MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                           Nov 30 2018, 9:12 am
regarded as precedent or cited before any
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
M.G. (MOTHER)                                            Curtis T. Hill, Jr.
Jennifer L. Schrontz                                     Attorney General
Schrontz Legal Group, LLC                                Robert J. Henke
Lafayette, Indiana                                       Deputy Attorney General
ATTORNEY FOR APPELLANT                                   Indianapolis, Indiana
E.G. (FATHER)
Harold E. Amstutz
Amstutz Law Office
Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: the Termination of the                            November 30, 2018
Parent-Child Relationship of                             Court of Appeals Case No.
V.G. and C.G. (Minor Children)                           18A-JT-1170
and M.G. (Mother) and                                    Appeal from the Tippecanoe
E.G. (Father)                                            Superior Court
M.G. (Mother) and                                        The Honorable Faith A. Graham,
E.G. (Father),                                           Judge

Appellants-Respondents,                                  Trial Court Cause Nos.
                                                         79D03-1710-JT-108
        v.                                               79D03-1710-JT-109




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018                  Page 1 of 10
      The Indiana Department of
      Child Services,
      Appellee-Petitioner




      Vaidik, Chief Judge.



                                              Case Summary
[1]   E.G. (“Father”) and M.G. (“Mother”) (collectively, “Parents”) appeal the

      termination of their parental rights to their two children. We affirm.



                              Facts and Procedural History
[2]   The undisputed facts are set forth in the trial court’s order. 1 Mother and Father

      are the parents to V.G., born in June 2003, and C.G., born in December 2005

      (collectively, “Children”). In March 2005, DCS opened the first CHINS case

      involving V.G. because of Parents’ substance abuse, lack of supervision, and




      1
        Because neither Mother nor Father challenge the trial court’s findings of fact, we accept them as true. See
      Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Maldem does not challenge the findings of the
      trial court, they must be accepted as true.”). While Father states in his brief that the findings of fact are
      “misleading, inaccurate and incomplete” and “[do] not elaborate on [F]ather’s positives,” he fails to make
      any specific argument that the trial court’s findings of fact are not supported by the record. See Father’s Br.
      pp. 11-12.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018                    Page 2 of 10
housing instability. V.G. was placed in foster care because Father was

incarcerated for possession of cocaine and Mother tested positive for cocaine

and was “unable to keep [V.G.] safe.” Ex. Vol. I p. 8. The first CHINS

proceeding resulted in reunification, and V.G. was returned to Mother. In

February 2014, Mother was arrested for failing to appear for a compliance

hearing after she was convicted of operating a vehicle while intoxicated and

sentenced to probation. Children stayed with relatives (the “T. Family”) while

Mother was incarcerated because Father was still incarcerated for his 2005 drug

offense. After Mother was released, she lived with the T. Family along with

V.G. and C.G. However, in May 2014 the T. Family asked Mother and her

children to leave because she was “drinking,” “not working,” and “not helping

with the children.” Id. In July 2015, Parents were involved in a second CHINS

proceeding. On July 24, Children were discovered walking along the edge of

the top level of a parking garage. Law enforcement could not locate Mother for

several hours and Father was incarcerated. DCS investigated and found that

Children had been left unattended several times. Mother’s new house was

messy and there was minimal food. Multiple people were coming in and out of

Mother’s house, and Children reported that they had been exposed to Mother’s

sexual activities. DCS removed Children from Mother’s house and placed

them with the T. Family. Thereafter, the trial court adjudicated Children

CHINS and issued a dispositional order requiring Parents to participate in

reunification services. Children were ordered to remain in the care and custody

of the T. Family.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 3 of 10
[3]   After 2015, Mother never had adequate housing for herself or Children. From

      August 2015 to August 2016, Mother was briefly employed and exercised fully

      supervised parenting time on a regular basis. During this time, Mother

      sporadically participated in home-based counseling and case management but

      was discharged because of her lack of attendance. In 2016, Mother was

      charged with new substance-related offenses and incarcerated from October

      2016 to June 2017. After Mother was released, she did not contact DCS nor

      did she contact Children. Throughout both CHINS cases, Mother repeatedly

      tested positive for cocaine and alcohol and refused to submit to drug screens.

      Meanwhile, Father remained incarcerated until October 2016 when he was

      transferred to home detention. When Father began home detention he engaged

      in reunification services and obtained employment and housing. However, in

      November 2016 Father violated his home detention and was incarcerated until

      February 2017. After Father was released, he reengaged with services and

      demonstrated sufficient progress to begin exercising semi-supervised parenting

      time. Father’s sister moved in with him to help provide childcare during his

      parenting time. In June 2017, Children did a trial home visit with Father, but

      the visit was abruptly stopped because DCS discovered that Father had recently

      tested positive for methamphetamine. Children were returned to the T. Family,

      and Father was incarcerated for failing a drug screen. After Father was released

      in July 2017, he did not reengage in services nor did he visit Children.

      Throughout 2017, Father tested positive for opiates, methamphetamine,

      cocaine, marijuana, and alcohol.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 4 of 10
[4]   For a time, Children’s permanency plan was reunification. However, in

      October 2017, after the trial home visit with Father failed and because Children

      had been removed from Parents for over two years, the trial court modified the

      permanency plan to termination of parental rights followed by adoption. DCS

      filed petitions for termination of parental rights on October 30 and the trial

      court held an evidentiary hearing in January 2018. At the time of the

      evidentiary hearing, Parents were both incarcerated and appeared in custody of

      law enforcement. Family Case Manager (FCM) Carol Mullens testified that

      she “did not see . . . progress from [Mother], [and] did see some progress from

      [Father]” but neither parent was able to maintain stability for a prolonged

      period. Tr. Vol. II pp. 118-19. Children’s therapist, Margarita Lora, testified

      that the failed trial home visit with Father was “very confusing,” “disrupting,”

      and “affected [Children’s] stability.” Id. at 154. Lora said that if Children were

      returned to Parents, she would be concerned for Children’s “stability in terms of

      housing, in terms of [having] their basic needs covered and emotional stability.”

      Id. at 159. FCM Lore Thompson testified that “[Mother] has failed to

      participate in any way whatsoever in the care or consideration for [Children].”

      Id. at 233. Court Appointed Special Advocate (CASA) Beth Turner testified

      that “[Mother] can’t stay out of jail long enough to do anything with

      [Children]. [Father] is very selfish, he just cares about himself . . . [Father]

      would rather be with [his girlfriend] than with [Children] and making sure that

      [Children] . . . have what they need[.]” Id. at 175. Father testified that he did

      not want his parental rights terminated because “[he] want[s] [Children] to get

      [to] know who their aunts [are], who their uncles are, who their grandmother
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 5 of 10
      [is], who their grandfather is, at least on [Father’s] side of the family[.]” Id. at

      208. Mother testified that she did not want her parental rights terminated

      because she does not want “to give [Children] up for adoption[.]” Id. at 61.


[5]   FCM Mullens testified that the T. Family “have had a bond with [Children] for

      a very long time . . . very much cared about [Children] and wanted what was

      best for them.” Id. at 116. Father testified that Children were safe with the T.

      Family. See id. at 213. Mother testified that “[the T. Family] ha[s] been in our

      lives for a while now and even though I really don’t want to give [Children] to

      them, I . . . know they’re good people[.]” Id. at 62. CASA Sue Daluga wrote in

      her January 2017 report that “[Children] should remain with [the T. Family].

      CASA recommends that [Parents] voluntarily terminate their parental rights so

      [Children] can be adopted by [the T. Family] and finally have some

      permanency in their lives.” Ex. Vol. V p. 39. Therapist Lora, CASA Turner,

      and FCM Thompson also testified that termination of Parents’ parental rights

      and adoption by the T. Family would be best for Children. See Tr. Vol. II pp.

      158-59, 174-76, 233-35. In February 2018 the trial court issued its order

      concluding: that Children had been removed from Parents for at least six

      months under a dispositional decree; that Children had been removed from

      Parents under the supervision of DCS for at least fifteen of the most recent

      twenty-two months; that there was a reasonable probability the conditions

      resulting in removal of Children from the home of Parents or reasons for

      placement of Children outside the home of Parents would not be remedied; that

      continuation of the parent-child relationships posed a threat to the well-being of


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 6 of 10
      Children; that there was a satisfactory plan for the care and treatment of

      Children—adoption; and that termination was in Children’s best interests. The

      trial court terminated Parents’ parental rights.


[6]   Father and Mother separately appeal.



                                 Discussion and Decision
[7]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

      2013). Rather, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment of the trial court. Id. When a trial court has

      entered findings of fact and conclusions, we will not set aside the trial court’s

      findings or judgment unless clearly erroneous. Id. To determine whether a

      judgment terminating parental rights is clearly erroneous, we review whether

      the evidence supports the trial court’s findings and whether the findings support

      the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[8]   A petition to terminate parental rights must allege, among other things:


              (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.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 7 of 10
                      (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.


      Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

      clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

      finds that the allegations in a petition are true, the court shall terminate the

      parent-child relationship. Ind. Code § 31-35-2-8(a).


[9]   Parents challenge the trial court’s determination that termination of their

      parental rights is in Children’s best interests. Specifically, Parents argue that

      termination of their parental rights is not in Children’s best interests because (1)

      Children’s relationships with other relatives may be affected, (2) Children

      should be able to have contact with Parents, and (3) the trial court should have

      ordered guardianship or third-party custody with the T. Family instead of

      termination. See Father’s Br. pp. 13-14; see also Mother’s Br. pp. 12-14. To

      determine what is in the children’s best interests, the trial court must look to the

      totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App.

      2013), trans. denied. In doing so, the trial court must subordinate the interests of

      the parents to those of the children. Id. The trial court need not wait until the
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 8 of 10
       children are irreversibly harmed before terminating the parent-child

       relationship. Id. We have previously held that recommendations by both the

       DCS case manager and CASA to terminate parental rights, in addition to

       evidence that the conditions resulting in removal will not be remedied, is clear

       and convincing evidence that termination is in the best interests of the children.

       Id. at 1158-59.


[10]   Here, Parents do not dispute the trial court’s conclusion that the conditions that

       resulted in removal of Children would not be remedied. Accordingly, Parents

       have waived any argument relating to this unchallenged conclusion. See In re

       B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied. Even so, the trial

       court’s findings of fact support this conclusion. See, e.g., Mother’s App. Vol. II

       p. 32 (“All imaginable services have been offered and nothing is singularly

       different in today’s circumstances since the time of removal. In fact, the

       circumstances are worse. Both parents are now incarcerated.”). Furthermore,

       DCS case managers Mullens and Thompson as well as CASAs Turner and

       Daluga recommended termination. See Tr. Vol. II pp. 116-17, 174-76, 233-35;

       see also Ex. Vol. V p. 39. Finally, the trial court found that Children have lived

       with the T. Family for over two years and that Children are “very bonded with

       the [T. Family]. The children perform well academically and behaviorally . . .

       [Children] would like to be adopted by [the T. Family].” Mother’s App. Vol. II

       p. 32. Parents’ arguments that termination is not in Children’s best interests are

       requests for us to reweigh the evidence, which we cannot do, see K.T.K., 989

       N.E.2d at 1229, or are not supported by the record (e.g., there is no evidence

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 9 of 10
       that another custody arrangement would be in Children’s best interest).

       Accordingly, the trial court did not err when it concluded that termination was

       in Children’s best interests.


[11]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1170 | November 30, 2018   Page 10 of 10
