MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              Sep 10 2015, 8:43 am
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 A.A.-S.                             ATTORNEYS FOR APPELLEE
Harold Amstutz                                             Gregory F. Zoeller
Lafayette, Indiana                                         Attorney General of Indiana
ATTORNEY FOR APPELLANT T.S.                                Robert J. Henke
                                                           David E. Corey
Michael B. Troemel
                                                           Deputy Attorneys General
Lafayette, Indiana
                                                           Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                           September 10, 2015
Termination of the Parent-Child                            Court of Appeals Case No.
Relationship of I.A., Minor                                79A02-1501-JT-34
Child, and his Father, A.A.-S,                             Appeal from the Tippecanoe
and Mother, T.S.                                           Superior Court
A.A.-S. and T.S.,                                          The Honorable Faith Graham,
                                                           Judge
Appellants-Respondents,
                                                           Trial Court Cause No.
        v.                                                 79D03-1408-JT-34


Indiana Department of Child
Services,
Appellee-Petitioner,




Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 1 of 12
      Vaidik, Chief Judge.



                                             Case Summary
[1]   T.S. (Mother) and A.A.-S. (Father) appeal the termination of their parental

      rights to their son, twelve-year-old I.A. They challenge the sufficiency of the

      evidence underlying the trial court’s termination order. However, I.A. has been

      institutionalized for the past five years, and during that time, Father has not

      contacted I.A., and Mother has not maintained stable employment or housing

      or abstained from alcohol and drug use. In addition, Department of Child

      Services’ (DCS) plan for I.A. is adoption. Concluding that there is sufficient

      evidence to support the trial court’s decision to terminate the parent-child

      relationship, we affirm.



                              Facts and Procedural History
[2]   Thirty-eight-year-old Mother and thirty-six-year-old Father are the parents of

      I.A., who was born in November 2002. Mother is also the parent of J.B., who

      was born in September 2001, and Z.G., who was born in January 2005.1




      1
       Mother’s parental relationships with J.B. and Z.G. were terminated at different times in 2012. This Court
      affirmed both terminations. See T.S. v. Ind. Dep’t of Child Servs., Case No. 79A02-1211-JT-891 (Ind. Ct. App.
      Aug. 14, 2013), and T.S. v. Ind. Dep’t of Child Servs., Case No. 79A02-1202-JT-102 (Ind. Ct. App. Sept. 11,
      2012). We include facts relating to the other children only as necessary to address the termination of the
      parent-child relationship between Mother and I.A.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015          Page 2 of 12
[3]   I.A.’s meconium tested positive for marijuana at birth in November 2002.

      Mother failed to successfully complete a Service Referral Agreement resulting

      from I.A.’s positive drug test and continued to use marijuana. I.A. and J.B.

      were subsequently removed from the home and placed in foster care for five

      months in 2003, and a Child in Need of Services (CHINS) case was opened.

      I.A. and J.B. were returned to Mother in 2003 when the CHINS case was

      dismissed. At some point, I.A. received mental-health services from Wabash

      Valley Alliance. Father left the family’s home when I.A. was two months old.

[4]   On July 27, 2009, six-year-old I.A. pushed four-year-old Z.G. out of a second-

      story window at Mother’s residence in Lafayette. While at the hospital with

      Z.G., Mother left J.B. and I.A. in the care of her mother. Two days later, while

      still in their grandmother’s care, diabetic J.B. suffered a nearly fatal overdose of

      insulin from an unknown cause and was life-lined to a hospital in Indianapolis.

[5]   I.A. and his siblings were placed in protective custody pursuant to a CHINS

      detention hearing order issued on July 31, 2009, and a Court-Appointed Special

      Advocate (CASA) was appointed to represent them. After DCS filed the

      CHINS petition, I.A. remained in foster care until August 19, 2009, when he

      was admitted to Valle Vista Hospital for mental health services. One week later

      he was transferred to Evansville Psychiatric Hospital because of his aggression.

[6]   While I.A. was at the Evansville hospital, all of the children were adjudicated

      to be CHINS on October 27, 2009. Pursuant to the dispositional order, Mother

      was required to participate in specific court-ordered services, find and maintain


      Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 3 of 12
      stable employment and housing, and abstain from all alcohol and drug use.

      Father was ordered to stay in contact with DCS and to submit to random urine

      drug screens.


[7]   On November 12, 2009, I.A., who was diagnosed with bipolar disorder,

      attention-deficit/hyperactivity disorder, oppositional-defiant disorder,

      borderline intellectual functioning, reactive-attachment disorder, and pervasive

      developmental disorder, was transferred to the residential program at Damar

      Services in Indianapolis. Two years later, in December 2011, I.A. was placed

      in therapeutic foster care. After I.A. became increasingly aggressive toward the

      foster family, he was placed at Options Treatment Center. In April 2014, I.A.

      was transferred to Lutherwood. Four months later, DCS filed a petition to

      terminate I.A.’s parental relationship with both parents.

[8]   Testimony at the November 19, 2014 termination hearing revealed that in 2009,

      Father did not contact DCS when he discovered that his son had been removed

      from Mother’s home. He subsequently attempted to make contact with his son

      while I.A. was at Damar. However, when Father learned that he would need

      to “go through the proper steps” to visit his son, Father did not pursue the

      matter and had no further contact with his son or DCS until the termination

      petition was filed five years later. Tr. p. 45. Father lived in Indianapolis during

      that time.


[9]   Also at the hearing, I.A.’s DCS caseworker testified that I.A. had been

      addressing his Father’s lack of involvement in his life during therapy. The


      Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 4 of 12
       caseworker pointed out the “tremendous period of separation” between I.A.

       and his father and opined that the termination of Father’s parental rights was in

       I.A.’s best interests. Id. at 71. The CASA also testified that it was in I.A.’s best

       interests to terminate Father’s parental rights.

[10]   The testimony at the hearing further revealed that during the five years when

       I.A. was institutionalized, Mother did not find stable employment or housing,

       and she did not abstain from alcohol and drug use. Specifically, Mother had a

       positive drug test just one month before the termination hearing. At the time of

       the hearing, Mother lived with a boyfriend who had substance-abuse and

       violence issues as well as a criminal background. In addition, just three to six

       months before the termination hearing, Mother missed multiple visits with I.A.,

       which “catapulted and spiraled him into a bad place.” Id. at 113. The DCS

       caseworker testified that it was in I.A.’s best interests to terminate Mother’s

       parental rights to give I.A. closure so that he could move forward. The CASA

       agreed with this recommendation.


[11]   Last, the DCS caseworker testified that I.A.’s behavior had improved over the

       past few months and that despite his “behavioral struggles . . . he has a lot of

       good qualities.” Id. at 64. The caseworker further testified that the plan for I.A.

       was adoption. Specifically, she testified that there are families who are

       currently interested in adopting I.A., including the family that adopted one of

       I.A.’s brothers. Following the hearing, the trial court terminated the parental

       rights of both parents.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 5 of 12
[12]   Mother and Father now appeal.



                                  Discussion and Decision
[13]   Each parent separately appeals the trial court’s order terminating his or her

       parental rights. Specifically, Father argues that there is insufficient evidence

       that 1) there is a reasonable probability that the conditions that resulted in I.A.’s

       removal or the reasons for placement outside the parents’ home will not be

       remedied and that a continuation of the parent-child relationship poses a threat

       to I.A.’s well-being; 2) termination is in I.A.’s best interests; and 3) there is a

       satisfactory plan for I.A.’s care and treatment. Mother argues that there is

       insufficient evidence that 1) termination is in I.A.’s best interests; and 2) there is

       a satisfactory plan for I.A.’s care and treatment.

[14]   The Fourteenth Amendment to the United States Constitution protects the

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

       K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

       termination of that right when the parents are unwilling or unable to meet their

       parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

       purpose of terminating parental rights is not to punish the parents, but to

       protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),

       trans. denied.


[15]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 6 of 12
       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id.


[16]   A petition to terminate parental rights must allege:

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


                        (i)     The child has been removed from the parent for at
                                least six (6) months under a dispositional decree.


                        (ii)    A court has entered a finding under IC 31-34-21-
                                5.6 that reasonable efforts for family preservation or
                                reunification are not required, including a description
                                of the court’s finding, the date of the finding, and the
                                manner in which the finding was made.


                        (iii)   The child has been removed from the parent and has
                                been under the supervision of a local office or
                                probation department for at least fifteen (15) months
                                of the most recent twenty-two (22) months, beginning
                                with the date the child is removed from the home as a
                                result of the child being alleged to be a child in need of
                                services or a delinquent child;


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


       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 7 of 12
                        (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K.. 989 N.E.2d at 1231.


                                     1. Conditions Remedied
[17]   Father first argues that there is insufficient evidence that there is a reasonable

       probability that the conditions that resulted in I.A.’s removal or the reasons for

       placement outside the parents’ home will not be remedied and that a

       continuation of the parent-child relationship poses a threat to I.A.’s well-being.


[18]   At the outset we note that Indiana Code section 31-35-2-4(b)(2)(B) is written in

       the disjunctive. Therefore, DCS is required to establish, by clear and

       convincing evidence, only one of the three requirements of subsection (B). We

       therefore discuss only whether there is a reasonable probability that the



       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 8 of 12
       conditions that resulted in the I.A.’s removal or the reasons for his placement

       outside the parents’ home will not be remedied.

[19]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions, and balancing any recent improvements

       against habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. In so doing, trial courts have

       discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination, and courts may find that a parent’s past behavior is

       the best predictor of his or her future behavior. Id.


[20]   Testimony at the hearing revealed that Father has had no contact with I.A. for

       five years. During that time, Father attempted to visit I.A. one time at Damar,

       but he did not pursue the visitation when he learned that he would have to “go

       through the proper steps.” Tr. p. 45. In addition, the DCS caseworker and the

       CASA both testified that termination of Father’s parental rights was in I.A.’s

       best interests so that I.A. could move forward.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 9 of 12
[21]   Based on this evidence, the trial court found the following: Father has

       remained entirely absent making no efforts toward reunification; Father’s

       historical lack of effort to parent I.A. would not change even though Father

       attended the termination hearing; introducing Father to I.A.’s life at this point

       would be detrimental to I.A.; and I.A. needs permanency. The trial court’s

       conclusion that there was a reasonable probability that the conditions resulting

       in I.A.’s removal or the reasons for his placement outside the home would not

       be remedied is not clearly erroneous.


                                             2. Best Interests
[22]   Both parents also contend that there is insufficient evidence that termination of

       their parental rights was in I.A.’s best interests. In determining what is in a

       child’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 so

       doing, the trial court must subordinate the interests of the parent to those of the

       child. Id. The court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. Id. Additionally, a child’s need for

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

       child, and the testimony of service providers may support a finding that

       termination is in the child’s best interests. In re A.S., 924 N.E.2d 212, 224 (Ind.

       Ct. App. 2010), trans. dismissed.


[23]   Here, both the DCS caseworker and the CASA testified that terminating both

       parents’ parental rights is in I.A.’s best interests. In addition, the trial court


       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 10 of 12
       pointed out that I.A. needs permanency after spending five years in institutions

       while waiting for his mother to find stable employment and housing and abstain

       from using alcohol and drugs and his father to contact DCS. DCS has proven

       by clear and convincing evidence that termination of the parent-child

       relationship with both parents is in I.A.’s best interests. See In re S.P.H., 806

       N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are too substantial to

       force them to wait while determining if their parents will be able to parent

       them).


                                         3. Satisfactory Plan
[24]   Last, both parents contend that there is insufficient evidence of a satisfactory

       plan for I.A.’s care and treatment. Indiana courts have traditionally held that

       for a plan to be satisfactory for the purposes of the termination 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. In re A.S.,

       17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied. A plan to attempt to

       find suitable parents to adopt the child is satisfactory. 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.

[25]   Here, the DCS caseworker testified that the plan for I.A. is adoption.

       Specifically, she testified that there are families who are currently interested in

       adopting I.A., including the family that adopted one of I.A.’s brothers. This is




       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 11 of 12
       sufficient evidence of a satisfactory plan for I.A.’s care and treatment, and the

       trial court’s judgment is not clearly erroneous.

[26]   Affirmed.


       PYLE, J., and ROBB, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1501-JT-34 | September, 10, 2015   Page 12 of 12
