MEMORANDUM DECISION                                                            FILED
                                                                          Mar 23 2016, 6:00 am

Pursuant to Ind. Appellate Rule 65(D),                                         CLERK
this Memorandum Decision shall not be                                      Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
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
Joel Schumm                                              Gregory F. Zoeller
Indianapolis, 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                         March 23, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of R.S., Jr. (Child) and R.S., Sr.                       49A04-1508-JT-1141
(Father);                                                Appeal from the Marion Superior
                                                         Court
R.S., Sr. (Father),                                      The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge;
                                                         The Honorable Larry E. Bradley,
        v.                                               Magistrate
                                                         Trial Court Cause No.
The Indiana Department of                                49D09-1503-JT-96
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016              Page 1 of 11
      May, Judge.


[1]   R.S., Sr. (Father) appeals the involuntary termination of his parental rights to

      R.S., Jr. (Child). He argues the Department of Child Services (DCS) did not

      prove termination was in Child’s best interests and did not have a satisfactory

      plan for care of Child following termination. We affirm.


                                     Facts and Procedural History
[2]   Child was born to L.H. (Mother) 1 and Father on November 6, 2005. From

      2009 to 2013, Father was incarcerated for Class B felony arson committed

      against Mother’s property. That case included a protective order preventing

      Father from contacting Mother or Child until September 10, 2014.


[3]   On April 4, 2014, DCS removed Child from Mother’s care because Mother

      used illegal drugs while caring for Child and Father was unable to care for

      Child due to the protective order. The trial court held an initial hearing the

      same day during which Mother admitted Child was a Child in Need of Services

      (CHINS) and Father denied Child was a CHINS. The trial court held a pre-

      trial hearing on April 30, 2014, and Father appeared. The trial court set a fact-

      finding hearing for May 21, 2014.


[4]   Father did not appear at the May 21, 2014, fact-finding hearing, but he was

      represented by counsel. The trial court heard evidence and on May 28, 2014,




      1
          Mother consented to Child’s adoption and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 2 of 11
      adjudicated Child a CHINS. Child was placed with Maternal Grandmother,

      where he remained during the CHINS and termination proceedings. On June

      3, 2014, the trial court held a dispositional hearing. After the hearing, it

      ordered Father to participate in services and to complete a “parenting

      assessment and successfully complete all recommendations developed as a

      result of the parenting assessment. Such recommendations may include, but

      are not limited to, Parenting Classes, Home-Based Counseling Services, or

      other Counseling Services.” (Ex. Vol. at 29.) The trial court also ordered

      Father to “enroll in, participate in, and successfully complete a Father

      Engagement Program.” (Id.) Visitation was not ordered because of the

      protective order.


[5]   The trial court held a review hearing on August 27, 2014, at which Father did

      not appear. The protective order preventing Father from contacting Child

      expired on September 10, 2014. The trial court held review hearings on

      December 3, 2014, and February 4, 2015, and Father did not appear. The trial

      court held a permanency hearing on March 4, 2015, and Father did not appear.

      The trial court found Father had not appeared at a hearing since April 30, 2014;

      had not exercised visitation with Child since before that date; and service

      providers had discharged Father from all services due to non-compliance. The

      trial court changed Child’s permanency plan to adoption.


[6]   On March 19, 2015, DCS filed a petition to terminate Father’s parental rights to

      Child. On June 10, 2015, the trial court held a pre-trial hearing and Father

      attended. The trial court reappointed Father counsel, but did not grant his

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 3 of 11
      request to reinstate services. The trial court instead ordered Father to

      participate in supervised visitation with Child. Of the five visits scheduled with

      Child, Father cancelled two and had to leave two early. Child became

      “depressed” and “blame[d] himself,” (App. at 13), for Father’s lack of

      participation in visits. The trial court held a fact-finding hearing on the

      termination petition on July 21, 2015. Father was present with counsel. The

      trial court terminated Father’s parental rights on August 5, 2015.


                                     Discussion and Decision
[7]   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

      the 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 most favorable to the judgment. Id. In deference to the trial court’s

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

      a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d

      204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).


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

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

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

      whether the evidence supports the findings and, second, 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


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 4 of 11
       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences

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


[9]    “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 juvenile court

       must subordinate the interests of the parents to those of the child, 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 child should not be terminated

       solely because there is a better home available for the child, id., but parental

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

       her parental responsibilities. Id. at 836.


[10]   To terminate a parent-child relationship in Indiana, the State must allege and

       prove:


                (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 county office of family
                        and children 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 49A04-1508-JT-1141 | March 23, 2016   Page 5 of 11
                      (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). 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. Father

       challenges only two of the court’s conclusions: that termination was in the best

       interest of Child; and that DCS had a satisfactory plan for Child.


                                            Best Interests of Child

[11]   Pursuant to Ind. Code § 31-35-2-4(b)(2)(C), DCS must provide sufficient

       evidence “that termination is in the best interests of the child.” In determining

       what is in the best interests of a child, the trial court is required to look beyond

       the factors identified by DCS and consider the totality of the evidence. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). 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 harmed irreversibly before terminating the parent-child

       relationship. Id. Recommendations of the case manager and court-appointed

       advocate, in addition to evidence the conditions resulting in removal will not be

       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 6 of 11
       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


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

       parent’s current inability to do the same, supports finding termination of

       parental rights is in the best interests of the children. Lang v. Starke Cnty. Office of

       Family & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied.

       Father argues the following findings are inconsistent with the court’s conclusion

       that Child’s best interests would be served by termination of Father’s parental

       rights:

                 36. [Father] and [Child] share a bond. [Child] does love his
                 father.


                 37. [Child] would like to stay with his grandmother and likes to
                 visit with [Father].


                                                    *****


                 49. Termination of the parent-child relationship is in the best
                 interests of [Child]. Termination would allow him to be adopted
                 into a stable and permanent home where his needs will continue
                 to be met. It would be best for [Child] to be able to keep visiting
                 [Father] and paternal grandmother, but staying in his placement
                 is in his long term interests.


       (App. at 14-5.)




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 7 of 11
       However, there exists other evidence and findings regarding Father’s lack of

       compliance with the trial court’s order to complete services and participate in

       visitation with Child and therefore we cannot reverse.


[13]   Child’s therapist testified Child was harmed by Father’s inability to complete

       services and visit with Child:

                [Child] withdraws into himself. He gets very depressed, very sad.
                [Like] a lot of children, he blames himself, he thinks it is his fault
                that the visit is not taking place even though we try to explain
                that it is not. They still see it as maybe I did something, or
                maybe I said something or maybe that is why they don’t want to
                visit with me.


       (Tr. at 85.) Father’s arguments 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 cannot reweigh evidence and judge the

       credibility of witnesses). 2


[14]   In addition, it is not in Child’s best interests to leave Child in permanency

       purgatory while giving Father another chance to participate in services and




       2
         Father relies heavily on Rowlett v. Vanderburgh Cty. OFC, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied,
       in which we held extending the CHINS proceedings as an alternative to termination of father’s parental
       rights was in the best interests of the child because father had made efforts to maintain a relationship with
       child and the child was in relative care. Rowlett does not control. Rowlett was incarcerated and unable to
       participate in services and visitation, but he was in contact with the Office of Family and Children and
       maintained regular contact with his child. In this case, Father was not incarcerated at the time of the CHINS
       adjudication and did not participate in services despite being ordered to do so. Father did not attend
       numerous hearings regarding the CHINS and termination proceedings, and he did not maintain contact with
       DCS. When given an opportunity to visit with Child, Father missed two of five visits and left two others
       early. Father did not demonstrate the effort put forth Rowlett.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016             Page 8 of 11
       visitation. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989)

       (appellate court “unwilling to put [child] on shelf until [parents] are capable of

       caring for her appropriately”); see also Baker v. Marion County OFC, 810 N.E.2d

       1035, 1040 n.4 (Ind. 2004) (limitations on trial court’s ability to approve long-

       term foster care are designed to ensure a child does not “languish, forgotten, in

       custodial limbo for long periods of time without permanency”) (quoting In re

       Priser, No. 19861, 2004 WL 541124 at *6 (Ohio Ct. App. March 19, 2004)).

       The trial court did not err in its findings and conclusions regarding the best

       interests of Child.


                                         Satisfactory Plan for Care

[15]   Pursuant to Ind. Code § 31-35-2-4(b)(2)(D), DCS must provide sufficient

       evidence there is a satisfactory plan for the care and treatment of the child. 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 L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008). The trial

       court found there was a satisfactory plan; Child was to be adopted by Maternal

       Grandmother.


[16]   Father argues the trial court’s finding “[i]t would be best for [Child] to be able

       to keep visiting Father,” (App. at 15), is “contradictory and inconsistent” with

       the plan for adoption and the plan for adoption does not offer “the requisite

       ‘general sense of direction.’” (Br. of Appellant at 16.) However, Father does

       not address other findings regarding the relationship between Father and Child.

       The trial court found:
       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 9 of 11
        47. . . . At the time of trial [Father] had not demonstrated his
        willingness to parent [Child] full-time. He ignored the ChINS
        [sic] case until after this termination case was filed. Then, when
        his request for visits was granted, he did not fully follow through
        with those. At the time of trial [Father] had not demonstrated
        the ability to appropriately parent [Child], lacking stable housing
        and income.


        48. Continuation of the parent-child relationship poses a threat to
        [Child’s] well-being in that it would pose as [sic] a barrier to
        obtaining the permanency that he needs and strives through an
        adoption. To do otherwise could threaten the great progress
        [Child] has made in his special needs. Given additional time,
        and if [Father] was to follow through with services, he would
        have to complete therapy with [Child], still undergo a parenting
        assessment and obtain stable housing and an adequate income.
        After having the ChINS [sic] matter pend [sic] for ﬁfteen month
        [sic], [Father] would be just beginning.


        49. Termination of the parent-child relationship is in the best
        interests of [Child]. Termination would allow him to be adopted
        into a stable and permanent home where his needs will continue
        to be met. It would be best for [Child] to be able to keep visiting
        his father and paternal grandmother, but staying in his placement
        is in his long term interests.


        50. Family Case Manager Deen, who has been on the ChINS
        [sic] case since it was filed, believes adoption is in [Child’s] best
        interests given that he is bonded and comfortable with his
        grandmother. She does not believe [Father] would follow up if
        given more time and adoption would provide permanency for
        [Child].


        51. There exists a satisfactory plan for the future care and
        treatment of [Child], that being adoption.

Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 10 of 11
               52. Guardian ad Litem Williams recommends adoption and
               does not feel giving [Father] additional time would be in
               [Child’s] bests [sic] interests. He knows [Child’s] wishes. He has
               valid concerns regarding [Father] not being in a stable position
               now and his past history of no follow up.


       (App. at 14-5.) While it seems Father and Child have a bond, we cannot say

       the trial court’s conclusion is unsupported by the findings. The plan for Child’s

       care subsequent to termination is adoption by maternal grandmother. We find

       no error with the juvenile court’s decision. See In re L.B., 889 N.E.2d at 341

       (the plan for Child’s care subsequent to termination “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”).


                                                 Conclusion
[17]   DCS proved termination of Father’s parental rights to Child was in Child’s best

       interests and there was a satisfactory plan for Child’s care after termination.

       Accordingly, we affirm.


[18]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-JT-1141 | March 23, 2016   Page 11 of 11
