MEMORANDUM DECISION
                                                              May 27 2015, 8:40 am
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.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                        May 27, 2015
of the Parent-Child Relationship                        Court of Appeals Case No.
of: P.N.,                                               02A03-1412-JT-454
                                                        Appeal from the Allen Superior
A.N.,                                                   Court

Appellant-Respondent,                                   The Honorable Charles F. Pratt,
                                                        Judge
        v.
                                                        Cause No. 02D08-1404-JT-51

Indiana Department of Child
Services,
Appellee-Petitioner.




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015     Page 1 of 12
                                          Statement of the Case
[1]   A.N. (“Mother”) appeals the termination of her parental rights over her minor

      child, P.N. (“Child”).1 Mother presents one issue for our review, namely,

      whether the Indiana Department of Child Services (“DCS”) presented sufficient

      evidence to support the termination of her parental rights.


[2]   We affirm.


                                    Facts and Procedural History
[3]   DCS became involved with Mother and then five-year-old Child in June 2013

      as a result of Mother’s long-term substance abuse.2 On June 5 and 7, Mother

      tested positive for marijuana and cocaine, and, on June 11, Mother tested

      positive for cocaine, opiates, hydrocodone, and Tramadol. On June 14, DCS

      removed Child from Mother’s care and placed him in foster care. The next

      day, on June 15, Mother was evicted from her home. On July 16, based on

      Mother’s admissions, Child was adjudicated a child in need of services

      (“CHINS”). Shortly thereafter, DCS placed Child with his maternal great aunt

      (“Aunt”),3 who, prior to this placement, had twice cared for Child for extended




      1
        No father was named on Child’s birth certificate, and Mother did not register a name of a prospective
      father with the putative father registry. During the pendency of this case, Mother did name J.D. as Child’s
      father but never established paternity. In any event, neither J.D. nor any other prospective father participates
      in this appeal.
      2
        Prior to the current proceeding, Mother’s struggles with substance abuse resulted in the termination of her
      parental rights over two other children.
      3
        Aunt’s fiancé was also present in the home, and he helped care for Child. However, Aunt’s fiancé died
      before the court conducted the termination hearing.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015                 Page 2 of 12
      periods because of Mother’s substance abuse.4 When Child was placed with

      Aunt in June 2013, he could not tie his shoes and did not know the alphabet.

      Further, he suffered from anxiety and feared being left alone.


[4]   As a part of the CHINS adjudication, Mother was given a court-ordered

      treatment plan, which, in relevant part, mandated that mother stay in contact

      with DCS, attend all case conferences, maintain appropriate housing, visit

      regularly with Child, establish paternity, submit to a diagnostic assessment,

      obtain a drug and alcohol assessment, submit to random drug screenings, and

      complete an in-patient drug treatment program. When Mother was in contact

      with DCS, she attended her case conferences and submitted to drug screenings.

      However, Mother failed to contact DCS between August 2013 and December

      2013, and she never provided DCS with her current address. Further, Mother

      failed to submit to a diagnostic assessment or to obtain a drug and alcohol

      assessment, and, although Mother began an in-patient drug treatment program

      in June or July of 2014,5 she left after a week and never returned.


[5]   When Mother visited with Child, the visitations were appropriate, and Child

      appeared bonded to Mother. However, between July and August 2013, within

      a thirty-day period, Mother missed two of seven visitations, which resulted in

      the suspension of visitations. Mother never took the steps necessary to




      4
          These periods of care were not court-ordered.
      5
          The record does not contain the exact date.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 3 of 12
      reestablish visitations in 2013. After August 2013, Mother did not visit with

      Child until January 2014. When visitations began again in January 14,

      Mother’s attendance was, once more, sporadic, and Mother last visited Child in

      April or May of 2014.


[6]   In the interim, Child thrived in his placement with Aunt, who enrolled Child in

      kindergarten, where he received counseling and tutoring. Through counseling,

      Child’s anxiety improved, and he became more secure in his placement with

      Aunt. Further, although Child needed to repeat kindergarten, his performance

      in school improved. As a result of Mother’s failure to complete court-ordered

      services, Mother’s inability to address her substance abuse problem, and the

      stability Child received in his placement with Aunt, in February 2014, Child’s

      permanency plan was changed from reunification with mother to adoption.

      Aunt expressed a desire to adopt Child.


[7]   The trial court held the termination hearing on September 16 and September

      23, at which Mother did not appear,6 and the court terminated Mother’s

      parental rights on November 26. In so doing, in relevant part, the trial court

      found and concluded:

                 THE COURT NOW FINDS AND CONCLUDES THAT:

                 3. The Court adjudicated the child to be a [CHINS] . . . and a
                 Dispositional Hearing was held on July 16, 2014.




      6
          J.D. also did not appear.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 4 of 12
                                               ***

        6. . . . [C]hild has been placed outside the care of [Mother] . . .
        for a period of more than six (6) months since the entry of the
        Disposition Decree.

        7. [Mother] ha[s] failed to comply with the terms of the Parent
        Participation Plan and the Dispositional Decree.

                                               ***

        12. The child’s [Court Appointed Special Advocate] has also
        concluded that the child’s best interests are served by the
        termination of parental rights. In support of her conclusion[,] she
        cites the Parent’s inability to complete services.

        . . . THE COURT . . . CONCLUDES THAT:

                                               ***

        2. . . . By the clear and convincing evidence[,] . . . there is a
        reasonable probability that [the] reasons that brought about the
        child’s placement outside the home will not be remedied. The
        mother . . . ha[s] not visited the child. [Mother] ha[s] not
        completed services required under the Dispositional Decree.

        3. Termination must be in the child’s best interests[,] and the
        petitioner must have a satisfactory plan for the care and
        treatment of the child. . . . In this case[,] the Guardian Ad Litem
        has concluded that termination of parental rights is in the child’s
        best interests. The child needs a safe[,] stable[,] and nurturing
        home environment that can be provided through adoption. . . .
        [M]other . . . ha[s not] demonstrated an ability to meet/provide
        the child with his basic needs. Adoption of the child is an
        appropriate plan.


Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 5 of 12
              4. The [DCS] has thus proven by clear and convincing evidence
              that the allegations of the petition are true and that the parent-
              child relationship[] should be terminated.


      Appellant’s App. at 10-12. This appeal ensued.


                                     Discussion and Decision
[8]   Mother contends that the trial court erred when it terminated her parental

      rights. We begin our review of this issue by acknowledging that “[t]he

      traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.”

      Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.

      Ct. App. 1996), 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. Schultz v. Porter Cnty. Ofc. of Family & Children (In re

      K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a 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. at 836.


[9]   Before an involuntary termination of parental rights can occur in Indiana, in

      relevant part, DCS is required to allege and prove:

              (A) that one (1) of the following is true:


      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 6 of 12
                       (i) The child has been removed from the parent for at least
                       six (6) months under a dispositional decree.

                                                      ***

               (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.

                                                          ***

               (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.


       Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

       one of the requirements of section (b)(2)(B) before the trial court may terminate

       parental rights. DCS’s “burden of proof in termination of parental rights cases

       is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re

       G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).


[10]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

       Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 7 of 12
       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[11]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[12]   Mother does not challenge any specific finding of fact made by the trial court.

       Instead, Mother contends that the trial court’s conclusion that the reasons for

       Child’s continued placement outside of her home will not be remedied 7 is




       7
        In general terms, Mother also presents an argument under Indiana Code Section 31-35-2-4(b)(2)(B)(ii).
       However, the trial court did not address this prong of the termination statute in its order, and, accordingly,
       we limit our review to Section 31-35-2-4(b)(2)(B)(i).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015                  Page 8 of 12
       clearly erroneous because “there was no testimony provided at the trial”

       regarding the reasons for Child’s removal from Mother’s home and because

       drug addiction is difficult to overcome, meaning the trial court should have

       given Mother more time to address her substance abuse. Appellant’s Br. at 12.


[13]   Mother’s argument requires that “[w]e engage in a two-step analysis . . . . First,

       we must ascertain what conditions led to [Child’s] placement and retention in

       [relative] care. Second, we determine whether there is a reasonable probability

       that those conditions will not be remedied.” K.T.K v. Ind. Dep’t of Child Servs.,

       Dearborn Cnty. Ofc., 989 N.E.2d 1225, 1231 (Ind. 2013) (citations and quotation

       marks omitted). In reaching its conclusion, “the trial court must consider a

       parent’s habitual pattern of conduct to determine whether there is a substantial

       probability of future neglect or deprivation.” Id. (citations and quotation marks

       omitted).


[14]   Contrary to Mother’s assertions, DCS did present evidence regarding the

       reasons for removal of Child from Mother’s care when the trial court admitted a

       group of exhibits that included Mother’s admissions to the allegations

       contained in the amended verified petition alleging Child to be a CHINS. See

       DCS Ex. E. Therein, Mother admitted to “a history of using illegal drugs or

       cocaine,” to failing several drug tests, and to being “unable or unwilling to

       provide [Child] with an environment free of illegal drugs or substances.” Id.

       Similarly, Aunt testified that Mother previously had her parental rights over

       two other children terminated as a result of her substance abuse.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 9 of 12
[15]   For the very same reasons, further demonstrated by Mother’s failure to

       complete services, the trial court continued the placement of Child outside of

       Mother’s home and, ultimately, terminated Mother’s parental rights. Thus, the

       trial court could logically determine that Mother should not be given more time

       to address her addictions. Therefore, the trial court’s conclusion that “there is a

       reasonable probability that [the] reasons that brought about the child’s

       placement outside the home will not be remedied” is not clearly erroneous.

       Appellant’s App. at 12.


[16]   Mother also challenges the trial court’s conclusion that termination of Mother’s

       parental rights was in Child’s best interests, as required by Indiana Code

       Section 31-35-2-4(b)(2)(C). In determining Child’s best interests, the court was

       “required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In so doing, the trial court must [have] subordinated the

       interests of the parent to those of the child.” In re C.A., 15 N.E.3d 85, 94 (Ind.

       Ct. App. 2014). A trial court should consider the recommendations of the case

       manager and court-appointed advocate when it determines whether termination

       is in a child’s best interest. See S.C. v. Ind. Dep’t of Child Servs. (In re J.C.), 994

       N.E.2d 278, 290 (Ind. Ct. App. 2013). “A parent’s historical inability to

       provide a suitable environment, along with the parent’s current inability to do

       the same, supports finding termination of parental rights is in the best interests

       of the children.” Id.


[17]   Mother contends that the trial court erred when it concluded that termination

       was in Child’s best interests because Mother was not given enough time to

       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 10 of 12
       overcome her drug problems, Mother and Child shared a “loving devotion,”

       and “the trial court did not appear to consider [Child’s] ongoing anxiety at

       being removed from his mother’s care.” Appellant’s Br. at 14. But these

       arguments request that we reweigh the evidence, which we will not do. The

       evidence at the termination hearing demonstrated that Mother had an ongoing

       drug problem that predated the current CHINS case, which Mother failed to

       address during the pendency of these proceedings by completing DCS services

       or otherwise. We have already held that the trial court could reasonably deny

       Mother more time to address her substance abuse. And, moreover, the trial

       court could reasonably conclude that, irrespective of Mother and Child’s loving

       devotion and Child’s anxiety, which was improving with counseling,

       termination was in Child’s best interests. The court’s judgment is not clearly

       erroneous in this respect.


[18]   Finally, Mother asserts that relative adoption was not a satisfactory

       permanency plan because DCS had to do more “than have someone say ‘We

       have a plan’ to satisfy this statutory requirement.” Id. at 15. But, as we have

       stated:


                 Indiana courts have traditionally held that for a plan to be
                 satisfactory, for the purposes of the termination statute, it need
                 not be detailed, so long as it offers a general sense of the direction
                 in which the child will be going after the parent-child relationship
                 is terminated. A DCS plan is satisfactory if the plan is to attempt to
                 find suitable parents to adopt the children. In other words, there need not
                 be a guarantee that a suitable adoption will take place, only that DCS
                 will attempt to find a suitable adoptive parent. Accordingly, a plan is
                 not unsatisfactory if DCS has not identified a specific family to
                 adopt the children. Part of the reason for this is that it is within

       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 11 of 12
               the authority of the adoption court, not the termination court, to
               determine whether an adoptive placement is appropriate.

       In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (emphasis added; citations

       and quotation marks omitted), trans. denied. Here, DCS identified adoption as a

       suitable permanency plan, and the trial court agreed. In addition, Aunt

       expressed her desire to adopt Child. The trial court, therefore, did not err when

       it found the proposed permanency plan to be satisfactory.


[19]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1412-JT-454 | May 27, 2015   Page 12 of 12
