MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        Feb 13 2015, 9:53 am
Memorandum Decision shall not be 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                                    ATTORNEY FOR APPELLEE
Mark A. Thoma                                             Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill                         Attorney General of Indiana
Fort Wayne, 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 13, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of: J.M., N.H. & N.M. (Minor                              02A05-1407-JT-305
Children)                                                 Appeal from the Allen Superior
                                                          Court.
N.H. (Father),                                            The Honorable Charles F. Pratt,
                                                          Judge.
Appellant-Respondent,
                                                          The Honorable Lori K. Morgan,
                                                          Magistrate.
        v.                                                Cause Nos. 02D08-1310-JT-122
                                                                      02D08-1310-JT-123
The Indiana Department of                                             02D08-1310-JT-124
Child Services,
Appellee-Petitioner




Baker, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 1 of 10
[1]   N.H. (Father) appeals the trial court’s order terminating the parent-child

      relationship between Father and his two children, N.A.H. and N.M. Father

      argues that there is insufficient evidence to establish that termination is in the

      children’s best interests and that DCS did not have a satisfactory plan for the

      children. Finding sufficient evidence and no other error, we affirm.


                                                        Facts
[2]   Father and J.M. (Mother) have two children: N.A.H., born in 2007, and N.M.,

      born in 2009.1 In April 2010, the Department of Child Services (DCS) filed a

      petition alleging that the children were children in need of services (CHINS).

      The children were removed from the care and custody of the parents in April

      2010, and have been out of Father’s care since that time.


[3]   On May 19, 2010, Father and Mother admitted that the children were CHINS.

      Among other things, Father admitted to the following allegations in the CHINS

      petition: the parents were living with the children in a dirty motel room; the

      family was on the verge of being evicted for failing to pay rent; there was little

      to no food present in the room; and the children were unkempt and dirty.


[4]   On May 24, 2010, the juvenile court adjudicated the children to be CHINS.

      The juvenile court also issued a dispositional order on the same date. Among



      1
        Mother had another child, J.M., in 2004. Although Father has included J.M. in this appeal, the undisputed
      evidence in the record establishes that he is neither the biological nor the legal father of J.M. Therefore, he
      has no standing to raise any issues with respect to J.M. and we will not consider J.M. to be at issue in this
      appeal. Mother’s parental rights were terminated with respect to all of the children and the parental rights of
      J.M.’s father were also terminated. Neither Mother nor J.M.’s father are participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015            Page 2 of 10
      other things, the juvenile court ordered Father to complete the following

      services and engage in the following behavior:


             Refrain from all criminal activity
             Maintain clean and appropriate housing
             Maintain contact with DCS and the guardian ad litem (GAL)
             Enroll in anger management counseling
             Complete a substance abuse assessment and comply with any
              recommendations
             Obtain and maintain employment
             Establish paternity
             Participate with home-based counseling
             Pay child support
             Submit to random drug screens and refrain from illegal drug use
             Attend and appropriately participate in all scheduled visits with the
              children

      DCS Ex. 10. On July 9, 2012, the juvenile court amended the dispositional

      order, adding a new requirement that Father complete a psychological

      evaluation and comply with all recommendations stemming from that

      evaluation.


[5]   At the time of the CHINS adjudication, Father was N.A.H.’s legal father and

      N.M.’s alleged father. Notwithstanding the juvenile court’s order to establish

      paternity with respect to N.M., nearly four years went by before Father

      complied. He finally established paternity with respect to N.M. on March 3,

      2014. Father has paid no child support during the CHINS or termination

      proceedings.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 3 of 10
[6]   From April 2010 until the time of the termination hearing in 2014, Father did

      not have stable housing. During that time, he was either living with friends,

      living with his mother, or incarcerated. Father was unemployed between

      December 2011 and March 2014.


[7]   On March 25, 2011, Father was convicted of class A misdemeanor operating a

      vehicle while intoxicated. He received a one-year sentence, suspended to

      probation. On February 1, 2012, the trial court revoked Father’s probation and

      extended probation for another year. On December 19, 2013, Father pleaded

      guilty to class D felony operating a vehicle while intoxicated, and was

      sentenced to three years of probation.


[8]   Father used marijuana in July 2010, April 2012, and May 2012. He completed

      a substance abuse assessment, which recommended that he complete a

      substance abuse treatment program. He did not complete the substance abuse

      treatment program. With respect to the court-ordered psychological evaluation,

      Father claims that he completed the evaluation while incarcerated, but failed to

      provide any proof of that claim.


[9]   While the instant CHINS case was ongoing, DCS received allegations that

      Father had sexually abused other minor children. On June 16, 2013, Father

      admitted that he had babysat two girls, approximately 13 and 14 years old, and

      had touched their “privates” on one or two occasions. Tr. Vol. 1 p. 92-93.

      DCS substantiated the allegations of sexual abuse. Father testified at the




      Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 4 of 10
       termination hearing in this case that he has not sought the type of help that he

       believes he needs to address the issue.


[10]   Father did not visit with the children between January and April 2013 or

       between August 2013 and February 2014. Father admits that he failed to

       maintain contact with the Family Case Manager (FCM) assigned to his case.


[11]   DCS has considered placing the children with their paternal grandmother since

       the initial hearing in the CHINS case in April 2010. That has never occurred,

       however, and the children have been in the same foster placement since

       February 2012. In 2002, DCS removed two of paternal grandmother’s children

       from her care and custody for neglect related to her substance abuse issues.

       Moreover, paternal grandmother told the FCM that she did not have the

       financial ability or the physical space to have the children placed with her. She

       told the FCM that “she would definitely support Children in the best way she

       could if the kids were maintained with [foster mother].” Tr. Vol 2. p. 64-65.

       Father did not request a change of placement for the children from foster care to

       relative care until the final day of the termination hearing.


[12]   On October 17, 2013, DCS filed a petition seeking to have Father’s parental

       rights terminated. The juvenile court held a hearing on the petition on March

       25, 26, and 27, 2014. On June 24, 2014, the juvenile court issued an order

       terminating the parent-child relationship between Father and his children.

       Father now appeals.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 5 of 10
                                    Discussion and Decision
                                       I. Standard of Review
[13]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[14]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:

               (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.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 6 of 10
                        (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:
                        (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 prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


[15]   In this case, Father challenges only the final two elements of the termination

       statute. First, he argues that there is insufficient evidence establishing that

       termination is in the children’s best interests. Second, he argues that there is

       insufficient evidence of a satisfactory plan for the care and treatment of the

       children.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 7 of 10
                                II. Best Interests of the Children
[16]   Turning first to whether there is sufficient evidence supporting the juvenile

       court’s conclusion that termination is in the children’s best interests, we note

       that in considering this element, the juvenile court must weigh the totality of the

       evidence before it. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2014). In

       doing so, “the trial court must subordinate the interests of the parents to those

       of the child[ren] involved.” Id. The court need not wait until the child is

       irreversibly harmed before terminating the parent-child relationship. Id.

       Among the evidence that may be considered is the services offered to a parent

       and his response to and participation with those services. In re M.S., 898

       N.E.2d 307, 311 (Ind. Ct. App. 2008).2


[17]   In this case, the record reveals that Father had nearly four years to complete

       court-ordered services and achieve a lifestyle that is safe and appropriate for his

       children. He has wholly failed to do so:


            Father failed to establish paternity with respect to N.M. for nearly four
             years.
            Father has paid no child support during the CHINS or termination
             proceedings.
            Father has failed to maintain stable and appropriate housing.
            Father was unemployed between December 2011 and March 2014.




       2
         To the extent that Father focuses on paternal grandmother’s suitability as a caregiver, we note that the best
       interests analysis focuses on his ability to safely parent his children rather than the suitability of a relative care
       placement.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015                  Page 8 of 10
            Father amassed two separate criminal convictions, including one felony,
             during the CHINS proceeding. At one point, his probation was revoked.
             At another, he was incarcerated for several months.
            Father used marijuana repeatedly and failed to participate with a court-
             ordered substance abuse program.
            Father was unable to provide proof that he completed a psychological
             evaluation.
            DCS substantiated allegations that Father had sexually abused two other
             children while the CHINS case was ongoing. He has admittedly failed to
             seek treatment he believes he needs to address this issue.
            Father failed to visit with the children between January and April 2013
             and between August 2013 and February 2014.
            Father failed to maintain regular contact with the FCM assigned to his
             case.

       In other words, the record is replete with evidence of Father’s wholesale failure

       to comply with court orders, get the treatment he needs, comply with the law,

       or in any way demonstrate that he is able and willing to be a safe and

       appropriate parent to his children. He had four years to comply, and he did not

       do so. Under these circumstances, there was sufficient evidence supporting the

       juvenile court’s conclusion that termination of the parent-child relationship is in

       the children’s best interests.


                                        III. Satisfactory Plan
[18]   Finally, Father argues that there is insufficient evidence establishing that there

       is a satisfactory plan for the care and treatment of the children. DCS’s plan for

       the care and treatment of the children is adoption, which is a satisfactory plan.

       See, e.g., In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) (noting that

       adoption is a satisfactory plan); In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 9 of 10
       2000) (finding that adoption is a satisfactory plan even if a definite adoptive

       family has not been identified).


[19]   Essentially, Father argues that a better, more satisfactory plan for placement of

       the children would be to place them in relative care. Specifically, he argues that

       they should have been placed with paternal grandmother. The uncontested

       evidence reveals that DCS repeatedly considered placement of the children with

       paternal grandmother throughout the CHINS case. She was not found to be a

       suitable placement, however, for a variety of reasons. Among other things, she

       had children removed from her care for substance abuse in the past, she was

       financially unable to care for the children, she did not have the space to care for

       the children, and, for most of the case, she indicated to the FCM that she was

       unable to have the children placed with her. Furthermore, Father did not even

       request a change of placement until the final day of the termination hearing,

       despite the fact that he had had four years to raise the issue.


[20]   Father’s arguments amount to a request that we reweigh the evidence, which

       we will not do. The evidence in the record supports a conclusion that adoption

       is a satisfactory plan for these children.


[21]   The judgment of the juvenile court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015   Page 10 of 10
