MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 28 2018, 9:10 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
Dorothy Ferguson                                         Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 28, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of K.H., J.H., & Ke.H.                                   48A02-1709-JT-2253
(Children) and A.H. (Mother);                            Appeal from the Madison Circuit
A.H. (Mother),                                           Court
                                                         The Honorable G. George Pancol,
Appellant-Defendant,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         48C02-1608-JT-70
The Indiana Department of                                48C02-1608-JT-71
                                                         48C02-1608-JT-72
Child Services,
Appellee-Plaintiff



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018        Page 1 of 14
[1]   A.H. (“Mother”) appeals the termination of her parental rights to K.H, J.H.,

      and Ke.H. (collectively, “Children”). She argues the trial court’s findings do

      not support its conclusions: (1) there was a reasonable probability the

      conditions that resulted in Children’s removal would not be remedied; (2)

      termination is in Children’s best interests; and (3) DCS had presented a

      satisfactory plan for the care and treatment of Children following termination.

      We affirm.



                                Facts and Procedural History
[2]   Mother and R.H. (“Father”) 1 are the biological parents of K.H., born January

      12, 2009; J.H., born December 1, 2010; and Ke.H., born April 9, 2012

      (collectively, “Children”). In April 2014, the Department of Child Services

      (“DCS”) received a report of domestic violence between Mother and Father,

      and DCS staff observed unexplained bruises on Children. That same month,

      Mother and Father agreed to an Informal Adjustment to address those issues.


[3]   On August 8, 2014, Children were removed from Mother’s care after DCS

      substantiated a report that Children were victims of physical abuse and neglect.

      DCS staff observed an abrasion on J.H.’s face, a severe burn on Ke.H.’s thumb,

      a long cut on K.H.’s inner thigh, and various other bruises and cuts on




      1
          Father consented to Children’s adoptions and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 2 of 14
      Children. Children were placed in foster care, where they have remained

      throughout these proceedings. 2


[4]   On August 11, 2014, DCS filed petitions alleging each of Children was a Child

      in Need of Services (“CHINS”). On October 7, 2014, the trial court

      adjudicated Children as CHINS after Mother admitted Children were in need

      of services “due to the unexplained bruising to the [C]hildren and the necessity

      of services to address parenting deficiencies[.]” (App. Vol. II at 15.) 3 On

      December 17, 2014, the trial court entered dispositional orders for each child

      and ordered Mother to refrain from using illegal drugs and alcohol; complete

      random drug screens; complete a substance abuse assessment and follow all

      recommendations; obtain and maintain stable housing and employment; keep

      all appointments with service providers; and participate in visitation with

      Children.


[5]   In its order, the trial court made detailed findings regarding the progress of the

      CHINS case. Those findings illustrate Mother’s inconsistent compliance with

      services throughout the proceedings:


               [7a.] [As of the review hearing on February 10, 2015,] [Mother]
               had made some strides to enhance parenting capabilities at this
               stage of the case. Mother had completed a parenting assessment




      2
       As noted in the trial court’s findings, Children were in separate foster homes for a portion of the
      proceedings, but at the time of the termination hearing, they were in the same foster home.
      3
       The trial court entered a separate order for each child. The language in each order is virtually identical.
      We will cite the order concerning J.H. unless otherwise noted.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018                  Page 3 of 14
        and participated in recommended home[-]based therapy. She
        was consistently trying to obtain stable employment, had a
        substance abuse assessment scheduled, and had provided
        negative screens to this point;


                                             *****


        [8b.] [As of the review hearing on August 5, 2015,] [Mother] had
        now been unsuccessfully closed out of home-based services due
        to multiple failures to attend or unexcused cancellations.
        Visitations by Mother with [Children] were also unsuccessfully
        closed by the engaged service provider due to consecutive missed
        sessions without valid excuses;


                                             *****


        [9b.] [As of the review hearing on February 3, 2016,] Mother had
        not finished parenting classes recommended from her previously
        completed parenting assessment, [but] was participating in home-
        based therapy again after her original referral had been
        unsuccessfully closed;


        [9c.] Mother tested positive for an illegal controlled substance in
        October of 2015, necessitating further substance abuse treatment;


                                             *****


        [10b.] [As of the review hearing on August 3, 2016,] Mother was
        not participating in substance abuse treatment and was not
        responding consistently to [drug] screen requests. Mother was




Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 4 of 14
               [not]4 consistently participating in home based therapy, instead
               having multiple failures to attend scheduled sessions or
               cancelling sessions without authorization[.]


      (Id. at 16-17) (footnote added) (brackets added for clarity).


[6]   Based on Mother’s non-compliance with services and multiple positive drug

      screens, DCS filed petitions to terminate her parental rights to Children on

      August 26, 2016. Despite those filings, DCS offered Mother services until

      February 2017. Mother refused to take any further drug screens after October

      16, 2016, and the court suspended her visitation with Children at that time.

      The trial court agreed to allow Mother to resume visitation in February 2017 if

      she completed substance abuse treatment, but Mother did not fulfill that

      condition. The trial court held hearings on the termination petitions on July 26

      and August 1, 2017. Based on the evidence presented at those hearings, the

      trial court issued orders terminating Mother’s parental rights to Children on

      August 29, 2017.



                                  Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.




      4
        It would seem, based on the remainder of the sentence, the trial court inadvertently omitted the word “not”
      in this sentence.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018            Page 5 of 14
      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “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 trial court must

      subordinate the interests of the parents to those of the children, 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 children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

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

      responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and prove:


              (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.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 6 of 14
                        (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.


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

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

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

       evidence supports the findings and 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 v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

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


[11]   Mother argues the trial court’s findings do not support its conclusion there was

       a reasonable probability the conditions that resulted in Children’s removal from

       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 7 of 14
       her care would not be remedied. However, she does not contest whether the

       trial court’s findings support its conclusion that the continuation of the parent-

       child relationship posed a threat to the well-being of Children. DCS does not

       have to prove both threat to well-being and reasonable probability conditions

       will not be changed because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, such that DCS must prove only one by clear and convincing

       evidence. See Ind. Code § 31-35-2-4(b)(2)(B) (listing three options and noting

       DCS has to prove “one”). Because Mother does not present an argument

       challenging the trial court’s conclusion the continuation of the parent-child

       relationship posed a threat to Children’s well-being, we may affirm under that

       portion of the statute and, thus, need not address her argument about the

       probability that conditions will be remedied. See In re L.S., 717 N.E.2d at 209

       (because Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive, court needs

       to find only one requirement to terminate parental rights).


                                          Best Interests of Children

[12]   In determining what is in Children’s best interests, a juvenile court is required

       to look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

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

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 8 of 14
       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Children’s best interests. In

       re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[13]   Mother does not challenge findings related to the trial court’s conclusion that

       termination was in Children’s best interests. Therefore, those unchallenged

       findings stand proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

       (“Because Madlem does not challenge the findings of the trial court, they must

       be accepted as correct.”). Thus, we consider whether the trial court’s findings

       support its conclusion that termination was in Children’s best interests.


[14]   Mother argues the trial court’s findings did not support its conclusion that

       termination was in Children’s best interests for a variety of reasons. First, she

       notes her multiple evictions but states, “[M]other has acquired a home for the

       [C]hildren, in which she cannot be evicted from. Stability of environment is an

       important factor in the matter of raising children but in and of itself does not

       serve as a valid basis for terminating parental rights.” (Br. of Appellant at 17)

       (citation to the record omitted). Second, Mother argues many of her positive

       drug screens “can be attributed to her dental issues [for] which she had valid

       prescriptions.” (Id.) Finally, Mother asserts: “While the [C]hildren are thriving

       in [their current] placement, little harm, if any, would come to the [C]hildren if

       the Court allowed [M]other the opportunity to progress in her suboxone

       treatment and restore the family home.” (Id.)




       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 9 of 14
[15]   Mother is correct that instability of housing or environment cannot be the sole

       basis for terminating parental rights. See In re G.Y., 904 N.E.2d at 1265 (child’s

       need for stability or permanency not dispositive when considering child’s best

       interests). However, the trial court found many other reasons to support its

       conclusion that termination of Mother’s parental rights was in Children’s best

       interests, including Mother’s non-compliance with services and her continued

       use of illegal drugs. The trial court also found Mother provided false

       information about her participation in a substance abuse rehabilitation

       program; Mother refused drug screens after October 16, 2016; Mother failed to

       demonstrate the progress required to reinstate visitation with Children after

       visitation was suspended in October 2016; and Mother had been evicted from

       different residences four times and has multiple civil judgments against her for

       non-payment of rent. In addition to the findings involving Mother, trial court

       found the Children were doing well in placement, that their foster mother was

       helping Children resolve their behavioral issues, and Children wanted to be

       adopted by foster family.


[16]   Regarding the home Mother had acquired by the time of the termination

       hearings, Mother testified she had a house she had been “working on” since

       January 2017. (Tr. Vol. II at 45.) When asked for the address of the house,

       Mother stated, “I don’t really want to say where it’s at right this second because

       it’s not ready[.]” (Id. at 44.) When asked how she came to own the house,

       Mother first said a friend gave it to her and when asked that friend’s name,

       Mother stated, “It’s just a friend of mine. I’m not giving you his name.” (Id. at


       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 10 of 14
       45.) Mother finally stated her father gave her the house. The trial court was

       not required to infer from Mother’s ambiguous testimony that Mother had a

       house; nor would such fact resolve the numerous other problems that prohibited

       Mother from being reunited with Children.


[17]   Mother’s additional arguments regarding her drug screens and alleged

       compliance with services are invitations for us to reweigh the evidence, which

       we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot

       reweigh evidence or judge the credibility of witnesses). We conclude the trial

       court’s findings supported its conclusion that termination was in Children’s best

       interests. See Prince v. Dept. of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App.

       2007) (termination in children’s best interests based on Mother’s habitual

       pattern of drug use and non-compliance with services).


                               Satisfactory Plan for Care and Treatment

[18]   Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be

       terminated unless DCS provides sufficient evidence of a satisfactory plan for the

       care and treatment of the children following termination. 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 D.D., 804 N.E.2d at 268.


[19]   Mother argues DCS did not present a plan for Children after the termination of

       Mother’s parental rights. She states in her brief, “[t]he DCS case manager and

       the CASA worker hoped the [C]hildren would remain with the current foster


       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 11 of 14
placement and they would adopt but that plan was not set in stone.” (Br. of

Appellant at 18.) The trial court found:


        [21g.] [Children] are placed in pre-adoptive placement with the
        licensed foster mother, [S.G.]. [J.H.] has been placed with the
        foster mother since July of 2015; [Ke.H.] and [K.H.] joining [sic]
        that foster home in April of 2017;


        [21h.] [Children] are all appropriately cared for and foster
        mother works hard on [J.H.’s] behavioral issues. There are no
        concerns for criminal conduct, substance abuse, or chronic
        inability to provide basic necessities for [Children] while in the
        care of the foster mother, who is willing and desiring to adopt the
        sibling group;


        [21i.] Adoption of [Children] is a satisfactory plan for
        [Children’s] permanency.


                                             *****


        [22d.] [Children] all report that they wish to stay in their current
        foster home permanently;


                                             *****


        28. The description of the care, love, and attention given to
        [Children] by the foster family, as well as the opinions [of service
        providers] cited above [in the order], also demonstrate that
        adoption is a satisfactory plan for the care and treatment of
        [Children], which is now also found for purposes of these
        termination proceedings.




Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 12 of 14
       (App. Vol. II at 25-8.) Based on those findings, the trial court concluded, “The

       plan of DCS for the care and treatment of [Children], that being adoption of

       [Children] is acceptable and satisfactory.” (Id. at 29.)


[20]   Mother does not cite case law to support her contention that Children’s post-

       termination plan needed to be “set in stone.” (Br. of Appellant at 18.) As such,

       Mother’s argument is only an invitation 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 or judge the credibility

       of witnesses). We conclude the trial court’s findings support its conclusion that

       there existed a satisfactory plan for the care and treatment of Children after the

       termination of Mother’s parental rights. See In re S.L.H.S., 885 N.E.2d 603, 618

       (Ind. Ct. App. 2008) (adoption is satisfactory post-termination plan).



                                               Conclusion
[21]   We need not address Mother’s argument regarding whether there was a

       reasonable probability the conditions that resulted in Children’s removal would

       be remedied, because Mother did not challenge the continuation of her

       relationship with Children poses a threat to Children and proof of one of the

       elements in Indiana Code section 31-35-2-4(b)(2)(B) is sufficient to support

       termination. Further, the trial court’s findings support its conclusions

       termination was in Children’s best interests and a satisfactory plan existed for

       Children’s care and treatment following termination. Accordingly, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 13 of 14
[22]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2253 | March 28, 2018   Page 14 of 14
