MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Feb 04 2019, 10:13 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
A.J.I AND L.D.M. (FATHERS)                               THE INDIANA DEPARTMENT OF
Gregory L. Fumarolo                                      CHILD SERVICES
Fort Wayne, Indiana                                      Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
ATTORNEY FOR APPELLANT                                   Abigail R. Recker
GUARDIAN AD LITEM                                        Deputy Attorney General
                                                         Indianapolis, Indiana
Roberta L. Renbarger
Fort Wayne, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         K.R.H. (MOTHER)
                                                         Thomas C. Allen
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         February 4, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         18A-JT-1948
                                                         Appeal from the Allen Superior
M.I., N.I.1, N.I.2, N.I.3, N.I.4,
                                                         Court
S.H.I. (Minor Children)
                                                         The Honorable Daniel G. Heath,
and                                                      Judge
A.J.I. (Father) and L.D.M. (Father)                      Trial Court Cause Nos.
                                                         02D08-1710-JT-146
Appellants-Respondents,
                                                         02D08-1710-JT-147


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019               Page 1 of 28
              v.
                                                               02D08-1710-JT-148
                                                               02D08-1710-JT-149
      The Indiana Department of Child                          02D08-1710-JT-150
      Services,                                                02D08-1710-JT-151
      Appellee-Petitioner.

      and
      Dennis Koehlinger,
      Appellant-Guardian ad Litem,

             v.
      K.H. (Mother)
      Appellee-Respondent.



      Robb, Judge.




                               Case Summary and Issues
[1]   The Indiana Department of Child Services (“DCS”) filed a petition to terminate

      the parental rights of A.J.I. (“Legal Father”), L.D.M. (“Alleged Father”)

      (collectively, “Fathers”), and K.R.H. (“Mother”) to Mother’s six children. The

      juvenile court denied the petition as to Mother but terminated Fathers’ parental

      rights. Fathers appeal the termination of their parental rights and the children’s


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 2 of 28
      guardian ad litem (“GAL”) appeals the juvenile court’s denial of the petition as

      to Mother. This case presents two issues for our review: (1) whether the

      juvenile court’s decision to terminate Fathers’ parental rights was clearly

      erroneous; and (2) whether the juvenile court’s judgment denying DCS’ petition

      to terminate Mother’s parental rights was contrary to law. We conclude the

      juvenile court’s decision was not clearly erroneous as to Fathers but its denial of

      DCS’ petition as to Mother was contrary to law. Accordingly, we affirm in

      part, reverse in part, and remand.



                            Facts and Procedural History
[2]   Six of Mother’s children, born from March 18, 2005 to January 1, 2014, are the

      subject of this appeal (collectively the “Children”). Mother and Legal Father

      were married in 2004 and divorced in 2015. He is the father of the five oldest

      children. The youngest child, S.H.I., was born during the marriage, but

      Alleged Father is believed to be her father, although his paternity has not been

      established.


[3]   In 2014, Legal Father was convicted of child molesting, a Class A felony.

      None of the Children were the victim of the molestation. Legal Father was

      sentenced to thirty-five years with twenty years executed and fifteen years

      suspended with five years of probation. He is expected to be released in July

      2023. Alleged Father was also incarcerated from 2013 through March 2018.

      Mother was the primary caretaker of the Children while Fathers were

      incarcerated. On or around November 20, 2015, Mother visited the DCS office

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 3 of 28
      and stated she was unable to care for the Children due to lack of housing and

      her alcohol addiction. At this time, Mother admitted to DCS she was an

      alcoholic and became intoxicated every night. Ten days later, the Children

      were placed with their maternal great aunt, A.H.


[4]   On December 2, 2015, DCS filed a petition alleging the Children were Children

      in Need of Services (“CHINS”) and the same day, the juvenile court held an

      initial/detention hearing and the Children were formally removed from Mother

      and placed with A.H. Mother was permitted to reside with A.H. and the

      Children. The juvenile court also appointed Denis Koehlinger as the Children’s

      GAL.


[5]   DCS filed an amended petition alleging Mother was unable to care for Children

      due to her lack of housing and alcohol addiction, and that both Fathers were

      incarcerated, on January 6, 2016. A hearing was held on January 11 at which

      Mother and Alleged Father admitted to the allegations in the amended petition1

      and the Children were adjudicated CHINS. The juvenile court entered a

      dispositional decree ordering Mother to: participate in Narcotics Anonymous

      and/or Alcoholics Anonymous; obtain a drug and alcohol assessment and

      follow all recommendations; submit to random drug screens; obtain and

      maintain suitable housing and employment; complete parenting classes;

      complete family and individual counseling at Stop Child Abuse and Neglect;




      1
          Legal Father did not attend the hearing due to his incarceration.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 4 of 28
      and attend visitation with Children. Alleged Father was also ordered to

      participate in services available to him, including parenting services, therapy to

      address domestic violence and substance use, and other preventative services.

      See Exhibits at 31-32.


[6]   In June, A.H. moved to another city and the Children were placed in foster

      care. Legal Father subsequently admitted to the allegations of the CHINS

      petition and the juvenile court took judicial notice that Mother and Alleged

      Father previously admitted to those allegations at the January 11 hearing. The

      juvenile court ordered Legal Father to maintain contact with DCS, provide the

      Children with clothing, and participate in services available to him while

      incarcerated, including parenting classes and therapy to address domestic

      violence and substances abuse issues, and other available preventative services.

      See Exhibits at 61-62.


[7]   On April 27, 2017, the juvenile court conducted a review hearing and found

      that Mother had not visited regularly with the Children, had been unable to

      maintain stability, and still needed to participate in counseling and home-based

      services. The juvenile court also found that Mother had obtained a

      psychological evaluation, results thereof were pending, and the service

      providers had identified “possible mental health needs.” Exhibits at 68. At that

      time, the permanency plan for Children was reunification with Mother, but the

      juvenile court ordered the Children to be continued in foster care.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 5 of 28
[8]    DCS filed its Verified Petition to Terminate the Parent-Child Relationship

       between Mother and Children, and between Fathers and Children on October

       4. At a permanency hearing on October 23, the juvenile court found that

       Mother, Legal Father, and Alleged Father had all “failed to enroll or

       satisfactorily participate in the services and programs required in the

       dispositional decree.” Exhibits at 84. On March 21, 2018, DCS filed an

       amended petition naming L.D.M. as the Alleged Father of S.H.I. and A.J.I. as

       the Legal Father of S.H.I.


[9]    The juvenile court held fact finding hearings on the petition over several days in

       May and took the matter under advisement. On July 17, the juvenile court

       denied DCS’ petition to terminate Mother’s parental rights but terminated

       Legal Father’s and Alleged Father’s parental rights. Fathers appeal the

       termination of their parental rights and the GAL appeals the juvenile court’s

       denial of the petition to terminate Mother’s parental rights. Additional facts

       specific to each party will be provided as necessary.



                                  Discussion and Decision
                                      I. Standard of Review
[10]   A parent’s right to establish a home and raise his or her children is protected by

       the Fourteenth Amendment to the United States Constitution. Bester v. Lake

       Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A parent’s

       interest in the care, custody, and control of his or her children is ‘perhaps the

       oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 6 of 28
       U.S. 57, 65 (2000)). Although the parent-child relationship is “one of the most

       valued relationships in our culture[,]” parental rights may be terminated when

       the parents are unable or unwilling to meet their parental responsibilities. In re

       G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009). The purpose of terminating

       parental rights is to protect children, not to punish parents. In re D.D., 804

       N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.


[11]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we

       consider only the evidence most favorable to the judgment and the reasonable

       inferences that can be drawn therefrom. Id.


[12]   Pursuant to Indiana Code section 31-35-2-8(c), the juvenile court entered

       findings of fact and conclusions thereon. Accordingly, we apply a two-tiered

       standard of review. Bester, 839 N.E.2d at 147. We first determine whether the

       evidence supports the findings, then determine whether the findings support the

       judgment. Id. We will set aside the juvenile court’s judgment only if clearly

       erroneous, namely when the findings “do not support the [juvenile] court’s

       conclusions or the conclusions do not support the judgment.” Id.


                           II. Termination of Parental Rights
[13]   To terminate a parent’s rights, the State must prove by clear and convincing

       evidence:



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 7 of 28
        (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); see also Ind. Code § 31-37-14-2 (“A finding in a

proceeding to terminate parental rights must be based upon clear and

convincing evidence.”). Because Indiana Code section 31-35-2-4(b)(2)(B) is

written in the disjunctive, DCS is only required to prove one of three elements

of subsection (B). In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). We

analyze each party’s arguments on appeal separately.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 8 of 28
                                              III. Fathers’ Appeal
                                                   A. Legal Father
[14]   Legal Father does not challenge the juvenile court’s findings but argues that the

       findings do not support its decision to terminate his parental rights.

       Specifically, he challenges the juvenile court’s conclusion that there is a

       reasonable probability that the conditions that led to removal of the Children

       would not be remedied and that the continuation of the parental-child

       relationship poses a threat to the well-being of the Children.2


[15]   As to Legal Father, the juvenile court found:


                  112. On July 14, 2014, [Legal Father] was convicted of child
                  molesting, an A felony. The sentence was for thirty-five (35)
                  years, with twenty (20) years to be executed with the balance of
                  fifteen years (15) were suspended. The anticipated release from
                  prison date . . . is July 19, 2023. When he is released from prison
                  in 2023, he will have five (5) years of probation. Following his
                  release, he will be on the child molestation registry for ten (10)
                  years and he must participate in a program for sex offenders. . . .
                  Furthermore, his divorce agreement requires that visitations with
                  his children must be supervised.


                  113. [Legal Father] has not been physically in the presence of his
                  children since the day he began his incarceration . . . July 17,
                  2014. He has seen some pictures of them, provided to him by
                  family members. He has sent them birthday presents and cards.
                  He made them hand-crafted items for his [C]hildren. He has had




       2
           Fathers appeal the termination of their parental rights collectively.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 9 of 28
        phone contact once with his [C]hildren since the beginning of his
        incarceration. He has had no contact whatsoever with them for
        the past eighteen (18) months for the reason that he does not
        know where they are residing.


        114. That last time that [Legal Father] was physically in the
        presence of his [C]hildren was October 7, 2013 . . . .


        115. Due to his incarceration, [Legal Father] cannot provide the
        necessary care and supervision of his [C]hildren.


        116. Under the Court’s dispositional plan for [Legal Father], [he]
        has been unable to provide “clean, appropriate clothing at all
        times” for his [C]hildren.


        117. [Legal Father’s] plan for employment, upon his release
        from prison, includes working at Ellison Bakery with his mother,
        obtaining his CDL so that he can become a long-haul truck
        driver, and starting his own music record label.


        118. His plan for housing, upon his release from prison, he will
        reside with either his mother or his step-father, both of whom
        reside in Fort Wayne. Regarding the deed to his mother’s house,
        [his] name is on the deed as well as his mother and his brother.
        He does not own a home solely in his name.


        119. Regarding the requirement that [he] participate in parenting
        classes and therapy to address domestic violence and substance
        abuse issues, also a requirement of the Dispositional Order in the
        CHINS case involving [Legal Father] and his children, [he] has
        completed a program titled “Resolution for Men” which is a
        Christian-based parenting program offered at the New Castle
        Correctional Facility. He is on the waiting list for a program
        called “Navigators” which is designed to help you become a

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 10 of 28
        better person. He has also taken some “therapeutic” classes to
        deal with domestic violence. He cannot take any substance
        abuse classes until he has some twenty-five (25) months left of his
        period of incarceration.


        120. In a program promoted by the U.S. Department of Labor,
        [Legal Father] is working to become a Master Student/Master
        Employee with an eye toward “culinary arts.” He has
        maintained employment while incarcerated.


        121. While [Legal Father’s] earliest possible release date, as of
        the date of the trial, is July 19, 2023, he can receive “time cuts”
        by completing certain programs. He has earned one, 6 month
        “time cut” so far and is set to complete another program for
        another “time cut” when he returns to the New Castle
        Correctional Facility.


        122. [Legal Father] intends to carry on a relationship with his
        children upon his release from prison.


        123. [Legal Father] has advised the DCS that if the children are
        not placed with [Mother], that his children be placed with either
        his family or [Mother’s] family.


        ***


        [T]he court finds that, due to his incarceration, [Legal Father] is
        unable to provide the necessary care, supervision and material
        financial support for his [C]hildren. He is expected to remain
        incarcerated for the next four (4) to four and one-half (4 and ½)
        years. He has had little contact with [his] [C]hildren since the
        commencement of his incarceration. His inability to provide for
        his [C]hildren’s care, supervision and material financial support
        will not be remedied until his release date and possibly beyond.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 11 of 28
               Most of the childhood years of [his] [C]hildren at issue will be
               gone by the time of his release. Furthermore, his incarceration
               stems from his conviction of an A felony for child molestation.
               Therefore, as he is a convicted child molester, there is a
               reasonable probability that the continuation of the parent-child
               relationship poses a threat to the well-being of the
               aforementioned children, under Indiana Code section 31-35-2-
               4(b)(2)(ii). The court concludes that [DCS] has met its burden by
               clear and convincing evidence that terminating the parental rights
               of [Legal Father] is in the best interests of the aforementioned
               children.


       Appealed Order at 20-23. (citations omitted).


[16]   First, we note that Legal Father does not dispute any of the juvenile court’s

       findings of fact pertaining to him and we accept those unchallenged findings as

       true. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997). We

       therefore address only whether the juvenile court’s findings support its

       judgment. Bester, 839 N.E.2d at 147.


[17]   As to remedied conditions, Legal Father alleges that DCS became involved

       with the Children while he was incarcerated when Mother sought help due to

       her lack of housing and alcohol addiction, impacting her ability to care for the

       Children. Thus, he argues he was “not responsible for the conditions which led

       to the removal” of the Children. Brief of Appellant(s)/Father(s) at 17-18.


[18]   In determining whether a reasonable probability exists that the reasons for

       removal or placement outside the home will not be remedied, we engage in a

       two-step analysis. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 647 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 12 of 28
       2015). We first identify the conditions that led to removal, then we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. As to the second step,


               the [juvenile] court must judge a parent’s fitness to care for her
               child at the time of the termination hearing, taking into
               consideration evidence of changed conditions. The [juvenile]
               court must also evaluate the parent’s habitual patterns of conduct
               to determine the probability of future neglect or deprivation of
               the child. Pursuant to this rule, courts have properly considered
               evidence of a parent’s criminal history, drug and alcohol abuse,
               history of neglect, failure to provide support, and lack of
               adequate housing and employment. The [juvenile] court may
               also properly consider the services offered to the parent by [DCS]
               and the parent’s response to those services as evidence of whether
               conditions will be remedied. Finally, [DCS] is not required to
               provide evidence ruling out all possibilities of change; rather, it
               need establish only that there is a reasonable probability the
               parent’s behavior will not change.


       In re I.A., 903 N.E.2d at 154 (citations and emphasis omitted).


[19]   We begin with the conditions that led to removal or reasons for placement

       outside of the home. The record reveals that the Children were initially

       removed from Mother on November 30, 2015, after she appeared at the DCS

       office and admitted she was unable to care for the Children due to lack of

       housing and her alcohol addiction. At this time, both Fathers were incarcerated

       and unable to care for the Children. Here, the juvenile court found that Legal

       Father is unable to provide the necessary care, supervision, and financial

       support for his Children due to his incarceration and his inability to do so “will


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 13 of 28
       not be remedied until his release date and possibly beyond.” Appealed Order at

       23, ¶ 4.


[20]   As to whether those conditions will be remedied, we first acknowledge that our

       supreme court has held that incarceration itself is an insufficient basis for

       terminating parental rights. In re G.Y., 904 N.E.2d at 1264-66. Legal Father

       asserts that he has made “significant steps towards his rehabilitation” during his

       incarceration and thus the juvenile court erred in concluding it is unlikely he

       will remedy the conditions. Br. of Appellant(s)/Father(s) at 18. In contrast,

       DCS contends the conditions will not be remedied given Legal Father’s

       “limited contact” with the Children, his child molestation conviction

       prohibiting him from having unsupervised contact with the Children, and the

       fact that he will be incarcerated until 2023. Brief of Appellee at 21.


[21]   DCS distinguishes Legal Father’s progress from the progress demonstrated by

       the incarcerated father in K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind.

       2015), whose parental rights were also terminated. In K.E., our supreme court

       reversed the termination of father’s parental rights given father’s “substantial

       efforts towards bettering his life” by participating in twelve programs during his

       incarceration, most of which were voluntary and did not result in a sentence

       reduction. Id. at 648. In addition, the father participated in visitation with his

       children every other week and made nightly phone calls to his children. Id. at

       649. Overall, the father in K.E. made “great strides” during his incarceration.

       Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 14 of 28
[22]   Based on Legal Father’s minimal contact with the Children, we agree with

       DCS that Legal Father’s efforts can be distinguished from those in K.E.. First,

       Legal Father’s absence from the Children’s lives predates his incarceration.

       The juvenile court found the last time Legal Father was physically present with

       his Children was in October 2013, approximately eleven months before he was

       incarcerated in July 2014. Second, although he has sent birthday presents,

       cards, and hand-crafted items, he has had phone contact once since his

       incarceration and has not had any contact with the Children in the last eighteen

       months. Legal Father argues the juvenile court “did not give appropriate

       weight to the fact that [he] was likely to receive additional ‘time cuts’ for

       completion of [Department of Correction] programs.” Br. of

       Appellant(s)/Father(s) at 18. Legal Father’s assertion is a request to reweigh

       the evidence, which we cannot do. Lang, 861 N.E.2d at 371.


[23]   We commend Legal Father on his efforts to better himself. However, given his

       minimal contact with the Children, we cannot conclude the juvenile court erred

       in determining the conditions which led to the Children’s removal are likely to

       be remedied.3




       3
         Given that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS only had to prove one
       of three elements of subsection (B). In re I.A., 903 N.E.2d at 153. Thus, because we conclude that the
       juvenile court’s determination that a reasonable probability exists that the conditions which led to Children’s
       removal will not be remedied is not clearly erroneous, we need not address Legal Father’s argument
       regarding (b)(2)(B)(ii).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019                 Page 15 of 28
                                            B. Alleged Father
[24]   Alleged Father appeals the termination of his parental rights as to S.H.I. The

       juvenile court found:


               109. [Alleged Father] has only seen [S.H.I.] twice: once while in
               jail and once while [S.H.I.] was in the case [sic] of [Mother].
               During the time [S.H.I.] was in [Mother’s] care, [Alleged Father]
               has not provided any financial assistance for [S.H.I.].


               110. [Alleged Father] has made no contact with DCS since his
               release from incarceration and has provided no evidence of
               compliance with the requirements of his Court-ordered Parent
               Participation Plan.


               ***


               [Alleged Father] did not appear for trial though he was released
               from incarceration prior to trial. Furthermore, he had previously
               admitted that he was unable or unwilling to provide the
               necessary care and supervision for [S.H.I.]. Furthermore, he
               admitted that he is unable or unwilling to provide material
               financial support for [S.H.I.]. [Alleged Father], therefore, has
               abandoned [S.H.I.]. [DCS] has shown, by clear and convincing
               evidence, that his abandonment is unlikely to be remedied, that
               whether [Mother] ultimately regains custody or control of her
               [C]hildren or the [C]hildren are ultimately adopted, [DCS] has or
               will have a satisfactory plan for the care and treatment of the
               [C]hildren, and it is in the best interests of [S.H.I.] that the
               parental rights of [Alleged Father] as to [S.H.I.] be terminated.


       Appealed Order at 20, 23.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 16 of 28
[25]   Alleged Father challenges the finding that he has abandoned S.H.I., a condition

       the juvenile court concluded was unlikely to be remedied. His only argument is

       that the evidence at trial demonstrates that he had been incarcerated throughout

       the pendency of the CHINS matter and was released just before the termination

       proceedings, thus the evidence does not support the termination of his parental

       rights.


[26]   DCS, however, argues the juvenile court did not find legal abandonment nor

       did DCS have to prove the requirements thereof. And moreover, DCS argues

       that the evidence supports the conclusion that Alleged Father is unlikely to

       remedy the conditions for placement of S.H.I. outside of the home “in part

       because he essentially abandoned” S.H.I. Br. of Appellee at 23.


[27]   Again, we engage in a two-step analysis to determine whether the conditions

       that led to S.H.I.’s removal and continued placement outside of the home will

       likely be remedied. K.E., 39 N.E.3d at 647. We first identify the conditions

       that led to removal, then whether a reasonable probability exists that those

       conditions will not be remedied. Id. Children were removed due to Mother’s

       lack of housing and alcohol addiction resulting in her inability to care for the

       Children.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 17 of 28
[28]   The evidence shows that Alleged Father was incarcerated from 2013 to

       approximately March 2018.4 Deondra Bender, family case manager, testified

       that she communicated with Alleged Father while he was incarcerated, but “not

       often.” Transcript, Volume 2 at 36. The communication was typically via

       telephone “only on court hearing dates when possible.” Id.


[29]   The record reveals that DCS sent Alleged Father a letter upon his release,

       “asking him to please contact [DCS] to discuss the case that he’s involved in”

       and provided the necessary contact information. Tr., Vol. 1 at 228. The DCS

       case manager testified that she contacted Allen County Adult Probation where

       he was released and believed she had a correct address for Alleged Father.

       Alleged Father has not had any contact with DCS since his release, has not

       provided S.H.I. with any clothing as ordered, or provided any evidence to

       demonstrate his compliance with the Parent Participation Plan. Furthermore,

       Alleged Father has only seen S.H.I. twice since her birth and the juvenile court

       found that he “failed to appear throughout the proceedings on the petition.”

       Appealed Order at 2.


[30]   We note that a “parent’s failure to appear for . . . court hearings reflects

       ambivalence[.]” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). The




       4
        The exact date of Alleged Father’s release is unclear. The GAL testified at the May 31, 2018 hearing that
       Alleged Father had been released from incarceration “relatively recent[ly].” Transcript, Volume 2 at 71. He
       was unsure as to when, but believed it was within the last couple of months. Id. In addition, the DCS family
       case manager testified that she sent Alleged Father a letter in March 2018 “shortly after he was released[.]”
       Tr., Vol. 1 at 228.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019                Page 18 of 28
       evidence in the record supports the juvenile court’s finding that Alleged Father

       has abandoned S.H.I. His lack of effort to reach out to DCS or attend a single

       termination hearing supports the conclusion that this condition is unlikely to be

       remedied.


                                            C. Best Interests
[31]   Fathers both argue the juvenile court’s determination that termination of their

       parental rights is in the Children’s best interests was clearly erroneous. To

       determine the best interests of the Children, the juvenile court looks to the

       totality of the evidence and must subordinate the interests of the parents to

       those of the children. In re D.D., 804 N.E.2d at 267. “A child’s need for

       permanency is an important consideration in determining the best interests of a

       child, and the testimony of the child’s guardian ad litem supports a finding that

       termination is in the child’s best interests.” In re D.L., 814 N.E.2d 1022, 1030

       (Ind. Ct. App. 2004), trans. denied.


[32]   Here, the Children’s GAL testified that he believed it was in the best interests of

       the Children for Fathers’ parental rights to be terminated. Tr., Vol. 2 at 64.

       Thus, the juvenile court’s determination that termination of Father’s parental

       rights is in the best interests of the Children is not clearly erroneous.


                                          D. Satisfactory Plan
[33]   Fathers also challenge the juvenile court’s finding that DCS “has or will have a

       satisfactory plan for the care and treatment of the [C]hildren[.]” Appealed

       Order at 23. A DCS plan is satisfactory when the plan is to attempt to find

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 19 of 28
       suitable parents to adopt the children. In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct.

       App. 2014), trans. denied. We will not find a plan unsatisfactory simply because

       DCS has not yet identified a specific family to adopt the children. 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. Similarly, a plan does not

       need to be detailed, so long as it offers a general sense of the direction in which

       the children will be going after the parent-child relationship is terminated. In re

       D.D., 804 N.E.2d at 268.


[34]   At the termination hearing, Amanda Ray, DCS case manager, testified that

       DCS has a plan for the care and treatment of the Children, namely adoption.

       See Tr., Vol. 1 at 229-30. She testified that DCS “would continue to provide for

       the children in the foster care. . . until they could be safely adopted or

       successfully adopted.” Id. at 230. She also testified that DCS would like to

       place all Children in a single adoptive home although it would be difficult. See

       id. at 233. Thus, the juvenile court’s determination here was not clearly

       erroneous.


                                         IV. GAL’s Appeal
[35]   The GAL appeals the juvenile court’s denial of the DCS petition to terminate

       Mother’s parental rights as to Children. Here, the juvenile court found: (1) that

       Mother’s alcohol addiction and inability to control the Children has been or is

       likely to be remedied; (2) Mother’s lack of housing has not been remedied; and

       (3) DCS failed to prove that termination was in the Children’s best interests.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 20 of 28
The GAL appeals. The juvenile court entered over eighty findings of fact

pertaining to Mother and concluded, in pertinent part:


        5. [T]he court notes that [Mother] has failed to complete her
        treatment through AA, and DBT and CBT treatment through
        Park Center. Furthermore, she has had difficulty maintaining
        stable employment though she has had consistent employment
        through temporary employment agencies. While it would
        obviously better [sic] for [Mother] to have successfully completed
        her treatment plans and to have had a better employment history,
        the court cannot conclude that these factors meet the burden
        [DCS] has by clear and convincing evidence that [Mother’s]
        parental rights should be terminated. The court makes this
        conclusion despite the testimony of Dr. Lombard [Licensed
        Clinical Psychologist] that [Mother] should not have the care and
        custody of her [C]hildren until such time as she is “compliant”
        with treatment. The treatment required under the Parent
        Participation Plan when considered in the context of her need to
        also find stable employment and housing, is difficult to
        accomplish, especially for someone without personal
        transportation.


        6. Furthermore, it would appear that [Mother] has gained
        control, for the most part, of her alcohol and drug addiction. The
        court makes this finding despite the evidence that she did test
        positive for THC on one occasion and admits to two occasions of
        alcohol abuse during the pendency of this matter. Therefore, this
        problem has been, for the most part remedied.


        7. Another concern expressed by [Mother] to DCS staff was her
        inability to control her [C]hildren. While this problem has not
        yet been totally remedied, she has completed parenting classes
        and has shown sufficient progress in the improvement of her
        parenting skills, as demonstrated during her visitations, that the
        court concludes that remedying this concern is a good possibility.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 21 of 28
        8. The final issue for the court’s consideration that must be
        remedied is the lack of suitable housing for [Mother] and her
        [C]hildren. [Mother] originally appeared at the DCS office
        complaining of her inability to control her alcohol addiction,
        probably [sic] control and supervise her [C]hildren, and to
        provide housing for them. She was able to gain some period of
        time for housing with [A.H.] until approximately June 1, 2016,
        when [A.H.] moved out-of-state. Since that time [Mother] has
        been unable to secure suitable housing . . . . She has been at
        “Transitions,” “Vincent Villages,” and various hotels and with
        friends. Furthermore, she has admitted, and makes clear by her
        own testimony, that it is very difficult for her to secure housing
        because of her credit history and the size of her family. She
        would likely be able to secure food stamps again and obtain
        Medicaid coverage for the [C]hildren if her [C]hildren are
        restored to her, but this would not remedy her ability to secure
        suitable housing. She has been making attempts during the entire
        time since her [C]hildren were removed from her care and
        custody, June 1, 2016. It has, therefore, been more than two (2)
        years that [Mother] has been making the attempt without
        success. The problem of housing is the essential problem that
        [Mother] must remedy to have her [C]hildren restored to her.


        9. On the other hand [DCS] presented no evidence that waiting
        in the wings are real prospective adoptive parents. Children, as
        in this case, ages 13, 12, 11, 9 and so on, with some behavioral
        issues (as was shown in this case) are likely not easily adopted.
        Put differently, though [Mother] may continue to struggle to
        secure ample housing for her family, so might [DCS] struggle to
        find adoptive parents. Furthermore, it is also apparent from the
        evidence that there is a strong, loving bond between [Mother]
        and her [C]hildren[.]


        10. Therefore, though it may continue to be difficult for
        [Mother] to secure suitable housing[,] . . . the court cannot yet
        conclude that it would be in the best interests of the [C]hildren

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 22 of 28
               that [Mother’s] parental rights be terminated. [DCS] has failed to
               show by clear and convincing evidence that it would be in the
               best interests of the [C]hildren at issue in this case that [Mother’s]
               parental rights should be terminated.


       Appealed Order at 24-25.


[36]   Because the GAL is faced with a ruling against the termination of Mother’s

       parental rights, it must “overcome the additional burden of appealing from a

       negative judgment.” In re D.Q., 745 N.E.2d 904, 909 (Ind. Ct. App. 2001).

       Where a party has the burden of proof at trial and an adverse judgment is

       entered, if the party prosecutes an appeal, he or she does so from a negative

       judgment. J.W. v. Hendricks Cty. Office of Family & Children, 697 N.E.2d 480, 481

       (Ind. Ct. App. 1998). To prevail on an appeal from a negative judgment, the

       appellant must demonstrate that the judgment is contrary to law. In re D.Q.,

       745 N.E.2d at 909. “A judgment is contrary to law when the evidence is

       without conflict and all reasonable inferences to be drawn from that evidence

       lead to but one conclusion, but the juvenile court reached a different

       conclusion.”5 Id.


[37]   The GAL’s standing is aligned with DCS in this instance. See Ind. Code § 31-

       35-2-4(a) (a petition to terminate the parent-child relationship may be filed by a

       child’s GAL, DCS, or child’s court appointed special advocate); see also Bester,




       5
         We note that our standard of review in termination matters is already whether the judgment is contrary to
       law. See supra ¶ 12. However, because the GAL appeals from a negative judgment, the “contrary to law”
       standard is slightly different.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019               Page 23 of 28
       839 N.E.2d at 148 (the State bears the burden of proving the allegations of the

       petition to terminate parental rights by clear and convincing evidence). The

       GAL represented the Children at the termination hearings, testified that

       termination is in their best interests, and subsequently initiated this appeal after

       the juvenile court denied DCS’ petition to terminate Mother’s parental rights.

       Thus, the GAL appeals from a negative judgment and must demonstrate that

       the juvenile court’s judgment is contrary to law.


                                     A. Remedy of Conditions
[38]   The GAL takes issue with the juvenile court’s determination that the conditions

       which led to the Children’s removal have been or will be remedied. We note,

       however, that the juvenile court did not explicitly find that DCS failed to meet

       its burden by clear and convincing evidence under Indiana Code section 31-35-

       2-4(b)(2)(B). Rather, the juvenile court found that the Children were initially

       removed from Mother after she appeared at DCS notifying them she was

       unable to care for the Children due to her lack of housing, inability to control

       the Children, and her alcohol addiction. As to remedied conditions, the

       juvenile court entered specific findings pertaining to each condition. It

       concluded that Mother’s alcohol and drug addiction “for the most part” has

       been remedied and her inability to control her Children “has not yet been

       totally remedied” but remedying this is a “good possibility” given her progress.

       Appealed Order at 24. However, it also found that Mother has attempted to

       find housing for more than two years without success, thus the “problem of

       housing is the essential problem that [Mother] must remedy to have her

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 24 of 28
       [C]hildren restored to her.” Id. Even if Mother has remedied her alcohol

       addiction and inability to control the Children, the juvenile court still found she

       did not remedy her lack of housing.


[39]   To the extent the GAL challenges a general determination under Indiana Code

       section 31-35-2-4(b)(2)(B)(i) that there is a reasonable probability that the

       conditions that led to Children’s removal will be remedied, there is no such

       finding in the Appealed Order. See Appealed Order 24-25, ¶ 5-10. Because the

       juvenile court found that Mother did not remedy all conditions that led to the

       Children’s removal, we conclude that DCS met its burden under Indiana Code

       section 31-35-2-4(b)(2)(B).


                                             B. Best Interests
[40]   The GAL challenges the juvenile court’s finding that the termination of

       Mother’s parental rights is not in the Children’s best interests, highlighting

       Mother’s pattern of instability. Here, the juvenile court recognized that

       Mother’s lack of housing has not been remedied, but concluded:


               9. On the other hand [DCS] presented no evidence that waiting
               in the wings are real prospective adoptive parents. Children . . .
               ages 13, 12, 11, 9 and so on, with some behavioral issues . . . are
               likely not easily adopted. Put differently, though [Mother] may
               continue to struggle to secure ample housing for her family, so
               might [DCS] struggle to find adoptive parents. Furthermore, it is
               also apparent from the evidence that there is a strong, loving
               bond between [Mother] and her [C]hildren.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 25 of 28
               10. Therefore, though it may continue to be difficult for
               [Mother] to secure suitable housing for herself and her family, the
               court cannot yet conclude that it would be in the best interests of
               the [C]hildren that [Mother’s] parental rights be terminated.
               [DCS] has failed to show by clear and convincing evidence that it
               would be in the best interests of the [C]hildren at issue in this
               case that [Mother’s] parental rights should be terminated.


       Appealed Order at 24-25.


[41]   “Permanency is a central consideration in determining the best interests of a

       child.” G.Y., 904 N.E.2d at 1265. To determine the best interests of the

       children, the juvenile court must look beyond the factors identified by DCS and

       to the totality of the evidence. In re D.L., 814 N.E.2d at 2030. In doing so, the

       juvenile court must subordinate the interests of the parent to those of the

       children involved and need not wait until a child is irreversibly harmed before

       terminating parental rights. McBride v. Monroe Cty. Office of Family & Children,

       798 N.E.2d 185, 203 (Ind. Ct. App. 2003).


[42]   Here, the juvenile court acknowledged that Mother has not been able to obtain

       suitable housing in over two years and found that it is an “essential problem

       that [Mother] must remedy to have her [C]hildren restored to her.” Appealed

       Order at 24. At the hearing, Mother’s family coach testified that Mother made

       no progress pertaining to her goal of attaining suitable housing. See Tr., Vol. 1

       at 20. She explained that she went with Mother to look at various housing

       options and Mother filled out applications, but ultimately made “no progress.”

       Id. The record reveals that Mother was living “[i]n and out of hotels” in


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 26 of 28
February 2018 and was living with her sister at the time of the termination

hearings. Id. Moreover, Mother testified that she has not been able to obtain

housing, but her boyfriend was currently looking for housing and it is difficult

to find a place big enough for her family. She also testified that her boyfriend

has a Section 8 voucher and anticipated moving “within the next month.” Id.

at 167. However, Amanda Ray, DCS case manager, explained that any adults

in the home with the Children would have to pass background checks through

DCS and the hearing was the first time she heard Mother indicate she intended

to live with her boyfriend. Mother stated her boyfriend had not yet met the

Children or had a background check and she was aware he had a criminal

history. The evidence that Mother is unable to obtain suitable housing for

herself and the Children is “without conflict and all reasonable inferences to be

drawn from that evidence” lead us to conclude that termination of Mother’s

parental rights is in the best interests of the Children as the Children would

effectively become homeless if returned to Mother.6 In re D.Q., 745 N.E.2d at

909.




6
  The GAL appears to take issue with the juvenile court’s finding that DCS “presented no evidence that
waiting in the wings are real prospective adoptive parents. Children . . . with some behavioral issues . . . are
likely not easily adopted.” Appealed Order at 24. The GAL argues the “fact that the plan for the Children
may be time consuming or difficult . . . should not deter the termination of Mother’s parental rights to allow
DCS to attempt to fashion a permanent solution for these Children.” Brief of Appellant/Guardian Ad Litem
at 21. Because the juvenile court found that DCS has or will have a satisfactory plan for the care and
treatment of the Children, we need not address this issue.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019                  Page 27 of 28
                                               Conclusion
[43]   For the foregoing reasons, we affirm the juvenile court’s judgment terminating

       Fathers’ parental rights and reverse the judgment of the juvenile court denying

       DCS’ petition as to Mother. We remand to the juvenile court to enter a

       judgment consistent with this opinion terminating Mother’s parental rights as to

       Children.


[44]   Affirmed in part, reversed in part, and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1948 | February 4, 2019   Page 28 of 28
