2012, and the C ourt found that ...

. [ Father ] had not enrolled in therapy and had not completed parenting classe s. [ Father ] t ested posit ive for the use of illegal subs tances

.

9. On April 10, 2013, a Perma nency Hearing was held and the C ourt found that .... [ Father ] had not enrolled in home based services. A Permanency Plan for the termination of parental rights and ad option was adopted by the C ourt.

10. In the pr esent underlying CHINS case, the child has been placed
outside the care of [ F ather ] for a period of more than six (6) months since the entry of the Disposition Decree.

... .

12. Dr. David Lombard diagnosed [Father] with bipolar disorder,
substance abuse disorder, and personality disorder NOS (with antisocial and4

paranoid traits)

. Dr. Lombard and the Court find[] that his condition places him at “high risk for emotional abuse and neglect of children.”

13. The Respondent parents [ ’ ] functioning and psy chological
conditions as identified by Dr. Lombard were evident at the onset of the underlying CHINS case. [DCS] case worker, Eric Zent, met with the mother and father at the hospital when the child was born. From his testimony, the
Court finds that the mother was unable to advise him what she had at her home in preparation for the baby’s birth. In fact neither parent had secured a crib, car seat, formula, or other essential items.

....

14. [DCS] made a referral for parenting assistance to SCAN’s Pare nts and Partner’s [sic] program. From the testimony of former SCAN restora tion worker Laura Leffers, the C ourt finds that the father has trouble completing basic parenting skills. He required prompting to prepare a bottle, to calm the child, and to chang e a diaper. She prepared a “flip book” as a resource to remind him of the steps required to complete each skill. However, he did not use it. She concluded, and the Court finds that [ Father ] was not able to adapt and meet the child’s needs.

... .

18. [ Father] did not enroll in a drug and alcohol counseling or a sex offender treatment program. From the testimony of [DCS] case manager, Mary Lane, the Court finds that the father admitted on multiple occasions that he uses marijuana and that he drank alco hol daily.

19. From the testimony of SCAN caseworker, Megan Booker , the
Court finds that the father did not successfully complete his parenting classes.

Appellant’s App. 6

- 10 (citations to exhibits omitted).

Based on its findings, the trial court c oncluded , among other things, that termination

of both F ather’s and m other’s parental rights was in D.H. ’s best interest s

. Father now

appeals.5 Discussion and Decision

“The purpose of terminating parental rights is not to punish parents but to protect th eir

children.” In re S.P.H. , 806 N.E.2d 874, 880 (Ind. Ct. App. 2004). Parental rights are not

absolute and must be subordinated to the child’s best interests in determining the proper

disposition of a petition to terminate parental rights. Bester v. La ke Cnty. Office of Family &

Children , 839 N.E.2d 143, 147 (Ind. 2005). “Parental rights may be terminated when the

parents are unable or unwilling to meet their parental responsibilities.” I n re D.D.

, 804

N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. deni ed.

Indiana Code Section 31

- 35

- 2

- 4(b)(2) provides that a petition to terminate a parent

child relationship 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 disposi tional decree.

(ii) A court has entered a fin ding under IC 31

- 34

- 21

- 5.6 that reasonable efforts for family preservation or reunification are not required, including a d escription 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 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 condit ions that res ulted in the child’ s removal or the reasons for placement outside the home of
the parents will not be remedied.6 (ii) There is a reasonable probability that the continuation of the parent

child relationship poses a threat to the well

- being of the child.

(i ii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the b est interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

The State must prove “each and every element” by clear and convincing evidence. In re

G.Y. , 904 N.E.2d 1257, 1261 (Ind. 2009 ).

We apply a two

- tiered standard of review when reviewing a trial court’s findings of

fact and conclusions thereon . First, we determine wheth er the evidence supports the

findings, and second we determine whether the findings support the judgment. In re D.B

.,

942 N.E.2d 867, 871 (I nd. Ct. App. 2011). We do not reweigh the evidence or judge witness

credibility. Id. We consider only the eviden ce and reasonable inferences favorable to the

judgment. Id. A trial court’s judgment will be set aside only if it is clearly erroneous. D

. D.

,

804 N.E.2d at 265

. A judgment is clearly erroneous if the findings do not support the trial

court’s conclusion s or the conclusion s do not suppo rt the judgment. Id

.

Father does not challenge the trial court’s findings but rather its conclusion that

terminati on is in D.H.’s best interest s

. In determining whether termination is in the child’s

best interests, the trial court must look at the totality of the evidence. Id . at 267. In so doing,

the trial court must subordinate the parent’s interests to those of the child involved. Id

. “ A

parent’ s historical inability to provide adequate housing, stability and supe rvision coupled

with a current inability to provide the same will support a finding that termination of the7

parent

- chi ld relationship is in the child’ s best interests.” Castro v. State Office of Family &

Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. The testimony of the

service providers may support a finding that termination is in the child's best interests. In re

A.K

. , 924 N.E.2d 212

, 224 (Ind. Ct. App. 2010 ).

Father argues that termination of his parental rights is not in the b est interests of D.H.

because he has complied with portions of the Plan. He contends that he has maintained

phone contact with DCS, visited with D.H., and completed both a 24

- H our Dad Program and

a psychological exam. Father also contends that he has sta bility in housing and has not been

arrested for any crimes.

Here , Father’s stability in housing is living with his mother. Father has not complied

with the Plan’s requirement that he “ accept announced and unannounced visits by

caseworkers, the Guardian ad litem or CASA.” Appellant ’ s App. at 8. Because Father’s

mother has not allowed such visits

, whether he maintains “clean, safe, and appropriate”

housing is unknown

. Id. Although Father claims that he has visited D.H. , h e was often put

on “ hold ” for v isitations because of his frequent absences. Tr. at 40

- 42. In Lang v. Stark e

County Office of Family and Children , 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.

denied, we stated that a lack of commitment is shown in the relationship when the parent f ails

to exercise his visitation rights.

Father also has a history of substance abuse and psychological disor ders . Father has

not been arrested, but he has reported that he used marijuana. The supervisor at the visits

testified that Father would come i ntoxicated and smelling like alcohol. She also testified that8

she was afraid that he would f all asleep and drop the child. Moreover, Father failed to

comply with the Plan by not enrolling in a drug or sex offender treatment program.

Under the Plan, Fa ther was to attend all of D.H.’s medical appointments. However,

Father missed D.H.’s surgery because he had gone drinking the night before and fell asleep in

an alley. Father was given a parenting awareness skill survey, which indicated that he would

be highly ineffective in parenting and a t high risk for emotional neglect of a child. A lso , he

did not successfully complete the eight

- week parenting program. T he DCS case manager and

D.H.’s guardian ad litem testified that termination would be in D.H.’s be st interests. Based

on the f oregoing, we cannot say that the trial court’s conclusion regarding D .H.’s best

interests is clearly erroneous. Therefore, we affirm the termination order.

Affirmed.

B AKER, J., and BARNES, J., concur.