MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Nov 15 2016, 7:28 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
Cathy M. Brownson                                        Gregory F. Zoeller
Coots, Henke & Wheeler, P.C.                             Attorney General of Indiana
Carmel, Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        November 15, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         29A04-1602-JT-353
B.R. (Minor Child) and
                                                         Appeal from the Hamilton
M.R. (Father),                                           Superior Court
Appellant-Respondent,                                    The Honorable Steven R. Nation,
                                                         Judge
        v.
                                                         The Honorable Todd L. Ruetz,
                                                         Magistrate
The Indiana Department of
Child Services,                                          Trial Court Cause No.
                                                         29D01-1503-JT-400
Appellee-Petitioner.




Bailey, Judge.


Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016       Page 1 of 10
                                              Case Summary
[1]   M.R. (“Father”) appeals the termination of his parental rights upon the petition

      of the Indiana Department of Child Services (“DCS”). M.R. raises the sole

      restated issue of whether there was sufficient evidence to terminate his parental

      rights. We affirm.



                               Facts and Procedural History
[2]   Father and M.M. (“Mother”)1 had one son together, B.R. (“Child”). Child was

      born on August 28, 2013, and on that day DCS received a report indicating, in

      part, that Mother tested positive for amphetamines and marijuana while

      pregnant with Child. During its investigation, DCS learned that Child was

      born with drugs in his system and was experiencing drug withdrawal. DCS

      further learned that Father had substance abuse issues, and DCS had concerns

      about potential domestic violence between Father and Mother. Child remained

      in Mother’s care because Father and Mother agreed to a safety plan. As part of

      the plan, Father and Mother would stay apart until services were in place.


[3]   On September 5, 2013, DCS filed a petition alleging that Child was a Child in

      Need of Services (“CHINS”). DCS later found Father and Mother together

      with Child in violation of the safety plan, and took Child into custody on




      1
          Mother consented to Child’s adoption; only Father’s appeal is before us.


      Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 2 of 10
      October 30, 2013. At a detention hearing the next day, the court ordered that

      Child be placed with Child’s maternal grandmother (“Grandmother”).


[4]   Following a fact-finding hearing on December 6, 2013, Child was adjudicated a

      CHINS. The court entered a dispositional decree on January 13, 2014 ordering

      Father and Mother to participate in services. Among the ordered services,

      Father was to participate in a substance abuse assessment and follow all

      recommendations. The court also ordered Father to comply with requests for

      drug screens, attend visitation sessions with Child, and cooperate with DCS

      and the guardian ad litem (“GAL”) by maintaining weekly contact with the

      DCS case manager.


[5]   After the dispositional order, Father did not participate in drug screens or

      substance abuse services. Father initially attended supervised visits with Child,

      but his sporadic attendance led to discharge from a service provider in April

      2014. The next month, Father and Mother requested services as a couple.

      They began receiving home-based therapy. They also, together, had supervised

      visits with Child in May and June of 2014. Those visits went well, and Father

      and Mother were successfully discharged from the service provider. DCS then

      developed a progressive visitation plan to transition Father and Mother to

      unsupervised visitation, with the possibility of an eventual home visit.

      However, amid concerns about domestic violence between Father and Mother,

      on August 7, 2014, DCS met with Father and Mother and initiated a new safety

      plan. Visitation reverted to supervised visits. At that meeting, Father told DCS

      that he wanted his son back and indicated he would be compliant.

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[6]   Later in August, DCS initiated another safety plan. The next month, Father

      and Mother separated with Father expressing to DCS that he no longer wished

      to continue with home-based therapy. Father’s last contact with Child was in

      August of 2014. Father did not contact DCS to renew visitation with Child.

      DCS tried to contact Father to renew visitation, but Father did not respond.


[7]   Although the permanency plan was initially reunification, following a hearing

      on December 16, 2014, the trial court changed the plan to adoption. On March

      24, 2015, DCS petitioned to terminate the parental rights of Father and Mother

      as to Child. The trial court held a fact-finding hearing on December 8, 2015.

      At that time, Father participated telephonically because he was incarcerated on

      recent charges. On January 12, 2016, the trial court entered its findings of fact,

      conclusions thereon, and order terminating Father’s parental rights.


[8]   This appeal ensued.



                                      Standard of Review
[9]   When reviewing the termination of parental rights, we do not judge witness

      credibility. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). Rather, we give “due

      regard” to the trial court’s unique opportunity to evaluate the credibility of

      witnesses. Ind. Trial Rule 52(A). Moreover, we do not reweigh the evidence.

      In re I.A., 934 N.E.2d at 1132. We consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Bester v. Lake Cty. Office of

      Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).


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[10]   Where, as here, a trial court has entered findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. In re I.A., 934 N.E.2d at

       1132. First, we determine whether the evidence supports the findings, and

       second we determine whether the findings support the judgment. Id. Pursuant

       to Trial Rule 52(A), we will not set aside the findings or judgment unless

       “clearly erroneous.” A finding is clearly erroneous “when the record contains

       no facts to support [the finding] either directly or by inference.” Quillen v.

       Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A trial court’s judgment is clearly

       erroneous if “its findings of fact do not support its conclusions of law or . . . its

       conclusions of law do not support its judgment.” Id. We must also, however,

       take into account the express statutory requirement that “[a] finding in a

       proceeding to terminate parental rights must be based upon clear and

       convincing evidence.” Ind. Code § 31-37-14-2. Thus, to synthesize and

       harmonize the requirements of the statute and Trial Rule 52(A), “to determine

       whether a judgment terminating parental rights is clearly erroneous, we review

       the trial court’s judgment to determine whether the evidence clearly and

       convincingly supports the findings and the findings clearly and convincingly

       support the judgment.” In re I.A., 934 N.E.2d at 1132.


[11]   Our supreme court and the United States Supreme Court have reiterated that

       “[a] parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Bester, 839 N.E.2d at

       147 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Indeed, although

       parental interests are not absolute, “the parent-child relationship is ‘one of the

       Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 5 of 10
       most valued relationships in our culture.’” Id. at 147 (quoting Neal v. DeKalb

       Cty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Accordingly,

       the Indiana statute governing the termination of parental rights sets a high bar

       for severing the parent-child relationship. See I.C. § 31-35-2-4(b).


[12]   Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

       parent-child relationship must allege, in pertinent part:


               (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.


                                            *        *      *         *


               (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.


                                            *        *        *      *


               (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 29A04-1602-JT-353 | November 15, 2016   Page 6 of 10
       DCS must prove each element by clear and convincing evidence. In re I.A., 934

       N.E.2d at 1133.



                                  Discussion and Decision
[13]   Father contends that there was insufficient evidence to terminate his parental

       rights. Father specifically challenges whether DCS met its burden in proving

       (1) that termination was in Child’s best interests and (2) that there was a

       satisfactory plan for the care and treatment of Child.


                                              Best Interests
[14]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. In re

       D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the

       court must subordinate the interests of the parents to those of the child

       involved. Id. The trial court need not wait until the child is irreversibly harmed

       before terminating the parent-child relationship. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). “Permanency is a

       central consideration in determining the best interests of a child.” In re G.Y.,

       904 N.E.2d 1257, 1265 (Ind. 2009). Moreover, a GAL’s testimony can support

       a finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

       203.


[15]   Father argues that the trial court should have included certain evidence

       favorable to Father in its findings. He contends that because the favorable

       Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 7 of 10
       evidence was absent from the findings, it is indiscernible whether the trial court

       properly considered the totality of the evidence in determining Child’s best

       interests. Father’s argument amounts to a request to reweigh the evidence,

       which we must decline. See In re I.A., 934 N.E.2d at 1132.


[16]   Here, the evidence favorable to the trial court’s determination indicated that

       Father failed to comply with the court’s dispositional order. Father failed to

       stay in contact with DCS and, at the time of the fact-finding hearing, had not

       seen Child for a year and three months, which was more than half of Child’s

       life. Father did not contact DCS to renew visitation and did not respond when

       DCS contacted him to renew visitation. The GAL attempted to contact Father

       on multiple occasions, initially with limited response and then ultimately no

       response. The GAL believed termination of Father’s parental rights was in

       Child’s best interests. Father refused to participate in DCS drug screening and

       did not complete the referred substance abuse assessment. Father chose not to

       participate in therapy. Moreover, although Father had not been convicted of

       his recent charges at the time of the fact-finding hearing, Father had a pattern of

       criminal history, including prior convictions for domestic battery in 2009 and

       for possession of paraphernalia in 2012. During the pendency of the CHINS

       proceeding, Father was on probation or incarcerated the majority of the time.

       Father’s encounters with law enforcement affected his ability to care for Child.


[17]   Father contends that DCS could have kept Child in relative placement while

       Father readied himself for parenthood, which is what Father requested at the

       fact-finding hearing. Father contends that the goal of permanency for Child

       Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 8 of 10
       could have been served while still giving Father services. However, the trial

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

       made only shortly before termination.” In re. E.M., 4 N.E.3d 636, 643 (Ind.

       2014). Moreover, a parent’s “failure to exercise the right to visit one’s children

       demonstrates a ‘lack of commitment to complete the actions necessary to

       preserve [the] parent-child relationship.” Lang v. Starke Cty. Office of Family &

       Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied (quoting In re

       A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)).


[18]   Given Father’s continued failure to comply with the dispositional order or

       make efforts to visit Child, and in light of the GAL’s testimony, we find that

       DCS carried its burden and proved with sufficient evidence that termination of

       Father’s parental rights was in Child’s best interests. We find no clear error.


                                           Satisfactory Plan
[19]   Father contends that DCS failed to prove by clear and convincing evidence that

       that there was a satisfactory plan for the care and treatment of Child. For a

       plan to be satisfactory, 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 D.D., 804 N.E.2d at 268. Moreover, this

       Court has held that “[a]ttempting to find suitable parents to adopt . . . is clearly

       a satisfactory plan.” Lang, 861 N.E.2d at 375.


[20]   Here, Father acknowledges that DCS’s proffered plan was adoption. However,

       Father argues that DCS did not prove the plan was satisfactory because the

       Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 9 of 10
       prospective adoptive parent, Grandmother, did not testify, nor did DCS

       introduce evidence that Grandmother had been approved to adopt Child.

       Again, this amounts to a request to reweigh the evidence, which we cannot do.

       See In re I.A., 934 N.E.2d at 1132.


[21]   We find that DCS met its burden in proving there was a satisfactory plan for

       Child.



                                               Conclusion
[22]   Clear and convincing evidence supports the judgment terminating Father’s

       parental rights.


[23]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1602-JT-353 | November 15, 2016   Page 10 of 10