MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 06 2015, 9:33 am
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
Donald J. Frew                                            Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             March 6, 2015
Parent-Child Relationship of:                            Court of Appeals Case No.
S.H., A Child in Need of                                 02A04-1408-JT-370
Services,                                                Appeal from the Allen Superior
                                                         Court
M.H.,                                                    The Honorable Thomas P. Boyer,
Appellant-Respondent,                                    Judge Pro Tempore
                                                         The Honorable Lori K. Morgan,
        v.                                               Magistrate

                                                         Cause No. 02D07-1312-JT-153
Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015       Page 1 of 9
      Najam, Judge.


                                         Statement of the Case
[1]   M.H. (“Father”) appeals the trial court’s termination of his parental rights over

      S.H. (“Child”).1 Father raises a single issue for our review, namely, whether

      the trial court’s judgment is clearly erroneous. We affirm.


                                   Facts and Procedural History
[2]   On August 13, 2012, the trial court adjudicated Child to be a child in need of

      services (“CHINS”) on the petition of the Indiana Department of Child

      Services (“DCS”), and the court placed Child in foster care. At that time,

      Father admitted that Child was residing with him; that he had no running water

      in his home; that he was unable to care for Child; and that he was unable to

      provide independent, sustainable housing for Child. And a family case

      manager informed the court that Father’s home had trash, clothing, and debris

      throughout it, “as well as a jug of urine.” DCS Ex. 4 at 2. Among other things,

      the court ordered Father to maintain clean, safe, and sustainable housing at all

      times, refrain from using drugs, submit to drug tests, and attend and

      appropriately participate in all visits with Child as directed.


[3]   During the ensuing months, Father was involved in several misdemeanor

      offenses, which included “flying . . . a homeless sign . . . on the road” and



      1
        Although the Child’s mother also had her parental rights terminated by the trial court’s judgment, she does
      not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015               Page 2 of 9
      possession of paraphernalia. Tr. at 87. Father admitted to possession of

      marijuana in connection to the paraphernalia offense. He also failed several

      drug tests and refused to take at least one drug test.


[4]   Father never obtained stable housing. He described his living situation during

      the underlying proceedings as “couch surfing,” though he occasionally stayed at

      hotels. Id. at 71. Father also missed some visitation time with Child. On

      occasions where visitation was cancelled for a legitimate reason, Father did not

      attempt to make up the cancelled visitation. Meanwhile, Child remained in the

      same foster home throughout the underlying proceedings.


[5]   On December 13, 2013, DCS filed its petition for the termination of Father’s

      parental rights over Child. The court held an evidentiary hearing on the DCS’s

      petition on April 8, 2014. At that hearing, the DCS explained that it planned to

      have Child adopted. While Child had not yet been placed in a preadoptive

      home, Child’s guardian ad litem (“GAL”) testified that “that’s not something

      that we can cho[o]se ahead of time. . . . [W]hen you place a child in a licensed

      foster parent’s home[,] they don’t know at that point whether they are going to

      want to adopt or not . . . .” Id. at 140. The GAL further agreed that it is “in the

      best interests of [C]hild to have this plan for care and treatment of adoption in

      place.” Id.


[6]   On April 28, the court entered its order terminating Father’s parental rights. In

      relevant part, the court found as follows:




      Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 3 of 9
        Presently, [F]ather does not have stable housing. He has not had
        stable housing since the initiation of the CHINS
        proceedings . . . . During this timeframe, he has lived with
        friends, lived in a halfway house[,] and lived in hotels.
        Currently, he is living in a hotel and receives vouchers for his
        stay from the Fort Wayne Housing Authority and Washington
        Township Trustees office. At trial, he advised that he anticipated
        in enrolling in IVY Tech in the near future and that he would use
        his school money to buy a trailer for himself and [Child]. He did
        acknowledge at trial[,] however, that he had used school monies
        in the past to pay for housing and other expenses. He does not
        presently have employment and has not consistently had
        employment since the initiation of the CHINS proceedings in
        2012. Although [F]ather may have housing, employment[,] and
        money from school loans from time to time, his history and
        patterns of conduct reveal an inability to maintain a home for
        himself and [C]hild.


         . . . [F]ather has not refrained from criminal activity during the
        course of the underlying CHINS proceedings. In 2014, he was
        arrested for possession of paraphernalia. At trial [here], he
        claimed that his friend left a marijuana pipe in his backpack.
        However, [he] had a positive test for marijuana a few months
        before the start of [this] hearing . . . . Additionally, he
        acknowledged refusing to submit to a drug screen in February of
        2014.


        At the time of the initiation of the proceedings in the underlying
        CHINS cause, [F]ather was unable to provide a safe, stable home
        environment for [C]hild. At the time of the hearing on the
        Petition for Termination . . . , [F]ather continued to be unable to
        provide for [C]hild . . . .


                                                ***



Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 4 of 9
              6.    The [DCS] has a satisfactory plan for the care and
              treatment of [C]hild, which is placement of [C]hild for adoption.


      Appellant’s App. at 25-26. This appeal ensued.


                                     Discussion and Decision
[7]   Father appeals the trial court’s termination of his parental rights. We begin our

      review of this issue by acknowledging that “[t]he traditional right of parents to

      establish a home and raise their children is protected by the Fourteenth

      Amendment of the United States Constitution.” Bailey v. Tippecanoe Div. of

      Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[8]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove, in relevant part:

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



      Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 5 of 9
                 (i) The child has been removed from the parent for at least
                 six (6) months under a dispositional decree.


                                                ***


         (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;


         (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). That statute provides that DCS need establish only

one of the requirements of subsection (b)(2)(B) before the trial court may

terminate parental rights. DCS’s “burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

14-2).


Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 6 of 9
[9]    When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

       Family & Children (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[10]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[11]   Father’s only argument on appeal is that the DCS failed to demonstrate a

       satisfactory plan for the care and treatment of Child following the termination

       of Father’s rights. See I.C. § 31-35-2-4(b)(2)(D). Father concedes that the DCS

       demonstrated a reasonable probability that the conditions that resulted in

       Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 7 of 9
       Child’s removal will not be remedied as well as a reasonable probability that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Child. And Father does not argue on appeal that the termination of his

       parental rights is not in the best interests of Child.


[12]   We reject Father’s argument on appeal. As we have made clear:


               For a plan to be “satisfactory,” for purposes of the statute, it need
               not be detailed, so long as it offers a general sense of the direction
               in which the child will be going after the parent-child relationship
               is terminated. . . . Attempting to find suitable parents to adopt
               the children is clearly a satisfactory plan. The fact that there was
               not a specific family in place to adopt [at the time of the
               termination hearing] does not make the plan unsatisfactory. We
               also find that the continuing independent living situation . . . is
               an acceptable plan as it gives a general sense of the direction of
               the treatment and care that [a child] would receive.


       Lang v. Starke Cnty. Ofc. of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App.

       2007) (citations and quotations omitted), trans. denied.


[13]   Lang controls the outcome here. Despite Father’s arguments to the contrary on

       appeal, the DCS plainly presented sufficient evidence of a satisfactory plan for

       the care and treatment of Child. The GAL testified that Child had been placed

       in a continuing, independent living situation with foster parents following the

       trial court’s determination that Child was a CHINS. The GAL further testified

       that the DCS was in the process of finding suitable parents to adopt Child. The

       fact that there was not a specific family in place at the time of the termination

       hearing does not render the DCS’s plan unsatisfactory. Moreover, Father’s

       Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 8 of 9
       arguments on appeal are merely requests for this court to reweigh the evidence,

       which we will not do. Thus, we affirm the trial court’s termination of Father’s

       parental rights.


[14]   Affirmed.


[15]   Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1408-JT-370 | March 6, 2015   Page 9 of 9
