In the Matter of the Termination of the Parent-Child Relationship of D.S. (Minor Child), and B.T. (Mother) v. The Indiana Department of Child Services and Court Appointed Special Advocate (mem. dec.)

MEMORANDUM DECISION
May 28 2015, 5:37 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel A. Dixon INDIANA DEPARTMENT OF CHILD
Lawrence County Public Defender SERVICES
Agency Gregory F. Zoeller
Bedford, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE COURT
APPOINTED SPECIAL ADVOCATE
Darlene Steele McSoley
Bedford, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 28, 2015
of the Parent-Child Relationship Court of Appeals Case No. 47A01-
of D.S. (Minor Child), and 1405-JT-230
Appeal from the Lawrence Circuit
B.T. (Mother), Court
Appellant-Respondent, The Honorable Andrea K. McCord,
Judge
v.
The Honorable James F. Gallagher,
Referee
Case No. 47C01-1306-JT-224

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 The Indiana Department of Child
Services,
Appellee-Petitioner,
and
Court Appointed Special
Advocate,
Co-Appellee.

Crone, Judge.

Case Summary
[1] B.T. (“Mother”) appeals the trial court’s decree (“the Decree”) terminating her

parental rights to D.S. (“Child”).1 She argues that the trial court clearly erred in

concluding that termination of the parent-child relationship is in Child’s best

interests and that there is a satisfactory plan for Child’s care and treatment.

Finding no error, we affirm.

Facts and Procedural History
[2] The facts most favorable to the Decree follow. On March 10, 2010, Mother

gave birth to Child. In October 2010, the Department of Child Services

(“DCS”) removed Child from Mother’s custody.2 In April 2011, the trial court

1
D.S.’s father consented to his adoption. Appellant’s App. at 58.
2
In their briefs, both parties state that Child was removed from Mother’s care in October. However, the trial
court found that Child was removed from Mother’s custody in May 2011, which is the month immediately
following Child’s adjudication as a CHINS.

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 adjudicated Child a child in need of services (“CHINS”) based on its

determination that Mother had not consistently visited with Child, had used

drugs, and was arrested in February 2011 for possession of a controlled

substance. The trial court ordered Mother and A.S. (“Father”) to participate in

paternity testing. Father’s paternity was established. In November 2011, the

trial court awarded Father primary physical custody of Child. The trial court

then dismissed the CHINS case.

[3] In March 2012, DCS removed Child from Father’s home and filed a second

CHINS petition based on allegations that Father was manufacturing

methamphetamine in Child’s home.3 DCS placed Child with his paternal

grandparents, where Child remains. In October 2012, the trial court declared

Child a CHINS based on its determination that Father endangered Child by

manufacturing methamphetamine in Child’s home.

[4] In June 2013, DCS filed a termination petition. On February 27 and 28, 2014,

the trial court held an evidentiary hearing on the petition, at which Mother, the

DCS case manager, D.S.’s court appointed special advocate (“CASA”), D.S.’s

paternal grandmother, and the director of the organization that conducted

Mother’s visitation testified. Mother, DCS, and Child’s CASA each filed

proposed findings of fact and conclusions thereon. In April 2014, the trial court

entered its Decree terminating Mother’s parental rights, essentially adopting the

3
The trial court found that Child was removed from Father’s custody in October 2012, which corresponds to
the CHINS adjudication.

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CASA’s proposed findings and conclusions. The Decree provides in relevant

part as follows:

6. Throughout both CHINS proceedings, Mother has continued to
have problems with substance abuse, homelessness and periods of
incarceration.
7. Even when she was not incarcerated, Mother did not cooperate
with service providers. ….
….
10. On October 11, 2012, Mother was arrested for possession of
narcotics, prescription fraud and theft. At the time of the termination
hearing, Mother was still incarcerated in Women’s Prison. Her
earliest release date is July, 2014.
11. Although Mother had signed up for GED training and parenting
classes while in prison, she was removed from the eligibility list for
those classes due to her misbehavior before the classes began.
….
CLEAR AND CONVINCING EVIDENCE SUPPORTS THE
FOLLOWING SPECIFIC FINDINGS WHICH THE COURT
NOW MAKES:
A. [Child] was removed from Mother’s custody in May of 2011 and
from Father’s custody in October of 2012. Since that later date,
[Child] has been living in foster care and under the supervision of the
DCS. [Child] has been removed from the parents’ custody and control
by the DCS for more than 15 of the last 22 months.
B. The parents’ pattern of substance abuse, homelessness, criminal
behavior and long periods of incarceration shows that there has been
little improvement during the last 16 months. There is a strong
probability that the conditions which resulted in [Child’s] placement
outside the home will not be remedied.
C. Neither parent is able to care for [Child], and keeping [Child] in
foster care for a prolonged period could damage his need for
permanency. Termination is in [Child’s] best interest.
D. [Child’s] present foster family is a pre-adoptive family. [Child] has
bonded with his pre-adoptive parents and seems to be thriving in his

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 present situation. DCS’s plan to let [Child] be adopted is a satisfactory
plan for the care and treatment of the child.

Appellant’s App. at 58-60. Mother appeals.

Discussion and Decision

Standard of Review
[5] Mother appeals the termination of her parental rights.

The Fourteenth Amendment to the United States Constitution protects
the traditional right of parents to establish a home and raise their
children. …. We recognize, however, that parental interests are not
absolute and must be subordinated to the child’s interests in
determining the proper disposition of a petition to terminate parental
rights. Thus, parental rights may be terminated when the parents are
unable or unwilling to meet their parental responsibilities.

In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009) (citations, quotation marks,

and brackets omitted).

[6] If the court finds that the allegations in a petition to terminate parental rights as

described in Indiana Code Section 31-35-2-4 are true, “the court shall terminate

the parent-child relationship.” Ind. Code § 31-35-2-8. Indiana Code Section

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

involving a CHINS must allege:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.

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 (ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding, the
date of the finding, and the manner in which the finding was
made.

(iii) The child has been removed from the parent and has been
under the supervision of a local office or probation department
for at least fifteen (15) months of the most recent twenty-two
(22) months, beginning with the date the child is removed from
the home as a result of the child being alleged to be a child in
need of services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons 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.

[7] The State must prove by “clear and convincing evidence” each and every

element set forth in Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind.

Code § 31-37-14-2. “‘Clear and convincing evidence need not reveal that the

continued custody of the parents is wholly inadequate for the child’s very

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 survival.’” G.Y., 904 N.E.2d at 1261 (quoting Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 148 (Ind. 2005)). “‘Rather, it is sufficient to show

by clear and convincing evidence that the child’s emotional and physical

development are threatened by the respondent parent’s custody.’” Id. (quoting

Bester, 839 N.E.2d at 148).

[8] Although a trial court is not statutorily required to enter findings of fact and

conclusions thereon when terminating parental rights, this Court has held that

given the constitutional dimension of such a decision, trial courts must “enter

findings of fact that support the entry of the conclusions called for by Indiana

statute and the common law.” In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App.

2010), trans. dismissed.

When reviewing the termination of parental rights, we do not reweigh
the evidence or judge witness credibility. We consider only the
evidence and reasonable inferences that are most favorable to the
judgment. …. When reviewing findings of fact and conclusions of law
entered in a case involving a 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. We will set aside the [trial] court’s
judgment only if it is clearly erroneous. A judgment is clearly
erroneous if the findings do not support the [trial] court’s conclusions
or the conclusions do not support the judgment.

G.Y., 904 N.E.2d at 1260 (citations and quotation marks omitted).

[9] Here, many of the trial court’s findings are merely recitations of witness

testimony and opinions. On multiple occasions, we have stated that

“‘[f]indings which indicate that the testimony or evidence was this or the other

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 are not findings of fact.’” Parks v. Delaware Cnty. Dep’t of Child Servs., 862 N.E.2d

1275, 1279 (Ind. Ct. App. 2007) (quoting Moore v. Ind. Family & Social Servs.

Admin., 682 N.E.2d 545, 547 (Ind. Ct. App. 1997)) (emphasis in Parks). Such

improper findings are not “‘harmful error’” but are considered “‘mere

surplusage.’” Id. (quoting Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind.

1981)). Thus, in reviewing the Decree, we ignore the improper findings.

Section 1 - Termination of Mother’s parental rights is in
Child’s best interests.
[10] Mother challenges the trial court’s conclusion that termination of the parent-

child relationship is in Child’s best interests.

[I]n determining what is in the best interests of a child, the trial court is
required to look beyond the factors identified by the Department of
Child Services and to consider the totality of the evidence. In so
doing, the trial court must subordinate the interests of the parent to
those of the child. The court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship. Moreover,
we have previously held that the recommendations of the case
manager and court-appointed 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 J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted); see also

In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999) (“[C]hildren should not be

compelled to suffer emotional injury, psychological adjustments, and instability

to preserve parental rights.”).

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[11] Specifically, Mother argues that the trial court clearly erred in concluding that

keeping Child in foster care for a prolonged period could damage his need for

permanency. She argues that there is no evidence that maintaining Child’s

current placement with his paternal grandparents would harm his need for

permanency. She states that she was expected to be released from prison only

four to five months after the termination hearing and that her ability to establish

an appropriate life upon release could be determined relatively quickly.

[12] Mother likens her case to G.Y., 904 N.E.2d 1257, in which our supreme court

reversed the termination order of a mother who was incarcerated at the time of

termination. G.Y. is clearly distinguishable. There, the mother was

incarcerated twenty months after the child’s birth for a crime that she

committed before the child was even conceived. The supreme court noted that

there was no evidence that the mother was anything but a fit parent for the first

twenty months of the child’s life, no evidence that she had engaged in a pattern

of criminal activity that was likely to continue upon her release from prison,

and, significantly, she had taken all the steps she could while incarcerated to

better herself. Id. at 1265. Here, in contrast, the trial court found that

throughout both CHINS proceedings Mother continued to have problems with

substance abuse, homelessness, and periods of incarceration, did not cooperate

with service providers when she was not incarcerated, was arrested for

possession of narcotics, prescription fraud, and theft, and became ineligible for

GED training and parenting classes due to her misbehavior. Appellant’s App.

at 58-60. Mother does not challenge these findings.

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[13] Mother also relies on In re J.M., 908 N.E.2d 191 (Ind. 2009), in which our

supreme court upheld the trial court’s denial of the State’s petition to terminate

the mother’s and father’s parental rights. In so doing, our supreme court

concluded that the evidence in the record supported the trial court’s conclusion

that the parents’ ability to establish a stable and appropriate life upon release

could be determined within a relatively quick period of time and the child’s

need of permanency would not be severely prejudiced. Id. at 195-96. Mother’s

reliance on J.M. is unavailing. In addition to the fact that the procedural

posture of J.M. is different from this case, the facts are also clearly

distinguishable. In J.M., the parents had fully cooperated with the services

required of them while incarcerated. Mother has not. Mother’s behavior

throughout the two CHINS cases supports the trial court’s conclusion that

continued foster care will harm Child’s need for permanency. Accordingly, we

cannot say that the trial court clearly erred in concluding that termination of

Mother’s parental rights is in D.S.’s best interests.

Section 2 – There is a satisfactory plan for Child’s care and
treatment.
[14] The trial court concluded that Child had bonded with his pre-adoptive parents

and was thriving in their custody. Mother does not challenge this conclusion.

However, she argues that under the facts of this case, adoption by Child’s

paternal grandparents is not a suitable plan for Child’s care and treatment

because the grandmother knew about Mother’s addiction and had delivered

drugs to Mother in the summer of 2012 and both grandparents used pain

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 medication and Xanax on a daily basis, which could impair their ability to

transport and supervise Child. Mother’s argument is merely a request to

reweigh the evidence, which we must decline. We conclude that the trial court

did not clearly err in concluding that there is a satisfactory plan for Child’s care

and treatment. Therefore, we affirm the termination of Mother’s parental rights

to D.S.

[15] Affirmed.

Brown, J., and Pyle, J., concur.

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