MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Apr 27 2020, 8:20 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 APPELLANTS                                   ATTORNEYS FOR APPELLEE
J. Clayton Miller                                         Curtis T. Hill, Jr.
Jordan Law, LLC                                           Attorney General of Indiana
Richmond, Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 27, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.R., et al.                              19A-JT-1946
(Minor Children)                                          Appeal from the Wayne Superior
      and                                                 Court
                                                          The Honorable Mary G. Willis,
C.T. (Mother) and J.R. (Father),                          Senior Judge
Appellants-Respondents,                                   Trial Court Cause Nos.
                                                          89D03-1901-JT-1
        v.                                                89D03-1901-JT-2
                                                          89D03-1901-JT-3
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020             Page 1 of 11
                                           Case Summary
[1]   J.R. (“Father”) and C.T. (“Mother”) appeal the termination of their parental

      rights to A.R., Mad. R., and Mac. R. (“Children”), upon the petition of the

      Wayne County Department of Child Services (“the DCS”). They present a

      single issue for review: whether the DCS established, by clear and convincing

      evidence, the requisite statutory elements to support the termination decision.

      We affirm.



                             Facts and Procedural History
[2]   Father and Mother had three children, born in 2012, 2013, and 2015. The DCS

      became involved with the family in October of 2014, after receiving a report of

      heroin use in the home. Mother, Father, and the DCS entered into an informal

      adjustment agreement with a provision that Father seek substance abuse

      treatment.


[3]   On February 17, 2015, Mother was seven months pregnant with the youngest

      child when she and Father used heroin together. Father overdosed and nearly

      died. Both parents were arrested and charged with Neglect of a Dependent,

      upon allegations that they had injected drugs in the presence of their children.

      The DCS took custody of A.R. and Mad. R. and, on February 18, 2015, alleged

      that they were Children in Need of Services (“CHINS”). After the birth of

      Mac. R., the DCS filed an additional CHINS petition. The Children were




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 2 of 11
      adjudicated CHINS, based upon the admissions of Mother and Father that they

      had pending criminal charges and substance abuse issues.


[4]   In July of 2015, Father was referred to in-patient substance abuse treatment, but

      he did not report for treatment. In September of 2015, Father was arrested on a

      burglary charge.


[5]   Mother was provided referrals to various services, including: detox at Harbor

      Lights (a Salvation Army facility), a substance abuse assessment, a

      psychological assessment at Youth Opportunity Center, home-based services by

      Lifeline, in-patient drug treatment at Tara House, individual counseling at

      Meridian Services, a parental assessment by Extra Special Parents, intensive

      out-patient treatment, residential treatment at Volunteers of America and

      parenting time supervision.


[6]   Mother was largely non-compliant with services. She attended a two-week

      detox program but declined the recommendation for immediate in-patient

      treatment. She later completed a two-week program at Tara House but failed to

      participate in follow-up treatment. She attended some parenting time sessions

      but was frequently late or absent; on one occasion, she ended the session early,

      reporting that she was “dope sick.” (Tr. Vol. II, pg. 23.) Mother was

      terminated from the visitation program for non-compliance. She did not

      provide the clean drug screens necessary for the resumption of parenting time.

      During the CHINS proceedings, Mother was arrested multiple times for drug-

      related charges and theft.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 3 of 11
[7]   Over the years, the DCS filed multiple petitions for termination of parental

      rights. Initially, the trial court denied the petitions. In March of 2019, the trial

      court conducted a hearing at which Father appeared (in the custody of the

      Indiana Department of Correction, “the DOC”) and Mother did not appear,

      and the court granted the termination petition as to Mother only. However, on

      April 5, 2019, Mother appeared in open court and the trial court set aside its

      judgment and appointed counsel for Mother.


[8]   On May 2, 2019, both parents appeared at a fact-finding hearing upon the

      termination petitions. The trial court heard testimony from Father, Mother,

      family case manager Terri Witham (“Witham”), and foster parent R.E.

      (“Foster Mother”). Father testified that he expected to be released from the

      DOC in April of 2020. He had last had contact with the Children in September

      of 2015. Mother testified that she was also incarcerated. She estimated that she

      had last seen the Children two years earlier.


[9]   Witham testified regarding Mother’s arrest record and participation in services.

      She further testified that Mother last saw the Children in August of 2016.

      According to Witham, the youngest two children did not remember their

      parents. Witham opined that the Children were happy in their foster home,

      where they had been placed since June 18, 2015, and were bonded to their

      foster parents, who wished to adopt them. Witham also disclosed that Foster

      Mother had reported an inappropriate touching incident involving Foster

      Mother’s eleven-year-old son, S.E., and then-four-year-old Mad. R.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 4 of 11
[10]   Foster Mother testified and described the incident and response. She had

       entered a tree house to find S.E. lying on his stomach and Mad. R. lying on

       S.E.’s back. Foster Mother questioned Mad. R. and Mad. R. disclosed “he

       touched my pee pee and I touched his pee pee.” Id. at 133. Foster Mother

       reported the incident to Witham, who reported the incident to law enforcement

       authorities. No charges were filed against S.E., but he participated in

       individual counseling therapy until the therapist released him. Each of the

       children in the foster home was forensically interviewed, and it was revealed

       that there may have been one earlier touching incident around the same time

       frame. New safety measures were implemented in the foster home; that is, door

       alarms and baby monitors were installed, and the children were no longer

       playing without adult supervision. The DCS notified the Court Appointed

       Special Advocate (“the CASA”) and the CASA agreed with DCS caseworkers

       that the safety measures were adequate. Additionally, Mad. R. was provided a

       psychological assessment, but the therapist did not find Mad. R. to be

       exhibiting symptoms of trauma or in need of individual therapy. After five days

       of removal, the Children were returned to their long-term foster home.


[11]   At the termination hearing, Mother and Father requested that the Children be

       moved to a different foster placement. However, neither suggested that, after

       four years of foster placement, the Children could return to parental care. The

       trial court terminated Mother and Father’s parental rights and within its order

       included language acknowledging that a safety plan had been implemented for




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 5 of 11
       the Children. On December 10, 2019, this Court granted Mother’s and Father’s

       motion to file a belated appeal.



                                  Discussion and Decision
                   Standard of Review – Sufficiency of the Evidence
[12]   When we review whether the termination of parental rights is appropriate, we

       will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

       1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

       inferences that are most favorable to the judgment. Id. In so doing, we give

       “due regard” to the trial court’s unique opportunity to judge the credibility of

       the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana

       Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is

       clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

       (Ind. 2013). In order to determine whether a judgment terminating parental

       rights is clearly erroneous, we review the trial court’s judgment to evaluate

       whether the evidence clearly and convincingly supports the findings and the

       findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at

       1132.


         Requirements for Involuntary Termination of Parental Rights
[13]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 6 of 11
       of a constitutional dimension, the law provides for the termination of those

       rights when the parents are unable or unwilling to meet their parental

       responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

       147 (Ind. 2005). The State is required to prove that termination is appropriate

       by a showing of clear and convincing evidence, a higher burden than

       establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[14]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence to terminate a parent-child

       relationship:


               (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.
                        (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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 7 of 11
                                 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.


[15]   Mother and Father contend that the DCS failed to present sufficient evidence as

       to subsections (C) and (D).


[16]   Mother and Father argue that it is not in Children’s best interests to remain in a

       pre-adoptive home where an older child has engaged a younger child in

       inappropriate touching. They seek to challenge placement, but the ultimate

       conclusion to be made by the trial court concerned termination of parental

       rights. The relevant statute requires clear and convincing evidence that

       termination is in the best interests of a child, not that a particular placement be in

       the best interests of a child. See id. (emphasis added). That said, however, a

       child’s well-being in foster care is not irrelevant, because the court must look to

       the totality of the evidence in determining what is in a child’s best interests. In

       re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied.


[17]   By the time of the termination hearing, the Children had been removed from

       parental care for more than four years, they had not seen Father in four years,

       and had not seen Mother in almost three years. There was ample evidence that
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 8 of 11
       neither Mother nor Father could resume the parental role. Indeed, Mother

       testified that she was “not trying to get back custody at this moment.” (Tr. Vol.

       II, pg. 139.) Parental participation in services had been minimal. Over the

       course of the CHINS proceedings, Mother had been frequently incarcerated on

       multiple drug possession and theft charges, and Father had remained

       continuously incarcerated since September of 2015.


[18]   The Children’s caseworker testified that each of the Children had thrived in

       their foster care placement and the youngest two children did not remember

       Mother and Father. She also testified that the foster parents had immediately

       reported and addressed the inappropriate touching incident, obtained forensic

       interviews for all children in the home and individual counseling for S.E., and

       implemented a safety plan approved by the DCS and the CASA. The CASA

       recommended termination of Mother’s and Father’s parental rights. To the

       extent that Mother and Father challenge the trial court’s factual finding on the

       adequacy of the safety plan, they improperly request reweighing of evidence. In

       re V.A., 51 N.E.3d at 1143. The totality of the evidence supports the trial

       court’s findings and the findings support the conclusion that termination of

       parental rights is in the best interests of the Children.


[19]   Additionally, in order for a trial court to terminate a parent-child relationship,

       the trial court must find that there is a satisfactory plan for the care and

       treatment of the child or children. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct.

       App. 2004), trans. denied. This 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-

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 9 of 11
       child relationship is terminated. Id. Mother and Father acknowledge that a

       plan for adoption, without greater specificity, is generally a sufficient plan. But

       they consider the order here to be akin to approval of a specific adoption, which

       they deem to be unsatisfactory because of the incident of inappropriate

       touching.


[20]   Ultimately, the DCS may give consent, pursuant to Indiana Code Section 31-

       19-9-1, to adoption of the Children by their current foster parents or another

       adoptive parent. Here, however, the litigated issue was the propriety of the

       termination of parental rights and not the propriety of an adoption. It is the

       trial court’s duty to give a plain and ordinary meaning to language used in a

       statute. Indiana Patient’s Compensation Fund v. Anderson, 661 N.E.2d 907, 909

       (Ind. Ct. App. 1996), trans. denied. The termination statute requires the

       existence of a satisfactory plan but does not require that the DCS identify a

       prospective adoptive parent or assure the trial court that a particular plan will

       come to fruition. And the termination statute does not confer upon parents a

       right to challenge a specific pre-adoptive or adoptive placement. Here, with an

       adequate evidentiary basis, the trial court found the existence of a satisfactory

       plan.



                                                Conclusion
[21]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 10 of 11
[22]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1946 | April 27, 2020   Page 11 of 11
