MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Nov 02 2016, 8:57 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Gregory F. Zoeller
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                      Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 2, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of B.S. (Child) and K.S.                                 09A02-1603-JT-640
(Mother);                                                Appeal from the Cass Circuit
                                                         Court
K.S. (Mother),                                           The Honorable Leo T. Burns,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               09C01-1509-JT-20

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016     Page 1 of 7
      May, Judge.


[1]   K.S. (“Mother”) appeals the involuntary termination of her parental rights to

      her daughter, B.S. (“Child”). She argues DCS failed to prove Child had been

      out of her care for fifteen of the last twenty-two months, as required by Indiana

      Code section 31-35-2-4(b)(2)(A)(iii) for termination of her parental rights. We

      affirm.



                                Facts and Procedural History
[2]   Child was born to Mother 1 on September 27, 2012, and is four (4) years old.

      On August 1, 2014, the Department of Child Services (“DCS”) removed Child

      from Mother’s home on an emergency basis after receiving a report that Mother

      tested positive for methamphetamine. On August 5, 2014, DCS filed a petition

      alleging Child was a Child in Need of Services (“CHINS”) based on Mother’s

      illegal drug use. On November 26, 2014, the trial court held a fact finding

      hearing and adjudicated Child a CHINS. At that time, Child remained in foster

      care.


[3]   On December 17, 2014, the court held a dispositional hearing, and on

      December 29, 2014, the court issued its dispositional decree. The decree made




      1
          R.L. (“Father”) does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016   Page 2 of 7
      Child a ward of the State, continued her in foster care, and ordered Mother to

      participate in services so that she and Child could be reunified.


[4]   The juvenile court held periodic case review hearings on January 28, 2015, and

      July 15, 2015. At both hearings, the court noted Mother was not compliant

      with her case plan because she was not consistently participating in services.

      The court further found Child’s needs were being met by foster care placement.


[5]   On September 16, 2015, DCS filed its Verified Petition for Involuntary

      Termination of Parental Rights. (App. Vol. II at 7.) The trial court held fact

      finding hearings on DCS’s petition to terminate parental rights on December 9,

      2015, and January 12, 2016. On February 19, 2016, the trial court terminated

      Mother’s parental rights.



                                 Discussion and Decision
[6]   “The Fourteenth Amendment to the United States Constitution protects the

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

      G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s

      rights, the State must file a petition in accordance with Indiana Code section

      31-35-2-4 and then prove the allegations therein by clear and convincing

      evidence. Id. at 1260-61. If the court finds the allegations in the petition are

      true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016   Page 3 of 7
      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. We will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.


[8]   Mother argues DCS failed to prove Child had been removed from Mother for at

      least fifteen months at the time DCS filed its petition to terminate parental

      rights. In relevant part, a petition to terminate the parent-child relationship

      must allege:


              (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)    A 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[.]

      Ind. Code § 31-35-2-4(b)(2)(A)(i)-(iii). That language is unambiguously written

      in the disjunctive. In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008), trans.

      denied. Thus, the State must prove at least one of those requirements “is true at




      Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016   Page 4 of 7
      the time the termination petition is filed.” 2 In re K.E., 963 N.E.2d 599, 601-602

      (Ind. Ct. App. 2012).


[9]   The trial court found Child had “been removed from her parents for more than

      six (6) months pursuant to the terms of the dispositional decree,” (Appellant’s

      App. Vol. II at 73), and the record supports that finding. B.S. was formally

      removed from Mother’s home pursuant to a dispositional decree on December

      29, 2014. DCS filed its petition for termination of parental rights approximately

      nine months later on September 16, 2015. Therefore, DCS proved by clear and

      convincing evidence that B.S. had been removed from Mother’s care for well

      over the six-month minimum required by Indiana Code section 31-35-2-

      4(b)(2)(A)(i). See A.F. v. Marion County Office of Family & Children, 762 N.E.2d

      1244, 1251 (Ind. Ct. App. 2002) (where children removed over six months

      under dispositional decree, burden met under Ind. Code § 31-35-2-4(b)(2)(A)),

      trans. denied sub nom. Faver v. Marion County Office of Family & Children, 774

      N.E.2d 515 (Ind. 2002)).




      2
        DCS cites In re J.W., Jr., 27 N.E.3d 1185, 1189 (Ind. Ct. App. 2015), for the proposition that the fifteen-
      month waiting period is calculated at the time of the termination hearing, rather than at the time the petition
      is filed. (Appellee’s Br. at 21.) However, as we recently held, DCS’s reliance on J.W. for this point of law is
      misplaced, because the only issue before the court in J.W. was whether the fifteen-month waiting period
      should be tolled due to DCS’s failure to provide services. See D.B. v. Indiana Dept. of Child Services, No.
      54A01-1603-JT-607, 2016 WL 4917683, at *4 (Ind. Ct. App. Sept. 15, 2016). When our court has been
      “squarely presented” with the issue of whether the children had been removed for fifteen of the most recent
      twenty-two months, we have held an involuntary termination petition must satisfy the requirements of Ind.
      Code § 31-35-2-4(b)(2)(A) at the time the involuntary termination petition was filed. See id. at *5 (citing In re
      Q.M., 974 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2012)).

      Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016                Page 5 of 7
[10]   Mother nevertheless takes issue with the trial court’s finding, “Child has been

       removed from the home and custody of the parents and has been under the

       supervision of DCS for at least fifteen (15) of the most recent twenty-two (22)

       months[.]” (Appellant’s App. Vol II at 73.) Mother concludes this statement is

       “clearly erroneous” because, at the time DCS filed its petition, fifteen months

       had not passed since Child was initially removed from her home. (Appellant’s

       Br. at 10.) Mother is correct the court’s finding is erroneous -- only thirteen

       months had passed between August 1, 2014, when DCS removed Child from

       Mother and September 16, 2015, when DCS filed its petition. However,

       roughly nine months – well over the six month minimum -- had passed since

       the court formally removed Child from Mother under a dispositional decree

       under Ind. Code § 31-35-2-4(b)(2)(A)(i). Therefore, the trial court properly

       concluded the requirements of Ind. Code § 31-35-2-4-(b)(2)(A) were satisfied.

       See A.F., 762 N.E.2d at 1251 (where children removed over six months under

       dispositional decree, burden met under Ind. Code § 31-35-2-4(b)(2)(A)). The

       fact that fifteen months had not passed since Child was initially removed from

       the home at the time DCS filed its petition for termination cannot serve as a

       basis for reversal. See J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006)

       (“To the extent that the judgment is based on erroneous findings, those findings

       are superfluous and are not fatal to the judgment if the remaining valid findings

       and conclusions support the judgment.”).


[11]   Mother does not specifically challenge any other of the trial court’s findings or

       conclusions. Accordingly, we affirm.


       Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016   Page 6 of 7
[12]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016   Page 7 of 7
