MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 28 2016, 8:54 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                        Gregory F. Zoeller
Madison, Indiana                                        Attorney General of Indiana

                                                        Robert J. Henke
                                                        Deputy Attorney General

                                                        James D. Boyer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                       November 28, 2016
Child Relationship of: T.M.,                            Court of Appeals Case No.
M.M., E.M., Jn.M., and Js.M.                            40A01-1604-JT-866
(Minor Children),                                       Appeal from the Jennings Circuit
                                                        Court
T.M., Jr. (Father),                                     The Honorable Jon W. Webster,
Appellant-Respondent,                                   Judge
                                                        Trial Court Cause Nos.
        v.                                              40C01-1511-JT-28, 40C01-1511-
                                                        JT-29, 40C01-1511-JT-30,
Indiana Department of Child                             40C01-1511-JT-31, and
Services,                                               40C01-1511-JT-32,

Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016    Page 1 of 13
      Najam, Judge.


                                            Statement of the Case
[1]   T.M., Jr. (“Father”) appeals the trial court’s termination of his parental rights

      over his minor children T.M., M.M., E.M., Jn.M., and Js.M. (collectively “the

      Children”). Father raises a single issue for our review, namely, whether the

      State presented sufficient evidence to support the termination of his parental

      rights. We affirm.


                                      Facts and Procedural History
[2]   Father and W.M. (“Mother”) (collectively “Parents”) have five children

      together, namely, T.M., born July 25, 2007; M.M., born June 6, 2008; E.M.,

      born June 26, 2009; and twins Jn.M., and Js.M., born May 18, 2010.1 On

      September 19, 2013, someone with the Jennings County Sheriff’s Department

      contacted the Indiana Department of Child Services (“DCS”) to report that

      Father and Mother had been found “passed out” in their vehicle, which was

      parked in the front yard of their residence, while a child 2 was strapped in a car

      seat in the back seat. Tr. at 38. In response to that report, DCS Assessor

      Deborah Satterfield drove to the residence to assess the situation. Father and

      Mother were awake, but “very lethargic,” and they were inside the house by the




      1
          Mother’s parental rights to the children were also terminated, but she does not participate in this appeal.
      2
        The transcript identifies the child as “D.M.,” but the parents do not have a child named D.M. The trial
      court’s findings state that Jn.M. was in the car at the time.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016                Page 2 of 13
      time Satterfield got there. Satterfield “provided them with paperwork” and

      “discussed the allegations,” and, after forty-five minutes of trying, Satterfield

      obtained drug screens from them. Id. at 39. Father tested positive for

      Oxycodone and Tramadol, and Mother tested positive for Diazepam,

      Nordiazepam, and Oxycodone. The Parents did not have prescriptions for any

      of those drugs. Satterfield removed the Children from the Parents’ care.


[3]   On September 23, DCS filed petitions alleging that the Children were Children

      in Need of Services (“CHINS”). In particular, DCS alleged that the Parents

      were “found in their car intoxicated to the point of unconsciousness,” with a

      child in the car; the Parents “had been ‘passed out’ for approximately 25

      minutes before they were able to be awakened”; when they woke up, Mother

      “had what appeared to be a white powder around her nostrils and was

      extremely lethargic,” and Father was “drooling and incapable of conversation”;

      and the Parents were unable to care for the child in the car. Petitioner’s Ex. 1B.

      In addition, DCS noted that the Parents


              have a long history with DCS, they have had 8 substantiations
              and 2 previous cases in the last 4 years. Both parents have severe
              mental health issues and have a history of abusing their
              prescribed medications. At the time of removal all the children
              were extremely dirty. [Jn.M.] had open sores on her head from
              lice infestation and numerous insect bites on her arms and legs.
              [Js.M.] had 2 black eyes and red marks on his upper forehead.


      Id. During the initial hearing on those petitions, the Parents denied the

      allegations. Following a factfinding hearing, the trial court adjudicated the


      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 3 of 13
      Children to be CHINS and the court ordered the Parents to comply with an

      Order of Participation, which included: contacting the family case manager

      (“FCM”) every week; submitting to random drug screens; completing any

      assessments and/or programs recommended by the FCM, including a

      substance abuse assessment; maintaining safe, stable, and clean housing; and

      engaging in a home-based counseling program. The Parents’ compliance with

      that dispositional order was inconsistent.


[4]   On November 30, 2015, DCS filed petitions to terminate the Parents’ parental

      rights to the Children. Following a hearing, the trial court granted those

      petitions. In support of its order, the trial court entered the following findings

      and conclusions:

               8. On or about September 19, 2013, children and parents,
              [T.M.], Jr., (hereinafter Father) and [W.M.] (hereinafter
              Mother), became involved with DCS when DCS investigated a
              report that the children were being neglected by their parents.
              (Petitioner’s Exhibit’s 1-B through 1-D, 1-F). More specifically,
              the facts are that Father and Mother had been found intoxicated
              to the point of unconsciousness while child [Jn.M.], was in the
              vehicle with them. Father and Mother have a long history with
              DCS that includes nine substantiations and two previous cases in
              the last several years. The parents needed assistance in
              effectively and appropriately parenting the children. (Petitioner’s
              Exhibit 1-F).

                                                     ***

              14. After the Dispositional Decree of June l3, 2014, the children
              were returned to the parents’ care and custody for a trial home
              visit from February 3, 2014[,] until May 6, 2014.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 4 of 13
        15. The children were removed from the parents’ home on May
        6, 2014[,] due to an altercation between Mother and Father, and
        due to Father’s mental state.

        16. Since that time, the children have not been returned to the
        parents’ care and custody.

                                               ***

        18. During the supervised visits Father was very harsh with the
        children and did not show any affection to the children. Father’s
        only interaction with the children during supervised visits was to
        discipline them.

        19. From October of 2013 to May of 2014 the Mother and
        Father were fairly consistent in participating in services. Father
        and Mother maintained contact with the Department of Child
        Services, enrolled in programs through Centerstone, and
        completed their substance abuse assessments. Mother and
        Father frequently tested positive for their prescription
        medications, and at times the medication levels were above their
        level of therapeutic need.

        20. Because Father and Mother had begun to demonstrate some
        parental improvement, Father and Mother had been permitted a
        trial-home-visit with the children starting on February 3, 2014.

        21. However, on May 6, 2014, DCS removed the children from
        the trial-home-visit due an altercation between Mother and
        Father in front of the children, and due to Father’s mental state.

        22. On or about May 12, 2014, the Court granted the change of
        placement and terminated the trial home visit. The children were
        placed in foster care. (Petitioner’s Exhibit 1-E).

        23. Father was arrested for the events that took place while the
        children were on the trial home visit, and [he was] charged with

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        Domestic Battery Committed in the Presence of a Child Less
        Than 16, a Class D Felony. Father was incarcerated until
        November 19, 2014. Father was convicted of said charge on
        May 7, 2015. (Petitioner’s Exhibit 5-A, 5-B, and 1-I).

        24. Father had been previously convicted in 2013 of two (2)
        counts of Neglect of a Dependent, both Class A Misdemeanors.
        (Petitioner’s Exhibit 4-A-C).

                                               ***

        28. A periodic case review was held on December 10, 2014. . . .
        Father had not participated in services due to his incarceration.
        While additional services were not required for Mother and
        Father at that time, the parents were required to immediately
        begin participating in the services that had been previously
        ordered. (Petitioner’s Exhibit 1-I).

        29. After the periodic case review in December, Father
        completed a substance abuse assessment. After the assessment it
        was recommended that Father participate in individual therapy,
        home based case work, recovery coach, and psychiatric services.

        30. Father did not participate in individual therapy, home based
        case work, or psychiatric services. Father had sporadic and
        inconsistent participation with his recovery coach.

                                               ***

        33. Mother and Father did not consistently keep in contact with
        the Family Case Manager, Elisha Tempest.

        34. Both Father and Mother receive Social Security Disability,
        but it is not enough to support their five children.

        35. Father and Mother do not have stable housing, and [they]
        are currently homeless.

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        36. Father and Mother continued to test positive for prescription
        pain medication, such as oxycodone. In some instances, their
        positive results were much higher than the therapeutic level.
        (Petitioner’s Exhibit 2 & 3).

        37. Father tested positive for methamphetamine as recently as
        October of 2015.

        38. A periodic case review was held on March 11, 2015, to
        address Father, Mother, and children’s progress. Mother and
        Father had not complied with the case plan at that time. The
        Court found . . . that Father was not in compliance with the case
        plan because he had been incarcerated for most of the reporting
        period and was unable to participate in services. The Court also
        found that Father had not yet started services since his release on
        November 19, 2014. The parents had been participating in
        supervised visitations with the children, but they were ceased due
        to the visits causing the children’s behavioral issues to escalate.
        (Petitioner’s Exhibit 1-J).

        39. A permanency hearing was held on September 2, 2015, to
        address the children’s permanency plan. The Court found . . .
        that Father was not in compliance with the case plan due to his
        sporadic participation with his recovery coach. Father also
        refused to participate in individual counseling and home based
        services. Both Mother and Father refused to meet with a care-
        coordinator from Centerstone. (Petitioner’s Exhibit 1-L).

        40. Father has failed to address both his substance abuse and
        mental health issues. Father did not financially support the
        children throughout the case. Father did not call to inquire about
        the well-being of his children. Father did not write any letters to
        the children, send the children any cards, or leave any messages
        with DCS for the children throughout the case. Father has not
        visited with the children since March of 2015.

                                               ***

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        42. Child, [T.M.], III, receives therapy for his behavioral issues.
        [Child T.M.] has been diagnosed with Post-Traumatic Stress
        Disorder (PTSD) from the physical abuse he received from
        Father. [Child T.M.’s] PTSD also stems from witnessing his
        parents fighting. [Child T.M.] currently has power struggles with
        adults and lacks an ability to show emotion. [Child T.M.] needs
        structure and stability. [Child T.M.] still needs, and will continue
        to need, therapy to address his ongoing behavioral issues. Lynn
        Pittman, the child’s therapist, opined that [child T.M.] needs a
        structured and stable home environment.

        43. [Child M.M.] receives therapy for her behavioral issues.
        [Child M.M.] has been diagnosed with Post-Traumatic Stress
        Disorder from the physical, verbal, and emotional abuse she
        received from parents. [Child M.M.] still struggles with verbal
        and physical aggression against others. [Child M.M.] still needs,
        and will continue to need, therapy to address her ongoing
        behavioral issues. Michelle Striegel, the child’s therapist,
        believes that [child M.M.] needs a stable home environment.

        44. [Child E.M.] receives therapy for his behavioral issues.
        [Child E.M.] has been diagnosed with Post-Traumatic Stress
        Disorder. Andrea Donnells, the child’s former therapist, opined
        that the child regressed while he was on the trial home visit with
        his parents. After the trial home visit, [child E.M.] was
        physically aggressive, and it took him some time after visits
        ended with parents to stabilize his behaviors.

        45. Family Case Manager, Elisha Tempest, believes that
        adoption is in the children’s best interests. The Guardian Ad
        Litem Debra J. Peetz also echoed that adoption and termination
        of parental rights is in the children’s best interests. The Guardian
        Ad Litem also filed a written report with the Court on February
        19, 2016, which is made a part hereof by reference, and which
        expresses the same sentiment as her testimony.



Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 8 of 13
              46. DCS’s plan for the children is that they be adopted; this plan
              is satisfactory for the children’s care and treatment.


      Appellant’s App. at 44, 46-50. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this appeal 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.


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

      is required to allege and prove:


              (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

      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 9 of 13
                      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.

                                                     ***

               (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’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).


[7]   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.



      Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 10 of 13
[8]    Here, in terminating the Parents’ 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.


[9]    Father’s challenge on appeal is very narrow. Father concedes that the evidence is

       sufficient to support the trial court’s findings underlying its conclusions that

       Father will not remedy the conditions that resulted in the Children’s removal

       and that the continuation of the parent-child relationships poses a threat to the

       well-being of the Children. Father only challenges the sufficiency of the

       evidence to show that termination is in the best interests of the Children and

       that there is a satisfactory plan for the Children. We address each of those

       contentions in turn.


                                                 Best Interests

[10]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and
       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 11 of 13
       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in the child’s

       best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).


[11]   Father contends that, because DCS cannot show that the Children will be

       placed together in one home, DCS cannot show that termination of his parental

       rights is in the Children’s best interests. In particular, Father maintains that the

       evidence shows that “it was imperative that all five (5) children remain in

       contact with one another” and that the “likelihood is slim to none that all five

       (5) children would be adopted together.” Appellant’s Br. at 14. But Father’s

       contentions amount to a request that we reweigh the evidence, which we will

       not do.


[12]   As the trial court found, Elisha Tempest, the FCM, testified that adoption is in

       the children’s best interests. The Guardian Ad Litem Debra Peetz also testified

       that adoption and termination of parental rights is in the children’s best

       interests. The totality of the evidence, including Father’s historical inability to

       provide a safe and stable home and his refusal to take advantage of the

       resources DCS provided him during the CHINS proceedings, supports the trial

       court’s conclusion that termination of Father’s parental rights is in the

       Children’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1604-JT-866| November 28, 2016   Page 12 of 13
                                               Satisfactory Plan

[13]   In order for the trial court to terminate the parent-child relationship, the trial

       court must find that there is a satisfactory plan for the care and treatment of the

       child. A.P. v. Marion Cnty. Ofc. of Family & Children (In re D.D.), 804 N.E.2d 258,

       268 (Ind. Ct. App. 2004), trans. denied. This plan does not need to 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. Id.


[14]   The undisputed evidence shows that DCS plans to place the Children for

       adoption. The trial court’s conclusion on this issue is supported by clear and

       convincing evidence. While keeping the Children together as a family unit

       would be ideal, it is not required to terminate Father’s parental rights. The trial

       court did not err when it terminated Father’s parental rights to the Children.


[15]   Affirmed.


       Bailey, J., and May, J., concur.




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