MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Feb 26 2019, 8:54 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General
Lafayette, Indiana
                                                          Matthew S. Koressel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 26, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
W.Z., K.Z., and Z.Z. (Minor                               18A-JT-2264
Children) and T.Z. (Mother)                               Appeal from the Tippecanoe
T.Z. (Mother),                                            Superior Court
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          79D03-1805-JT-68
                                                          79D03-1805-JT-69
Indiana Department of Child
                                                          79D03-1805-JT-70
Services,
Appellee-Petitioner



Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019                  Page 1 of 10
                                            Case Summary
[1]   T.Z. (“Mother”) appeals the termination of her parental rights to her three

      children. We affirm.



                             Facts and Procedural History
[2]   Mother and R.Z. (“Father”) are the biological parents of W.Z., born in June

      2003; K.Z., born in August 2007; and Z.Z., born in September 2009

      (collectively, “Children”). Father does not participate in this appeal. The facts

      that follow are taken primarily from the trial court’s findings of fact, none of

      which Mother challenges on appeal.1


[3]   Mother and Father (collectively, “Parents”) first became involved with the

      Department of Child Services (DCS) in May 2008. Father was incarcerated

      when Mother was found intoxicated, walking in the rain while carrying eight-

      month-old K.Z. Mother was arrested for neglect of a dependent. W.Z. and

      K.Z. were removed from Mother’s care, and DCS filed petitions alleging that

      W.Z. and K.Z. were Children in Need of Services (CHINS) (Z.Z. was not born

      yet). In September 2009, W.Z. and K.Z. reunited with Parents, and DCS

      dismissed the CHINS case.




      1
       Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
      Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019                Page 2 of 10
[4]   Seven years later, in February 2016, DCS received multiple reports that

      Children were being neglected by Mother, Father, and Father’s mother

      (“Grandmother”). DCS investigated and found that Father and Children were

      living with Grandmother and that Father was inhaling various aerosol sprays.

      Mother could not be located. DCS filed petitions alleging that Children were

      CHINS, and Children remained in Father’s care on the condition that Father

      continued living with Grandmother. In May, DCS received a report that

      Father was still abusing aerosols. Father was ordered to vacate Grandmother’s

      house so that Children could remain with Grandmother. Later that month, the

      trial court held a fact-finding hearing on the CHINS petitions, and Father

      admitted that he inhaled aerosols in front of Children. Mother appeared at the

      hearing in the custody of the Tippecanoe County Sheriff’s Department and

      admitted that Children were CHINS. After the hearing, the trial court

      determined that Children were CHINS and placed them with Grandmother.

      Parents were offered numerous services, including: substance-abuse assessments

      and treatment, mental-health assessments, and drug screens. Parents were also

      to have supervised parenting time with Children. In December, Children were

      removed from Grandmother after DCS discovered that Grandmother was

      allowing Parents to have unsupervised access to Children. Initially, Children

      were placed in three separate foster homes but later were placed together in a

      pre-adoptive foster home as a sibling group.


[5]   In March 2017, DCS filed petitions to terminate Parents’ parental rights to

      Children, and the trial court set a fact-finding hearing for June 2017. Father


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 3 of 10
      appeared at the hearing. Mother failed to appear, and the trial court entered a

      default judgment against her. After the hearing, the trial court issued an order

      in September 2017 terminating Parents’ parental rights to Children. Mother

      appealed the termination order, arguing that her due-process rights were

      violated because she did not receive notice of the termination fact-finding

      hearing.2 DCS agreed and asked this Court to remand Mother’s case. In

      March 2018, we remanded the case.


[6]   In May 2018, the trial court held another permanency hearing, and DCS

      reaffirmed its plan for termination of Mother’s parental rights and adoption.

      Thereafter, DCS filed new petitions to terminate Mother’s parental rights to

      Children. In July, the trial court held a fact-finding hearing on the new

      termination petitions. At the time, Mother was in prison and appeared by

      phone. Mother had been arrested in March 2016 for dealing in

      methamphetamine and later pled guilty to Level 2 felony conspiracy to commit

      dealing in methamphetamine. Mother was sentenced to eleven years with

      seven years to be executed and four years suspended. Mother’s first four years

      are executed at the Indiana Department of Correction (DOC) followed by three

      years executed through community corrections. See Ex. Vol. I p. 162. Then

      Mother will be on supervised probation during the four-year suspended portion

      of her sentence. See id. At the hearing, Mother testified that she had been at the




      2
        Father did not participate in the first appeal, and the record shows that Father’s parental rights were
      terminated on September 22, 2017.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019                   Page 4 of 10
      DOC just under a year and expected to be released in February 2020. Mother

      said that she was hoping to participate in a “rehab while incarcerated program”

      that “upon completion” may allow her to be released early but alleged that she

      could not start that program until “around Christmas time.” Tr. p. 24. Mother

      testified that she was not allowed to participate in services while in prison

      because she was “purposefully incarcerated.” Id. at 24. Mother said that she

      was “all about [her] sobriety for the first time in [her] life,” and that she

      believed it is in the best interests of Children “to always have contact with

      [her].” Id. at 25-26.


[7]   Children’s Court Appointed Special Advocate (CASA), Thomas Brennan,

      recommended that Mother’s parental rights to Children be terminated. CASA

      Brennan testified that Mother “has had virtually no true contact with

      [Children],” that the Children “have never quizzed [him] about [Mother],” and

      that “[f]or all intents and purposes, [Mother] is out of [Children’s] lives.” Id. at

      13. CASA Brennan said that he believed terminating Mother’s parental rights

      is in the best interests of Children. DCS supervisor Ambyr Wade testified that

      she had been the Family Case Manager on the case and recommended that

      Mother’s parental rights to Children be terminated. Wade stated that Mother

      “has an extensive history of substance use” and did not participate in any

      services that DCS offered her throughout the case. Id. at 18. Wade said that

      since 2016, Mother “has had one (1) contact” with Children. Id. Regarding

      DCS’s plan for Children, Wade testified that Children’s current foster parents

      “are very much wanting to adopt” all three children and that Children “have


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 5 of 10
expressed unanimously that they want to be adopted.” Id. at 20-21. In

September 2018, the trial court issued an order terminating Mother’s parental

rights to Children. The order provides, in relevant part:


                                    FINDINGS OF FACT


                                                *****


        12. Mother has a long-standing history of substance abuse,
        criminal activity, and resulting instability that continues today.


                                                *****


        15. Mother had a single visit with [Children] over the entirety of
        the second CHINS case.


        16. When not incarcerated, Mother made absolutely no efforts
        toward reunification and essentially abandoned [Children].


        17. [CASA Brennan] supports termination of parental rights in
        the best interests of [Children]. [CASA Brennan] noted that
        Mother was incarcerated throughout much of the [second]
        CHINS proceeding. Mother attempted unauthorized contact
        with [Children] when not incarcerated. CASA reports [Children]
        are happy in the concurrent foster placement. [Children] have
        positive attitudes and have adjusted to life without their
        biological parents.


                                CONCLUSIONS OF LAW


        1. There is a reasonable probability the conditions that resulted
        in removal of [Children] from the care of the parents or the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 6 of 10
               reasons for continued placement outside the home will not be
               remedied. There is no reasonable probability Mother will be able
               to maintain stability refraining from illegal substances to care and
               provide adequately for [Children].


                                                       *****


               4. For the foregoing reasons, it is in the best interests of
               [Children] that the parental rights of [Mother] be terminated.


       Appellant’s App. Vol. II pp. 29-30.


[8]    Mother now appeals.



                                  Discussion and Decision
[9]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

       2013). Rather, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions, we will not set aside the trial court’s

       findings or judgment unless clearly erroneous. Id. To determine whether a

       judgment terminating parental rights is clearly erroneous, we review whether

       the evidence supports the trial court’s findings and whether the findings support

       the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[10]   A petition to terminate parental rights must allege, among other things:


               (B) that one (1) of the following is true:

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 7 of 10
                        (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[11]   On appeal, Mother only challenges the trial court’s conclusion that termination

       is in Children’s best interests. To determine what is in the child’s best interests,

       the trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parent to those of the child. Id. We have

       previously held that recommendations by both the DCS manager and CASA to

       terminate parental rights, in addition to evidence that the conditions resulting in

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 8 of 10
       removal will not be remedied, is clear and convincing evidence that termination

       is in the best interests of the child. Id. at 1158-59.


[12]   Mother was incarcerated at the time of the termination hearing and argues that

       “a parent’s incarceration, alone, is an insufficient basis for termination of a

       parent’s relationship with his or her child.” Appellant’s Br. p. 15. Mother

       states that she loves Children and “is concerned with the impact on them if

       [Children] never have contact with her.” Id. Mother is correct as a general

       principle that parental rights cannot be terminated based solely on a parent’s

       incarceration. Here, however, Mother’s incarceration was one of many reasons

       that the trial court concluded termination is in Children’s best interests. First,

       Mother does not dispute the trial court’s conclusion that the conditions that

       resulted in removal of Children will not be remedied because there is no

       reasonable probability that Mother will be able to maintain stability refraining

       from illegal substances to care and provide for Children. See Appellant’s App.

       Vol. II p. 30. Next, both CASA Brennan and DCS supervisor Wade testified

       that termination of Mother’s parental rights is in Children’s best interests. See

       Tr. pp. 14, 21. Furthermore, the trial court found that when Mother was not

       incarcerated, she “made absolutely no efforts towards reunification and

       essentially abandoned” Children. Appellant’s App. Vol. II p. 30 (Finding 15).

       Meanwhile, the trial court found that Children were happy in their pre-adoptive

       foster placement and have adjusted to life without Mother. See id. (Finding 17);

       see also K.T.K., 989 N.E.2d at 1230 (finding that “children have an interest in

       terminating parental rights that prevent adoption and inhibit establishing


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 9 of 10
       secure, stable, long-term, continuous relationships.”). Therefore, the trial court

       did not terminate Mother’s parental rights based solely on her incarceration but

       based on the recommendations of both CASA Brennan and DCS supervisor

       Wade to terminate Mother’s parental rights and the evidence showing that the

       conditions resulting in removal will not be remedied. Accordingly, the trial

       court did not err when it concluded that termination is in Children’s best

       interests.


[13]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2264 | February 26, 2019   Page 10 of 10
