MEMORANDUM DECISION                                                         FILED
                                                                       Oct 06 2017, 11:10 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                            CLERK
this Memorandum Decision shall not be                                   Indiana Supreme Court
                                                                           Court of Appeals
regarded as precedent or cited before any                                    and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT A.O.                              ATTORNEYS FOR APPELLEE
Laura Raiman                                              Curtis T. Hill, Jr.
R. Patrick Magrath                                        Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
                                                          David E. Corey
Madison, Indiana                                          Deputy Attorney General
                                                          Indianapolis, Indiana
ATTORNEY FOR APPELLANT H.W.
Heather M. Schuh-Ogle
Thomasson, Thomasson, Long &
Guthrie, P.C.
Columbus, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 6, 2017
Parent-Child Relationship of                              Court of Appeals Case No.
R.W. (Minor Child), and                                   03A01-1704-JT-929
A.O. (Mother) and H.W.                                    Appeal from the Bartholomew
(Father),                                                 Circuit Court
                                                          The Honorable Kelly M.
Appellants-Respondents,
                                                          Benjamin, Judge
        v.                                                The Honorable Heather M. Mollo,
                                                          Magistrate
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 03C01-1607-JT-3818
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017           Page 1 of 13
      Mathias, Judge.


[1]   A.O. (“Mother”) and H.W. (“Father”) (collectively “the Parents”) appeal the

      order of the Bartholomew Superior Court terminating their parental rights to

      their minor child R.W. Concluding that the trial court’s order is insufficiently

      specific as to the basis of the trial court’s decision to terminate the Parents’

      parental rights, we remand for the entry of proper findings and conclusions that

      support the trial court’s termination decision.


                                  Facts and Procedural History
[2]   R.W. was born in October 2014 to Mother and Father. In April 2015, the

      Indiana Department of Child Services (“DCS”) received a report that Mother

      and Father were homeless and using illicit drugs. Mother, who was living in a

      homeless shelter at the time, admitted to using marijuana and

      methamphetamine. As a result, DCS removed R.W. from the Parents’ care

      and, on April 9, 2015, filed a petition alleging that R.W. was a child in need of

      services (“CHINS”). A detention hearing was held that same day, and the trial

      court approved placement of R.W. with Mother’s aunt (“Aunt”). The Parents

      denied the allegations in the CHINS petition, and the trial court set the matter

      for a fact-finding hearing. However, at the May 26, 2015 fact-finding hearing,

      the Parents admitted to the allegations, and the trial court adjudicated R.W. to

      be a CHINS.


[3]   DCS offered services to both Parents, who progressed moderately well, at least

      at first. At a September 29, 2015 review hearing, the trial court approved trial

      Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 2 of 13
      home visitation with the parents, but also ordered an increase in the frequency

      of random drug screening. This trial did not last long, as both Parents tested

      positive for methamphetamine on October 21, 2015. The following day, the

      trial court returned R.W. back to Aunt’s care. The Parents continued to test

      positive for methamphetamine use and did not progress in their substance abuse

      treatment.


[4]   On July 11, 2016, DCS filed a petition to terminate the parental rights of both

      Mother and Father. The trial court held an evidentiary hearing on the matter on

      December 16, 2016. On March 31, 2017, the trial court entered an order

      terminating the Parents’ parental rights to R.W., which order provided in

      relevant part:


              3. It was established by clear and convincing evidence that the
              child has been removed from her parent(s) for at least six (6)
              months under a dispositional decree.
              4. It was established by clear and convincing evidence that the
              child has been removed from her parents and has been under the
              supervision of the Indiana Department of Child Services for at
              least fifteen (15) of the last twenty-two months.
              5. The child, [R.W.] (hereinafter “Child”), is 2 years old . . . .
              6. [A.O.] is the mother of the Child (hereinafter ‘Mother’).
              7. [H.W.] is the father of the Child (hereinafter “Father”).
              8. The Child was removed from the care of Mother and Father
              on or about April 8, 2015, due to concerns of homelessness and
              substance use. During the course of the DCS assessment, the
              Family Case Manager met Mother and Father at a homeless
              shelter. Mother and Father initially denied all drug use but at a



      Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 3 of 13
        second meeting, both admitted to marijuana and
        methamphetamine use.
        9. A Verified Child In Need of Services (“CHINS’’) Petition
        was filed on April 9, 2015.
        10. Mother and Father were in attendance at the
        Initial/Detention Hearing held on April 9, 2015. Mother and
        Father were invited to participate in a Facilitation scheduled for
        May 14, 2015.
        11. Mother and Father participated in the Facilitation and
        voluntarily admitted that the Child was in need of services. The
        admission was consistent with the findings by DCS in its initial
        assessment. Mother and Father admitted to instability with
        housing and transportation. They acknowledged being dependent
        on others following a fire that destroyed their home. Mother and
        Father further admitted to using methamphetamine on one
        occasion and agreed that they were in need of court intervention
        to help them recover from the fire.
        12. Dispositional agreements were also reached as a result of
        Facilitation and a Dispositional Decree was entered on May 26,
        2015. The essential terms of the Dispositional Decree were
        similar for both Mother and Father and required each to: (1)
        complete a substance abuse assessment with Centerstone and
        complete any recommended treatment; (2) participate in
        individual counseling with Adult and Child and follow all
        recommendations; (3) participate in home-based case
        management with Adult and Child to assist with housing,
        employment, transportation, community resources, daycare and
        budgeting; (4) participate in supervised visitation through Adult
        and Child three times per week at two hour intervals and
        participate in additional visits as supervised by the Child’s
        maternal grandmother.
        13. To aid in the management of the case, Mother and Father
        were also expected to: (1) maintain weekly contact with the
        Family Case Manager (FCM); (2) allow access to the home; (3)
        maintain safe and stable housing; (4) maintain a legal source of

Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 4 of 13
        income; (5) refrain from the use of illegal drugs; and (6) submit to
        random drug screens as directed.
        14. After formal removal, the Child spent approximately twenty-
        four (24) days with Mother and Father in a trial home visit
        beginning September 29, 2015. After the trial home visit
        disrupted, the Child never returned to the home of Mother or
        Father. The Child has been out of the home for approximately
        nineteen (19) months.
        15. Mother and Father initially were residing together and
        working together for reunification with the Child.
        16. Mother and Father were both referred for substance abuse
        evaluations in May 2015. Both were recommended for IOP
        through Centerstone. Both initially made progress.
        17. Mother completed IOP, including aftercare, and provided
        negative drug screens.
        18. Father completed IOP and was ready to begin aftercare when
        he had a positive drug screen for suboxone on August 13, 2015.
        19. Despite Father’s positive screen, Mother was viewed as a
        safety factor in the home and the Child began a trial home visit
        with Mother and Father on September 29, 2015.
        20. The Child was again removed from the home of Mother and
        Father on October 21, 2015. Mother could no longer be the
        protective factor in the home as she had a positive screen for
        methamphetamine on October 16, 2015.
        21. Father in the meantime stalled in his substance treatment
        progress following the positive suboxone screen referenced in
        Paragraph 18 above. When Centerstone attempted to discuss the
        positive screen, Father denied use. Centerstone went to the effort
        of having the screen tested a second time to confirm results.
        Father continued to deny any substance use. Centerstone
        discharged him from their treatment program as they had
        reached an impasse with him. There was nothing further to
        process or learn with the continued denial on Father’s part.


Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 5 of 13
        22. Following the positive drug screens and the child’s removal,
        Mother was referred to Adult and Child for a new substance
        abuse assessment. She completed the assessment in December
        2015 and was recommended for IOP.
        23. Mother was unsuccessfully discharged from IOP in March
        2016 due to continued positive drug screens for
        methamphetamine and lack of attendance at IOP. Adult and
        Child was also concerned with the level of Mother’s use. She
        reported frequent use of methamphetamine and that she had
        been regularly using while in the earlier treatment with
        Centerstone.
        24. In discharging Mother, Adult and Child recommended that
        Mother pursue inpatient substance treatment.
        25. Mother attended and completed inpatient substance
        treatment at Tara Treatment Center and was discharged on April
        21, 2016.
        26. Tara gave a “guarded” prognosis as to Mother’s ability to
        remain sober. Mother never expressed her own commitment to
        long-term sobriety while at Tara and struggled to access her
        emotions while in treatment. Tara Treatment Center
        recommended that Mother enter a sober living environment, re-
        engage in IOP services, individual therapy, and medication
        management.
        27. Mother tested positive for methamphetamine on a screen
        collected one day after her release from Tara Treatment Center.
        Mother also tested positive for methamphetamine on the
        following dates, subsequent to her release from Tara Treatment
        Center: July 19, 2016; July 28, 2016; August 15, 2016; September
        13, 2016; September 29, 2016; October 4, 2016; October 13,
        2016; November 11 2016; and November 3, 2016.
        28. After completing Tara Treatment Center, Mother attended
        one IOP session through Centerstone, and has not returned.
        29. Mother never acknowledged her substance use to DCS. After
        every positive screen, she denied use. Even after the child was

Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 6 of 13
           removed the second time from the home, Mother was belligerent
           in denying any substance use.
           30. Following the Child’s second removal from the home and
           Father’s unsuccessful discharge from Centerstone, Father was
           next referred to Adult and Child for a substance abuse
           assessment. Father was recommended for IOP and was
           unsuccessfully discharged on December 22, 2015, for lack of
           attendance.
           31. On March 28, 2016, FCM provided a referral for a 21 day,
           in-patient substance abuse treatment program at Tara Treatment
           Center for Father. Father completed the program on May 20,
           2016.
           32. After completing the in-patient program, FCM provided a
           referral for Father to continue IOP treatment at Centerstone.
           Father started IOP on June 16, 2016. Father had two positive
           methamphetamine screens in June and started missing classes.
           He was required to sign a Zero Tolerance Agreement on June 24,
           2016, due to missed appointments and tardiness.
           33. In addition to the two positive methamphetamine screens
           administered by Centerstone, Father also tested positive for
           methamphetamine, following his completion of treatment at
           Tara Treatment Center: July 19, 2016; August 15, 2016; and
           September 13, 2016.
           33. Father was unsuccessfully discharged from Centerstone with
           a recommendation that he complete long term inpatient
           substance treatment.[1]
           34. Centerstone allowed Father to return to IOP services in
           December 2016 through an adult probation referral. Father began
           a term of probation on July 27, 2016 for an act of conversion. In
           October 2016, he admitted to his probation officer that he had
           used methamphetamine. Upon Centerstone completing a new



1
    The trial court’s order contains two findings labeled as “33.”


Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 7 of 13
        substance abuse evaluation, Father was expected to start IOP on
        December 12, 2016. He failed to attend his first two scheduled
        classes, the same week as this trial.
        35. Mother and Father were in a homeless shelter at the time of
        the Child’s first removal.
        36. Mother and Father had secured an apartment by the time the
        trial home visit was attempted in late September 2015, as
        referenced in Paragraph 19 above.
        37. In early April 2016, Mother and Father were again reported
        to be homeless. Father was living in a tent. Mother was at Tara
        Treatment Center and had no secure living arrangements upon
        her discharge.
        38. At the July 2016 Court Status Hearing, Mother and Father
        had separated. Mother had not been able to secure housing or
        employment since her discharge from Tara Treatment Center. By
        July 2016, Father had also completed inpatient substance
        treatment at Tara Treatment Center but was again living in a
        tent.
        39. Mother is still homeless. As of this trial date, Mother is living
        in a hotel. Mother does not have transportation. Mother
        requested that FCM transport her to Court for her hearing today.
        40. Father’s stability is dependent on his girlfriend. Father never
        obtained independent housing through the home-based case
        management service provided. Father admitted that for the last
        six to seven months he has been living off and on in a tent or
        staying with friends.
        41. Following the disruption of the trial home visit in September
        2015, the Child was in relative placement until April 2016. In
        April, the relative notified DCS and the parents that she could no
        longer be a permanency plan for the Child.
        42. Even with the knowledge that a foster home would be sought
        for the Child, parents were unable or unwilling to increase their
        level of commitment to sobriety or stability.


Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 8 of 13
        43. Visitation observers note that there is an obvious bond
        between the Child and her parents. Unfortunately, that too has
        failed to encourage any greater sense of urgency on the part of
        the parents to change their circumstances that existed at the time
        of the Child’s original removal.
        44. The child is in a pre-adoptive home where she has resided
        since August 3, 2016.
        45. DCS’ plan for the Child is that she be adopted by her current
        placement. This plan is satisfactory for the Child’s care and
        treatment.
        46. The Child is happy and comfortable in the pre-adoptive
        home. The Child’s GAL also supports adoption by the current
        foster parents as the permanency plan for the Child.
        IT IS THEREFORE ORDERED ADJUDGED AND
        DECREED:
        Termination is in the best interests of the child.
        That DCS’ petition for termination of Mother’s parental rights is
        granted and that the parent-child relationship between the Child,
        [R.W], and her Mother, [A.O.], is hereby terminated.
        All rights, powers, privileges, immunities, duties, and
        obligations, including any rights to custody, parenting time, or
        support, pertaining to the relationship are permanently
        terminated. Mother’s consent to the adoption of the Child is not
        required.
        That DCS’ petition for termination of Father’s parental rights is
        granted and that the parent-child relationship between the Child,
        [R.W.], and her Father, [H.W.] is hereby terminated.
        All rights, powers, privileges, immunities, duties and obligations,
        including any rights to custody, parenting time, or support,
        pertaining to the relationship are permanently terminated.
        Father’s consent to the adoption of the Child is not required.




Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 9 of 13
              That the Court shall retain jurisdiction over the Child in the
              corresponding CHINS case and accordingly this case is ordered
              closed.

      Mother’s App. pp. 13–18 (record citations omitted). The Parents now appeal.


                                     Discussion and Decision
[5]   We have often noted that the purpose of terminating parental rights is not to

      punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

      874, 880 (Ind. Ct. App. 2004). Although parental rights have a constitutional

      dimension, the law allows for the termination of such rights when the parents

      are unable or unwilling to meet their responsibilities as parents. Id. Indeed, the

      parents’ interests must be subordinated to the child’s interests in determining

      the proper disposition of a petition to terminate parental rights. In re G.Y., 904

      N.E.2d 1257, 1259 (Ind. 2009).


[6]   The termination of parental rights is controlled by Indiana Code section 31-35-

      2-4(b)(2), which provides that a petition to terminate parental rights must allege:


                    (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;

      Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 10 of 13
                     (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.

[7]   The burden is on DCS to prove each element by clear and convincing evidence.

      Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1260. As Indiana Code section 31-

      35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

      only one prong of that subsection has been established by clear and convincing

      evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).


[8]   If the court finds the allegations in a petition are true, the court shall terminate

      the parent-child relationship. I.C. § 31-35-2-8(a). If the court does not find that

      the allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).

      Indiana Code section 31-35-2-8(c) now2 provides that the trial court “shall enter

      findings of fact that support the entry of the conclusions required by subsections

      (a) and (b)” to either terminate a parent-child relationship or to dismiss the

      termination petition. (emphasis added).


[9]   Here, all parties acknowledge that the trial court failed to make any findings or

      conclusions with regard to the statutory requirements that must be proved

      before a trial court may terminate parental rights. That is, the trial court did not

      make any finding or conclusion that there is a reasonable probability that the




      2
        Indiana Code section 31-35-2-8 was amended in 2012 to add the requirement that the trial court enter
      findings of fact. See Pub. L. No. 128–2012; see also In re Involuntary Termination of Parent-Child Relationship of
      N.G., 61 N.E.3d 1263, 1265 (Ind. Ct. App. 2016) (noting 2012 amendment to require findings of fact
      supporting trial court’s decision to either grant or dismiss a petition to terminate parental rights).

      Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017                 Page 11 of 13
       conditions that resulted in the child’s removal, or the reasons for placement

       outside the home of the parents, will not be remedied. See I.C. § 31-35-2-

       4(b)(2)(B)(i). Nor did the court make a finding or conclusion that there is a

       reasonable probability that the continuation of the parent-child relationship

       poses a threat to the well-being of the child.3 See I.C. § 31-35-2-4(b)(2)(B)(ii).


[10]   A trial court’s findings of fact and legal conclusions are crucial to our ability to

       conduct a proper review, and without adequate findings and conclusions, we

       are unable to determine whether the court terminated the Parents’ rights based

       on a consideration of the statutory requirements.


[11]   We find this case to be similar to the one recently before us in In re Involuntary

       Termination of Parent-Child Relationship of N.G., 61 N.E.3d 1263 (Ind. Ct. App.

       2016). In that case, the trial court’s factual findings were so sparse that we could

       not determine whether the trial court based its termination order on the proper

       statutory considerations. Id. at 1266. We therefore remanded with instructions

       for the trial court to enter proper findings of fact and conclusions of law to

       support the termination of the mother’s parental rights.


[12]   Here, the trial court entered detailed findings of empirical fact. But it failed to

       take these findings of fact and make the statutorily required ultimate findings

       and/or conclusions with regard to the elements DCS must prove before the trial




       3
        The trial court did, however, make a finding with regard to the statutory requirement that there be a
       satisfactory plan for the care and treatment of the child. Mother’s App. p. 17; see also I.C. § 31-35-2-
       4(b)(2)(D).

       Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017             Page 12 of 13
       court may terminate parental rights. All we can discern from the trial court’s

       order is that termination of the Parents’ rights is in the best interests of the child.

       While termination must be in the best interests of the child before the trial court

       may terminate parental rights, this fact is, by itself, insufficient to support the

       termination of the parents’ rights.


[13]   Accordingly, we remand with instructions that the trial court enter findings and

       conclusions that comport with Indiana Code section 31-35-2-8(c) and set forth

       whether DCS adequately proved the elements set forth in section 31-35-2-

       4(b)(2).


[14]   Remanded.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1704-JT-929 | October 6, 2017   Page 13 of 13
