MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Jan 23 2020, 10:12 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 23, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: E.N. (Minor                              19A-JT-1888
Child),                                                   Appeal from the Montgomery
and                                                       Superior Court
                                                          The Honorable Heather Barajas,
M.N. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          54D01-1901-JT-18
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020                    Page 1 of 14
      Tavitas, Judge.


                                                  Case Summary

[1]   M.N. (“Father”) appeals the termination of his parental rights to E.N. (the

      “Child”). We affirm.


                                                          Issue

[2]   Father raises one issue, which we restate as whether there was sufficient

      evidence that termination of the parent-child relationship was in the Child’s

      best interests.


                                                         Facts

[3]   Father and J.N. (“Mother”) 1 are parents of the Child, born in November 2007,

      and the Child’s sibling, who is now an adult. 2 On January 23, 2018, police

      arrested Mother and Father at their home for Count I, dealing in

      methamphetamine, a Level 2 felony; Count II, possession of

      methamphetamine, a Level 3 felony; Count III, possession of a narcotic drug, a

      Level 5 felony; Count IV, maintaining a common nuisance, a Level 6 felony;

      Count V, possession of a controlled substance, a Level 6 felony; and Count VI,

      neglect of a dependent, a Level 5 felony. The Child was at home at the time of




      1
        Mother filed a Notice of Appeal on August 12, 2019; however, Mother filed a motion to dismiss her appeal,
      which this Court granted on October 4, 2019. This decision, therefore, will focus only on facts as they relate
      to Father.
      2
       The Child’s sibling became an adult prior to the fact finding hearing. This decision, therefore, will focus
      only on facts as they relate to the Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020                   Page 2 of 14
      her parents’ arrest; the Child was removed on an emergency basis and placed

      with maternal grandparents.


[4]   On January 24, 2018, DCS filed a petition that the Child was a child in need of

      services (“CHINS”). The Child was adjudicated a CHINS on March 28, 2018,

      and placement remained with maternal grandparents. The trial court entered a

      dispositional order on April 25, 2018, which required Father to: (1) maintain

      contact with DCS; (2) participate in services recommended by DCS; (3)

      maintain suitable income; (4) maintain a safe and stable home; (4) abstain from

      consuming or possessing illegal substances; and (5) attend scheduled visitations3

      with the Child.


[5]   Marie Laston, the DCS family case manager (“FCM”), supervised these visits

      and began working with Father on appropriate services. FCM Laston

      supervised a total of seven visits. At one of the early visits, Father was “upset”

      and “didn’t understand why he couldn’t talk about the case with the [C]hild”;

      Father was an hour and sixteen minutes late to one session; one session was

      cancelled due to both parents appearing late; and during one session, Father

      remained in the car and told FCM Laston that “he was having a tough time and

      it was really hard,” before he went inside to visit with the Child. Tr. Vol. II p.

      100.




      3
       Initially, Father was prohibited from seeing the Child due to the criminal charges. Eventually, the plan
      changed to allow one supervised two-hour visit per week with the Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020                 Page 3 of 14
[6]   DCS referred Father to Cummins Behavioral Health (“Cummins”) for an

      intake assessment. Father’s assessment was scheduled for February 27, 2018;

      however, Father did not attend his appointment. On April 11, 2018, Father

      participated in his intake assessment; Father was then referred to intensive

      outpatient therapy (“IOT”), addictions counseling, skills training, drug screens,

      and case management. Father only attended nine of the twenty-four sessions

      for IOT between April 24, 2018, and June 24, 2018; Father never attended

      addictions counseling and did not begin the skills training due to his lack of

      participation in IOT. An employee at Cummins attempted to contact Father to

      re-engage Father in services; however, Father never returned the phone call.

      Father was discharged from Cummins on July 2, 2018, due to his

      noncompliance.


[7]   Between January 30, 2018, and June 12, 2018, Father participated in drug

      screens fifteen times, ten of which were positive for methamphetamine. On

      June 14, 2018, DCS filed a motion to suspend the parents’ parenting time due

      to parents’ noncompliance. The motion alleged, relevant to Father, that Father:

      (1) tested positive for methamphetamine three times in April and twice in May;

      (2) could not be reached in March by FCM Laston; (3) failed to appear at an

      April drug screen; (4) only attended five of the eighteen requested IOT classes

      as of May 2018; and (5) refused to participate in drug screens in May 2018.

      The trial court temporarily suspended parenting time on June 15, 2018.


[8]   In August 2018, Father went to an intake assessment at Sycamore Springs

      inpatient treatment facility after FCM Laston miscommunicated information to

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 4 of 14
       Father regarding the treatment facility at which Father was to appear. Father

       went to the program in Lafayette, when instead, he was to appear at the

       location in Jeffersonville. Still, Father went through with the assessment at

       Sycamore Springs, but Father was dismissed from Sycamore Springs after the

       staff determined that another program would be more appropriate for Father. 4

       Father ultimately made an appointment at another inpatient treatment facility,

       but never followed through and did not attend his appointment. On September

       4, 2018, Mother was charged with Count I, possession of methamphetamine, a

       Level 6 felony; and Count II, trafficking with an inmate, a Level 5 felony.


[9]    On December 10, 2018, the Child’s permanency plan changed to adoption. At

       that time, DCS’s communication with Father had been “poor,” and Father had

       not attended the referred treatment programs as of August 2018. Tr. Vol. II p.

       87. Father also received services through Redwood Toxicology 5 where Father

       completed his drug screens; Father missed nineteen screens, and Father was

       suspended on three separate occasions due to noncompliance. 6


[10]   Sometime in December 2018, Father again informed FCM Laston that he

       wanted to participate in inpatient services; FCM Laston referred Father to a




       4
        Specifically, the Sycamore Springs staff thought that IOP, an outpatient program, would be better for
       Father.
       5
         FCM Laston implemented the services of Redwood Toxicology because “sometimes there were car issues,
       things of that nature, [Redwood] was to alleviate those problems to where Redwood would come to their
       residence to be screened.” Tr. Vol. II p. 88.
       6
        The timing of these missed drug screens is somewhat unclear from the record; however, it appears to have
       occurred between June and December 2018.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020                Page 5 of 14
       detox program prior to inpatient services. Father ultimately failed to attend the

       program and claimed that “he had advised one of the times he was trying to

       prevent the electricity from his household getting shut off. On another occasion

       he said that his dog was dying so he couldn’t go. . . .” Tr. Vol. II p. 89.


[11]   On January 22, 2019, DCS filed a petition to terminate Mother’s and Father’s

       parental rights. On May 17, 2019, the trial court granted DCS’s petition to

       relieve DCS of providing further services to Mother and Father during the

       pendency of the termination proceedings.


[12]   The trial court held a fact finding hearing on April 4, 2019, and June 13, 2019.

       At the time of the fact finding hearing, Mother’s criminal charges from August

       2018 were still pending, and Mother had been incarcerated continuously since

       her arrest. Father had entered into a plea agreement with regard to his January

       2018 charges and was facing three to nine years at the time of the fact finding

       hearing; Father’s sentencing hearing was set for June 24, 2019. Also, at the

       time of the fact finding hearing, Father was unemployed, and Father’s house

       was being foreclosed.


[13]   Father testified that he would consent to a guardianship by maternal

       grandparents. Father, however, failed to sign 7 a consent to guardianship, and

       the maternal grandparents had not filed a petition for guardianship. No




       7
           It does not appear from the record that Father was ever presented a consent to sign.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020           Page 6 of 14
       evidence was presented regarding why grandparents did not file a petition for

       guardianship.


[14]   FCM Laston asked the trial court to terminate Father’s parental rights due to

       the pending criminal charges, upcoming likely incarceration, and Father’s

       noncompliance with services. FCM Laston testified that, in September or

       October 2018, she had a conversation with maternal grandparents about

       guardianship, and they were “open to either” adoption or guardianship. Id. at

       102. FCM Laston also testified that DCS had a “concern” with guardianship

       because it is “dissolvable,” and DCS feared that, after Father and Mother

       served their sentences, but without completing drug treatment, Father and

       Mother could “get [the Child] back through a guardianship [and the Child]

       could go through the same trauma again.” Tr. Vol. II p. 92. Instead, FCM

       Laston testified that DCS desired the Child have stability in her life and that, in

       her opinion, termination of Mother’s and Father’s parental rights was in the

       Child’s best interests. After some questioning from the trial court, however,

       FCM Laston could not answer how adoption would be better than

       guardianship for the Child.


[15]   Melissa Brush, the court appointed special advocate (“CASA”), testified that

       guardianship or adoption would be in the best interests of the Child; and that,

       although she was aware the maternal grandparents are willing to adopt, she is

       uncertain if they are willing to establish guardianship over the Child. Stephanie

       Rose, a psychologist with Valley Oaks Health, testified the Child has succeeded



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 7 of 14
       in her placement with maternal grandparents, is on student council at school,

       and has several friends.


[16]   On August 12, 2019, the trial court entered findings of fact and conclusions

       thereon terminating Mother’s and Father’s parental rights. Relevant to Father’s

       appeal, the trial court’s order concluded:


                                                      *****


               17. The child has remained in the care of the grandparents since
               January 2018.


               18. The child worries about her parents but does not really
               discuss them.


               19. There has been no improvement and no progress in Mother
               or Father’s condition from the time the child was removed to the
               date of the fact-finding hearing in the instant matter. Based on
               their history and the evidence, no progress is expected in the
               foreseeable future.


               20. Father has no income or means to support the child or
               himself.


               21. Mother and Father have shown little interest in this child’s
               needs. They have made zero progress towards addressing the
               issues which gave rise to the CHINS matter and this subsequent
               case. The child is in a stable, loving home and is thriving there.


               22. DCS has proven by clear and convincing evidence that
               termination is in the Child’s best interest pursuant to Ind. Code §
               31-35-2-4(C).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 8 of 14
               23. DCS has proven by clear and convincing evidence that there
               is a satisfactory plan for the care and treatment of the child
               pursuant to Ind. Code § 31-35-2-4(D) if termination is granted,
               and that plan is adoption.


               24. The CHINS Court ordered adoption as the Permanency
               Plan.


               25. There was never a request for Guardianship as [a]
               permanency plan during the CHINS, nor was a petition ever
               filed.


                                                     *****


       Appellant’s App. Vol. II pp. 64-65. Father now appeals.


                                                     Analysis

[17]   Father appeals the termination of his parental rights. The Fourteenth

       Amendment to the United States Constitution protects the traditional right of

       parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.

       of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

       parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of

       the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

       Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of

       course, that parental interests are not absolute and must be subordinated to the

       child’s best interests when determining the proper disposition of a petition to

       terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

       the parents are unable or unwilling to meet their parental responsibilities by

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 9 of 14
       failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,

       989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied).


[18]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

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

       (a) and (b)” when granting a petition to terminate parental rights. 8 Here, the

       trial court did enter findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions thereon entered in a case involving the termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second, we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.




       8
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.

               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020                        Page 10 of 14
[19]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


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


                            (i)          The child has been removed from the parent for
                                         at least six (6) months under a dispositional
                                         decree.


                            (ii)         The court has entered a finding under IC 31-34-
                                         21-5.6 that reasonable efforts for family
                                         preservation or reunification are not required,
                                         including a description of the court’s finding, the
                                         date of the finding, and the manner in which the
                                         finding was made.


                            (iii)        The child has been removed from the parent and
                                         has been under the supervision of a local office
                                         or probation department for at least fifteen (15)
                                         months of the most recent twenty-two (22)
                                         months, beginning with the date the child is
                                         removed from the home as a result of the child
                                         being alleged to be a child in need of services or
                                         a delinquent child.


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


                                   (i)      There is a reasonable probability that the
                                            conditions that resulted in the child’s removal

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 11 of 14
                                         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 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.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[20]   Father’s specific argument is that DCS failed to prove by clear and convincing

       evidence that termination of the parent-child relationship was in the Child’s

       best interests because guardianship was an alternative that the trial court could

       have chosen instead of termination. Father, however, failed to present evidence

       regarding the willingness or efforts of maternal grandparents to file a petition to

       establish guardianship.


[21]   In determining what is in the best interests of a child, the trial court is required

       to look at the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68

       (Ind. Ct. App. 2008). In doing so, the trial court must subordinate the interests


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 12 of 14
       of the parents to those of the child involved. Id. at 168. Termination of a

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. K.T.K., 989 N.E.2d at 1235. A trial court need not

       wait until a child is irreversibly harmed such that his or her physical, mental,

       and social development is permanently impaired before terminating the parent-

       child relationship. Id. Additionally, a child’s need for permanency is a “central

       consideration” in determining the best interests of a child. Id.


[22]   The uncontested findings demonstrate that Father failed to participate in many

       services; Father had many positive or missed drug screens; and Father was

       awaiting sentencing for a crime that involved illegal substances in the home

       where the Child was present. Father was facing several years of incarceration.

       Father, in his brief, argues that the maternal grandparents were willing to serve

       as guardians for the Child. The evidence to support this statement came from

       FCM Laston’s testimony where she indicated that, in September or October

       2018, maternal grandparents were “open to either” adoption or guardianship.

       Tr. Vol. II p. 102. On the other hand, testimony from the CASA demonstrated

       uncertainty that grandparents were willing to be the Child’s guardians, instead

       of proceeding with adoption. Father identified no evidence in the record that at

       the time of the termination fact finding hearing on April 4, 2019, and June 13,

       2019, that grandparents had filed or were willing to file a petition for

       guardianship.


[23]   Here, the trial court considered the potential for guardianship, but concluded

       that the maternal grandparents had not filed a petition for guardianship, and the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 13 of 14
       CHINS court found that adoption would be the permanency plan for the Child.

       Regardless, the mere fact that a guardianship may have been available does not

       entitle Father to relief. Based on the evidence in the record, we cannot say the

       trial court’s decision is clearly erroneous.


                                                   Conclusion

[24]   DCS presented sufficient evidence that termination was in the best interests of

       the Child. We affirm.


[25]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1888 | January 23, 2020   Page 14 of 14
