MEMORANDUM DECISION                                                   FILED
                                                                  Jun 07 2018, 8:05 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
regarded as precedent or cited before any                              and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin R. Wall                                            Curtis T. Hill, Jr.
Wall Legal Services                                       Attorney General of Indiana
Huntington, Indiana
                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 7, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.N. (Child) and S.N.                                  18A-JT-405
(Mother);                                                 Appeal from the Huntington
                                                          Circuit Court
                                                          The Honorable Thomas M. Hakes,
S.N. (Mother),                                            Judge
Appellant-Defendant,                                      Trial Court Cause No.
                                                          35C01-1705-JT-7
        v.

The Indiana Department of
Child Services,
Appellee-Plaintiff




Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018               Page 1 of 14
      May, Judge.


[1]   S.N. (“Mother”) appeals the involuntary termination of her parental rights to

      M.N. (“Child”). Mother argues the Department of Child Services (“DCS”) did

      not present sufficient evidence the conditions under which Child was removed

      from Mother’s care would not be remedied; Mother posed a threat to Child’s

      well-being; termination was in Child’s best interests; and there existed a

      satisfactory plan for Child after termination. We affirm.



                                Facts and Procedural History                                    1




[2]   Mother and J.N. (“Father”) 2 (collectively, “Parents”) are the biological parents

      of Child, who was born on April 15, 2015. On May 6, 2015, DCS investigated

      a report that Mother used heroin until the eighth month of her pregnancy, had

      used heroin since Child’s birth, and had given Child heroin “in order to make

      him go to sleep.” (App. Vol. II at 37.) Parents submitted to oral drug screens,

      and on May 11, the drug screens came back positive for heroin use.


[3]   On May 12, 2015, DCS filed a petition alleging Child was a Child in Need of

      Services (“CHINS”); the trial court held a detention and initial hearing on the




      1
        Mother’s statement of the facts indicates only, “The salient facts of the present matter are found in
      STATEMENT OF CASE-II COURSE OF PROCEEDINGS.” (Br. of Appellant at 11) (emphasis and
      formatting in original). This statement does not comport with the Indiana Rule of Appellate Procedure. See
      Ind. App. R. 46(A)(6) (“Statement of Facts. This statement shall describe the facts relevant to the issues
      presented for review but need not repeat what is in the statement of the case.”)
      2
          Father’s parental rights were also terminated but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                     Page 2 of 14
      CHINS petition; and Parents denied Child was a CHINS, despite the fact

      Parents “admitted in the hearing that they would test positive for drugs if

      screened at the detention hearing.” (Id.) DCS removed Child from Parents’

      care on May 12 and placed him with a paternal step-cousin, L.S. Regarding

      visitation, the court ordered:


              Parent[s] shall not have any contact or visitation with the [C]hild
              until the levels of heroin in their systems test lower than they did
              at the time they were screened on May 7, 2015, at which point,
              the parents may immediately have supervised visitation with the
              [C]hild. If at any point, the parents’ heroin levels test higher
              tha[n] the immediately preceding drug screen results, supervised
              visitation with the [C]hild shall be immediately suspended
              without further court order.


      (Id. at 38.)


[4]   Mother passed a drug test so that she could visit with Child. In the time before

      the next trial court hearing on May 28, Mother had four opportunities to visit

      with Child. Mother attended the first visit with no incident, but she slept

      through the next visit and was late to the two final visits. The trial court then

      suspended Mother’s visitation because her drug screen violated the terms of its

      May 12 order regarding visitation. At the May 28 hearing, Parents admitted

      they did not have a permanent address. DCS scheduled Mother for substance

      abuse assessments twice in June 2015, but she did not complete them.


[5]   On June 8, 2015, DCS filed an amended petition alleging Child was a CHINS.

      On June 16, the trial court held an initial hearing on the amended petition and


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 3 of 14
      ordered visits between Parents and Child remain suspended due to Parents’

      drug use. On July 29, 2015, police arrested Mother, and the State charged

      Mother with Level 5 felony dealing in cocaine or a narcotic drug 3 and Level 5

      felony neglect of a dependent resulting in bodily injury 4 for Mother’s actions

      against Child, including giving Child heroin. At the same time, police also

      arrested Father on other charges.


[6]   On August 19, and September 30, 2015, the trial court continued its fact-finding

      hearing on DCS’s CHINS petition to a later date due to Parents’ incarceration.

      Mother pled guilty to the charges against her and was sentenced on October 13,

      2015. As part of Mother’s sentence, the trial court entered a no-contact order

      between Mother and Child based on the neglect conviction. The no-contact

      order extends through Mother’s four years of probation following her release

      from incarceration. Mother’s earliest release date is October 13, 2019.


[7]   On December 23, 2015, DCS again amended the CHINS petition. On March

      24, 2016, Parents admitted Child was a CHINS, and the trial court adjudicated

      him as such. On April 21, 2016, the trial court entered dispositional and

      parental participation orders, which ordered Mother to participate in certain

      services. However, because of her incarceration, the trial court ordered Mother,

      upon her release from incarceration, to contact DCS and “finalize the




      3
          Ind. Code § 35-48-4-1(a) (2014).
      4
          Ind. Code § 35-46-1-4(b)(1)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 4 of 14
       timeframe in which the herein-ordered services shall be completed.” (Id. at

       117.)


[8]    In May 2016, Child’s placement changed to a different paternal step-cousin,

       S.O., and Child has remained in S.O.’s care for the pendency of the

       proceedings. On November 4, 2016, the trial court held a status hearing and

       noted Parents were not in compliance with the parental participation plan due

       to their incarceration. On May 4, 2017, the trial court held a permanency

       hearing and changed the plan for Child from reunification to adoption. On

       May 31, 2017, DCS filed a petition to terminate Parents’ parental rights to

       Child.


[9]    On November 2, 2017, the trial court held a status hearing, and set a

       permanency hearing for May 3, 2018. On December 5, 2017, the Guardian ad

       Litem (“GAL”) filed her report recommending termination of parental rights.

       On December 14, 2017, the trial court held an evidentiary hearing on DCS’s

       petition for termination of parental rights and, on December 28, 2017, entered

       its order terminating Parents’ rights to Child.



                                  Discussion and Decision
[10]   We review termination of parental rights with great deference. In re K.S., 750

       N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

       credibility of witnesses. 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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 5 of 14
       most favorable to the judgment. Id. In deference to the juvenile court’s unique

       position to assess the evidence, we will set aside a judgment terminating a

       parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).


[11]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

       subordinate the interests of the parents to those of the children, however, when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own children should not be terminated solely

       because there is a better home available for the children, id., but parental rights

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

       responsibilities. Id. at 836.


[12]   To terminate a parent-child relationship, the State must 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 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.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018     Page 6 of 14
                         (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). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[13]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and 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 juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208. 5




       5
        Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v. Arko,
       592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court, they
       must be accepted as correct.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                      Page 7 of 14
[14]   Mother challenges the trial court’s conclusions that the conditions under which

       Child was removed were not likely to be remedied and continuation of the

       parent-child relationship posed a threat to Child’s well-being. Mother also

       argues termination is not in Child’s best interests and there was not a

       satisfactory plan for Child after termination.


                                              Child’s Well-Being

[15]   Termination of parental rights is proper where the child’s emotional and

       physical development is threatened. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

       App. 2001), trans. denied. The court need not wait until the child is harmed

       irreversibly such that his physical, mental, and social development is

       permanently impaired. Id. To support its finding that continuation of the

       parent-child relationship posed a threat to the well-being of Child, the trial court

       found Mother gave Child heroin during Child’s infancy to help Child sleep;

       Mother had not seen Child since Child was three weeks old; and there is

       currently a no-contact order between Mother and Child due to Mother’s

       conviction of neglect of a dependent.


[16]   In addition, regarding Child’s developmental challenges due to his exposure to

       heroin before and after birth, the trial court found:


               29 f. For the first two and a half to three months that [Child]
               lived with [L.S.], [Child] experienced withdrawal symptoms.


                                                     *****



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 8 of 14
        29 r. [Child] requires a set schedule and consistent ritual in order
        to function properly and to be able to sleep at night.


                                              *****


        30 e. [Child] is a special needs child and [GAL] is concerned
        about [Parents’] abilities to care for themselves let alone [Child].


        30 f. [Child] has been in placement far too long and waiting an
        additional five to six months for Father to be released and
        possibly begin building a relationship with [Child], let alone
        waiting for Mother to be released, would be detrimental to
        [Child].


                                              *****


        32 c. [Child] faces struggles that require constant vigilance
        including everything going in his mouth, his getting
        overstimulated easily, his need for ritual and routine, and his
        physical limitations[,] which include:


                 i. Eczema
                 ii. Circulation problems with his lower legs
                 iii. Diaper rash
                 iv. Constant sniffles
                 v. Burning diarrhea in that if he has diarrhea and the
                 diaper is not changed immediately his skin will blister and
                 bleed.


                                              *****


        32 j. [S.O.] testified that she believed Mother and Father could
        learn to care for [Child], but it would be detrimental for [Child]


Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018    Page 9 of 14
               to wait that long for [Parents] to be released from prison and for
               [Child] to be removed from his home.


       (App. Vol. II at 42-4.)


[17]   Mother argues:


               [G]iven the improvement she made while incarcerated; 6 that
               afforded enough time after release to implement services; that
               with her release from incarceration being less than two years
               away; that she wanted to and planned to implement DCS
               services upon her release; that she had an employment and
               housing plan, that . . . the continuation of her relationship with
               Child would not be harmful to Child’s well-being.


       (Br. of Appellant at 23) (errors in original) (footnote added). We are

       unpersuaded by Mother’s arguments, which are invitations for us to reweigh

       the evidence and judge the credibility of witnesses, which we cannot do. See In

       re D.D., 804 N.E.2d at 265 (appellate court will not reweigh evidence or judge

       the credibility of witnesses).


[18]   Based on Mother’s treatment of Child prior to DCS’s involvement and the

       challenges Child has faced and will continue to face because of Mother’s

       actions, we conclude the trial court’s findings support its conclusion that

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




       6
         Mother presented evidence she completed substance abuse treatment and maintained her sobriety while
       incarcerated.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                 Page 10 of 14
       Child. 7 See In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001) (affirming

       termination of parental rights based on findings that support the trial court’s

       conclusion that continuation of parent-child relationship posed a threat to well-

       being of child), trans. denied.


                                                     Best Interests

[19]   In determining what is in Child’s best interests, a juvenile court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Child’s best interests. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[20]   Regarding Child’s best interests, the trial court found Child was bonded with

       his current caregiver; Child viewed his relative placement as his family; Child




       7
         Indiana Code section 31-35-2-4(B)(2)(B) is written in the disjunctive, and we need only decide if the trial
       court’s conclusion supports one of these requirements. See In re L. S., 717 N.E.2d at 209 (because statute
       written in disjunctive, court needs to find only one requirement to terminate parental rights). Because trial
       court’s findings supported its conclusion continuation posed a threat to the well-being of Child, we need not
       review whether the findings also supported its conclusion that the conditions under which Child was
       removed from Mother’s care would not be remedied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                      Page 11 of 14
       has been in placement since he was three weeks old; Child has multiple physical

       and mental difficulties due to being given heroin by Mother when Child was an

       infant; and “[w]hile Mother and Father may have the ability to learn how to

       care for [Child], prolonging the wait for permanency and giving [Parents] a

       second chance would not be in [Child’s] best interest and would hurt [Child].”

       (App. Vol. II at 42.) Mother argues it is Child’s best interests that Mother “be

       afforded the ability to implement services with DCS and given time to

       demonstrate that he [sic] can be a parent to Child and that [sic] in a timely

       manner, be reunified with Child.” (Br. of Appellant at 24.)


[21]   We cannot agree. Mother has not seen Child since Child was three weeks old,

       Mother cannot see Child due to a no-contact order stemming from her

       conviction for neglect of Child, and Mother’s actions caused Child’s current

       and future physical and mental challenges. 8 Mother’s argument is an invitation

       for us to reweigh the evidence and judge the credibility of witnesses, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court will not reweigh

       evidence or judge the credibility of witnesses). Therefore, we conclude the trial

       court’s findings support its conclusion that termination is in Child’s best




       8
         Mother argues her case is factually similar to In re K.E., in which our Indiana Supreme Court reversed the
       termination of Father’s parental rights because, despite his incarceration, Father “made extensive efforts to
       better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a
       bond with both of his children.” In re K.E., 39 N.E.3d 641, 643-4 (Ind. 2015). The only similarities between
       In re K.E. and Mother’s case is that both appellants were incarcerated and completed substance abuse
       treatment. In this case, Mother had not established a bond with Child due in part to the no-contact order in
       place to protect Child from Mother’s neglectful actions. Further, Mother has presented no evidence she
       attempted to engage in classes to assist her with parenting skills while incarcerated. Finally, the Father in In
       re K.E. had not inflicted the level of harm Mother inflicted on Child in this case. In re K.E. is inapposite.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                        Page 12 of 14
       interests. See McBride v. Monroe Cty. Office of Family & Children, 798 NE.2d 185,

       203 (Ind. Ct. App. 2003) (holding findings regarding child’s need for

       permanency and bond to foster family sufficient to support conclusion that

       termination was in best interests of child).


                               Satisfactory Plan for Care and Treatment

[22]   Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be

       terminated unless DCS provides sufficient evidence of a satisfactory plan for the

       care and treatment of the children following termination. We have held “[t]his

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


[23]   The trial court found S.O. was willing to adopt Child and, based thereon,

       concluded there existed a satisfactory plan for Child’s care following

       termination, “that being adoption.” (App. Vol. II at 45.) Mother acknowledges

       there is no case law to support her argument that adoption is not a satisfactory

       plan for Child’s care, but still insists she should be given an opportunity to

       prove she can be a good parent after she is released from incarceration. We

       cannot agree. Mother’s argument is an invitation for us to reweigh the evidence

       and judge the credibility of witnesses, which we cannot do. See In re D.D., 804

       N.E.2d at 265 (appellate court will not reweigh evidence or judge the credibility

       of witnesses). Adoption was a satisfactory plan for Child’s care following the

       termination of Mother’s parental rights. See In re S.L.H.S., 885 N.E.2d 603, 618

       (Ind. Ct. App. 2008) (adoption is satisfactory post-termination plan).
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 13 of 14
                                                Conclusion
[24]   The trial court’s findings supported its conclusions that the continuation of the

       parent-child relationship posed a threat to Child; that termination was in

       Child’s best interests; and that there existed a satisfactory plan for Child’s care

       following the termination of Mother’s parental rights. Accordingly, we affirm.


[25]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 14 of 14
