MEMORANDUM DECISION
                                                                    Mar 26 2015, 10:16 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
Mark I. Cox                                               Gregory F. Zoeller
The Mark I. Cox Law Office, LLC                           Attorney General of Indiana
Richmond, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorney Generals
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 26, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of C.S. (Minor Child);                                   68A05-1407-JT-329
                                                         Appeal from the Randolph Circuit
J.S. (Mother),                                           Court
Appellant-Respondent,                                    Lower Court Cause No.
                                                         68C01-1305-JT-61
        v.
                                                         The Honorable Jay L. Toney, Judge

The Indiana Department of Child
Services,
Appellee-Petitioner.




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015        Page 1 of 9
                                               Case Summary
[1]   J.S. (“Mother”) appeals the trial court’s termination of her parental rights to her

      minor son, C.S. C.S. was adjudicated a child in need of services (“CHINS”)

      after Mother: had a physical altercation with her mother (“Grandmother”) and

      father (“Grandfather”) in front of C.S.; admitted that the home conditions were

      unsafe for C.S.; and admitted that he needed medical treatment that she had

      failed to provide. Then, Mother failed for two years to complete the services

      ordered by the trial court, and her parental rights were terminated. At the time

      of the termination hearing, the Indiana Department of Child Services’ (“DCS”)

      plan for C.S. was adoption.


[2]   On appeal, Mother argues that the DCS did not present sufficient evidence that

      it had a satisfactory plan for C.S.’s care and treatment. She argues that, instead

      of a plan of adoption, DCS should have placed C.S. with one of her family

      members. We conclude that DCS appropriately considered C.S.’s placement

      and presented sufficient evidence that its plan of adoption was satisfactory.


      We affirm.


                                                        Issue
[3]   Whether DCS presented sufficient evidence that it had a satisfactory plan for
      C.S.’s care and treatment prior to terminating Mother’s parental rights to C.S.1




      1
       C.S.’s biological father (“Father”) voluntarily terminated his parental rights on September 12, 2013. He is
      not a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015               Page 2 of 9
                                                          Facts
[4]   C.S. was born on December 18, 2006. In March 2012, when C.S. was five

      years old, Mother, C.S., and his siblings lived with Mother’s parents

      (“Grandparents”). On March 22 that year, Mother had a physical altercation

      with Grandparents, which resulted in her arrest and incarceration in the

      Randolph County Jail.


[5]   At the time of her arrest, DCS learned that C.S. and his siblings “had bug bites

      over large areas of their bodies and all had ear infections.” (State’s Ex. 2 at 3).

      In addition, one of C.S.’s siblings had asthma-related issues, for which Mother

      had not sought medical treatment. Citing these facts and Mother’s domestic

      abuse charges, DCS removed C.S. and his siblings from Mother’s care and filed

      a petition alleging that C.S. was a CHINS.2


[6]   On June 28, 2012, C.S. was adjudicated a CHINS based on Mother’s admission

      that: (1) on or about March 22, 2012, Mother was arrested and incarcerated for

      domestic violence in the presence of children;3 (2) home conditions were unsafe

      for the children; (3) C.S.’s sibling had asthma and had to be admitted to the




      2
       Although the trial court’s order authorizing the petition is a part of the record, the CHINS petition itself is
      not. Also, it is apparent that DCS filed separate petitions for C.S.’s siblings.
      3
        It is not clear how long Mother was incarcerated. However, her family case manager with DCS testified
      that she was jailed for “a second time at the end of March”—presumably in 2012, although that was not
      expressly stated—and “between May and July [2012].” (Tr. 63).

      Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015                  Page 3 of 9
      hospital; and (4) C.S. had bug bites over large areas of his body and an ear

      infection.


[7]   Subsequently, the trial court held a dispositional hearing. It issued a

      dispositional order on September 4, 2012, requiring Mother to complete

      services, including substance abuse treatment and therapy. The trial court also

      ordered Mother to obtain employment and housing; submit to random drug

      screens; refrain from using illegal drugs; and engage in supervised visitation

      with C.S. Initially, DCS placed C.S. in foster care. However, when C.S. was

      leaving his first foster home, he requested that DCS place him with a family

      that he knew from church, and DCS did so.


[8]   After C.S. was adjudicated a CHINS, an outpatient therapist, Jessica Hamlyn

      (“Hamlyn”), provided counseling for him. She diagnosed him with

      “Adjustment Disorder with a mixed disturbance of emotions and conduct.”

      (Tr. 33). Hamlyn later testified that this disorder meant that C.S. struggled with

      transitions in his life and “act[ed] out” when he had significant transitions. (Tr.

      33). However, Hamlyn noted that C.S. progressed through counseling.

      Initially, she met with C.S. weekly, but after C.S. was placed with the family he

      knew from church, he started doing well and advanced to the point that she

      only had to meet with him twice in six months.


[9]   Throughout the CHINS proceedings, Mother failed to complete her required

      services, failed to consistently attend scheduled visitation, and failed to obtain

      employment or housing. She lived with Grandparents at times, but


      Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 4 of 9
       Grandmother “never [knew] where [she was].” (Tr. 87). As a result of these

       factors, on May 23, 2013, DCS filed a petition to terminate Mother’s parental

       relationship with C.S. At the time, DCS’s plan for C.S.’s future care and

       treatment was adoption.


[10]   On December 10, 2013, the trial court held a fact-finding hearing on the

       termination petition. At the hearing, the court heard testimony from multiple

       service providers regarding Mother’s failure to complete services. The trial

       court also heard testimony regarding C.S.’s relationship with his family.

       Hamlyn testified that during her therapy sessions with C.S., he had asked about

       his siblings and grandparents. However, she stated that “[g]enerally, when he

       talks about his grandparents, it’s because I’ve brought them up.” (Tr. 37). She

       also noted that C.S. missed his brother but “was a little scared of him as well.”

       (Tr. 37).


[11]   Subsequently, Mother’s DCS Family Case Manager, Linda Marsh (“FCM

       Marsh”), testified regarding DCS’s attempts to place C.S. with his family prior

       to forming its plan for adoption. She stated that DCS had first considered

       placing C.S. with Father, but Father had decided not to take him. She also

       explained that DCS had considered Mother’s siblings, but her sister’s residential

       restrictions had prevented her from housing more children, and Mother’s

       brother had never responded to any of FCM Marsh’s messages. Finally, FCM

       Marsh testified that DCS had not considered Grandparents for placement

       because Mother had struggled with addiction issues when she resided with

       Grandparents; “[a] lot of the trauma that was described by the children was

       Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 5 of 9
       while [in Grandparents’] care;” Grandparents had contributed to the conditions

       that led to C.S.’s removal, and “there was domestic violence in the home.” (Tr.

       74). As a result, “at that particular point in time, [FCM Marsh] did not believe

       it to be an appropriate placement [or] safe place for the children.” (Tr. 74-75).


[12]   Subsequently, on June 30, 2014, the court entered an order terminating

       Mother’s parental rights. Mother now appeals.


                                                   Decision
[13]   On appeal, Mother argues that DCS did not present sufficient evidence that

       there was a “satisfactory plan for the care and treatment of” C.S. as required by

       INDIANA CODE § 31-35-2-4(b)(2)(D). Specifically, she asserts that DCS did not

       produce any witnesses from an adoptive home to testify that they were willing

       to adopt C.S. or any evidence that the adoption would take place within a

       certain timeframe. She also argues that DCS’s plan was unsatisfactory because

       DCS was supposed to prioritize placing C.S. with relatives before adoption.

       Notably, Mother does not dispute any of the trial court’s other findings or

       conclusions that supported the termination of her parental rights, so we will not

       address them here.


[14]   Under INDIANA CODE § 31-35-2-4(b)(2)(D), prior to terminating parental rights,

       DCS must prove by clear and convincing evidence that “there is a satisfactory

       plan for the care and treatment of the child.” Indiana courts have traditionally

       held that for a plan to be “‘satisfactory’” for the purposes of the termination, it

       “‘need not be detailed, so long as it offers a general sense of the direction in

       Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 6 of 9
       which the child will be going after the parent-child relationship is terminated.’”

       In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (quoting Lang v. Starke

       Cnty. Office of Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007),

       trans. denied), trans. denied. A DCS plan is satisfactory if the plan is to attempt to

       find suitable parents to adopt the child. Id. There need not be a guarantee that

       a suitable adoption will take place, only that DCS will attempt to find a suitable

       adoptive parent. Id. Accordingly, a plan is not unsatisfactory if DCS has not

       identified a specific family to adopt the child. Id. Part of the reason for this is

       that it is within the authority of the adoption court, not the termination court,

       to determine whether an adoptive placement is appropriate. Id.


[15]   Based on this standard, we conclude that DCS was not required to produce

       witnesses from an adoptive home or to establish when the adoption would take

       place. It was sufficient that DCS stated that its plan was to attempt to find

       adoptive parents for C.S. See id.


[16]   As for Mother’s second argument, she cites to INDIANA CODE § 31-34-4-2,

       which states that


               (a) if a child alleged to be a child in need of services is taken into
               custody under an order of the court under this chapter and the
               court orders out-of-home placement, the department is
               responsible for that placement and must care and must consider
               placing the child with a:
                        (1) suitable and willing relative; or
                        (2) de facto custodian;
                        before considering any other out-of-home placement.

       Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 7 of 9
       (emphasis added). She claims under this provision, DCS was required to

       consider placing C.S. with one of her family members, rather than placing him

       outside of the home through adoption.


[17]   We addressed a similar argument in In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct.

       App. 2009), with respect to INDIANA CODE § 31-34-6-2, which concerns the

       detention of a child alleged to be a CHINS. That provision provides that: “A

       juvenile court or the department shall consider placing a child alleged to be in need

       of services with an appropriate family member of the child before considering any

       other placement for the child.” I.C. § 31-34-6-2 (emphasis added). Both

       INDIANA CODE § 31-34-4-2, which Mother cites to, and INDIANA CODE § 31-

       34-6-2, which we discussed in B.M., are within Article 34 of the Indiana Code,

       which is titled “Juvenile Law: Children in Need of Services” and applies to

       CHINS.


[18]   In B.M., a Father tried to argue that the trial court was required to consider

       placing B.M. with his sister before terminating his parental rights. 913 N.E.2d

       at 1287. We held that section 31-34-6-2, to which he cited, applied to CHINS

       proceedings, not termination proceedings. Id.


[19]   For the same reason, we are not persuaded by Mother’s argument here. Like

       INDIANA CODE § 31-34-6-2, INDIANA CODE § 31-34-4-2 concerns the placement

       of CHINS and is not relevant to a termination proceeding. See Hite v.

       Vanderburgh Cnty. Office of Family and Children, 845 N.E.2d 175, 182 (Ind. Ct.

       App. 2006) (“CHINS proceedings are separate and distinct from involuntary


       Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 8 of 9
termination proceedings because a CHINS cause of action does not necessarily

lead to an involuntary termination cause of action.”) Mother has not directed

us to any other legal authority for her proposition that DCS was required to

consider placing C.S. with her family before adoption. Moreover, we note that,

as FCM Marsh testified at trial, DCS did initially consider Mother’s family

members and found them unsatisfactory for placement for various reasons.

Accordingly, as Mother has not otherwise challenged DCS’s plan of adoption,

we conclude that plan was satisfactory.


Affirmed.


Barnes, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 68A05-1407-JT-329 | March 26, 2015   Page 9 of 9
