MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Jan 24 2020, 8:51 am

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


ATTORNEY FOR APPELLANT:                                   ATTORNEYS FOR APPELLEE:
A.D. (MOTHER)                                             INDIANA DEPARTMENT OF
Cara Schaefer Wieneke                                     CHILD SERVICES
Brooklyn, Indiana                                         Curtis T. Hill, Jr.
ATTORNEY FOR APPELLANT:                                   Attorney General of Indiana
J.C. (FATHER)                                             Robert J. Henke
                                                          Deputy Attorney General
J. Clayton Miller
                                                          Indianapolis, Indiana
Richmond, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020               Page 1 of 16
      In the Matter of the Involuntary                          January 24, 2020
      Termination of the Parent-Child                           Court of Appeals Case No.
      Relationship of: M.C., J.’V.C.,                           19A-JT-1391
      and Ja.C. (Minor Children),                               Appeal from the Henry Circuit
      and                                                       Court
                                                                The Honorable Bob A. Witham,
      A.D. (Mother) and J.C. (Father),                          Judge
      Appellants-Respondents,                                   Trial Court Cause No.
                                                                33C01-1902-JT-26
              v.                                                33C01-1902-JT-27
                                                                33C01-1902-JT-28
      The Indiana Department of
      Child Services,
      Appellee-Petitioner.



      Tavitas, Judge.


                                              Case Summary
[1]   In this consolidated appeal, J.C. (“Father”) and A.D. (“Mother”) appeal the

      termination of their parental rights to M.C., Ja.C., and J.C. (the “Children”).

      We affirm.


                                                      Issue
[2]   Father and Mother each raise several issues, which we consolidate and restate

      as whether the evidence is sufficient to support the termination of Father’s and

      Mother’s parental rights to the Children.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020      Page 2 of 16
                                                             Facts
[3]   Mother has five children: C. 1; M.C., who was born in March 2009; Ja.C., who

      was born in January 2011; J.C., who was born in December 2013; and H.H., 2

      who was born in December 2017. Father is the parent of M.C., Ja.C., and J.C.;

      C. and H.H. were not subjects of this termination of parental rights order.


[4]   Mother was involved in a prior DCS case “12 years ago” as a result of Mother’s

      substance abuse. Tr. Vol. II p. 48. C. was “born with THC in her system,” and

      Mother was abusing “[c]rack cocaine.” Id. at 47, 49. C. was placed in a

      permanent guardianship with maternal grandmother as a result of Mother’s

      substance abuse.


[5]   H.H. was born in December 2017 with marijuana and cocaine in her system.

      As a result of Mother’s substance abuse, the Henry County Department of

      Child Services (“DCS”) removed the Children from Mother’s care. J.C. was

      placed in foster care, and Ja.C. and M.C. were placed with maternal

      grandmother. 3 DCS filed petitions alleging that the Children were children in

      need of services (“CHINS”). Father, who was incarcerated at the time, and

      Mother admitted that the Children were CHINS. In a dispositional order, the




      1
       C.’s age is not reflected in the record. At the time of the termination of parental rights hearing, she was
      approximately fourteen years old.
      2
       Mother’s Appellant’s Brief and the trial court’s order identify this child as A.H.; however, the remaining
      briefs and the record identify this child was H.H. For simplicity, we will identify her as H.H.
      3
          H.H.’s placement is not evident from the record.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020                    Page 3 of 16
      trial court ordered Father, in part, to maintain contact with the family case

      manager (“FCM”). The trial court ordered Mother, in part, to complete a

      parenting assessment and a substance abuse assessment and to follow all

      recommendations; submit to random drug screens; attend visitations with the

      Children; and obey the law.


[6]   According to Mother, her drugs of choice are “marijuana and cocaine.” Tr.

      Vol. II p. 34. During the CHINS proceedings, Mother repeatedly tested

      positive for marijuana, methamphetamine, and cocaine. Although Mother was

      offered inpatient substance abuse treatment, she refused the inpatient treatment

      because it was “unfair” to her husband and she would lose her job. Tr. Vol. II

      p. 37. Mother has twice completed intensive outpatient treatment (“IOP”). At

      the termination of parental rights fact-finding hearing, Mother described herself

      as a “recovering addict,” with a sobriety date of October 22, 2018. Tr. Vol. II p.

      33.


[7]   Mother has a significant criminal history. In 2008, Mother pleaded guilty to

      residential entry and received a suspended sentence. Mother, however, violated

      her probation and received a one-year sentence in the county jail. In 2008,

      Mother also pleaded guilty to trespass and received a suspended sentence. In

      2014, Mother was convicted of possession of cocaine, was sentenced to

      eighteen months of probation, and was ordered to complete an IOP.


[8]   During the pendency of the CHINS proceedings, Mother was convicted of

      robbery, a Level 5 felony. This conviction resulted from Mother stealing her


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 4 of 16
      mother’s vehicle and driving it to Anderson to obtain drugs. Mother was

      sentenced to four years in the Department of Correction (“DOC”) with one

      year suspended to probation. Mother violated the conditions of her home

      detention when she tested positive on August 9, 2018, for marijuana, cocaine,

      methamphetamine, and amphetamine. On October 9, 2018, Mother also tested

      positive for marijuana and methamphetamine. Mother’s home detention was

      revoked, and she was incarcerated. At the time of the termination hearing,

      Mother testified that she expected to be released in December 2019; however,

      her release could possibly be in September 2019. After her release, Mother will

      still have a year of probation to complete.


[9]   Father has multiple criminal convictions, including a 2011 conviction for

      carrying a handgun without a license, a Class C felony, for which he was

      sentenced to four years in the DOC with two years suspended to probation and

      his executed sentence to be served on home detention. Father violated his

      home detention, and he was ordered to serve the remainder of his sentence in

      the DOC. His placement was later modified to the county jail. In 2012, Father

      was convicted of invasion of privacy. In 2014, Father was charged with

      possession of cocaine; resisting law enforcement; dealing in cocaine; and being

      a habitual substance offender. Father pleaded guilty to possession of cocaine, a

      Class B felony, and being a habitual substance offender. The trial court

      sentenced Father to nineteen years in the DOC. Father’s current projected

      release date is October 2024. Although, according to Father, if he completes a

      specific program, he will be requesting a sentence modification. While


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 5 of 16
       incarcerated, Father spent two and one-half years in segregation because he

       “got in trouble and it had something to do with somebody getting hurt.” Tr.

       Vol. II p. 19.


[10]   On February 15, 2019, DCS filed a petition to terminate Father’s and Mother’s

       parental rights to the Children. A hearing was held regarding the petition on

       May 14, 2019. The court-appointed special advocate (“CASA”) testified that

       the Children need permanency and wished to place all three Children together

       to avoid disruption for the Children. The CASA preferred that a permanent

       guardianship be established for the Children in maternal grandmother’s care.

       The CASA, however, also testified:


               Q If permanent guardianship is not on the option table and it’s
               not before the Court today so that’s not a purpose today. Do you
               support termination of parental rights?


               A If that’s how we have to go to achieve permanency then yes.


       Tr. Vol. II p. 66.


[11]   The family case manager (“FCM”) testified that adoption would be a more

       permanent and stable placement for the Children rather than a guardianship.

       The FCM also testified: “At this time the children cannot be placed together,

       due to the department needing to have a waiver.” Tr. Vol. II p. 77. The nature

       of the “waiver” is unclear from the record. According to the FCM, DCS had

       “taken steps” to secure a waiver, but “from a timing perspective it hasn’t

       happened yet.” Id. The FCM also stated: “The department right now suggests

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 6 of 16
       that [J.C.] be adopted by his current placement. He cannot be placed with his

       siblings because there has to be a waiver in place first.” Id. at 78.


[12]   On May 16, 2019, the trial court issued findings of fact and conclusions thereon

       terminating Father’s and Mother’s parental rights to the Children. Father and

       Mother now appeal.


                                                    Analysis
[13]   Father and Mother challenge the termination of their parental relationship with

       the Children. The Fourteenth Amendment to the United States Constitution

       protects the traditional rights 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

       recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

       120 S. Ct. 2054 (2000)). We recognize that parental interests are not absolute

       and must be subordinated to the child’s best 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.’” 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).


[14]   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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 7 of 16
       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)).


[15]   Pursuant to Indiana Code Section 31-35-2-8(c), “[t]he trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b)” when granting a petition to terminate parental rights. 4 Here, the

       trial court did enter findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s and Mother’s parental rights. When reviewing

       findings of fact and conclusions thereon 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




       4
        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.

               (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 19A-JT-1391 | January 24, 2020                        Page 8 of 16
       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[16]   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.


                                (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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 9 of 16
       DCS must establish these allegations by clear and convincing evidence. In re

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


                             A. Father’s and Mother’s Challenge to Findings

[17]   Mother challenges the trial court’s Finding No. 18, while both Mother and

       Father challenge the trial court’s Finding No. 50 and Finding No. 51.


[18]   Finding No. 18 provided: “DCS has offered a number of services to [Mother] to

       bring about reunification of the children with her, but she has failed to accept or

       make effective use of the services offered.” Appellant’s App. Vol. II p. 48.

       According to Mother, her ability to participate in services was affected by the

       lack of providers in her area; she sought outpatient treatment rather than

       inpatient substance abuse treatment; and she has participated in services offered

       during her incarceration. Mother’s argument is merely a request that we

       reweigh the evidence, which we cannot do. DCS presented evidence that

       Mother refused to participate in inpatient substance abuse treatment despite

       previously participating in outpatient treatment twice and relapsing. Mother

       continued to test positive for marijuana, methamphetamine, and cocaine until

       her incarceration. The trial court’s finding is not clearly erroneous.


[19]   Finding No. 50 provides: “Continuation of the parent-child relationship

       between the three children and [Father] or [Mother] would disallow the

       children from establishing permanency of where and with whom they belong,

       extending for months or years their wait for a permanent home.” Appellant’s

       App. Vol. II p. 50. Finding No. 51 provides: “Continuation of the parent-child


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 10 of 16
       relationship would subject these children to the tides of the criminal courts and

       each parent’s addiction for permanency and long-term stability in determining

       by and among whom the children will receive daily care and nurture.” Id.


[20]   Mother and Father argue that these findings conflict with the CASA’s

       testimony. According to Mother and Father, permanency could have been

       established through a guardianship. Again, Mother’s and Father’s argument is

       merely a request that we reweigh the evidence, which we cannot do. Although

       the CASA testified that guardianship over the Children with maternal

       grandmother was her preference, CASA also testified that the Children need

       permanency. The CASA supported termination of parental rights if that was

       required “to achieve permanency . . . .” Tr. Vol. II p. 66. The trial court’s

       findings are not clearly erroneous.


                             B. Remedy of Conditions Resulting in Removal

[21]   Mother challenges the trial court’s conclusion that 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.” 5 I.C. § 31-




       5
         Mother also argues that there was no reasonable probability that the continuation of the parent-child
       relationship posed a threat to the well-being of the Children. Indiana Code Section 31-35-2-4(b)(2)(B) is
       written in the disjunctive. Consequently, the DCS was required to demonstrate by clear and convincing
       evidence of a reasonable probability that either: (1) the conditions that resulted in the Children’s removal or
       the reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the
       parent-child relationship poses a threat to the well-being of the Children. See, e.g., Bester v. Lake County Office
       of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability
       that the conditions that resulted in the Children’s removal or reasons for placement outside the home of the
       parents will not be remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020                     Page 11 of 16
       35-2-4(b)(2). “In determining whether ‘the conditions that resulted in the

       [Children’s] removal . . . will not be remedied,’ we ‘engage in a two-step

       analysis.’” In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989

       N.E.2d at 1231). “First, we identify the conditions that led to removal; and

       second, we ‘determine whether there is a reasonable probability that those

       conditions will not be remedied.’” Id. In analyzing this second step, the trial

       court judges the parent’s fitness “as of the time of the termination proceeding,

       taking into consideration evidence of changed conditions.” Id. (quoting Bester,

       839 N.E.2d at 152). “We entrust that delicate balance to the trial court, which

       has discretion to weigh a parent’s prior history more heavily than efforts made

       only shortly before termination.” Id. “Requiring trial courts to give due regard

       to changed conditions does not preclude them from finding that parents’ past

       behavior is the best predictor of their future behavior.” Id.


[22]   On this issue, the trial court found:


                5. There is a reasonable probability that the conditions that
                resulted in the children’s removal will not be remedied as both
                mother and father have longstanding substance abuse problems.




       not address whether the continuation of the parent-child relationship poses a threat to the well-being of the
       Children.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020                  Page 12 of 16
               6. Further, criminal convictions and treatment have not had
               significant impact on the parents’ history of relapse into
               substance abuse.


               7. Finally, each parent’s recurrent involvement with the criminal
               justice system leads the Court to lack significant confidence that
               the parent will, upon release, be sustain [sic] a life-style that is
               crime and substance free so that they are available to effectively
               parent these children.


       Appellant’s App. Vol. II p. 51.


[23]   Mother argues that she has participated in services while incarcerated; that she

       is scheduled to be released from incarceration soon; and that the CASA

       recommended a permanent guardianship rather than termination of parental

       rights. We applaud Mother for her recent progress in maintaining sobriety and

       participating in services at the DOC. Mother, however, has a long history of

       substance abuse and repeated relapses.


[24]   DCS presented evidence that the Children were removed from Mother’s care

       due to Mother’s substance abuse and that Mother’s older daughter was also

       removed from her care several years ago and placed with maternal grandmother

       in a permanent guardianship due to Mother’s substance abuse issue.

       Additionally, Mother has had several interactions with the criminal justice

       system that resulted in convictions. Mother continued to test positive for illegal

       substances up to her incarceration in October 2018. Ultimately, Mother’s drug

       usage resulted in her current incarceration. Although Mother is scheduled to be

       released from incarceration soon, she must still complete a year of probation

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 13 of 16
       and maintain her sobriety. Under these circumstances, the trial court’s

       conclusion that there is a reasonable probability that the conditions that

       resulting in the Children’s removal will not be remedied is not clearly

       erroneous.


                                           C. Children’s Best Interests

[25]   Mother argues that it is not in the Children’s best interests to terminate her

       parental rights. In determining what is in the best interests of a child, the trial

       court is required to look at the totality of the evidence. Z.B. v. Indiana Dep’t of

       Child Servs., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied. In doing

       so, the trial court must subordinate the interests of the parents to those of the

       child involved. Id. Termination of a parent-child relationship is proper where

       the child’s emotional and physical development is threatened. K.T.K., 989

       N.E.2d at 1235. A trial court need not wait until a child is irreversibly harmed

       such that his or her physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. Id. Additionally, a

       child’s need for permanency is a “central consideration” in determining the best

       interests of a child. Id.


[26]   Mother bases her argument on the CASA’s testimony and Mother’s bond with

       the Children. The CASA testified that permanency was important for the

       Children. The CASA also was concerned with keeping all of the Children

       together. Although the CASA preferred that the Children all be placed with

       maternal grandmother in a permanent guardianship, the CASA supported

       termination of parental rights if that was required “to achieve permanency . . .
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 14 of 16
       .” Tr. Vol. II p. 66. The FCM testified: “At this time the children cannot be

       placed together, due to the department needing to have a waiver.” Id. at 77.

       According to the FCM, DCS had “taken steps” to secure a waiver, but “from a

       timing perspective it hasn’t happened yet.” Id. The FCM also stated: “The

       department right now suggests that [J.C.] be adopted by his current placement.

       He cannot be placed with his siblings because there has to be a waiver in place

       first.” Id. at 78. At the time of the termination of parental rights hearing, DCS

       had requested the waiver for J.C. to be placed with his siblings; the waiver,

       however, had not been obtained.6


[27]   Mother essentially asks that we give more weight than the trial court gave to the

       CASA’s preference for a guardianship of the Children. The trial court,

       however, weighed the evidence and determined that termination of parental

       rights and adoption was in the Children’s best interest. Under our standard of

       review, we cannot reweigh the evidence. Under the circumstances here, we

       cannot say the trial court’s conclusion that termination of parental rights is in

       the Children’s best interest is clearly erroneous.




       6
        We are concerned about the numerous unanswered questions presented by this record. Neither party
       presented any evidence regarding the nature of the waiver, why the Children were not placed together, or
       whether guardianship was considered in this case. We cannot speculate regarding evidence that was not
       developed during the fact-finding hearing or reweigh the evidence that was presented. We do, however,
       encourage DCS to find an appropriate plan to keep the Children together.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020               Page 15 of 16
                                               D. Adequate Plan

[28]   Finally, Father and Mother challenge the trial court’s finding that there is a

       satisfactory plan for the care and treatment of the Children. Indiana courts

       have 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 sense

       of the direction in which the child will be going after the parent-child

       relationship is terminated.’” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

       2014) (quoting Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366,

       375 (Ind. Ct. App. 2007), trans. denied), trans. denied.


[29]   DCS is only required to offer a general sense of the plan for the Children after

       termination of Father’s and Mother’s parental rights. DCS’s plan is for the

       Children to be adopted by “the current relative or kinship placement families,”

       and adoption is a satisfactory plan. Appellant’s App. Vol. II p. 52; see, e.g.,

       Lang, 861 N.E.2d at 375 (holding that adoption and independent living are

       satisfactory plans). The trial court’s finding that DCS had a satisfactory plan is

       not clearly erroneous.


                                                 Conclusion
[30]   The trial court’s termination of Father’s and Mother’s parental rights is not

       clearly erroneous. We affirm.


[31]   Affirmed.


       Najam, J., and Vaidik, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1391 | January 24, 2020   Page 16 of 16
