MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Feb 18 2020, 8:57 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin R. Wall                                            Curtis T. Hill, Jr.
Wall Legal Services                                       Attorney General of Indiana
Huntington, Indiana
                                                          Steven J. Hosler
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 18, 2020
of the Parent–Child Relationship                          Court of Appeals Case No.
of T.W. (Minor Child)                                     19A-JT-2246
                                                          Appeal from the Wabash Circuit
and                                                       Court
                                                          The Honorable Robert R.
J.W. (Mother),                                            McCallen, III, Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          85C01-1903-JT-5
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020                Page 1 of 15
      Bradford, Chief Judge.



                                              Case Summary
[1]   J.W. (“Mother”) and E.W. (“Father”) are the biological parents of T.W.

      (“Child”). The Department of Child Services (“DCS”) became involved with

      the family due to allegations of sexual abuse and educational neglect of Child.

      Mother refused to cooperate with DCS’s investigation into the allegations of

      abuse and neglect and Child was subsequently removed from her care and

      adjudicated to be a Child in Need of Services (“CHINS”). Following the

      CHINS adjudication, Mother and Father were ordered to complete certain

      services, but failed to do so. Given their failure to complete services, DCS

      eventually petitioned to terminate their parental rights to Child. Following an

      evidentiary hearing, the juvenile court granted DCS’s termination petition. On

      appeal, Mother contends that DCS failed to present sufficient evidence to

      support the termination of her parental rights.1 We affirm.



                              Facts and Procedural History
[2]   Child was born on October 27, 2007. On May 15, 2017, DCS opened an

      assessment regarding educational neglect of Child. Mother refused to

      cooperate in regards to the assessment. On June 20, 2017, DCS received a




      1
        Father does not participate in this appeal. As such, we will limit our discussion to facts relevant to the
      termination of Mother’s parental rights to Child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020                   Page 2 of 15
      report regarding alleged sexual abuse of Child. DCS Family Case Manager

      (“FCM”) Valerie Eiler initiated an investigation into the alleged abuse. Mother

      refused to cooperate with the investigation and failed to produce Child for a

      scheduled meeting at the DCS office. At some point, Child was removed from

      Mother’s care and placed in foster care. DCS ultimately determined that the

      allegations of sexual abuse were unsubstantiated but that the allegations of

      educational neglect were substantiated.


[3]   On June 22, 2017, DCS filed a petition alleging that Child was a CHINS. On

      December 4, 2017, the juvenile court adjudicated Child to be a CHINS on the

      basis of educational neglect. During the January 19, 2018 dispositional

      hearing, the juvenile court ordered Mother, inter alia, to undergo substance-

      abuse and parenting assessments, complete any services recommended by DCS,

      refrain from using illegal substances and alcohol, attend visitation with Child,

      and obey the law.


[4]   During a December 7, 2018 case review hearing, the juvenile court noted that

      while Mother had visited Child, she had not complied with Child’s case plan.

      The juvenile court noted that “[d]espite numerous opportunities, [Mother] has

      still failed to submit to a substance abuse assessment and parenting assessment

      as ordered by the Court. Even when summer visitation in the home was

      contingent on her participation, she failed to participate in the assessments.”

      Ex. 12. The juvenile court again ordered Mother to complete the previously-

      ordered assessments and to submit to random drug testing.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 3 of 15
[5]   On June 3, 2019, the permanency plan was changed to a concurrent plan that

      included both termination of parental rights and adoption. In changing the

      permanency plan, the juvenile court found that Mother had not complied with

      Child’s case plan. Specifically, Mother, who had been incarcerated since

      March 10, 2019,2 had not visited Child since March 2, 2019, and had failed to

      comply with her court-ordered services with the exception of visitation.


[6]   On March 19, 2019, DCS filed a petition to terminate Mother’s parental rights

      to Child. At some point after DCS filed the termination petition, Mother, while

      still incarcerated, began participating in services, completing the previously-

      ordered assessments on June 17, 2019. The juvenile court conducted an

      evidentiary hearing on August 13, 2019. During this hearing, DCS presented

      evidence outlining Child’s significant needs, which included a need for stability

      and permanency, and Mother’s failure to fully engage in services aimed at

      helping her learn how to adequately provide for Child’s needs. Mother

      presented evidence that she claimed demonstrated progress and a positive

      change in the circumstances that led to Child’s continued removal from her

      care. Following conclusion of the evidence, the juvenile court took the matter

      under advisement. On August 27, 2019, the juvenile court issued an order

      terminating Mother’s parental rights to Child.




      2
        Mother was incarcerated after being charged with theft and burglary and alleged to be a habitual offender.
      She has since been convicted of Level 4 felony burglary and Class A misdemeanor theft and found to be a
      habitual offender. Mother faces a lengthy period of incarceration as a result of these convictions and her
      status as a habitual offender.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020                Page 4 of 15
                                 Discussion and Decision
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

      parental rights are of a constitutional dimension, the law allows for the

      termination of those rights when parents are unable or unwilling to meet their

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the children. Id. Termination of parental

      rights is proper where the children’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the children are

      irreversibly harmed such that their physical, mental, and social development is

      permanently impaired before terminating the parent–child relationship. Id.


[8]   Mother contends that the evidence is insufficient to sustain the termination of

      her parental rights to Child. In reviewing termination proceedings on appeal,

      this court will not reweigh the evidence or assess the credibility of the witnesses.

      In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879

      (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile

      court’s decision and reasonable inferences drawn therefrom. Id. Where, as

      here, the juvenile court includes findings of fact and conclusions thereon in its

      order terminating parental rights, our standard of review is two-tiered. Id.

      First, we must determine whether the evidence supports the findings, and,

      second, whether the findings support the legal conclusions. Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 5 of 15
[9]    In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent–child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[10]   Mother claims that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence:


               (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.
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2).


                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[11]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find that one of the conditions

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 6 of 15
       listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines that one of

       the above-mentioned factors has been proven and there is sufficient evidence in

       the record supporting the juvenile court’s determination, it is not necessary for

       DCS to prove, or for the juvenile court to find, either of the other factors listed

       in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.


[12]   DCS does not allege that Child has been adjudicated CHINS on two separate

       occasions. As such, DCS had to prove either that (1) the conditions resulting in

       removal from or continued placement outside Mother’s home will not be

       remedied or (2) the continuation of the parent–child relationship poses a threat

       to Child.


[13]   The juvenile court determined that the evidence established a reasonable

       probability that the conditions that resulted in Child’s removal and continued

       placement outside Mother’s care would not be remedied. When making a

       determination as to whether the conditions leading to placement outside a

       parent’s care are likely to be remedied, juvenile courts “should judge a parent’s

       fitness at the time of the termination hearing, considering any change in

       conditions since the removal.” Lang v. Starke Cty. Office of Family & Children, 861

       N.E.2d 366, 372 (Ind. Ct. App. 2007). “The trial court can also consider the

       parent’s response to the services offered through the DCS.” Id. “‘A pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a

       finding that there exists no reasonable probability that the conditions will

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 7 of 15
       change.’” Id. (quoting In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999),

       trans. denied).


[14]   In support of its determination that the conditions for placement outside

       Mother’s care would not be remedied, the juvenile court noted that after Child

       was found to be a CHINS, Mother was ordered to refrain from using,

       consuming, manufacturing, trading, distributing, or selling any illegal

       controlled substance; refrain from consuming alcohol; obey the law; complete

       parenting and substance-abuse assessments and follow all recommendations;

       and attend all scheduled visits with Child. While Mother did attend scheduled

       visits with Child, she was otherwise largely, if not entirely, noncompliant with

       the ordered services. With respect to Child’s ongoing placement outside

       Mother’s care, the juvenile court found


               By [December 7, 2018], [Child’s] behavior in his foster placement
               had worsened and on or about January 14, 2019, he was placed
               residentially at DAMAR Services.

               A permanency hearing was held on May 31, 2019.… [Child]
               was doing much better in his placement at DAMAR. DCS had
               arranged for [Mother] to obtain her substance abuse assessment
               while she was incarcerated, but she refused. Again [Mother’s]
               participation in ordered services was virtually non-existent and
               [she had not] completed [her] required substance abuse and
               parenting assessments.

               ***

               [Mother] has been uncooperative from the beginning. Her
               attitude in Court reflects she has no intention of doing what she
               has been ordered to do. [Mother] and [Father’s] relationship is
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 8 of 15
        hot and cold. Despite having the ability to share a car to visit
        [Child] before he was placed at DAMAR, [Mother] was
        unwilling to do that.… [Mother] and [Father] are resistant to
        any change and unwilling to do what they need to do (i.e. obey
        the law, engage in assessments and services, cooperate with each
        other) for reunification to occur.

        [Mother] acknowledged she has smoked marijuana since the
        dispositional order was entered.

        [Mother] provided a myriad of reasons why she didn’t do what
        was ordered for reunification to occur.
              * She was sick and hospitalized 4 days in June or
              July of 2018.
              * She didn’t trust the DCS or Bowen Center.
              * She was offended that DCS asked her to take drug
              screens despite being ordered to do so.
              * She was incarcerated briefly, on June 29, 2019
              [sic], and then re-incarcerated on March 10 of this
              year.


        She has had ample time and opportunity to engage in services, as
        ordered. Her excuses don’t justify her wholesale failure to
        engage in services beyond her exercise of supervised parenting
        time. She has only recently engaged in services and then only
        after being incarcerated. Even then, she declined the first
        substance abuse assessment offered to her while in jail and
        further declined to review her case plan in June of 2019. Her
        recent efforts are superficial and insincere.

        Much of [Mother’s] testimony was an effort to re-litigate the
        finding of CHINS. That ship sailed long ago. However, by
        doing so, she evidenced that she resents the finding of CHINS
        and has no intention of doing what she has been ordered to do.

        ***

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 9 of 15
               The Court finds, by clear and convincing evidence, that the
               allegations of the Petition are true, in that:

               ***

               b. There is a reasonable probability the conditions that resulted
               in his removal or his continued removal will never be remedied.
               In fact, it’s a virtual[] certain[t]y[.]


       Appellant’s App. Vol. II pp. 57–59. Mother does not challenge these findings

       on appeal. As such, we accept the findings as true. See In re S.S., 120 N.E.3d

       605, 610 (Ind. Ct. App. 2019). We agree with the juvenile court’s

       determination that these findings demonstrate a reasonable probability that the

       conditions resulting in Child’s removal from or continued placement outside

       Mother’s care will not be remedied.


[15]   In challenging the sufficiency of the evidence to sustain the termination of her

       parental rights to Child, Mother blames her failure to consistently engage in

       services on her frustration with “DCS’[s] repeated requests” that she complete a

       substance-abuse assessment and drug testing, arguing that “drug testing

       wouldn’t help her learn to be a better parent to Child.” Appellant’s Br. p. 22.

       Regardless of whether Mother believed she should have to participate in drug

       testing or complete a substance-abuse assessment, Mother was nevertheless

       ordered to do so following the determination that Child was a CHINS. Mother

       further argues that although she was incarcerated at the time of the evidentiary

       hearing, her incarceration “would eventually end” at which time she could “be

       reunified with Child.” Appellant’s Br. p. 23. Mother’s arguments amount to
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 10 of 15
       an invitation for this court to reweigh the evidence, which we will not do. See

       In re S.P.H., 806 N.E.2d at 879.


                   II. Indiana Code Section 31-35-2-4(b)(2)(C)
[16]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003). In doing so, the juvenile court must subordinate the interests of the

       parents to those of the children involved. Id. “A parent’s historical inability to

       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the children.” Lang, 861 N.E.2d at 373. Furthermore, this court has

       previously determined that the testimony of the case worker, guardian ad litem

       (“GAL”), or a CASA regarding a child’s need for permanency supports a

       finding that termination is in the child’s best interests. Id. at 374; see also Matter

       of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[17]   With respect to the best interests of Child, the juvenile court found as follows:


               [Child] is doing better in his current placement.

               [Child] needs structure and stability. His parents can provide
               neither. They live chaotic lifestyles and [Mother] has frequent
               brushes with the law. Sadly, the Court believes that will never
               change.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 11 of 15
               The evidence is clear and convincing that continuation of the
               parent-child relationship is not in [Child’s] best interests and that
               doing so would be detrimental to his physical and/or mental
               well-being.


       Appellant’s App. Vol. II pp. 58–59. The juvenile court’s findings are supported

       by the record.


[18]   The record reveals that Child has significant needs and requires stability. Child

       has been diagnosed with mild intellectual disability disorder and conduct

       disorder. Emily Watson, Child’s therapist at Damar, testified that stability and

       consistency are important to Child’s treatment and progress. FCM Gary Spratt

       testified that he believed that termination of Mother’s parental rights was in

       Child’s best interests, explaining:


               As numerous therapists and – and mental professionals have said
               earlier, [Child] needs a very stable environment, he needs both
               parents, he needs them to be involved with his services. [Child],
               unlike most kids, has significant needs. Um, those needs are not
               being met with his current situation. He needs a family that is
               willing to and able to engage in those services so they can learn
               to parent him and he can learn to be cooperative with that and
               want to be cooperative.


       Tr. pp. 165–66. CASA Angela Dunn also testified that she believed that

       termination of Mother’s parental rights was in Child’s best interests, explaining

       that Child’s behavioral issues have decreased and Child “seems to be more

       settled and happier” since his contact with Mother stopped. Tr. p. 133. She

       opined that contact with Mother was inhibiting and disrupting Child’s progress.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 12 of 15
       The juvenile court’s determination that termination of Mother’s parental rights

       is in Child’s best interests is supported by sufficient evidence.


                  III. Indiana Code Section 31-35-2-4(b)(2)(D)
[19]   We have previously concluded that “[f]or a plan to be ‘satisfactory,’ for

       purposes of the statute, it ‘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.’” Lang, 861 N.E.2d at 374 (quoting In re Termination

       of Parent–Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),

       trans. denied). “A DCS plan is satisfactory if the plan is to attempt to find

       suitable parents to adopt the children.” In re A.S., 17 N.E.3d 994, 1007 (Ind.

       Ct. App. 2014). “In other words, there need not be a guarantee that a suitable

       adoption will take place, only that DCS will attempt to find a suitable adoptive

       parent.” Id. “Accordingly, a plan is not unsatisfactory if DCS has not

       identified a specific family to adopt the children.” Id.


[20]   In challenging the sufficiency of the evidence to prove that DCS has a

       satisfactory plan for Child’s care and treatment, Mother “concedes that case

       law on this particular point is not particularly in her favor as this Court has

       previously noted that it is acceptable for DCS to show adoption being a

       satisfactory plan for the care and treatment of children such as Child.”

       Appellant’s Br. p. 26. Mother maintains, nonetheless, that in this case, a

       satisfactory plan for Child’s care would be to maintain the status quo. We

       disagree.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 13 of 15
[21]   In determining that DCS has a satisfactory plan for Child’s care and treatment,

       the juvenile court found


               DCS’s plan for [Child] is adoption. Adoption is the only chance
               that [Child] will get to have the permanency he deserves now.
               Given [Child’s] many needs, adoption will be difficult but not
               impossible. The DCS has many resources in placing hard to
               adopt children such as [Child]. Further, [Child’s] current
               placement is better suited to prepare him for adulthood than any
               current alternatives.


       Appellant’s App. Vol. II p. 59. This finding is supported by the evidence. FCM

       Spratt testified that the plan for Child following termination of Mother’s

       parental rights would be adoption and that DCS would work to locate “the

       perfect home for him. Somebody that meets his needs.” Tr. p. 167. FCM

       Spratt further explained that in Child’s case, DCS would


               be looking for a two-parent household, with no other children,
               that – and ideally, they would be within close proximity to
               [Damar] so that way they can participate in like – they were said
               earlier, the family therapy, family counseling, things like that,
               learning the skills that are needed for them to parent [Child].


       Tr. p. 167. Applying our conclusion in Lang that “[a]ttempting to find suitable

       parents to adopt [Child] is clearly a satisfactory plan,” 861 N.E.2d at 375, we

       conclude that DCS has a satisfactory plan for Child’s care and treatment.

       Mother’s contention otherwise amounts to an invitation to reweigh the

       evidence, which, again, we will not do. See In re S.P.H., 806 N.E.2d at 879.


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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 14 of 15
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020   Page 15 of 15
