MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 29 2018, 8:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
Richmond, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the October 29, 2018
Parent-Child Relationship of: Court of Appeals Case No.
18A-JT-01197
A.A. (Minor Child), A.A.
Appeal from the Wayne Superior
and Court 3
W.C., The Honorable Darrin M.
Appellant-Respondent, Dolehanty, Judge
Trial Court Cause No.
v. 89D03-1708-JT-000017
The Indiana Department of
Child Services,
Appellee-Petitioner.
Tavitas, Judge.
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Statement of the Case
[1] A. A. (“Mother”) and W.C. (“Father”) appeal the termination of their parental
rights to A.A. (the “Child”). We affirm.
Issues
[2] Mother and Father state the issue as whether there is sufficient evidence to
support the termination of Mother’s and Father’s parental rights. Based upon
Mother’s and Father’s argument in their brief, we restate the issue as whether
the Department of Child Services (“DCS”) proved by clear and convincing
evidence that DCS had a satisfactory plan for the care and treatment of the
Child.
Facts
[3] Mother gave birth to the Child in September 2002. Father is the alleged father
of the Child. DCS was contacted on March 22, 2016, because the Child’s
sister 1 was the victim of a sexual assault, and had been taken to the hospital.
While receiving care for her sexual assault, the Child’s sister tested positive for
THC and cocaine. DCS discovered that Mother did not have stable housing for
herself or the children. Mother and the children were living in a structure with
no electricity and no water, and they recently were locked out of that structure.
1
Mother has three daughters who are not the subjects of this appeal. The Child is Mother’s only son.
Collectively, Mother has four children (“the children”). The assault on the Child’s sister, and subsequent
positive drug test, triggered the call to DCS. The Child’s sister, who was sexually assaulted, is the same sister
who suffered from drug addiction issues.
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DCS was able to obtain placement in a domestic violence shelter for Mother
and the Child’s three sisters. The Child was not living with Mother and the
Child’s sisters at that time and was instead staying with a family member; the
arrangement however, was not consistent. On April 6, 2016, Mother and her
daughters were asked to leave the shelter. Both Mother and Mother’s daughter,
who was sexually assaulted, admitted to substance abuse.
[4] DCS filed a Child in Need of Services (“CHINS”) petition on April 7, 2016.
Mother admitted the Child was a CHINS and requested residential substance
abuse therapy with the assistance of DCS. Father also admitted the Child was a
CHINS, and that Father cannot afford to provide services for the Child due to
Father’s incarceration and Father’s need for substance abuse treatment. The
trial court authorized the Child to be removed from Mother’s care on April 8,
2016 due to allegations of “abuse and/or neglect.” Appellant’s App. Vol. II p.
12. The court appointed special advocate (“CASA”) director Karen Bowen
(“Bowen”) stated that the Child was originally removed from parents due to
“homelessness” and “allegations of drug use.” Tr. Vol. II p. 77. The trial court
then issued an order determining the Child was a CHINS on May 13, 2016. 2
The dispositional decree was issued on July 7, 2016, as to Mother, and on
August 25, 2016, as to Father.
2
Mother’s children previously were the subjects of CHINS proceedings in 2004.
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[5] The dispositional decree as to Mother required that she: (1) contact DCS
weekly; (2) notify DCS of any changes of address; (3) notify DCS of any new
arrest or criminal charges; (4) allow DCS to visit the home; (5) keep all
appointments with DCS; (6) sign all releases necessary for DCS; (7) maintain
suitable, safe, and stable housing; (8) secure and maintain a legal source of
income; (9) not use, consume, trade, distribute, possess, sell, or manufacture
any illegal controlled substances; (10) obey the law; (11) complete a parenting
assessment; (12) complete a substance abuse assessment; (13) submit to random
drug screenings; and (14) attend all scheduled visitations with the Child. The
dispositional decree as to Father required that he do the same as Mother in
addition to the requirement that Father: (1) notify DCS when he is released
from incarceration; and (2) pay child support.
[6] Mother was given assistance by DCS and her family case manager (“FCM”),
Lori Sumwalt, to help her overcome her homelessness and addiction problems.
DCS paid the deposit and first month’s rent for an apartment for Mother while
the children were in DCS’s care. Mother did not make any subsequent rent
payments and was eventually evicted from the apartment. On May 25, 2016,
Sumwalt drove Mother to a thirty-day inpatient substance abuse treatment
program, and Mother remained in the program for nine days. Mother complied
with services of the CHINS case in September 2016. Beginning in October,
however, Mother’s participation in the programs began to dwindle, and she
failed to attend service provider appointments in November 2016, and attended
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only one in December 2016. Father did not participate in the underlying
CHINS case for the first several months.
[7] Mother and Father were both arrested on January 2, 2017, and remained in jail
for two days. Following the arrest, the trial court suspended parenting time for
both Mother and Father unless Mother and Father would agree to participate in
“therapeutic visitation.” Appellant’s App. Vol. II p. 99. Mother participated in
the intake process to begin the therapeutic visitation, but Mother did not attend
any therapeutic visitation sessions. Father did not contact Sumwalt from
January through August 2017. Father was then arrested again. Father did
participate in some services while in jail in 2016 and 2017. Mother was again
arrested in February 2017.
[8] Mother also ceased contact with Sumwalt for several months. During the
pendency of the CHINS case, emergency responders were called twice in 2017
to revive Mother after apparent overdoses. Emergency responders were also
called in 2017 to revive Father after apparent overdoses. Mother failed ten drug
tests between 2016 and 2017. Father failed a drug test in February 2017.
[9] Initially, the permanency plan was reunification. However, the trial court
changed the Child’s plan to adoption, pursuant to an order on April 7, 2017.
DCS filed the petition for termination of the parent-child relationship on
August 14, 2017. On February 22, 2018, the trial court held a fact-finding
hearing. Counsel for DCS, the CASA director, Father’s counsel, Mother’s
counsel, and Mother were present on the first day of the fact-finding hearing.
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Father did not attend the fact-finding hearing on either day. Mother was not
present for the second day of the fact-finding hearing. The Child resided at the
Child’s current foster home since December 27, 2016.
[10] The trial court entered findings of fact and conclusions of law granting the
petition to terminate parental rights on April 12, 2018. The trial court found:
3) There is clear and convincing evidence to conclude that
termination of parental rights is in [the Child’s] best interest.
[The Child] is fifteen (15) years old now, and has been outside of
his parents’ care for two (2) full years. [The Child] is successfully
placed into an adoptive foster home, is doing great in that home,
and is doing equally great at school. He struggles, from time to
time, with marijuana use, but is otherwise living within a normal
child’s life. He is ready to close out the trauma coming from his
parents’ lifestyle, and to be adopted by his foster parent.
4) There is clear and convincing evidence of a satisfactory plan
for [the Child’s] care and treatment once parental rights are
terminated, that plan being adoption.
Appellant’s App. Vol. II p. 105.
Analysis
[11] Mother and Father challenge the termination of their parental relationships
with the Child. The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their
children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989
N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his
or her] child is ‘perhaps the oldest of the fundamental liberty interests
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recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054 (2000)). We recognize, of course, that parental interests are not
absolute and must be subordinated to the child’s interests when determining the
proper disposition of a petition to terminate parental rights. Id. Thus,
“‘[p]arental rights may be terminated when the parents are unable or unwilling
to meet their parental responsibilities by failing to provide for the child’s
immediate and long-term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In
re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).
[12] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.
2011). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We must also give “due regard” to the trial
court’s unique opportunity to judge the credibility of the witnesses. Id.
(quoting Ind. Trial Rule 52(A)).
[13] When granting a petition for termination of parental rights pursuant to Indiana
Code Section 31-35-2-8(c), “The trial court shall enter findings of fact that
support the entry of the conclusions required by subsections (a) and (b).” 3 Here,
3
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship.
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the trial court did enter findings of fact and conclusions of law in the trial
court’s order granting DCS’s petition to terminate Mother’s and Father’s
parental rights. When reviewing findings of fact and conclusions of law entered
in a case involving the termination of parental rights, we apply a two-tiered
standard of review. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment.
Id. We will set aside the trial court’s judgment only if it is clearly erroneous. Id.
A judgment is clearly erroneous if the findings do not support the trial court’s
conclusions or the conclusions do not support the judgment. Id.
[14] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the
conditions that resulted in the child’s removal
or the reasons for placement outside the
home of the parents will not be remedied.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
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(ii) There is a reasonable probability that the
continuation of the parent-child relationship
poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions,
been adjudicated a child in need of services;
(C) that termination is in the best interests of the child;
and
(D) that there is a satisfactory plan for the care and
treatment of the child.
DCS must establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
[15] Mother and Father argue only that the evidence was insufficient to support the
findings of fact and conclusion of law that there is a satisfactory plan for the
care and treatment of the Child. Mother and Father do not appear to challenge
the other findings of fact and conclusions of law. Therefore, we focus our
analysis on the evidence regarding the satisfactory plan.
[16] “DCS must provide sufficient evidence there is a satisfactory plan for the care
and treatment of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App.
2013) (citing Ind. Code § 31-35-2-4(b)(1)(D)), reh’g denied. The plan “‘need not
be detailed, so long as it offers a general sense of the direction in which the
child will be going after the parent-child relationship is terminated.’” Id. (citing
In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008)). Several witnesses
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testified that the plan for the Child after termination of Mother’s and Father’s
parental rights was adoption.
[17] Bowen was appointed as the CASA for the Child and Mother’s other children
beginning in April 2016. At the fact-finding hearing, Bowen stated that the
Child “wants termination of [Mother’s and Father’s] parental rights to happen,
because [the Child] wants to proceed with his life and be adopted.” Tr. Vol. II
pp. 67-68. The Child also specifically stated that the Child wants to be adopted
by his current foster parents. Bowen stated that the Child has “stopped
smoking weed, [the Child] hasn’t gotten in that much trouble, [the Child] has
kept his grades up at school, [the Child has] played basketball, and [the Child]
has settled in his foster home and really enjoys his foster family and wants to
remain a part there.” Id. at 68. Bowen stated that the Child’s current foster
home is a “pre-adoptive” foster home and that the Child looks at C.C. (“Foster
Mother”) as a “parental” figure. Id. at 69.
[18] Sumwalt also testified that the permanency plan for the Child is adoption. DCS
called Foster Mother to testify. Mother’s counsel objected to the calling of
Foster Mother. The trial court allowed Foster Mother to testify, but limited the
scope. While some of Foster Mother’s testimony was limited, Foster Mother
did testify that, to her knowledge, the Child would want to remain in her home,
“however that might be done.” Id. at 91. Foster Mother stated she has spoken
to the Child about this “many times.” Id.
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[19] This evidence is sufficient to meet the requirement of a satisfactory plan in place
for the Child after termination of Mother’s and Father’s parental rights. The
trial court found that the Child is currently in the care of Foster Mother and
that Foster Mother is willing to adopt, if permitted to do so. Mother and Father
argue that the evidence is insufficient as to the trial court’s finding on this latter
point. We need not, however, address whether the evidence is sufficient to
support the specific finding that Foster Mother wants to adopt the Child. There
was sufficient evidence to support the finding that the plan is adoption, and this
alone is enough to meet the requirement that there be a satisfactory plan in
place. See In re J.C., 994 N.E.2d at 290. Therefore, we cannot say that the
finding regarding the satisfactory plan was clearly erroneous.
Conclusion
[20] The evidence was sufficient for the trial court to conclude there was a
satisfactory plan of care for the Child if the parental rights were terminated.
Accordingly, we affirm.
[21] Affirmed.
Brown, J., and Altice, J., concur.
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