MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Oct 29 2018, 8:52 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
Ronald J. Moore                                           Curtis T. Hill, Jr.
Richmond, Indiana                                         Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                              October 29, 2018
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          18A-JT-01197
A.A. (Minor Child), A.A.
                                                          Appeal from the Wayne Superior
and                                                       Court 3
W.C.,                                                     The Honorable Darrin M.
Appellant-Respondent,                                     Dolehanty, Judge
                                                          Trial Court Cause No.
        v.                                                89D03-1708-JT-000017

The Indiana Department of
Child Services,
Appellee-Petitioner.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018                Page 1 of 11
                                             Statement of the Case

[1]   A. A. (“Mother”) and W.C. (“Father”) appeal the termination of their parental

      rights to A.A. (the “Child”). We affirm.


                                                         Issues

[2]   Mother and Father state the issue as whether there is sufficient evidence to

      support the termination of Mother’s and Father’s parental rights. Based upon

      Mother’s and Father’s argument in their brief, we restate the issue as whether

      the Department of Child Services (“DCS”) proved by clear and convincing

      evidence that DCS had a satisfactory plan for the care and treatment of the

      Child.


                                                          Facts

[3]   Mother gave birth to the Child in September 2002. Father is the alleged father

      of the Child. DCS was contacted on March 22, 2016, because the Child’s

      sister 1 was the victim of a sexual assault, and had been taken to the hospital.

      While receiving care for her sexual assault, the Child’s sister tested positive for

      THC and cocaine. DCS discovered that Mother did not have stable housing for

      herself or the children. Mother and the children were living in a structure with

      no electricity and no water, and they recently were locked out of that structure.




      1
       Mother has three daughters who are not the subjects of this appeal. The Child is Mother’s only son.
      Collectively, Mother has four children (“the children”). The assault on the Child’s sister, and subsequent
      positive drug test, triggered the call to DCS. The Child’s sister, who was sexually assaulted, is the same sister
      who suffered from drug addiction issues.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018                   Page 2 of 11
      DCS was able to obtain placement in a domestic violence shelter for Mother

      and the Child’s three sisters. The Child was not living with Mother and the

      Child’s sisters at that time and was instead staying with a family member; the

      arrangement however, was not consistent. On April 6, 2016, Mother and her

      daughters were asked to leave the shelter. Both Mother and Mother’s daughter,

      who was sexually assaulted, admitted to substance abuse.


[4]   DCS filed a Child in Need of Services (“CHINS”) petition on April 7, 2016.

      Mother admitted the Child was a CHINS and requested residential substance

      abuse therapy with the assistance of DCS. Father also admitted the Child was a

      CHINS, and that Father cannot afford to provide services for the Child due to

      Father’s incarceration and Father’s need for substance abuse treatment. The

      trial court authorized the Child to be removed from Mother’s care on April 8,

      2016 due to allegations of “abuse and/or neglect.” Appellant’s App. Vol. II p.

      12. The court appointed special advocate (“CASA”) director Karen Bowen

      (“Bowen”) stated that the Child was originally removed from parents due to

      “homelessness” and “allegations of drug use.” Tr. Vol. II p. 77. The trial court

      then issued an order determining the Child was a CHINS on May 13, 2016. 2

      The dispositional decree was issued on July 7, 2016, as to Mother, and on

      August 25, 2016, as to Father.




      2
          Mother’s children previously were the subjects of CHINS proceedings in 2004.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 3 of 11
[5]   The dispositional decree as to Mother required that she: (1) contact DCS

      weekly; (2) notify DCS of any changes of address; (3) notify DCS of any new

      arrest or criminal charges; (4) allow DCS to visit the home; (5) keep all

      appointments with DCS; (6) sign all releases necessary for DCS; (7) maintain

      suitable, safe, and stable housing; (8) secure and maintain a legal source of

      income; (9) not use, consume, trade, distribute, possess, sell, or manufacture

      any illegal controlled substances; (10) obey the law; (11) complete a parenting

      assessment; (12) complete a substance abuse assessment; (13) submit to random

      drug screenings; and (14) attend all scheduled visitations with the Child. The

      dispositional decree as to Father required that he do the same as Mother in

      addition to the requirement that Father: (1) notify DCS when he is released

      from incarceration; and (2) pay child support.


[6]   Mother was given assistance by DCS and her family case manager (“FCM”),

      Lori Sumwalt, to help her overcome her homelessness and addiction problems.

      DCS paid the deposit and first month’s rent for an apartment for Mother while

      the children were in DCS’s care. Mother did not make any subsequent rent

      payments and was eventually evicted from the apartment. On May 25, 2016,

      Sumwalt drove Mother to a thirty-day inpatient substance abuse treatment

      program, and Mother remained in the program for nine days. Mother complied

      with services of the CHINS case in September 2016. Beginning in October,

      however, Mother’s participation in the programs began to dwindle, and she

      failed to attend service provider appointments in November 2016, and attended




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 4 of 11
      only one in December 2016. Father did not participate in the underlying

      CHINS case for the first several months.


[7]   Mother and Father were both arrested on January 2, 2017, and remained in jail

      for two days. Following the arrest, the trial court suspended parenting time for

      both Mother and Father unless Mother and Father would agree to participate in

      “therapeutic visitation.” Appellant’s App. Vol. II p. 99. Mother participated in

      the intake process to begin the therapeutic visitation, but Mother did not attend

      any therapeutic visitation sessions. Father did not contact Sumwalt from

      January through August 2017. Father was then arrested again. Father did

      participate in some services while in jail in 2016 and 2017. Mother was again

      arrested in February 2017.


[8]   Mother also ceased contact with Sumwalt for several months. During the

      pendency of the CHINS case, emergency responders were called twice in 2017

      to revive Mother after apparent overdoses. Emergency responders were also

      called in 2017 to revive Father after apparent overdoses. Mother failed ten drug

      tests between 2016 and 2017. Father failed a drug test in February 2017.


[9]   Initially, the permanency plan was reunification. However, the trial court

      changed the Child’s plan to adoption, pursuant to an order on April 7, 2017.

      DCS filed the petition for termination of the parent-child relationship on

      August 14, 2017. On February 22, 2018, the trial court held a fact-finding

      hearing. Counsel for DCS, the CASA director, Father’s counsel, Mother’s

      counsel, and Mother were present on the first day of the fact-finding hearing.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 5 of 11
       Father did not attend the fact-finding hearing on either day. Mother was not

       present for the second day of the fact-finding hearing. The Child resided at the

       Child’s current foster home since December 27, 2016.


[10]   The trial court entered findings of fact and conclusions of law granting the

       petition to terminate parental rights on April 12, 2018. The trial court found:


               3) There is clear and convincing evidence to conclude that
               termination of parental rights is in [the Child’s] best interest.
               [The Child] is fifteen (15) years old now, and has been outside of
               his parents’ care for two (2) full years. [The Child] is successfully
               placed into an adoptive foster home, is doing great in that home,
               and is doing equally great at school. He struggles, from time to
               time, with marijuana use, but is otherwise living within a normal
               child’s life. He is ready to close out the trauma coming from his
               parents’ lifestyle, and to be adopted by his foster parent.


               4) There is clear and convincing evidence of a satisfactory plan
               for [the Child’s] care and treatment once parental rights are
               terminated, that plan being adoption.


       Appellant’s App. Vol. II p. 105.


                                                     Analysis

[11]   Mother and Father challenge the termination of their parental relationships

       with the Child. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989

       N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his

       or her] child is ‘perhaps the oldest of the fundamental liberty interests
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 6 of 11
       recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

       120 S. Ct. 2054 (2000)). We recognize, of course, that parental interests are not

       absolute and must be subordinated to the child’s interests when determining the

       proper disposition of a petition to terminate parental rights. Id. Thus,

       “‘[p]arental rights may be terminated when the parents are unable or unwilling

       to meet their parental responsibilities by failing to provide for the child’s

       immediate and long-term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In

       re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[12]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must also give “due regard” to the trial

       court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[13]   When granting a petition for termination of parental rights pursuant to Indiana

       Code Section 31-35-2-8(c), “The trial court shall enter findings of fact that

       support the entry of the conclusions required by subsections (a) and (b).” 3 Here,




       3
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018                    Page 7 of 11
       the trial court did enter findings of fact and conclusions of law in the trial

       court’s order granting DCS’s petition to terminate Mother’s and Father’s

       parental rights. When reviewing findings of fact and conclusions of law entered

       in a case involving the 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.

       Id. We will set aside the trial court’s judgment only if it is clearly erroneous. Id.

       A judgment is clearly erroneous if the findings do not support the trial court’s

       conclusions or the conclusions do not support the judgment. Id.


[14]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

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

       involving a child in need of services must allege, in 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.




               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018                       Page 8 of 11
                                (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.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[15]   Mother and Father argue only that the evidence was insufficient to support the

       findings of fact and conclusion of law that there is a satisfactory plan for the

       care and treatment of the Child. Mother and Father do not appear to challenge

       the other findings of fact and conclusions of law. Therefore, we focus our

       analysis on the evidence regarding the satisfactory plan.


[16]   “DCS must provide sufficient evidence there is a satisfactory plan for the care

       and treatment of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App.

       2013) (citing Ind. Code § 31-35-2-4(b)(1)(D)), reh’g denied. The 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.’” Id. (citing

       In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008)). Several witnesses


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 9 of 11
       testified that the plan for the Child after termination of Mother’s and Father’s

       parental rights was adoption.


[17]   Bowen was appointed as the CASA for the Child and Mother’s other children

       beginning in April 2016. At the fact-finding hearing, Bowen stated that the

       Child “wants termination of [Mother’s and Father’s] parental rights to happen,

       because [the Child] wants to proceed with his life and be adopted.” Tr. Vol. II

       pp. 67-68. The Child also specifically stated that the Child wants to be adopted

       by his current foster parents. Bowen stated that the Child has “stopped

       smoking weed, [the Child] hasn’t gotten in that much trouble, [the Child] has

       kept his grades up at school, [the Child has] played basketball, and [the Child]

       has settled in his foster home and really enjoys his foster family and wants to

       remain a part there.” Id. at 68. Bowen stated that the Child’s current foster

       home is a “pre-adoptive” foster home and that the Child looks at C.C. (“Foster

       Mother”) as a “parental” figure. Id. at 69.


[18]   Sumwalt also testified that the permanency plan for the Child is adoption. DCS

       called Foster Mother to testify. Mother’s counsel objected to the calling of

       Foster Mother. The trial court allowed Foster Mother to testify, but limited the

       scope. While some of Foster Mother’s testimony was limited, Foster Mother

       did testify that, to her knowledge, the Child would want to remain in her home,

       “however that might be done.” Id. at 91. Foster Mother stated she has spoken

       to the Child about this “many times.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 10 of 11
[19]   This evidence is sufficient to meet the requirement of a satisfactory plan in place

       for the Child after termination of Mother’s and Father’s parental rights. The

       trial court found that the Child is currently in the care of Foster Mother and

       that Foster Mother is willing to adopt, if permitted to do so. Mother and Father

       argue that the evidence is insufficient as to the trial court’s finding on this latter

       point. We need not, however, address whether the evidence is sufficient to

       support the specific finding that Foster Mother wants to adopt the Child. There

       was sufficient evidence to support the finding that the plan is adoption, and this

       alone is enough to meet the requirement that there be a satisfactory plan in

       place. See In re J.C., 994 N.E.2d at 290. Therefore, we cannot say that the

       finding regarding the satisfactory plan was clearly erroneous.


                                                   Conclusion

[20]   The evidence was sufficient for the trial court to conclude there was a

       satisfactory plan of care for the Child if the parental rights were terminated.

       Accordingly, we affirm.


[21]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-01197 | October 29, 2018   Page 11 of 11
