MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                           Feb 28 2017, 9:14 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew W. Foster                                          Curtis T. Hill, Jr.
Wagoner, Ayer, Hargis & Rudisill, LLC                     Attorney General of Indiana
Rockport, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 28, 2017
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          74A01-1606-JT-1553
W.H. (Minor Child)
                                                          Appeal from the Spencer Circuit
and                                                       Court
G.H. (Mother) & D.H. (Father),                            The Honorable Jonathan A. Dartt,
Appellants-Respondents,                                   Judge
                                                          Trial Court Cause No.
v.                                                        74C01-1509-JT-255

The Indiana Department of Child
Services,
Appellee-Petitioner.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017    Page 1 of 8
                                Case Summary and Issue
[1]   G.H. (“Mother”) and D.H. (“Father”) appeal the involuntary termination of

      their parental rights to their two-year-old daughter, W.H., raising a sole issue

      for our review: whether the juvenile court’s finding that the Indiana

      Department of Child Services (“DCS”) presented a satisfactory plan for the care

      and treatment of W.H. is clearly erroneous. Concluding the juvenile court’s

      finding is not clearly erroneous, we affirm its order terminating Mother’s and

      Father’s parental rights.



                            Facts and Procedural History
[2]   W.H. was born on August 18, 2014, and shortly thereafter, DCS received a

      report W.H. tested positive for methamphetamine. At that time, Mother and

      Father had also tested positive for, and confirmed using, methamphetamine

      before W.H. was born. On August 27, 2014, the DCS filed a petition alleging

      W.H. to be a child in need of services (“CHINS”). Mother and Father

      submitted to another drug screen, which again came back positive for

      methamphetamine. The next day, Mother and Father admitted to the

      allegations in the CHINS petition and the juvenile court adjudicated W.H. a

      CHINS. W.H. was removed from Mother and Father’s home, and has lived

      with her foster parents ever since.


[3]   Since W.H.’s removal from their care in 2014, Mother and Father have

      exercised about five visitations with W.H., although they were permitted to


      Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017   Page 2 of 8
      visit with W.H. three or four times per week and lived within a five-minute

      walk from the DCS office. Mother and Father did not follow any

      recommendations from their family case manager and did not participate in or

      complete any counseling or substance abuse programs offered by the DCS.


[4]   On September 17, 2015, the DCS filed a verified petition seeking the

      involuntary termination of Mother’s and Father’s parental rights to W.H. In

      March of 2016, S.S. and R.S., W.H.’s paternal grandmother and paternal step-

      grandfather, filed a petition for guardianship and a motion to intervene. It

      appears their motion and petition were denied; however, they were permitted to

      appear as witnesses for Mother and Father.


[5]   The juvenile court held an evidentiary hearing on April 5, 2016, at which

      Mother and Father failed to appear. At the evidentiary hearing, S.S. testified

      she spoke with Jessica Richardson, the Director of the Spencer County DCS, in

      late 2014 about relative placement for W.H. Richardson then explained to S.S.

      what actions she should take to become active in the case, including receiving

      permission from Mother and Father, filling out paperwork, and obtaining a

      home check. S.S. took no action until October of 2015 when she requested the

      relevant paperwork from the DCS. The DCS obliged and sent S.S. the

      paperwork. S.S. claims she returned the paperwork to the DCS, but the DCS

      has no record of receiving it. Richardson stated the current plan for W.H. is

      adoption.




      Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017   Page 3 of 8
[6]   On May 31, 2016, the juvenile court issued its order terminating Mother’s and

      Father’s parental rights to W.H. Mother and Father now appeal.



                                 Discussion and Decision
[7]   “[T]he involuntary termination of parental rights is an extreme measure that is

      designed to be used as a last resort when all other reasonable efforts have failed

      . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)

      (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets forth what must be

      proven in order to terminate parental rights, which we quote in relevant part:


              (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.


      The State must prove each element by clear and convincing evidence. Ind.

      Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile

      court determines the allegations of the petition are true, then the court shall

      Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017   Page 4 of 8
       terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). A

       satisfactory 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 258, 268 (Ind. Ct. App. 2004), trans. denied.


[8]    When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the

       evidence and reasonable inferences that support the judgment. Id. Where, as

       here, a juvenile court has entered findings of fact and conclusions thereon, we

       will not set aside the juvenile court’s findings or judgment unless clearly

       erroneous. Id. In determining whether the court’s decision to terminate the

       parent-child relationship is clearly erroneous, we review the juvenile court’s

       judgment to determine whether the evidence clearly and convincingly supports

       the findings and the findings clearly and convincingly support the judgment. Id.

       at 1229-30.


[9]    Mother and Father’s sole argument is the juvenile court’s finding that there is a

       satisfactory plan for the care and treatment of W.H. is clearly erroneous

       because the DCS did not consider relative placement. Their argument fails for

       two reasons.


[10]   First, the record is clear the DCS did, in fact, consider relative placement. At

       the evidentiary hearing, Richardson testified,




       Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017   Page 5 of 8
                We start from the very beginning asking the parents about
                relatives. . . . [Father] and [Mother] made it very clear that they
                moved down here to get away from up north from those family
                members, that those were the family members that they ended up
                homeless with. They made it very clear that those were the
                family members that they were using the drugs with. . . . We
                then did inquire with [paternal step-grandmother] and [paternal
                grandfather] here locally. As far as placement options, he has
                some criminal history that kept him from being [a] placement.
                And [paternal step-grandmother], who has tried to stay involved,
                has lots of medical issues and lots of other things that kept her
                from being a possibility.


       Transcript at 78-79. Further, Richardson made clear that when S.S. contacted

       her, she explained to S.S. the actions she needed to take if she desired to have

       relative placement of W.H. S.S. then took no action for a year until the DCS

       filed its petition seeking involuntary termination of parental rights.


[11]   Second, the DCS is not statutorily required to consider relative placement

       before terminating parental rights. A similar argument was made in In re B.M.,

       913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009).1 There, the father was facing a

       prison sentence of twenty years to life, and the DCS filed a petition to terminate

       his parental rights. The father stated his sister would be willing to care for the

       child, but the sister was never contacted about the suggested arrangement nor

       did she appear in court on the matter. Further, the father argued Indiana Code




       1
         Mother and Father also argue our decision in In re B.M. should be reconsidered because the CHINS statute
       is “intimately linked to possible termination proceedings.” Appellants’ Brief at 8. The decision Mother and
       Father seek is one for the General Assembly to make, and we decline their invitation to reconsider In re B.M.

       Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017           Page 6 of 8
       section 31-34-6-2 (CHINS statute)2 required the DCS to first consider relative

       placement. This court held the termination of parental rights was appropriate

       despite the fact that the father’s proposed alternative living arrangement was not

       considered because the termination statute does not require the DCS to

       consider relative placement. Id. at 1286-87.


[12]   We conclude the juvenile court’s finding that the DCS presented a satisfactory

       plan for the care and treatment of W.H. is not clearly erroneous. Contrary to

       Mother and Father’s argument, the DCS did consider relative placement, even

       though it was not statutorily required to do so. Further, this court on numerous

       occasions has held that adoption is a satisfactory plan. Id. at 1287.



                                                    Conclusion
[13]   The juvenile court’s finding regarding a satisfactory plan for W.H.’s future care

       and treatment was not clearly erroneous. Therefore, we affirm its order

       terminating Mother’s and Father’s parental rights.




       2
           Indiana Code section 31-34-6-2 states:

                  (a) A juvenile court or the department shall consider placing a child alleged to be a child
                  in need of services with a suitable and willing relative or de facto custodian of the child
                  before considering any other placement for the child.

                  (b) A juvenile court or the department shall consider placing a child described in
                  subsection (a) with a relative related by blood, marriage, or adoption before considering
                  any other placement of the child.




       Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017                 Page 7 of 8
[14]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 74A01-1606-JT-1553 | February 28, 2017   Page 8 of 8
