MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Feb 24 2016, 10:01 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                                    ATTORNEYS FOR APPELLEE
Charles W. Lahey                                          Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana

                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 24, 2016
of the Parent-Child Relationship                          Court of Appeals Cause No.
of A.T., Minor Child,                                     71A03-1509-JT-1328
                                                          Appeal from the St. Joseph Probate
          and,                                            Court
                                                          The Honorable James N. Fox,
J.M., Father,                                             Judge
                                                          The Honorable Graham C.
                                                          Polando, Magistrate
Appellant-Respondent,
                                                          Trial Court Cause No.
        v.                                                71J01-1402-JT-18




Court of Appeals of Indiana | Memorandum Decision 71A03-1509-JT-1328 | February 24, 2016      Page 1 of 9
      Department of Child Services,

      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   J.M. (“Father”) appeals the termination of his parental rights to A.T. We

      affirm.


                                                     Issues
[2]   Father raises two issues, which we revise and restate as:


              I.       whether the proper procedures were followed under
                       the Indian Child Welfare Act; and

              II.      whether the termination of Father’s parental rights is
                       supported by clear and convincing evidence.

                                                      Facts
[3]   A.T. was born in February 2011 to Father and K.T. (“Mother”). The

      Department of Child Services (“DCS”) filed a petition alleging that A.T. was a

      child in need of services (“CHINS”) because she tested positive for drugs at her

      birth and because Mother tested positive for cocaine. Father and Mother


      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-JT-1328 | February 24, 2016   Page 2 of 9
      admitted that A.T. was a CHINS, and A.T. was not removed from their home

      at that time. In June 2011, Father tested positive for cocaine, and the trial court

      ordered him to leave the home and have supervised visitation. In October

      2011, Father again tested positive for cocaine, and the trial court ordered him to

      participate in an intensive drug treatment program.


[4]   In May 2012, the trial court ordered that A.T. be placed in foster care due to her

      parents’ persistent drug usage. Father continued to test positive for drugs, and

      he was arrested in May 2013 for domestic battery against Mother. Father was

      convicted and sentenced and later violated his probation. The trial court

      ordered Father to participate in a domestic violence program, but he attended

      only five of the twenty-six sessions. Father has not seen A.T. since June 2013.


[5]   In March 2014, DCS filed a petition to terminate Father’s and Mother’s

      parental rights to A.T. Mother voluntarily relinquished her parental rights to

      A.T. In October 2014, Father disclosed to DCS for the first time that he

      believed A.T. to have Indian ancestory. On November 12, 2014, DCS filed its

      Indian Child Welfare Act (“ICWA”) notice and served the notice on Father,

      the United States Secretary of the Interior, and the Apache tribe. DCS filed an

      additional notice pursuant to the ICWA on December 29, 2014. The second

      notice was served on Father and eight Apache tribes. In both notices, DCS

      noted that Father “has claimed tribal eligibility for the Apache Tribe.” Ex. p.

      207, 230. However, Father was unable to identify a tribal agent or specific area

      of Apache. Father “was also unable to identify his paternal grandmother’s

      maiden name, through whom he has claimed tribal eligibility.” Id.

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[6]   In July 2015, the trial court conducted an evidentiary hearing on DCS’s petition

      to terminate Father’s parental rights. The trial court entered findings of fact and

      conclusions thereon terminating Father’s parental rights. Father now appeals.


                                                   Analysis
                                       I. Indian Child Welfare Act

[7]   Father first argues that DCS failed to send the proper notice required by the

      ICWA, 25 U.S.C. §§ 1901-1963. The power of state courts to conduct

      termination proceedings involving children of Indian ancestry may be subject to

      significant limitations under the ICWA. In re S.L.H.S., 885 N.E.2d 603, 612

      (Ind. Ct. App. 2008). Although a trial court, after a proper petition for transfer

      of the proceeding, is required to transfer to an Indian tribe’s jurisdiction any

      proceeding to terminate the parental rights of an Indian child not domiciled or

      residing within the reservation of the Indian child’s tribe, see 25 U.S.C. §

      1911(b), the availability of this right to transfer is contingent on the applicability

      of the ICWA to the proceeding. Id. “Thus, the party who seeks to invoke a

      provision of the ICWA has the burden to show that the act applies in the

      proceeding.” Id.


[8]   Applicability of the ICWA depends on whether the proceeding to be transferred

      involves an “Indian child,” which is defined as “any unmarried person who is

      under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible

      for membership in an Indian tribe and is the biological child of a member of an

      Indian tribe.” 25 U.S.C.A. § 1903(4). Here, there is no evidence that A.T. is a


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       member of an Indian tribe or that she is eligible for membership and Father is a

       member of an Indian tribe. Because Father has failed to provide any evidence

       that A.T. is an Indian child within the purview of the ICWA, we conclude that

       the ICWA did not apply to the proceedings to terminate Father’s parental

       rights.


[9]    Moreover, Father’s only argument on appeal is that DCS failed to send notice

       to the Secretary of the Interior as required by 25 U.S.C. § 1912. Father

       mentions only the December 2014 notice. However, DCS also sent a notice to

       the Secretary of the Interior and the Apache tribe in November 2014. Father’s

       argument fails.


                                   II. Termination of Parental Rights

[10]   Father challenges the termination of his parental rights to A.T. The Fourteenth

       Amendment to the United States Constitution protects the traditional right of

       parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,

       1132 (Ind. 2010). “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 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed

       the parent-child relationship is ‘one of the most valued relationships in our

       culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796

       N.E.2d 280, 285 (Ind. 2003)). We recognize of course that parental interests

       are not absolute and must be subordinated to the child’s interests when

       determining the proper disposition of a petition to terminate parental rights. Id.

       Thus, “‘[p]arental rights may be terminated when the parents are unable or
       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-JT-1328 | February 24, 2016   Page 5 of 9
       unwilling to meet their parental responsibilities.’” Id. (quoting 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 witness credibility. Id. We consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. We must

       also give “due regard” to the trial court’s unique opportunity to judge the

       credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

       court entered findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions thereon entered in a case involving a termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[12]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


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


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                                (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.


       DCS must establish these allegations by clear and convincing evidence. Egly v.

       Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


[13]   Father first challenges the trial court’s conclusion that termination is in A.T.’s

       best interests. Father argues that A.T.’s placement “with a lesbian couple is not

       in the child’s best interests . . . .” Appellant’s Br. p. 7. However, the relevant

       inquiry at this point is whether “termination is in the best interests of the child”

       not whether the child’s placement is in her best interests. I.C. § 31-35-2-4(b)(2).

       In determining what is in the best interests of a child, the trial court is required

       to look at the totality of the evidence. D.D., 804 N.E.2d at 267. In doing so,




       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-JT-1328 | February 24, 2016   Page 7 of 9
       the trial court must subordinate the interests of the parents to those of the child

       involved. Id.


[14]   The trial court found that termination of Father’s parental rights was in A.T.’s

       best interests because of the lengthy termination proceedings, Father’s cocaine

       usage, and Father’s incarceration and probation violation. Father does not

       challenge any of the individual findings regarding his drug usage or criminal

       history. A.T. is thriving in her foster care placement, and her foster parents

       have expressed a desire to adopt A.T. Both the DCS case manager and the

       CASA testified that termination of Father’s parental rights was in A.T.’s best

       interests. We cannot say that the trial court’s finding that termination of

       Father’s parental rights was in A.T.’s best interests is clearly erroneous.


[15]   Next, Father argues that DCS does not have a satisfactory plan for A.T.’s care

       and treatment. According to Father, a more appropriate plan would be for

       A.T. to remain in her foster parents’ care but still allow contact with Father

       when he is sober. Father contends that placement with a lesbian couple

       without a male father-figure would be damaging to A.T. 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. D.D., 804

       N.E.2d at 268. This 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. Id. The DCS’s plan is for A.T. to be adopted, and

       this is a satisfactory plan. Whether adoption by her foster parents is suitable is

       an issue more appropriately addressed by the adoption court. The trial court’s

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-JT-1328 | February 24, 2016   Page 8 of 9
       finding that DCS has a suitable plan for A.T.’s future care is not clearly

       erroneous.


                                                 Conclusion
[16]   Father failed to demonstrate that A.T. was subject to the ICWA and,

       alternatively, DCS properly sent a notice to the Secretary of the Interior.

       Further, the trial court’s termination of Father’s parental rights to A.T. is not

       clearly erroneous. We affirm.


[17]   Affirmed.


       Robb, J., and Altice, J., concur.




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