Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Aug 31 2012, 8:44 am
court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
PHYLLIS EMRICK ANNA M. SEBREE
Deputy Public Defender Indiana Department of Child Services
Bloomington, Indiana Bloomington, Indiana
for Mother
ROBERT J. HENKE
JASON MEREDITH DCS Central Administration
Deputy Public Defender Indianapolis, Indiana
Bloomington, Indiana
for Father AMY G. APPLEGATE
Bloomington, Indiana
for David Semmel,
Court Appointed Special Advocate
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent- )
Child Relationship of S.S., minor child, and )
D.S., mother, and W.S., father: )
)
D.S. and W.S., )
)
Appellants-Respondents, )
)
vs. ) No. 53A05-1112-JT-673
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Stephen R. Galvin, Judge
Cause No. 53C07-1010-JT-743
_____________________________________________________________________________
August 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
D.S. (“Mother”) and W.S. (“Father”) appeal the involuntary termination of their
parental rights to their child, S.S. In so doing, the parents challenge the sufficiency of the
evidence supporting the trial court’s judgment.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the biological parents of S.S., born in August 2006. 1 The
facts most favorable to the trial court’s judgment reveal that S.S. was born testing
positive for cocaine. The local Monroe County office of the Indiana Department of Child
Services (“MCDCS”) was notified and began providing services to the family, including
a referral for Mother to attend an intensive out-patient drug rehabilitation program
(“IOP”). The child was initially allowed to remain in the family home.
Mother’s and Father’s participation in home-based services during the ensuing
months was inconsistent. Mother also failed to regularly attend the IOP classes and
continued to use cocaine and marijuana while caring for S.S. In March 2007, S.S. was
removed from the family home and placed in relative foster care with the maternal
grandmother following an incident of domestic violence that occurred while the child was
in the parents’ care. During this incident, Father repeatedly hit Mother in the head with
an iron tool used on truck tires. Mother was taken to the hospital and received six staples
in the head. At that time, Mother reported that Father drank alcohol every day and
physically abused her at least twice per month.
1
For clarification purposes we observe that Mother and Father were married in January 2007 and
divorced in April 2011. Each parent has filed an Appellant’s Brief and made separate arguments in this
consolidated appeal.
2
Father, who also stabbed a third individual during this domestic disturbance, was
arrested and later pleaded guilty to Class D felony criminal recklessness and Class A
misdemeanor domestic violence. Father received a suspended sentence, subject to
various conditions of probation, which he admittedly violated on multiple occasions.
Although probation revocation petitions were filed against Father in October 2006 and
August 2008, his probation was not revoked at that time.
Following S.S.’s removal from the family home, the trial court adjudicated S.S. to
be a child in need of services (“CHINS”). Mother’s participation in court-ordered
reunification services continued to be sporadic. Moreover, Mother attempted three
separate drug treatment programs, but failed to complete each one. She also continued to
use cocaine regularly. Father, on the other hand, completed anger management classes
and drug treatment services offered through Centerstone, a local mental health facility.
Based on Father’s compliance with these court-ordered services, the CHINS case was
ordered closed in March of 2008, and custody of S.S. was placed with Father, who had
signed a Legal Separation Agreement, providing that all of Mother’s parenting time
would be supervised and that MCDCS would be notified immediately if there were any
changes to the custody agreement and/or parenting time.
On March 17, 2009, Father violated the terms of the Legal Separation Agreement
and left S.S. in the care of Mother, unsupervised, while he went on a long-haul trucking
job. While away, Father was arrested in New Mexico on federal drug-trafficking charges
after police discovered 258.5 kg of marijuana in his semi-truck. This was another
violation of the terms of his probation.
3
Father was released from incarceration in New Mexico on March 29, 2009. As
part of the terms of his conditional release, Father was ordered to, among other things,
refrain from the use of any alcohol, narcotic drug, or other controlled substance. Father
was also prohibited from possessing any dangerous weapons. Father ignored the
conditions of his release, returned to Indiana, and resumed drinking alcohol on a daily
basis.
In August 2009, Father again physically struck Mother in the presence of S.S. He
also threatened Mother with a sheathed Bowie knife. During this incident, S.S. could
hear her mother’s screams. The police were called, and Father was arrested on Class D
felony domestic battery and intimidation charges. This arrest violated both the terms of
Father’s probation for the 2007 battery against Mother, as well as the terms of his
conditional release for the federal drug trafficking case in New Mexico. Father was
originally detained in the Monroe County Jail, and then was eventually transferred to
federal prisons in Terre Haute, Indiana, and Littleton, Colorado.
As a result of the August 2009 incident, S.S. was taken into immediate protective
custody and again placed with the child’s maternal grandmother. S.S. was soon removed
from the grandmother’s care, however, and placed in licensed foster care when MCDCS
discovered that the grandmother was living with a relative who was a known sex offender
with a history of molesting family members, and the grandmother refused to ask the
relative to move out of her home.
Meanwhile, MCDCS filed a new CHINS petition (“second CHINS case”).
Following a hearing on this petition in February 2010, S.S. was so adjudicated. The trial
4
court again issued a dispositional order directing both parents to complete a variety of
tasks and services designed to facilitate reunification including: (1) obtaining suitable
housing; (2) refraining from the use of illegal drugs; (3) submitting to random drug
screens; and (4) participating in a domestic violence assessment as well as actively
engaging in any recommended services. Father was also ordered to obtain a substance
abuse and psychological assessment, refrain from all acts of domestic violence,
participate in a domestic violence support group, and enroll in any parenting education
services that may be available at his place of incarceration.
Throughout the next year, Mother continued to test positive for cocaine and
marijuana. She produced multiple positive drug screens in February, March, August, and
September of 2010, as well as positive screens in March, May, and September of 2011.
Although Mother failed to successfully complete substance abuse treatment following
S.S.’s birth and during the first CHINS case, when the second CHINS case was pending,
Mother completed a day treatment program in October 2009, as well as IOPs in
December 2009, February 2010, and June 2010. In each instance, however, Mother
relapsed almost immediately after completing the treatment program.
Notwithstanding Mother’s recurrent drug rehabilitation failures, S.S. was placed
with Mother for a trial in-home visit on July 22, 2010, after demonstrating a brief period
of sobriety. S.S. was removed from Mother less than two months later, on September 15,
2010, because Mother had tested positive for cocaine twice, once in August and again in
September. The following month, MCDCS filed a petition seeking the involuntary
termination of both Mother’s and Father’s parental rights to S.S.
5
A three-day evidentiary hearing on MCDCS’s termination petition was held in
June, July, and October 2011 to allow Father, who remained incarcerated, to participate
telephonically. During the termination hearing, MCDCS presented substantial evidence
concerning both parents’ failure to successfully complete and/or benefit from the many
court-ordered reunification services throughout the underlying CHINS and termination
cases. In addition, MCDCS established that both parents remained incapable of
providing S.S. with a safe and stable home environment for many reasons, including the
facts that Mother continued to struggle with her addiction to cocaine and marijuana, and
Father remained incarcerated with a projected earliest release date of December 2012.
Additional evidence presented during the termination hearing as to Mother further
established that she still did not have stable housing. Mother also freely admitted that
although she had completed yet another residential drug treatment program at the
Salvation Army Harbor Light Center in July 2011, she continued to use marijuana
regularly after her discharge. Mother went on to explain that cocaine was her true
problem and that marijuana simply relaxes her. Notwithstanding this most recent drug
treatment program, Mother tested positive for cocaine in July 2011, just two days after
her completion of this program, and again in September 2011.
As for Father, MCDCS introduced evidence establishing Father had not seen S.S.
since his August 2009 arrest for battery, and that at the time of the termination hearing,
Father remained incarcerated, serving a sixty-month sentence on his federal drug
trafficking conviction. In addition, Father’s projected earliest release date at the time of
the termination hearing was December 26, 2012, to be followed by a six-month period of
6
living in a half-way house located in Ohio, and four additional years of supervised parole.
Although Father participated in six hours of anger management counseling while
incarcerated, he had failed to complete a majority of the trial court’s dispositional goals.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On November 29, 2011, the court entered its judgment terminating both
Mother’s and Father’s parental rights to S.S. Both parents now appeal.
DISCUSSION AND DECISION
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing a termination of
parental rights case, we will not reweigh the evidence or judge the credibility of the
witnesses. 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),
trans. denied.
Here, in terminating Mother’s and Father’s parental rights, the trial court entered
specific findings and conclusions.2 When a trial court’s judgment contains specific
findings of fact and conclusions thereon, we apply a two-tiered standard of review.
Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
2
We commend the trial court for the thoughtful and detailed findings and conclusions set forth in
its judgment, which greatly aided this court in its review.
7
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. L.S., 717 N.E.2d at 208.
The “traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. These parental interests, however,
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. In addition, 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. K.S., 750 N.E.2d at 836.
Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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; [and]
(C) that termination is in the best interests of the child; and
8
(D) that there is a satisfactory plan for the care and treatment of the
child.
Ind. Code Ann. § 31-35-2-4(b)(2).3 The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,
904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)).
Moreover, 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. Ind. Code § 31-
35-2-8(a). Mother and Father each challenge the sufficiency of the evidence supporting
the trial court’s findings as to subsections (b)(2)(B) thru (D) of the termination statute
cited above.
I. Conditions Remedied/Threat to Well-Being
Indiana Code section 31-35-2-4(b)(2)(B) requires the trial court to find that only
one of the three requirements of subsection (b)(2)(B) has been established by clear and
convincing evidence before terminating parental rights. Here, the trial court determined
that the first two elements of subsection (b)(2)(B) had been established. Because we find
it to be dispositive under the facts of this case, however, we shall only discuss whether
MCDCS established, by clear and convincing evidence, that there is a reasonable
probability the conditions resulting in S.S.’s removal or continued placement outside of
each parent’s care will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
3
We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July
1, 2012). The changes to the statute became effective after the filing of the termination petition involved
herein and are not applicable to this case.
9
When making such a determination, a trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered evidence of a parent’s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,
762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also
consider any services offered to the parent by the county department of child services and
the parent’s response to those services, as evidence of whether conditions will be
remedied. Id. Moreover, MCDCS was not required to provide evidence ruling out all
possibilities of change; rather, it needed to establish only that there is a reasonable
probability the parents’ behavior will not change. In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
On appeal, Father argues that S.S. was removed from his care due to “domestic
violence issues” he had with Mother and because of his own incarceration. Appellant
Father’s Br. at 6. Although Father admits he has “not been able to take a specific
domestic violence course” while incarcerated, he claims that “domestic violence issues
were covered in his anger management class.” Id. at 7. Father goes on to assert that he
has divorced Mother, and is “clearly in the process of remedying the conditions that
caused S.S.’s removal from his care[.]” Id. Mother likewise asserts that because of her
10
divorce from Father, domestic violence is no longer an issue. She further claims that
“throughout [MCDCS’s] involvement in her life, [she] has complied with
recommendations regarding drug treatment” and as a result has learned “new ways of
thinking.” Appellant Mother’s Br. at 6. Although Mother acknowledges she has had
numerous drug relapses during the underlying proceedings, she claims she is “clearly in
the process of remedying the conditions that caused S.S.’s removal from her home.” Id.
at 7. Both parents therefore contend that the trial court’s determination that there is a
reasonable probably the conditions leading to S.S.’s removal from their respective care
will not be remedied is clearly erroneous.
In terminating Mother’s and Father’s parental rights, the trial court made extensive
findings regarding Mother’s unresolved substance abuse issues, parenting deficiencies,
and lack of stability. Specifically, the court found that Mother: (1) “admits” that she has
been addicted to cocaine since 2003; (2) gave birth to S.S., who tested positive for
cocaine, in 2006; (3) continued to “regularly use[]” drugs, including cocaine, in 2006 and
2007; and (4) failed to complete substance abuse treatment during the first CHINS case
despite S.S.’s removal from the family home. Appellant Mother’s App. at 10-11. The
court also noted in its findings that Mother’s parental rights to two older children were
involuntarily terminated in November 2005, and that although Mother participated in
“four separate substance abuse treatment programs” during the second CHINS case, the
treatment “has not been successful,” because after completing “each of these programs,
[Mother] relapsed almost immediately.” Id. at 13. The court goes on to find that Mother
“does not express guilt about what her drug use has done to [S.S.]” but instead
11
“minimizes the impact of her drug use on her child.” Id. at 14. Moreover, the court
noted that Mother “does not call” S.S. between visits, “does not take advantage of longer
visits when they are offered,” and does not “recognize that she lost parental rights to her
older children as a result of her drug problem.” Id. Based on these and other findings,
the court concluded:
[Mother] has been an active cocaine user since 2003. . . . [Mother] has
repeatedly participated in substance abuse treatment over the last five years.
She frequently does not complete treatment programs. When she does
complete a treatment program, she immediately relapses. [Mother] has
repeatedly stated that she does not believe that her cocaine and marijuana
use is problematic. She sees no reason to change her behavior for the good
of her child. . . .
Although [Mother] visits with [S.S.] and has a bond with the child, she
refuses to place [S.S.’s] interests ahead of her own. This pattern of drug
use and child neglect by [Mother] has persisted throughout [S.S.’s] life.
There is no reasonable probability that [Mother’s] behavior will change.
Id. at 16.
As for Father, the trial court observed in its findings that Father had been “very
abusive” to Mother. Id. at 11. The court also detailed Father’s extensive criminal history
and multiple criminal convictions for criminal acts that Father committed after S.S.’s
initial removal from the family home, including convictions for criminal recklessness,
domestic battery, and federal drug trafficking charges. Based on these and other findings,
the trial court concluded:
[Father] has a history of domestic violence and substance abuse that
adversely affects [S.S.]. [S.S.] was removed from his care in March, 2007
after [Father] beat [Mother] with an iron tool. He was arrested and
convicted for Criminal Recklessness and Domestic Battery. He did not
comply with the terms and conditions of his probation, committing
numerous probation violations and a federal drug offense. He continued to
batter [Mother] on a regular basis. Although he was well aware that
12
[Mother] was continuing to abuse cocaine, he left [S.S.] in her care for an
extended period in March, 2009. He again battered [Mother] in [S.S.’s]
presence in August 2009. [S.S.] was again removed.
[Father] is currently incarcerated in federal prison in Colorado. His current
release date is December 26, 2012. Although [Father] claims to have
participated in treatment programs while incarcerated, he refused to sign a
release to allow [MCDCS] to obtain his federal prison records. His claims
cannot be accurately verified. When he is released, he will be required to
relocate to Cincinnati, Ohio[,] to live in a halfway house for six months.
He will not be able to live with [S.S.] during this period. Further, [Father]
must complete anger management treatment before [S.S.] would be safe in
his care. This treatment can be expected to last two years.
....
[Father] was offered services by [MCDCS] to address his anger
management issues during the first CHINS proceeding. Although he
completed services, he continued to batter [Mother] in [S.S.’s] presence.
He also continued to engage in substance abuse and other criminal conduct.
There is no reasonable probability that this pattern of behavior will be
remedied upon his release from incarceration.
Id. at 17. Our review of the record leaves us convinced that ample evidence supports the
trial court’s findings cited above.
At the time of the termination hearing, both parents’ respective abilities to provide
S.S. with a safe, stable, and drug-free home environment remained largely unchanged.
Regarding Father, MCDCS case manager Greg Miller (“Miller”) confirmed that Father
had been arrested and convicted on several criminal charges during the underlying
CHINS cases including domestic violence, criminal recklessness, and drug trafficking.
Because Father’s earliest possible release date was not until December 2012, he
continued to be unavailable to care for S.S. Moreover, Father’s significant history of
criminal activity and unresolved substance abuse and domestic violence issues made it
impossible for the trial court to determine if and when Father would ever be able to safely
13
regain custody of S.S. following his eventual release from incarceration. This court has
repeatedly recognized that “[i]ndividuals who pursue criminal activity run the risk of
being denied the opportunity to develop positive and meaningful relationships with their
children.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct.
App. 2006), trans. denied.
Miller further testified that despite Father’s completion of several court-ordered
services, including anger management classes, during the first CHINS case, he
subsequently had been unsuccessful in “controlling his anger” which remained a cause
for concern. Id. at 128. Psychologist Jennifer Spencer (“Dr. Spencer”) likewise
informed the trial court that the six hours of anger management Father had received while
incarcerated was “typically not enough to make a dent in the problem,” and that normally
two years of weekly anger management treatment was necessary “in order to make really
substantial changes.” Id. at 200. When asked to explain why Father “doesn’t deserve
more time to get out of prison and establish himself,” Miller stated that “it’s been too
much time already.” Id. Miller went on to testify that he also still had concerns
regarding Father’s ability to “control” his “drinking.” Id.
Regarding Mother, although the evidence confirmed she eventually completed
several of the court-ordered reunification services, including several IOPs and parenting
classes during the second CHINS case, it was the general consensus among case workers
and service providers that she had failed to benefit from any of these services. Moreover,
testimony presented during the termination hearing makes clear that Mother still
regularly smoked marijuana, was unable to comprehend how her drug use had negatively
14
impacted S.S.’s life, and remained incapable of providing S.S. with a safe and stable
home environment.
Dr. Spencer informed the trial court during the termination hearing that that one of
her “biggest concern[s]” regarding reunification was Mother’s drug use. Dr. Spencer
further testified that Mother “very much minimized” the effects her drug use had on her
ability to parent S.S., as well as the “trauma” S.S. had been through. Tr. at 195. Dr.
Spencer also stated that testing positive for drugs immediately after finishing a substance
abuse program indicates that the treatment was “ineffective.” Id. at 272.
Similarly, in recommending termination of Mother’s parental rights to S.S., home-
based counselor Melissa Richardson (“Richardson”) recounted a conversation she had
with Mother concerning Mother’s addiction to illegal substances. During this
conversation, Mother informed Richardson that she was “not an addict because [she had]
never hit rock bottom because of [her] drug use.” Id. at 406. When Richardson “pointed
out that [Mother] had lost parental rights to two (2) children . . . prior to [S.S.] because of
drug use,” Mother’s perspective concerning her drug use did not change. Id. Richardson
further confirmed that Mother: (1) failed to successfully complete three drug treatment
programs during the first CHINS case; (2) relapsed immediately following her
completion of four different drug treatment programs during the second CHINS case; and
(3) has never gone longer than four months without a positive drug screen during the
underlying CHINS and termination cases.
Mother’s own testimony lends further support to the trial court’s findings. During
the termination hearing, Mother admitted that she “is still using” illegal substances. Id. at
15
474. When asked whether she viewed marijuana as a problem, Mother answered, “No[,]
not at all.” Id. at 441. Mother went on to clarify that cocaine was her “unmanageable”
drug, marijuana simply “relaxes” her, and so long as she tests negative for all other drugs,
a positive screen for marijuana constituted a “clean” screen in her mind. Id.
As noted above, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s
habitual patterns of conduct to determine the probability of future neglect or deprivation
of the child. D.D., 804 N.E.2d at 266. Moreover, where a parent’s “pattern of conduct
shows no overall progress, the court might reasonably find that under the circumstances,
the problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.
App. 2005). Here, at the time of the termination hearing, Father was unavailable to care
for S.S. and would remain unavailable for at least another one-and-a-half years due to his
ongoing incarceration, projected release date of December 2012, and mandatory time to
be served in a halfway house following his release from incarceration. Mother, on the
other hand, had demonstrated a persistent unwillingness and/or inability to take the
actions necessary to show she was capable of overcoming her addiction to marijuana and
cocaine in order to provide S.S. with the safe, stable, and drug-free home the child
deserves. Based on the foregoing, we conclude that the trial court’s determination that
there is a reasonable probability the conditions resulting in S.S.’s removal from both
Mother’s and Father’s care will not be remedied. Both parents’ assertions to the contrary
amount to impermissible invitations to reweigh the evidence. D.D., 804 N.E.2d at 265.
II. Best Interests
16
We next consider Mother’s and Father’s assertions that MCDCS failed to prove
termination of their respective parental rights is in S.S.’s best interests. In determining
what is in the best interests of a child, the trial court is required to look beyond the factors
identified by the Indiana Department of Child Services and look to the totality of the
evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203
(Ind. Ct. App. 2003). In so doing, the court must subordinate the interests of the parent to
those of the child. Id. The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Id. Moreover, we have previously held that the
recommendations by both the case manager and child advocate to terminate parental
rights, in addition to evidence that the conditions resulting in removal will not be
remedied, is sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).
In addition to the findings previously cited, the trial court made several additional
pertinent findings relating to S.S.’s best interests. The trial court noted that S.S. was a
“bright,” “articulate,” and “friendly” five-year-old child, but that she suffers from Post
Traumatic Stress Disorder (“PTSD”) and “extreme anxiety” due to the “significant
amounts of domestic violence and neglect prior to removal.” Appellant Mother’s App. at
15. Although the court acknowledged that S.S. loves both her parents, the court further
found that S.S. nevertheless is “both angry and afraid” of Father, is “very bonded” with
her foster parents, and “does not demonstrate anxiety about being separated from her
mother.” Id. The trial court also found:
17
37. [S.S.] was placed in her current foster home on May 19, 2010 . . . .
Other than the brief stay in her mother’s home, [S.S.] has lived with
her foster family for the past 17 months.
38. The foster parents . . . provide a loving and caring home. They have
taken excellent care of [S.S.]. [Foster mother] is a clinical nurse
specializing in child and adolescent psychology. [Foster father] is a
Masters level mental health therapist. As Dr. Spencer notes, the
“reason that [S.S.] does not have more serious psychological issues
is because her foster family has provided exceptional care in a
therapeutic environment.”
39. [S.S.] exhibits separation anxiety about being removed from [the
foster parents’] care. She worries that she will be “snatched” from
them. When [S.S.] has nightmares, she crawls into bed with the
foster parents. She turns to the foster parents for comfort and safety.
40. As noted by Dr. Spencer, it is extremely important that [S.S.] remain
with her foster parents. Given her history, she is at high risk to
develop Reactive Attachment Disorder and to experience
dissociative episodes. These risks would greatly increase if she were
removed from the foster parents.
41. [S.S.] expresses continuing concern about what will happen to her.
She tells her foster parents that these are her “maybe days.”
Id. Based on these and other findings, the trial court concluded that S.S. has been
“profoundly affected” by the domestic violence and drug abuse in her parents’ home. Id.
at 17. The court further concluded:
[S.S.] has twice been removed from her parents’ care in the first five years
of her life. These removals, and the subsequent changes in foster
placement, have left this child with a deep concern about her future. She
calls her days of waiting her “maybe days.” [S.S.] is clearly in need of a
safe, stable, and permanent home that she can call her own. Her parents
cannot and will not provide this home.
[S.S.] is currently in an excellent foster home that meets her needs. Her
foster parents wish to adopt her. Clearly, termination of the parent-child
relationship is in [S.S.’s] best interests.
Id. These findings and conclusions, too, are supported by the evidence.
18
In recommending termination of Mother’s and Father’s parental rights, Richardson
informed the trial court that S.S. refers to her time living with Mother and Father as her
“scary days.” Tr. at 511. Although Richardson acknowledged that S.S. was bonded to
both her parents and foster parents, she went on to state that S.S. felt “safe” with her
foster parents and further described her demeanor as “joyful” while in the foster home.
Id. at 492. Similarly, Dr. Spencer also recognized the bond between S.S. and both her
parents and foster parents. Dr. Spencer nevertheless insisted that termination of parental
rights and adoption by the foster parents was “very important” due to S.S.’s diagnosis of
PTSD and heightened anxiety. In so doing, Dr. Spencer explained:
[S.S.] has been remarkably resilient considering her background. She has
all of the factors that you would see . . . in a child that develops reactive
attachment disorder. The, uh, more she is moved from some place (sic)
where she is bonded and well taken care of the risk for that developing just
increases exponentially . . . . [B]ut I think one (1) of the reasons that she
does not have that reactive attachment disorder diagnosis . . . is because she
has been with this particular foster family. When she’s been reunified[,]
they’ve [the foster parents] maintained contact. When she’s been
removed[,] she’s been returned to them. They have been consistent in her
life. . . . [T]hey are also mental health care professionals themselves and . . .
[have] provide[d] [S.S.] with not only good parenting and care but also
they’ve done a lot of treatment with her so that she has not developed a
much more serious diagnosis. And the reactive attachment disorder is not
very treatable. Um, it’s very much a broken child.
Id. at 225-26. Finally, CASA David Semmel (“Semmel”) and case manager Miller also
recommended termination of Mother’s and Father’s parental rights as being in S.S.’s best
interests, noting that S.S. had experienced an “unsettled home life” almost all her life and
now needed “permanency.” Id. at 128, 537.
Based on the totality of the evidence, including both parents’ significant histories
of substance abuse, Father’s ongoing incarceration and significant history of criminal
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conduct, and both parents’ current inability to provide S.S. with a safe and stable home
environment, coupled with the testimony from Richardson, Dr. Spencer, Semmel, and
Miller recommending termination of the parent-child relationships, we conclude that
there is sufficient evidence to support the trial court’s determination that termination of
Mother’s and Father’s respective parental rights is in S.S.’s best interests. See, e.g., In re
A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (concluding that testimony of court-
appointed advocate and family case manager, coupled with evidence that conditions
resulting in continued placement outside home will not be remedied, is sufficient to prove
by clear and convincing evidence termination is in child’s best interests), trans. denied.
III. Satisfactory Plan
Finally, we consider whether sufficient evidence supports the trial court’s
determination that MCDCS has a satisfactory plan for the future care and treatment of
S.S. Indiana Code section 31-35-2-4(b)(2)(D) provides that before a trial court may
terminate a parent-child relationship, it must find there is a satisfactory plan for the future
care and treatment of the child. Ind. Code § 31-35-2-4(b)(2)(D); see also D.D., 804
N.E.2d at 268. It is well-established, however, that 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-child relationship is terminated. D.D., 804 N.E.2d at 268. MCDCS’s plan is for
S.S. to be adopted by her current, pre-adoptive foster parents. This plan provides the trial
court with a general sense of the direction of S.S.’s future care and treatment. MCDCS’s
plan is therefore satisfactory.
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This court will reverse a termination of parental rights ‘“only upon a showing of
“clear error” – that which leaves us with a definite and firm conviction that a mistake has
been made.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly
v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
NAJAM, J., and MAY, J., concur.
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