MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Nov 14 2019, 6:55 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
Joann M. Price Franklin                                  Curtis T. Hill, Jr.
Merrillville, Indiana                                    Attorney General of Indiana

                                                         Benjamin M. L. Jones
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 14, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of D.H., Jr. and Ar.L. (Minor                            19A-JT-907
Children);                                               Appeal from the Lake Superior
An.L. (Mother),                                          Court
                                                         The Honorable Thomas P.
Appellant-Respondent,
                                                         Stefaniak, Jr., Judge
        v.                                               Trial Court Cause Nos.
                                                         45D06-1809-JT-287
Indiana Department of Child                              45D06-1809-JT-288
Services,
Appellee-Plaintiff.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019                Page 1 of 15
                                            Statement of the Case
[1]   An.L. (“Mother”) appeals the juvenile court’s termination of her parental rights

      over her minor children, D.H., Jr. and Ar.L. (collectively, “Children”). 1

      Mother raises three issues for our review, which we consolidate and restate as

      whether the juvenile court clearly erred when it terminated her parental rights.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Mother gave birth to D.H., Jr. on May 27, 2015. On July 14, 2016, the Indiana

      Department of Child Services (“DCS”) received a report that D.H., Jr. had

      suffered a “near fatality” and had been taken to the hospital because he was

      “unresponsive.” Tr. Vol. II at 22. In response to the report, DCS Family Case

      Manager (“FCM”) Jennifer Miller visited the hospital. When she arrived,

      FCM Miller spoke with detectives from the Merrillville Police Department,

      who had also been called regarding the situation with D.H., Jr. The detectives

      informed FCM Miller that they had responded to the home and that the home

      was “filthy, deplorable, with garbage, various debris all over the home, standing

      urine and feces in the toilets. . . . There was a foul odor in the home.” Id. The

      officers also told FCM Miller that they had had “numerous” calls to Mother’s

      home in the past regarding domestic violence between Mother and Father. Id.




      1
          The Children’s father, D.H. (“Father”), does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 2 of 15
[4]   After she spoke with the detectives, FCM Miller spoke with Mother. Mother

      told FCM Miller that she “didn’t know what happened” to D.H., Jr. Id. at 23.

      Mother also admitted that “the home wasn’t in the best condition.” Id. At that

      time, DCS removed D.H., Jr. from the home. On July 28, 2016, DCS filed a

      petition alleging that D.H., Jr. was a Child in Need of Services (“CHINS”).

      Thereafter, the juvenile court held a fact-finding hearing on the CHINS

      petition. At the hearing, Mother admitted to the allegations, and the court

      adjudicated D.H., Jr. a CHINS. The court then entered its dispositional decree

      and ordered Mother to participate in services, including a substance abuse

      assessment, an initial clinical assessment, a parenting assessment, and a

      domestic violence assessment, and to follow all recommendations of the service

      providers. The court also authorized Mother to participate in supervised

      visitation with D.H., Jr.


[5]   During the CHINS proceedings regarding D.H., Jr., Mother gave birth to

      another child, Ar.L., on July 12, 2017. In November, DCS received a report

      that Mother was not providing proper medical care for Ar.L. Specifically, the

      report indicated that Mother had taken Ar.L to the hospital, that the hospital

      had prescribed medications for Ar.L., that Mother did not fill those

      prescriptions, and that Mother had later returned to the hospital when Ar.L.’s

      symptoms worsened. The report also indicated that Mother had failed to take

      Ar.L. to get her two-month vaccinations. As a result of the report, FCM Laura

      Middleton contacted Ar.L.’s attending physician at the hospital. The doctor

      informed FCM Middleton that Ar.L. had been diagnosed with bacterial


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 3 of 15
      meningitis and admitted to the hospital. He further told FCM Middleton that,

      had Ar.L “received her two month immunization shots,” those shots “could’ve

      possibly prevented” the meningitis. Ex. Vol. II at 46.


[6]   Thereafter, on November 14, 2017, DCS filed a petition alleging that Ar.L. was

      a CHINS. In that petition, DCS alleged that Mother had failed to obtain

      appropriate medical care for Ar.L., that Mother had never taken the necessary

      steps to obtain a Medicaid card for Ar.L., and that Mother “has a history of

      ignoring her own personal health care needs and has ignored her medical needs

      caused by her diabetes,” which lack of care resulted in Mother passing out in

      her car with the Children inside. Id. at 58. Ar.L. was released from the hospital

      on December 30. Due to DCS’s concerns regarding Ar.L’s medical care,

      Mother’s homelessness, 2 and continued reports of domestic violence between

      Mother and Father, DCS removed Ar.L. from Mother’s care at that time.

      Following a fact-finding hearing, the juvenile court found that Ar.L. was a

      CHINS. The court then ordered Mother to participate in services.


[7]   Mother was not compliant with services. She canceled her home-based case

      work services “a lot,” and she only contacted her caseworker “if she needed

      transportation.” Tr. Vol. II at 31. Mother also failed to follow through with

      scheduling or maintaining appointments. Mother completed the parenting

      education for D.H., Jr., but she did not complete the parenting education for




      2
          Mother was evicted from her home in or around December 2017.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 4 of 15
      Ar.L., which education was meant to address Ar.L.’s special needs. Mother

      was also inconsistent with her therapy, and she failed to complete “anything”

      with regards to the domestic violence services. Id. at 32. And Mother

      completed her medication evaluation, but she only took the prescribed

      medication “for around one month.” Id.


[8]   Mother was also not consistent with her supervised visitation. And when

      Mother attended the visits, there were “safety concerns” since Mother and

      Father would often argue in front of the Children. Id. DCS had to put a safety

      plan in place, which prevented Mother and Father from attending the visits at

      the same time. DCS was never able to “graduate” Mother to unsupervised

      visits with Children “[d]ue to the inconsistency with the visitation, the

      continued and ongoing reports of domestic violence between the parents, [and

      her] lack of housing.” Id. Additionally, throughout the CHINS proceedings,

      DCS attempted two trial home visits with Mother. However, the first trial visit

      failed after Mother was evicted from her home. And the second trial visit failed

      “due to domestic violence concerns, lack of follow-up on medical care[,] and

      noncompliance with services. Id. at 36.


[9]   On September 27, 2018, DCS filed petitions to terminate Mother’s parental

      rights over Children. Following a fact-finding hearing on March 20, 2019, the

      juvenile court entered the following findings of fact and conclusions of law:


              There is a reasonable probability that the conditions that resulted
              in the removal of the children from [their] parents’ home will not
              be remedied in that: The Department of Child Services became

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 5 of 15
        involved with this family in July 2016 when the Department
        received a referral for a child, namely [D.H., Jr.] who was a near-
        fatality. The home was in deplorable condition. The home had
        feces throughout the home. Neither parent had any knowledge
        as to what happened to [D.H., Jr.]. The investigation revealed
        numerous reports of domestic violence between the [M]other and
        [F]ather. [D.H., Jr.] and a sibling, [A.K.] were removed from the
        home. The children were placed in relative placement.


        Mother gave birth to another child in July of 2017, namely
        [Ar.L.] The child was not a ward initially, but at about four
        months of age, a referral was received. The investigation
        revealed that the child was at the hospital and the child was
        extremely dirty. [Ar.L] was medically neglected. The child did
        not have proper vaccinations. The child was ill and was given
        medications, but parents did not fill the medications. [Ar.L.]
        ended up back in the hospital and was air lifted to Comer’s
        Hospital. Parents were homeless and there were multiple issues
        of domestic violence. . . . The child was removed from parental
        care due to the neglect of the parents.


                                               ***


        Mother did not participate with the home based caseworker.
        Mother only contacted the provider when she needed
        transportation. Mother was not compliant with the services
        offered through the case plan. Mother has been very inconsistent
        with visitations with the children. Mother and [F]ather have
        separate visitations due to the continuous arguing between the
        parents. The parents would often appear at the visits together
        and leave the visits before [they were] over. A safety plan was
        instituted. . . . Mother did not become vested in services and
        [has] shown no interest in participating in the services. . . .
        Mother is unable to provide for the basic needs of her children.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 6 of 15
                                               ***


        Mother and Father continue with their domestic violence issues.
        Neither parent has addressed their domestic violence issues.
        Grandmother/caregiver testified that the parents live in a car in
        her driveway. Grandmother further testified that [M]other and
        [F]ather have a very toxic relationship and the police are called
        on a consistent basis. Grandmother further indicated that the
        environment that the parents create is very unhealthy and the
        [C]hildren’s safety would be in jeopardy if left in the care of
        either parent.


        Both [M]other and [F]ather continue with their homelessness.
        Both [M]other and [F]ather are known to be living in a van.
        Neither parent can provide for the basic needs of the [C]hildren.
        Neither parent is able to provide a safe and stable environment,
        free from domestic violence for the [C]hildren. The probability
        of either parent finding stable, safe housing is extremely low.


                                               ***


        Mother and Father testified at the fact[-]finding hearing on the
        petition to terminate their parental rights. Clearly, there [is]
        some mental illness that is not being addressed with each parent.
        Both [M]other and [F]ather would not directly answer the
        questions asked of them and would go off on a tangent. Neither
        parent could focus.


        Neither parent is providing any emotional or financial support
        for the [C]hild[ren]. Neither parent has completed any case plan
        for reunification. Neither parent is in a position to properly
        parent these [C]hildren. The [C]hildren are in relative placement
        and are bonded and thriving.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 7 of 15
        Despite multiple attempts of reunification, the [C]hildren remain
        outside of the parents’ care. The original allegations of neglect
        have not been remedied by the parents. Neither of these parents
        have demonstrated an ability to independently parent the
        [C]hildren and provide any necessary care, support[,] and
        supervision. There is no basis for assuming the parents will
        complete the necessary services and find one or both of
        themselves in a position to receive the [C]hildren into their care
        and if the [C]hildren were returned to either parent, the
        [C]hildren would be homeless. For almost three years, the
        parents failed to utilize the available services and make the
        necessary efforts to remedy the condition, which led to
        intervention by DCS and the Court.


        The [C]hildren continue to reside in stable relative placement.
        Maternal grandmother has indicated both a willingness and
        ability to adopt the [C]hildren. It would be unfair to the
        [C]hildren to delay such permanency on the very remote
        likelihood of the parents committing to completing services.


        The Indiana Supreme Court has held that at some point in time a
        child’s right to permanency outweighs a parent[’]s ever important
        right to parent. The Court finds that after almost three years, in
        these cases, [the Children] certainly have a right to permanency.


        There is a reasonable probability that the continuation of the
        parent-child relationship posts a threat to the well-being of the
        [C]hildren in that: for the reasons stated above. Additionally,
        the [C]hildren deserve a loving, caring, safe and stable home.


        It is in the the best interest of the [C]hildren and [their] health,
        welfare[,] and future that the parent-child relationship between
        the [C]hildren and [their] parents be forever fully and absolutely
        terminated.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 8 of 15
               The Indiana Department of Child Services has a satisfactory plan
               for the care and treatment of the [C]hildren[,] which is adoption
               by the grandmother.


       Appellant’s App. Vol. II at 2-4. In light of its findings and conclusions, the

       court terminated Mother’s parental rights over Children. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[10]   Mother appeals the trial court’s termination of her parental rights over

       Children. We begin our review of this appeal by acknowledging that “[t]he

       traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.”

       Bailey v. Tippecanoe Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct.

       App. 1996), trans. denied. However, a trial court must subordinate the interests

       of the parents to those of the child when evaluating the circumstances

       surrounding a termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.),

       750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

       relationship is proper where a child’s emotional and physical development is

       threatened. Id. Although the right to raise one’s own child should not be

       terminated solely because there is a better home available for the child, parental

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

       her parental responsibilities. Id. at 836.


[11]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove:
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 9 of 15
               (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.

                                                      ***

               (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) (2018). DCS’s “burden of proof in termination of

       parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

       Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

       I.C. § 31-37-14-2).


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

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

       Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

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

       judgment terminating a parent-child relationship only if it is clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 10 of 15
       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[13]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

       First, we determine whether the evidence supports the findings and, second, we

       determine 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 trial court’s decision, we must affirm.

       In re L.S., 717 N.E.2d at 208.


[14]   On appeal, Mother contends that the juvenile court erred when it took judicial

       notice of certain facts, that the juvenile court clearly erred when it concluded

       that the conditions that resulted in the Children’s removal from her care will

       not be remedied, and that the court erred when it concluded that DCS has a

       satisfactory plan for the care and treatment of the Children. 3 We address each

       argument in turn.




       3
         Mother also briefly states that “the case plan was not satisfactory and terminating Mother’s parental rights
       was not in the best interests of the Children[.]” Appellant’s Br. at 15 (emphasis removed). To the extent this
       statement purports to challenge the trial court’s conclusion that the termination of her parental rights is in the
       Children’s best interests, Mother does not present cogent argument in support of that contention, and it is
       waived.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019                    Page 11 of 15
                                                Judicial Notice

[15]   Mother first contends that the juvenile court erred when it took judicial notice

       of “facts that were not adduced in evidence” at the fact-finding hearing.

       Appellant’s Br. at 10 (emphasis removed). We first note that Mother has not

       directed us to any particular “fact” she believes the court noticed, nor has she

       directed us to any location in the record where the court took notice of any fact.

       However, it appears as though Mother asserts that the juvenile court improperly

       took judicial notice of records from the underlying CHINS proceedings, which

       records include letters from two therapists who had expressed concerns

       regarding Mother’s mental health. See Ex. Vol. I at 78, 80. And Mother

       contends that, without those records, there “was nothing introduced at the fact[-

       ]finding hearing by way of testimony or documents that support[s] the court[’]s

       conclusions about Mother’s mental health[.]” Id. at 12.


[16]   Mother’s argument misses the mark. The juvenile court did not take judicial

       notice of the records from the underlying CHINS proceedings. Rather, the

       State moved to admit those records as evidence, which the court admitted

       following Mother’s statement that she had “[n]o objection.” Tr. Vol. II at 39.

       Accordingly, the court did not improperly take judicial notice of any records or

       facts. And because the court admitted records regarding Mother’s mental

       health as evidence at the fact-finding hearing, there is evidence to support the

       court’s finding regarding Mother’s mental health.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 12 of 15
                                Reasons for Removal from Mother’s Home

[17]   Mother next contends that the juvenile court erred when it concluded that the

       conditions that resulted in the Children’s removal from Mother’s care will not

       be remedied. However, Mother does not challenge the juvenile court’s

       conclusion that there is a reasonable probability that the continuation of the

       parent-child relationships poses a threat to the well-being of the Children.

       Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and the

       court terminated Mother’s parental rights based not only on its conclusion that

       conditions that resulted in the Children’s removal from Mother will not be

       remedied but also its conclusion the continuation of the parent-child

       relationship poses a threat to the well-being of the Children. Thus, Mother’s

       failure to challenge the second prong of that subsection means she has waived

       our review of the sufficiency of the evidence to support the court’s conclusion

       on either prong. 4


                                                  Satisfactory Plan

[18]   Finally, Mother asserts that the trial court erred when it concluded that DCS

       has a satisfactory plan for the care and treatment of the Children. Indiana

       courts have traditionally held that for a plan to be satisfactory, for the purposes

       of the termination statute, it need not be detailed, so long as it offers a general




       4
         Waiver notwithstanding, the juvenile court’s findings clearly support the court’s conclusion that the
       conditions that resulted in the Children’s removal and the reasons for their placement outside of Mother’s
       home will not be remedied and that there is a reasonable probability that the continuation of the parent-child
       relationships poses a threat to the well-being of the Children.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019                 Page 13 of 15
       sense of the direction in which the child will be going after the parent-child

       relationship is terminated. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.), 17

       N.E.3d 994, 1007 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A DCS

       care plan is satisfactory if the plan is to attempt to find suitable parents to adopt

       the children. Id. Here, DCS presented evidence that Children’s maternal

       grandmother, with whom Ar.L. is currently placed and with whom D.H., Jr.

       frequently stays, plans to adopt them.


[19]   Mother contends that the plan for the maternal grandmother to adopt the

       Children is not satisfactory because Mother has “daily contact” with her

       mother. Appellant’s Br. at 15. Mother maintains that, because the court

       concluded that her “continued involvement with the Children posed a threat to

       their health and safety, then finding that the placement and care of the Children

       should rest with the maternal grandmother who maintains daily contact with

       Mother was wholly unreasonable.” Id. (emphasis removed). In other words,

       Mother contends that the maternal grandmother is not a suitable person to

       adopt the Children.


[20]   However, we need not address whether the maternal grandmother is a suitable

       adoptive parent. It is within the authority of the adoption court, not the

       termination court, to determine whether an adoptive placement is appropriate.

       See id. We conclude that the juvenile court did not err when it determined that

       DCS’s plan of adoption was satisfactory.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 14 of 15
[21]   In sum, we affirm the juvenile court’s termination of Mother’s parental rights

       over Children.


[22]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-907 | November 14, 2019   Page 15 of 15
