Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 1 of 12 

### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT /F ATHER Kyle K. Dugger Bloomington, Indiana A TTORNEY FOR A PPELLANT /M OTHER K ar e n E

. W renbec k Bloomington, I nd iana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In the Matter of the Termination of the Parent

- Child Relationship of Ay.H., Ar.H., and C.B. (Minor Children); S.B. (Father) and R.H. (Mother) , Appellant s-

Respondents ,

v. 

### The Indiana Department of Child Services , Appellee -P etitioner. January 30, 201 9 Court of Appeals Ca se No. 18A

- JT -1119 Appeal from the Monroe Circuit Court The Honorable Kelsey B. Hanlon, Special Judge Trial Court Cause No s. 53C07 -1701- JT -43 53C07 -1701- JT -44 53C07 -1701- JT -45Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 2 of 12 Pyle , Judge
. 

### Statement of the Case

[1] R.H. (“Mother”) and S.B. (“Father”) each appeal the termination of the parent

child relationship with their child C.B. (“C.B.”). Mother also appeals the termination of the parent

- child relationship s with her older children Ay.H. (“Ay.H.”) and Ar.H. (“Ar.H.”). Both parents claim that there is insufficient evidence to support the terminations. Specifically, both parents argue that the Department of Chi ld Services (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a reasonable probability that the conditions that resulted in the children ’ s removal or the reasons for placement outside the home will not be remedied; and (2) termin ation of the parent

- child relationship is in the children ’ s best interests. Father also argues that the trial court abused its discretion when it denied his motio n to continue the termination hearing. Concluding that the trial court did not abuse its dis cretion in denying Father ’ s motion to continue the termination hearing and that there is sufficient evidence to support the termination of the parent

- child relationships, we affirm the trial

court ’ s judgment.

[2] We affirm.



### Issue
1. Whether the trial court ab used its discretion in denying Father ’ s motion to continue the termination hearing.Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 3 of 12 2. Whether there is sufficient evidence to support the termination of the parent

- child relationships.



### Facts

[3] The facts most favorable to the judgment reveal that Mother is the parent of twin daughters Ay.H. and Ar.H., who were born in 2008 and son C.B., who was born in 2010. 1 Father is the parent of C.B

. Father was incarcerated in
2012 following his conviction s for felony burglary and theft

.

[4] In September 2015, Mother failed to pick up the children after school . School officials were unable to reach her so they contacted DCS. When a DCS case worker spoke with Mother by telephone the following day, the case worker advised Mother that her child ren had been placed in foster care. Mother , who was in the psychiatric unit at a Bloomington hospital , was very emotional on the phone. Mother explained that she “had had what she called a mental breakdown due to [] being homeless and reported that she n eeded to use marijuana in order to calm down . . . .” (Tr. Vol

. 1 at 16 ). Mother also admitted that she used marijuana regularly.

[5] DCS filed a petit i on alleging that Ay.H., Ar.H., and C.B. were children in need of services (“CHINS”) . In November 2015, the trial court adjudicated the children to be CHINS. Following a dispositional hearing, the trial court ordered Mother to: (1) complete a substance abuse assessment and follow all

1 The father of Ay.H. and Ar.H. is deceased.Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 4 of 12 recommendations with 95% compliance ; (2) complete a psychological evaluat ion and follow all recommendations with 95% compliance ; (3) participate in individual therapy and follow all recommendations with 95% compliance ; (4) keep her home clean and appropriate; (5) submit to weekly drug s creens; and (6 ) attend all scheduled super vised visits with her children. The trial court ordered Father to complete similar services “[u]pon his release from prison.” (Ex. 48).

[6] In January 2017, DCS filed petitions to terminate both Mother ’ s and Father ’ s parental rights. The trial court schedu led the termination hearing for April
2017. After at least twelve continuances attributable to the parties ’ requests, the trial court ’ s own motions, the trial court ’ s grant of Mother ’ s change of judge motion, and other reasons, the termination hearing was scheduled for March 2018. One week before the scheduled hearing, Father filed a motion for

a nother continuance , which the trial court denied. The day of the hearing, Father renewed his request for a continuance, but the trial court again denied the moti on.

[7] Testimony at the March 2018 termination hearing revealed that , at the time of the hearing, Mother was unemployed and lacked stable housing. During the course of the CHINS proceeding, Mother had lived with different family members and friends in different cities and states. Mother testified that she was still using marijuana and planned to do so “until [marijuana] gets legal.” (Tr. Vol. 1 at 110). According to Mother, marijuana would “eventually get legalized in every state.” (Tr. Vol. 2 at 110). In addition, Mother had notCourt of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 5 of 12 participated in any of the court

- ordered therapeutic services or visited with her children during the year before the hearing

.

[8] Regarding F ather, the testimony at the 2018 hearing reveal ed that he had been incarcerated since 2012

. Further, i n 2017, Father had received three prison violations. Specifically, in January 2017, Father had had a positive drug test and had lost ninety days of cred it time. In May 2017, Father had received a violation for unauthorized possession and destruction relating to batteries, and in July 2017, Father had been removed from a substance abuse treatment program following a no ther violation. A July 2017 Departmen t of Correction (“DOC”) reco rd provides that Father’s “motivation was poor” and that he had “struggled with understanding the rules and developing the willingness to leav e the criminal lifestyle.” (Ex. Vol. 4 at 217). A t the March 2018 hearing, Father

te stified that he would be released from the DOC between June and November
2018 ; however, the DOC ’ s Offender Locator provides that his release date is in March 2019. See https://www.in.gov/apps/indcorrection/ofs/ofs (last visited 01/10/2019).

[9] Also at the hearing, DCS Family Case Manager Katie Bostic (“FCM Bostic”) testified that the children had been removed from Mother because of her housing instability and drug use . FCM Bostic explained that Mother ’ s housing instability had not been remedied and that Mother was living in a hotel at the time of the hearing and was unemployed . In addition, FCM Bostic testified that Mother ’ s drug use had not bee n remedied as demonstrated b y Mother ’ s failure to complete substance abuse treatment and her continued use ofCourt of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 6 of 12 marijuana

. Regarding Father, the case manager testified that F ather had not been fully complia nt with DOC ’ s programs as demonstrated by his three recent violations within th e prior year. In addition , FCM Bostic pointed out that C.B. ha d been only two years old when Father had been sent to DOC , which was six years prior to the hearing , and that foster mother had provided more care for C.B. than Father had

.

[10] FCM Bostic asked the trial court to terminate the parental rights of both parents “so that the permanency plan could be achieved for these children .” (Tr. Vol. 2 at 10). According to FCM Bostic, the foster parent planned to adopt the three children, and the termination o f both Mother ’ s and Father ’ s parental rights would provide consistency a nd stability for them and would be in their bes t interests

. Lastly, court

- appointed special advocate Lester Wadzinski ( “CASA Wadzinski ”) also testified that termination was in the children ’ s best interests. Specifically, CASA Wadzinski explained that, “It ’ s just hard on the kids[,] and they are in a good place with [foster mother].” (Tr. Vol. 2 at 21, 28).

[11] Following the hearing, the trial court issued an order terminating the pare ntal relationships between Mother and Ay.H., Ar.H., and C.B. In addition, the trial court terminated the parental relationship between Father and C.B . Each parent separately appeals the terminations.Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 7 of 12 

### Decision

1. Denial of Father ’ s Motion to Continue the Termination Hearing
[12] Father first argues that the trial court abused its discretion in denying his motion to continue the termination hearing

. Generally, the decision to grant or deny a motion to continue is within the sound discretion of the trial court, and we will reverse only for an abuse of discretion

. In re J.E. , 45 N.E.3d 1243, 1246 (Ind. Ct. App. 2015) , trans. denied

. An abuse of discretion occurs when the trial

court ’ s conclusion is clearly against the logic and effect of the facts and circumstances before the c ourt or the reasonable and probable deductions to be drawn therefrom. Id. When a motion to continue has been denied, an abuse of discretion will be found if the moving party has demonstrated that there was good cause for granting the motion and that he w as prejudiced by the denial. Id.

[13] Here, Father argues that he has demonstrated the requisite good cause and prejudice because the “denial of [his] motion to continue resulted in the loss of his parental rights.” ( Father’s Br. at 11 )

. We agree with DCS that the gravamen of this argument is that Father “ wanted more time to show he was a fit parent.” (DCS ’s Br. at 19 ) . However, our rev iew of the evidence first reveals that the termination hearing had already been continued at least twelve times from its initial ly scheduled date of April 2017. Father therefore had an additional year to show his fitness as a parent. Despite this opportunity, Father continued to use drugs and break rules while incarcerated. He was also removed from a substance abuse prog ram , and a DOC record noted that, evenCourt of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 8 of 12 after serving six years in the DOC, Father “struggled with understanding the rules and developing the willingness to leave the criminal lifestyle.” ( Ex. Vol. 4
at 217 ) . Based upon these facts and circumstances, Fath er has failed to d emonstrate both that there was good cause for granting the motion and that he was prejudiced by the denial. The trial court did not abuse its discretion in denying Father’s motion to continue the termination hearing.

2. Sufficiency of the Evidence to Support the Termination s

[14] Both parents argue that there is insufficient evidence to support the termination of their parental rights. The traditional right of parents to establish a home and raise their children is protected by the Fourteen th Amendment to the United States Constitution. In 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 sur rounding 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.

[15] Before an involuntary termination of parental rights may occur, DCS is required to allege an d prove, among other things:
(B) that one (1) of the following is true:Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 9 of 12 (i) There is a reasonable probability that the condit ions 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 term ination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child.
I ND

. C ODE § 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).

[16] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of th e 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 witn esses firsthand.
K.T.K. , 989 N.E.2d at 1229.

[17] Mother and Father both argue that DCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children ’ s removal or the reasons for pla cement outside the home will notCourt of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 10 of 12 be remedied

. 2 In determining whether the cond itions that resulted in a child ’ s removal or placement outside the home will not be remedied, we engage in a

two

- step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

. We first identify the conditions that led to removal or placement outside the home and then determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step requires trial courts to judge a parent ’ s fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Habitual conduct may include parents ’ prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and a lack of adequate housing and employment.
A.D.S. v . Ind. Dep ’ t of Child Servs. , 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied . The trial court may also consider services offered to the parent by DCS and the parent ’ s response to those services as evidence of whether conditions will be remedied

. Id.

[18] Here, our review of the evidence and any reasonable inferences to be drawn therefrom that support the judgment reveals that the children were removed

[1] 2 Father also argues that DCS failed to prove by clear and convincing evidence that the continu ation of the parent

- child relationships poses a threat to the children ’ s well

- being. However, because I NDIANA C ODE § 31

- 35

- 2

- 4(b)(2)(B) is written in the disjunctive , DCS is required to establish by clear and convincing evidence only one of the three requirements of subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. Ap p. 2010), trans. dismissed . We therefore discuss only whether there is a reasonable probability that the conditions that resulted in the children ’ s removal or the reasons for their placement outside the home will not be remedied.Court of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 11 of 12 from Mother because of unstable housing and Mother ’ s drug use. C.B. could not be placed with Fat her because Father was incarcerated for several felonies. At the time of the termination hearing , Mother did not have stable housing and was unemployed. In addition, she continued to use marijuana and did not participate in any of the court

- ordered thera peutic services or visited with her children during the year before the hearing. In 2017, after being incarcerated for five years, Father was still failing to comply with prison regulations. Specifically, Father had a positive drug test, received a viola tion for unauthorized possession and destruction relating to batteries, and was removed from a substance abuse treatment program. These violations caused Father to lose accrued credit time that would have led to an earlier release from the DOC. This evid ence supports the trial court ’ s conclusion that there was a reasonable probability that the conditions that resulted in the children ’ s removal would not be remedied. We find no error.

[19] Next, Mother and Father both argue that there is insufficient evide nce 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 adequateCourt of Appeals of Indiana | Memorandum Decision 18A

- JT

- 1119 | January 30, 201 9 Page 12 of 12 housing, stability and supervision coupled with a current inability to provide t he 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 ). Further, the testimony of the service providers may support a finding tha t 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).

[20] Here, our review of the evidence reveals that Mother and Father have historically been unable to provide ho using, stability, and supervision for their children and were unable to provide the same at the time of the termination hearing. In addition, FCM Bostic and CASA Wad zinski both testified that termination was in the children ’ s best interests. The testimon y 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.

[21] 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 th e trial

court.

[22] Affirmed.

Najam, J., and Crone, J., concur.