                                                                             FILED
                                                                        Feb 19 2019, 10:33 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Daniel G. Foote                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Katherine A. Cornelius
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                           February 19, 2019
Child Relationship of:                                      Court of Appeals Cause No.
R.L.-P. (Minor Child)                                       18A-JT-2083
and                                                         Appeal from the Marion
M.E. (Father),                                              Superior Court
Appellant-Respondent,                                       The Honorable Marilyn A.
                                                            Moores, Judge
        v.                                                  The Honorable Scott
                                                            Stowers, Magistrate
The Indiana Department of Child
Services,                                                   Trial Court Cause No.
                                                            49D09-1712-JT-1364
Appellee-Petitioner.




Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019                            Page 1 of 16
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, M.E. (Father), appeals from the trial court’s Order

      terminating his parental rights to his minor child, R.L.-P. (Child).


[2]   We affirm.


                                                     ISSUES
[3]   Father presents three issues on appeal, which we consolidate and restate as:


          (1) Whether the trial court erred when it denied his motion to dismiss; and

          (2) Whether the trial court’s Order terminating his parental rights to Child

              was clearly erroneous.


                       FACTS AND PROCEDURAL HISTORY
[4]   Child was born to Father and D.P. (Mother) 1 in March of 2016. On April 28,

      2016, the Department of Child Services (DCS) filed a petition alleging that

      Child was a child in need of services (CHINS) based on allegations that Mother

      had failed to provide Child with a stable home free from substance abuse,

      Child’s meconium had tested positive for marijuana at birth, Father had failed

      to demonstrate an ability or willingness to appropriately parent Child or to

      ensure her wellbeing while in Mother’s care, and Mother reported that Father

      was abusing heroin. On June 20, 2016, Mother admitted that Child was a




      1
        Mother’s parental rights to Child were terminated in the same proceeding. Mother is not a party to the
      instant appeal.

      Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019                           Page 2 of 16
      CHINS due to Mother and Child testing positive for marijuana at the time of

      Child’s birth. Father failed to appear for the CHINS fact-finding hearing, but

      after hearing evidence from the family case manager (FCM), the trial court

      found that Mother had reported domestic violence involving Father, DCS had

      only had two telephone contacts with Father, Father did not have stable

      housing, Father had not participated in services to address his substance abuse

      or domestic violence issues, Father had never appeared in court, and Father

      had not demonstrated an ability or willingness to parent Child. The trial court

      found that Child was a CHINS; however, Child remained in Mother’s home,

      and Mother was ordered to engage in a number of services. On September 19,

      2016, Child was removed from Mother’s home due to safety concerns, and

      Child was placed in foster care where she has resided ever since.


[5]   During the CHINS proceedings, Father was arrested for possession of

      methamphetamine. Father pleaded guilty and on December 7, 2016, was

      sentenced to time served. On February 28, 2017, Father committed the offense

      of conspiracy to commit robbery. He pleaded guilty to the offense and on

      December 13, 2017, was sentenced to nine years in the Department of

      Correction (DOC), with five years suspended, and two years of probation.


[6]   On May 1, 2017, the permanency plan for Child was changed from

      reunification to adoption due to Mother and Father’s failure to comply with

      Child’s case plan. On August 28, 2017, the trial court entered an order

      directing Father to submit to a buccal swab to establish paternity. On October

      8, 2017, Child was moved into a pre-adoptive foster home, which was her final

      Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019     Page 3 of 16
      placement. DNA results dated October 12, 2017, confirmed that Father was

      Child’s biological father. DCS referred Father to Father Engagement services

      with Greg Hruby (Hruby). Father told Hruby that he felt that he was not

      capable of being a father to Child but that paternal Grandfather (Grandfather)

      was capable. After Father told Hruby that he wished Child to be placed with

      Grandfather, Hruby met with Grandfather in his home and eventually

      performed a home assessment. Father was unable to complete Father

      Engagement due to being transferred to another DOC facility which did not

      provide services.


[7]   In December 2017, Grandfather attended a family-child team meeting for Child

      where he disclosed that he was unable to care for Child at that time, citing work

      schedule concerns. On December 21, 2017, DCS filed a petition seeking the

      termination of Father’s parental rights to Child (TPR). Grandfather was

      referred for grandparent visitation in February of 2018. At an April 2018

      family-child team meeting, Grandfather requested that Child be placed with

      him. Child’s current foster family also attended the meeting. DCS interviewed

      Grandfather and Child’s current foster family at the meeting, and after that

      interview, concluded that Grandfather had not been able to answer their

      questions as adequately as the foster family. DCS did not alter Child’s

      placement. In March 2018, Child’s foster family filed a petition to adopt her.

      After mediation in the TPR proceedings failed to produce an agreement, the

      TPR was set for a two-day trial on July 24 and July 25, 2018.




      Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019     Page 4 of 16
[8]   On July 19, 2018, Father filed a motion to dismiss the TPR in which he averred

      that Mother and Father had executed consents for Grandfather to adopt Child.

      Father also averred that on July 10, 2018, Grandfather had filed a petition to

      adopt Child. Father argued that, in light of his consent to adoption and the

      filing of Grandfather’s adoption petition,


              [i]t is not necessary to have a trial to prove that termination is in
              the best interests of [Child] or that there is a satisfactory plan for
              the care and treatment of [Child]; both parents agree that this is
              the case. The only dispute remaining in this matter is whether
              one plan (Paternal Grandfather’s home) or another (foster
              parents’ home) is more appropriate for [Child]; however, this
              [c]ourt is not the proper venue to resolve that dispute.


      (Appellant’s App. Vol. II, p. 72). In its response to Father’s motion to dismiss,

      DCS averred that Grandfather did not request placement until April 9, 2018,

      and that the consents that Mother and Father had executed were insufficient

      because Child’s name was misspelled and her date of birth was not provided.

      The trial court denied Father’s motion to dismiss without entering findings or

      conclusions.


[9]   On July 24, 2018, the trial court held the TPR hearing. Mother did not appear,

      but Father appeared by teleconference and by counsel. Father’s counsel

      renewed the motion to dismiss, commenting that


              [a]t this point in time, my client doesn’t have a case to present
              with respect to the termination of parental rights because he has
              already consented to termination. The only issue at this point is
              placement . . . But, I don’t think it’s appropriate for this [c]ourt to

      Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019            Page 5 of 16
               have a hearing about placement today. I think that is a matter
               for the adoption court.


       (Transcript p. 8). The trial court denied Father’s renewed motion to dismiss,

       finding that DCS was not required to accept Father’s consent to adoption, DCS

       appeared to have a satisfactory plan for Child—adoption—and that it was for

       the adoption court to decide appropriate placement for Child.


[10]   As of the TPR hearing, Father had not seen Child for approximately one and

       one-half years. Father was studying for his high school equivalency

       examination. Father’s projected release date was February 28, 2020. After his

       release, Father planned to live with Grandfather.


[11]   The FCM testified that neither parent had worked toward establishing a

       relationship with Child and that termination of parental rights and adoption by

       Child’s current foster family was in her best interests because the home was free

       of abuse and neglect, Child experienced consistent relationship and routines

       there, Child’s hygiene and developmental milestones were being met, and her

       foster family functioned well which ensured permanency. Child’s guardian ad

       litem (GAL) testified that child was well-bonded with her foster family, was

       well-integrated into their home, and that she was having all of her needs met. It

       was the GAL’s opinion that Child required permanency because she had been

       in three foster homes and needed stability. The GAL felt that termination was

       in Child’s best interests because the efforts made toward reunifying Child with

       her biological parents had not been successful and Child deserved lifelong


       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019    Page 6 of 16
       stability. Child’s foster mother testified regarding Child’s daily routine and her

       bond with the family, including her foster brothers.


[12]   On August 6, 2018, the trial court issued its Order terminating Father’s parental

       rights to Child and entering the following relevant findings of fact and

       conclusions of law:


               39. There is a reasonable probability that the conditions that
               resulted in the removal and continued placement of [Child]
               outside the home will not be remedied by [Father]. [Father] will
               remain unavailable for another year and one-half. He will then
               have to address concerns, stay out of jail, and obtain stability.


               40. There is a reasonable probability that the continuation of the
               parent-child relationship poses a threat to [Child’s] well-being in
               that it would pose as a barrier to obtaining permanency for her
               through an adoption when [Mother] has stopped services and
               parenting time, and [Father] remains unavailable to parent and
               offer permanency.


               41. [Child] is in a [pre-adoptive] foster placement where she has
               resided since October of 2017. She has bonded with her
               caregivers and family, and enjoys a consistent routine. Her needs
               are being met as demonstrated in the developmental progress she
               has made since resided [sic] in this placement.


               ***


               43. [Child’s] [GAL] recommends adoption for [Child] and has
               observed her as being very bonded with her [pre-adoptive]
               family.



       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019       Page 7 of 16
               44. Termination of the parent-child relationship is in the best
               interests of [Child]. Termination would allow her to be adopted
               into a stable and permanent home where her needs will be safely
               met. She has become bonded with her foster family while
               [Mother] has not made herself available to form a bond and
               [Father] has also done so through criminal activity.


               45. There exists a satisfactory plan for the future care and
               treatment of [Child], that being adoption.


       (Appellant’s App. Vol. II, pp. 17-18).


[13]   Father now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                                I. Motion to Dismiss

[14]   Father argues that the trial court erred when it denied his motion to dismiss the

       TPR because he and Mother were willing to consent to Child’s adoption by

       Grandfather. DCS counters that Father “is not a designated party who may file

       a motion to dismiss pursuant to I.C. § 31-35-2-4.5(d).” (Appellee’s Br. p. 15).

       As such, resolution of Father’s argument will entail examination of that statute.

       “We interpret statutes de novo.” Z.B. v. Ind. Dep’t of Child Servs., 108 N.E.3d 895,

       898 (Ind. Ct. App. 2018), trans. denied. However, before interpreting a statute,

       we consider whether the legislature has spoken clearly and unambiguously on

       the point in question. Id. If a statute is clear and unambiguous, it leaves no

       room for judicial construction and simply requires that we take words and

       phrases in their plain, ordinary, and usual sense. Id.


       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019     Page 8 of 16
[15]   Indiana Code section 31-35-2-4.5 provides for the filing of TPRs. Subsection

       (d) states in relevant part, “A person described in section 4(a) of this chapter

       may file a motion to dismiss the petition to terminate the parent-child

       relationship if any of the following circumstances apply . . .” Indiana Code

       section 31-35-2-4(a) provides that


               A petition to terminate the parent-child relationship involving a
               delinquent child or a child in need of services may be signed and
               filed with the juvenile or probate court by any of the following:

                        (1) The attorney for the department.

                        (2) The child’s court appointed special advocate.

                        (3) The child’s guardian [ad litem].


       Father does not contend that the statute is ambiguous, and we do not find it to

       be so. Reading these two unambiguous sections of the TPR statute together

       and giving their terms their plain, ordinary, and usual sense, reveals that only a

       DCS attorney, a child’s court appointed special advocate, or a child’s GAL may

       file a motion to dismiss a TPR. Thus, Father was not authorized by the TPR

       statute to file his motion, and we likewise find no basis in the statute for the trial

       court to have sua sponte dismissed the TPR, as Father urges in his Reply Brief.

       We conclude that the trial court did not err when it denied Father’s motion to

       dismiss which Father was not authorized to file.


                                  II. Termination of Father’s Parental Rights

[16]   The remainder of Father’s argument on appeal is essentially that termination

       was not warranted because Child could have and should have been placed with

       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019       Page 9 of 16
       Grandfather during the CHINS proceeding, thus avoiding the need to terminate

       Father’s parental rights. It is well-settled that when reviewing the evidence

       supporting the termination of parental rights we neither reweigh the evidence

       nor determine the credibility of witnesses. In re E.M., 4 N.E.3d 636, 642 (Ind.

       2014). In addition, we consider only the evidence that supports the judgment

       and the reasonable inferences to be drawn from that evidence. Id. “We confine

       our review to two steps: whether the evidence clearly and convincingly

       supports the findings, and then whether the findings clearly and convincingly

       support the judgment.” Id. We must give due regard to the trial court’s

       opportunity to judge the credibility of witnesses firsthand, and we do not set

       aside the trial court’s findings or judgment unless it is clearly erroneous. Id.

       “Clear error is that which leaves us with a definite and firm conviction that a

       mistake has been made.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 93 (Ind.

       Ct. App. 2014) (quotation omitted).


[17]   “[O]ne of the most valued relationships in our culture” is that between a parent

       and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

       Indeed, “[a] parent’s interest in the care, custody, and control of his or her

       children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

       (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Accordingly, the

       Fourteenth Amendment to the United States Constitution safeguards “the

       traditional right of parents to establish a home and raise their children.” Id.

       Nevertheless, parental interests are not absolute; rather, termination of parental




       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019     Page 10 of 16
       rights is appropriate when parents are unable or unwilling to meet their parental

       responsibilities. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008).


[18]   Termination of parental rights is an extreme sanction that is intended as a “last

       resort” and is available only when all other reasonable efforts have failed. C.A.,

       15 N.E.3d at 91. As such, before a termination of parental rights is merited, the

       State is required to prove a host of facts by clear and convincing evidence, the

       most relevant for our purposes being that termination is in the best interests of

       the child and that there is a satisfactory plan for the child’s care and treatment.

       Ind. Code §§ 31-35-2-4(b)(2)(C), (D); 31-37-14-2.


                                                A. Child’s Best Interests

[19]   Father contends that the evidence did not support the trial court’s conclusion

       that termination of his rights was in Child’s best interests. Our supreme court

       has recently recognized that one of the most difficult aspects of a termination of

       parental rights determination is the issue of whether the termination is in the

       child’s best interests. E.M., 4 N.E.3d at 647 (noting that the question

       “necessarily places the children’s interest in preserving the family into conflict

       with their need for permanency”). The trial court’s determination that

       termination was in the child’s best interests requires it to look at the totality of

       the evidence of a particular case. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App.

       2004), trans. denied. “In doing so, the trial court must subordinate the interests

       of the parents to those of the children involved.” Id.




       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019      Page 11 of 16
[20]   Here, Father was incarcerated for all but three or four weeks of the underlying

       CHINS case and the instant TPR proceedings and was not available to parent

       Child. 2 Before he was incarcerated, Father was not employed, had not

       addressed the substance abuse and domestic violence issues that came to light

       during the CHINS case, and had not established paternity for Child. There was

       no evidence in the record that Father had engaged in any programs to address

       those issues or better himself during his incarceration, apart from studying for

       his high school equivalency examination. As of the TPR hearings, Father had

       not seen Child for approximately one and one-half years, and he would not be

       available to parent Child until February 2020.


[21]   Child, who had been in her pre-adoptive foster care placement since October

       2017, was thriving there and was well-bonded with her foster family. Child’s

       FCM and GAL felt that Child, who had been in three foster homes, needed

       permanency and that it was in her best interests that Father’s rights be

       terminated. Given the totality of this evidence that supports the trial court’s

       Order, we cannot conclude that the trial court’s conclusion was clearly

       erroneous. See D.D., 804 N.E.2d at 267; E.M., 4 N.E.3d at 642.


[22]   Father does not dispute the evidence supporting the trial court’s judgment.

       Indeed, at the TPR hearing, Father took the position that termination was a




       2
         There is evidence in the record that after paternity was established, Father moved the trial court for
       parenting time while incarcerated. The portion of the trial court’s order which may have revealed the trial
       court’s rationale for denying that request has been redacted.

       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019                            Page 12 of 16
       foregone conclusion because he had already consented to it in order to facilitate

       Child’s adoption by Grandfather. On appeal, however, Father argues that

       termination was not in Child’s best interests because Child should have been

       placed with Grandfather during the CHINS proceedings. In support of his

       argument, Father relies on portions of the CHINS statute that mandate that a

       relative or de facto custodian be considered for placement upon removal and

       DCS’s internal policy statements favoring engagement of relatives in CHINS

       proceedings.


[23]   Even if we were to assume, without deciding, that these were relevant

       considerations for the TPR court, Father’s argument overlooks that paternity

       was not established until October 2017, approximately one and one-half years

       after the CHINS proceedings were initiated and a little over a year after Child

       was actually removed from Mother’s care. Thus, Grandfather had no legal

       status in Child’s life until that time, and there was no evidence that Grandfather

       had any previous contact or bond with Child or that he was even willing to

       foster Child during the early stages of the CHINS proceedings. Around the

       time paternity was established, Child’s previous foster home had decided

       against adoption, and so DCS sought another placement. Grandfather attended

       a DCS meeting in December 2017 where he disclosed that he was unable to

       have Child placed with him at that time. Child had been placed with her

       current pre-adoptive home in October 2017, and so at a time when she

       potentially could have been transitioned to Grandfather’s home with a

       minimum of extra disruption, Grandfather was unable or unwilling to take


       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019   Page 13 of 16
       Child. Instead, Child stayed in her pre-adoptive placement where she bonded

       with her foster parents and brothers, thrived, and became integrated into the

       home. When Grandfather requested in April 2018 that Child be placed with

       him, he was interviewed along with Child’s current foster family, who, at that

       juncture, was assessed by DCS to be the better placement for Child. In light of

       these facts and circumstances, we find no error, let alone error that firmly

       convinces us that a mistake has been made, in the trial court’s conclusion that

       termination was in Child’s best interests. See C.A., 15 N.E.3d at 93.


                                                  B. Satisfactory Plan

[24]   Father also briefly asserts that no satisfactory plan existed for Child’s care and

       treatment. “In order for the trial court to terminate the parent-child relationship

       the trial court must find that there is a satisfactory plan for the care and

       treatment of the child.” D.D., 804 N.E.2d at 268. The plan for care and

       treatment need not be detailed if it offers a general sense of the direction in

       which the child will be going after the parent-child relationship is terminated.

       Id. Generally, adoption is a satisfactory plan. In re S.L.H.S., 885 N.E.2d 603,

       618 (Ind. Ct. App. 2008).


[25]   Here, the permanency plan for Child was adoption. This was a suitable and

       adequate plan to support termination. Id. Nevertheless, Father argues that it

       was an inadequate plan in this case because DCS failed “to follow the dictates

       of statute and its own written policies with respect to [Child’s] placement and

       possible adoption.” (Appellant’s Br. p. 28). We have already found Father’s

       arguments regarding Child’s placement to be unavailing, and Father fails to

       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019      Page 14 of 16
       identify any statutes or written DCS policies pertaining to adoption violated by

       DCS in this case. We also note that Father acknowledged at the TPR hearing

       that it was for the probate court to determine who adopted Child, not the TPR

       court. See I.C. § 31-19-1-2(b) (providing that for counties that have a separate

       probate court, “[t]he probate court has exclusive jurisdiction in all adoption

       matters.”).


[26]   Inasmuch as Father appears to insinuate in other parts of his Brief that there

       was something irregular or improper about the GAL in this case bringing

       Child’s final, pre-adoptive foster family to the attention of DCS, we find that

       concern to be ungrounded. The GAL testified at the TPR hearing that she

       knew the foster family because they had fostered another child in her caseload

       who was going home, so the GAL knew they would have a vacancy in their

       home. The GAL was not friends with the family and had no other contact with

       them prior to the other case. Concluding that DCS had a plan of adoption for

       Child, we find that the trial court’s conclusion that a satisfactory plan existed

       for Child’s care and treatment was not clearly erroneous. See E.M., 4 N.E.3d at

       642.


                                               CONCLUSION
[27]   Based on the foregoing, we conclude that the trial court did not err when it

       denied Father’s motion to dismiss the TPR and that the trial court’s TPR Order

       was not clearly erroneous.


[28]   Affirmed.

       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019     Page 15 of 16
[29]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-JT-2083 | February 19, 2019   Page 16 of 16
