MEMORANDUM DECISION
                                                                     May 28 2015, 5:37 am
Pursuant to Ind. Appellate Rule 65(D), this
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                                    ATTORNEYS FOR APPELLEE
Daniel A. Dixon                                           INDIANA DEPARTMENT OF CHILD
Lawrence County Public Defender                           SERVICES
Agency                                                    Gregory F. Zoeller
Bedford, Indiana                                          Attorney General of Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana
                                                          ATTORNEY FOR APPELLEE COURT
                                                          APPOINTED SPECIAL ADVOCATE
                                                          Darlene Steele McSoley
                                                          Bedford, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 28, 2015
of the Parent-Child Relationship                         Court of Appeals Case No. 47A01-
of D.S. (Minor Child), and                               1405-JT-230
                                                         Appeal from the Lawrence Circuit
B.T. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Andrea K. McCord,
                                                         Judge
        v.
                                                         The Honorable James F. Gallagher,
                                                         Referee
                                                         Case No. 47C01-1306-JT-224




Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015          Page 1 of 11
      The Indiana Department of Child
      Services,
      Appellee-Petitioner,
      and
      Court Appointed Special
      Advocate,
      Co-Appellee.



      Crone, Judge.


                                                 Case Summary
[1]   B.T. (“Mother”) appeals the trial court’s decree (“the Decree”) terminating her

      parental rights to D.S. (“Child”).1 She argues that the trial court clearly erred in

      concluding that termination of the parent-child relationship is in Child’s best

      interests and that there is a satisfactory plan for Child’s care and treatment.

      Finding no error, we affirm.


                                     Facts and Procedural History
[2]   The facts most favorable to the Decree follow. On March 10, 2010, Mother

      gave birth to Child. In October 2010, the Department of Child Services

      (“DCS”) removed Child from Mother’s custody.2 In April 2011, the trial court




      1
          D.S.’s father consented to his adoption. Appellant’s App. at 58.
      2
        In their briefs, both parties state that Child was removed from Mother’s care in October. However, the trial
      court found that Child was removed from Mother’s custody in May 2011, which is the month immediately
      following Child’s adjudication as a CHINS.

      Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015               Page 2 of 11
      adjudicated Child a child in need of services (“CHINS”) based on its

      determination that Mother had not consistently visited with Child, had used

      drugs, and was arrested in February 2011 for possession of a controlled

      substance. The trial court ordered Mother and A.S. (“Father”) to participate in

      paternity testing. Father’s paternity was established. In November 2011, the

      trial court awarded Father primary physical custody of Child. The trial court

      then dismissed the CHINS case.


[3]   In March 2012, DCS removed Child from Father’s home and filed a second

      CHINS petition based on allegations that Father was manufacturing

      methamphetamine in Child’s home.3 DCS placed Child with his paternal

      grandparents, where Child remains. In October 2012, the trial court declared

      Child a CHINS based on its determination that Father endangered Child by

      manufacturing methamphetamine in Child’s home.


[4]   In June 2013, DCS filed a termination petition. On February 27 and 28, 2014,

      the trial court held an evidentiary hearing on the petition, at which Mother, the

      DCS case manager, D.S.’s court appointed special advocate (“CASA”), D.S.’s

      paternal grandmother, and the director of the organization that conducted

      Mother’s visitation testified. Mother, DCS, and Child’s CASA each filed

      proposed findings of fact and conclusions thereon. In April 2014, the trial court

      entered its Decree terminating Mother’s parental rights, essentially adopting the



      3
        The trial court found that Child was removed from Father’s custody in October 2012, which corresponds to
      the CHINS adjudication.

      Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015            Page 3 of 11
CASA’s proposed findings and conclusions. The Decree provides in relevant

part as follows:

        6. Throughout both CHINS proceedings, Mother has continued to
        have problems with substance abuse, homelessness and periods of
        incarceration.
        7. Even when she was not incarcerated, Mother did not cooperate
        with service providers. ….
        ….
        10. On October 11, 2012, Mother was arrested for possession of
        narcotics, prescription fraud and theft. At the time of the termination
        hearing, Mother was still incarcerated in Women’s Prison. Her
        earliest release date is July, 2014.
        11. Although Mother had signed up for GED training and parenting
        classes while in prison, she was removed from the eligibility list for
        those classes due to her misbehavior before the classes began.
        ….
        CLEAR AND CONVINCING EVIDENCE SUPPORTS THE
        FOLLOWING SPECIFIC FINDINGS WHICH THE COURT
        NOW MAKES:
        A. [Child] was removed from Mother’s custody in May of 2011 and
        from Father’s custody in October of 2012. Since that later date,
        [Child] has been living in foster care and under the supervision of the
        DCS. [Child] has been removed from the parents’ custody and control
        by the DCS for more than 15 of the last 22 months.
        B. The parents’ pattern of substance abuse, homelessness, criminal
        behavior and long periods of incarceration shows that there has been
        little improvement during the last 16 months. There is a strong
        probability that the conditions which resulted in [Child’s] placement
        outside the home will not be remedied.
        C. Neither parent is able to care for [Child], and keeping [Child] in
        foster care for a prolonged period could damage his need for
        permanency. Termination is in [Child’s] best interest.
        D. [Child’s] present foster family is a pre-adoptive family. [Child] has
        bonded with his pre-adoptive parents and seems to be thriving in his

Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 4 of 11
              present situation. DCS’s plan to let [Child] be adopted is a satisfactory
              plan for the care and treatment of the child.

      Appellant’s App. at 58-60. Mother appeals.


                                     Discussion and Decision

                                         Standard of Review
[5]   Mother appeals the termination of her parental rights.

              The Fourteenth Amendment to the United States Constitution protects
              the traditional right of parents to establish a home and raise their
              children. …. We recognize, however, that parental interests are not
              absolute and must be subordinated to the child’s interests in
              determining the proper disposition of a petition to terminate parental
              rights. Thus, parental rights may be terminated when the parents are
              unable or unwilling to meet their parental responsibilities.


      In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009) (citations, quotation marks,

      and brackets omitted).


[6]   If the court finds that the allegations in a petition to terminate parental rights as

      described in Indiana Code Section 31-35-2-4 are true, “the court shall terminate

      the parent-child relationship.” Ind. Code § 31-35-2-8. Indiana Code Section

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

      involving a CHINS must allege:

              (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 47A01-1405-JT-230 | May 28, 2015   Page 5 of 11
                       (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.

[7]   The State must prove by “clear and convincing evidence” each and every

      element set forth in Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind.

      Code § 31-37-14-2. “‘Clear and convincing evidence need not reveal that the

      continued custody of the parents is wholly inadequate for the child’s very


      Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 6 of 11
      survival.’” G.Y., 904 N.E.2d at 1261 (quoting Bester v. Lake Cnty. Office of Family

      & Children, 839 N.E.2d 143, 148 (Ind. 2005)). “‘Rather, 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.’” Id. (quoting

      Bester, 839 N.E.2d at 148).


[8]   Although a trial court is not statutorily required to enter findings of fact and

      conclusions thereon when terminating parental rights, this Court has held that

      given the constitutional dimension of such a decision, trial courts must “enter

      findings of fact that support the entry of the conclusions called for by Indiana

      statute and the common law.” In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App.

      2010), trans. dismissed.

              When reviewing the termination of parental rights, we do not reweigh
              the evidence or judge witness credibility. We consider only the
              evidence and reasonable inferences that are most favorable to the
              judgment. …. When reviewing findings of fact and conclusions of law
              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. We will set aside the [trial] court’s
              judgment only if it is clearly erroneous. A judgment is clearly
              erroneous if the findings do not support the [trial] court’s conclusions
              or the conclusions do not support the judgment.

      G.Y., 904 N.E.2d at 1260 (citations and quotation marks omitted).


[9]   Here, many of the trial court’s findings are merely recitations of witness

      testimony and opinions. On multiple occasions, we have stated that

      “‘[f]indings which indicate that the testimony or evidence was this or the other

      Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 7 of 11
       are not findings of fact.’” Parks v. Delaware Cnty. Dep’t of Child Servs., 862 N.E.2d

       1275, 1279 (Ind. Ct. App. 2007) (quoting Moore v. Ind. Family & Social Servs.

       Admin., 682 N.E.2d 545, 547 (Ind. Ct. App. 1997)) (emphasis in Parks). Such

       improper findings are not “‘harmful error’” but are considered “‘mere

       surplusage.’” Id. (quoting Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind.

       1981)). Thus, in reviewing the Decree, we ignore the improper findings.


            Section 1 - Termination of Mother’s parental rights is in
                             Child’s best interests.
[10]   Mother challenges the trial court’s conclusion that termination of the parent-

       child relationship is in Child’s best interests.

               [I]n determining what is in the best interests of a child, the trial court is
               required to look beyond the factors identified by the Department of
               Child Services and to consider the totality of the evidence. In so
               doing, the trial court must subordinate the interests of the parent to
               those of the child. The court need not wait until a child is irreversibly
               harmed before terminating the parent-child relationship. Moreover,
               we have previously held that the recommendations of the case
               manager and court-appointed advocate to terminate parental rights, in
               addition to evidence that the conditions resulting in removal will not
               be remedied, is sufficient to show by clear and convincing evidence
               that termination is in the child’s best interests.

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted); see also

       In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999) (“[C]hildren should not be

       compelled to suffer emotional injury, psychological adjustments, and instability

       to preserve parental rights.”).




       Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 8 of 11
[11]   Specifically, Mother argues that the trial court clearly erred in concluding that

       keeping Child in foster care for a prolonged period could damage his need for

       permanency. She argues that there is no evidence that maintaining Child’s

       current placement with his paternal grandparents would harm his need for

       permanency. She states that she was expected to be released from prison only

       four to five months after the termination hearing and that her ability to establish

       an appropriate life upon release could be determined relatively quickly.


[12]   Mother likens her case to G.Y., 904 N.E.2d 1257, in which our supreme court

       reversed the termination order of a mother who was incarcerated at the time of

       termination. G.Y. is clearly distinguishable. There, the mother was

       incarcerated twenty months after the child’s birth for a crime that she

       committed before the child was even conceived. The supreme court noted that

       there was no evidence that the mother was anything but a fit parent for the first

       twenty months of the child’s life, no evidence that she had engaged in a pattern

       of criminal activity that was likely to continue upon her release from prison,

       and, significantly, she had taken all the steps she could while incarcerated to

       better herself. Id. at 1265. Here, in contrast, the trial court found that

       throughout both CHINS proceedings Mother continued to have problems with

       substance abuse, homelessness, and periods of incarceration, did not cooperate

       with service providers when she was not incarcerated, was arrested for

       possession of narcotics, prescription fraud, and theft, and became ineligible for

       GED training and parenting classes due to her misbehavior. Appellant’s App.

       at 58-60. Mother does not challenge these findings.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 9 of 11
[13]   Mother also relies on In re J.M., 908 N.E.2d 191 (Ind. 2009), in which our

       supreme court upheld the trial court’s denial of the State’s petition to terminate

       the mother’s and father’s parental rights. In so doing, our supreme court

       concluded that the evidence in the record supported the trial court’s conclusion

       that the parents’ ability to establish a stable and appropriate life upon release

       could be determined within a relatively quick period of time and the child’s

       need of permanency would not be severely prejudiced. Id. at 195-96. Mother’s

       reliance on J.M. is unavailing. In addition to the fact that the procedural

       posture of J.M. is different from this case, the facts are also clearly

       distinguishable. In J.M., the parents had fully cooperated with the services

       required of them while incarcerated. Mother has not. Mother’s behavior

       throughout the two CHINS cases supports the trial court’s conclusion that

       continued foster care will harm Child’s need for permanency. Accordingly, we

       cannot say that the trial court clearly erred in concluding that termination of

       Mother’s parental rights is in D.S.’s best interests.


          Section 2 – There is a satisfactory plan for Child’s care and
                                   treatment.
[14]   The trial court concluded that Child had bonded with his pre-adoptive parents

       and was thriving in their custody. Mother does not challenge this conclusion.

       However, she argues that under the facts of this case, adoption by Child’s

       paternal grandparents is not a suitable plan for Child’s care and treatment

       because the grandmother knew about Mother’s addiction and had delivered

       drugs to Mother in the summer of 2012 and both grandparents used pain

       Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 10 of 11
       medication and Xanax on a daily basis, which could impair their ability to

       transport and supervise Child. Mother’s argument is merely a request to

       reweigh the evidence, which we must decline. We conclude that the trial court

       did not clearly err in concluding that there is a satisfactory plan for Child’s care

       and treatment. Therefore, we affirm the termination of Mother’s parental rights

       to D.S.


[15]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015   Page 11 of 11
