A.S. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] A.S. (“Mother”) appeals the involuntary termination of her parental rights to her minor child, D.S. (“Child”). We affirm.

Facts and Procedural History

[2] Child was born in August 2012 to Mother and N.B. (“Father,” and together with Mother, “Parents”). Child has been diagnosed with attention deficit hyperactivity disorder, post-traumatic stress disorder, oppositional defiant disorder, anxiety, depression, and unresolved dissociative symptoms. Child has engaged in self-harm and has threatened suicide. Child has severe behavioral problems which include anger management, physically harming animals, lying, stealing, hiding weapons, and starting fires. On May 15, 2021, Child was removed from Mother's care and the Department of Child Services (“DCS”) filed a petition alleging that Child was a child in need of services (“CHINS”). DCS alleged that Child was discovered to have significant bruising, Mother admitted to grabbing Child by the ear and shoulder and throwing him down, and Mother admitted to allowing her father to provide childcare and that her father physically abused Child. Child was placed in relative care.

[3] On August 9, 2021, the court adjudicated Child a CHINS following Parents’ admissions that the coercive intervention of the court was necessary to provide necessary services for Child. On September 13, 2021, the court entered a dispositional order which required Mother to, among other things, keep in contact with the DCS family case manager, attend all visitation, participate in home-based services to “gain anger management, life, and appropriate discipline skills,” complete a mental health assessment, and actively participate in recommendations. Exhibits Volume at 50. At this time, Child was placed in Father's care and the court ordered Mother to pay child support.

[4] The trial court held review hearings in December 2021, and in March, June, and October 2022. Father was unable to maintain Child in his home with his other children so, in early November 2022, Child was removed from Father's home and placed into the care of Y.H., a licensed therapeutic foster parent. Mother still struggled with appropriately responding to Child's behaviors but was “making strides forward in addressing the barriers that have kept [Child] from being returned to her care” and Child's permanency plan remained “to be returned to or continued in the custodial care” of Mother. Id. at 57-58.

[5] The court held review hearings in December 2022 and March 2023. The court found that Mother had only partially complied with Child's case plan and “little progress ha[d] been made.” Id. at 72. Father had recently declined all offered services and informed the court that he believed Child “has needs beyond what he can meet and would like DCS to look for an adoptive home.” Id. Services were ended for Father and the parties agreed to add a concurrent permanency plan of adoption. The court noted that Child's current placement with Y.H. “is not a pre-adoptive placement” and that DCS “shall move [Child] to a pre-adoptive placement if one is located.” Id. at 77.

[6] On October 25, 2023, DCS filed a petition to terminate Parents’ parental rights. The trial court held an initial hearing on the termination petition on November 6, 2023. The court ordered Father's parental rights to be terminated upon his admission. Although Mother denied the allegations in the termination petition, the court found that Mother had only “partially complied” with Child's case plan, she was “no closer to reunification than she was at the last hearing,” and that she admitted “adoption appear[ed] to be the most likely in the best interests” of Child. Id. at 80-81.

[7] The court held a termination fact-finding hearing on January 22 and April 15, 2024. During the first part of the hearing, DCS presented testimony from Mother, Family Case Manager Heather Muska (“FCM Muska”) and Court Appointed Special Advocate Kelly Smith-Ford (“CASA Smith-Ford”). Mother admitted that she is unable to provide for Child's needs and testified that she believed adoption by Y.H. was in Child's best interests. Both FCM Muska and CASA Smith-Ford opined that termination of Mother's parental rights and adoptive placement was in Child's best interests. Both service providers noted that Y.H. was unsure and not necessarily willing to adopt Y.H., so other adoptive placements needed to be explored. During the second part of the hearing, DCS presented evidence that Y.H. had filed a petition for adoption of Child. Mother testified that, although she had no intention of reengaging in services or seeking reunification with Child and that she saw no alternative to adoption, she was concerned of the possibility that the adoption specifically with Y.H. would “not go through” and requested the trial court continue the termination matter until the adoption by Y.H. was finalized. Transcript Volume II at 109. The trial court denied the motion to continue.

[8] On May 8, 2024, the court entered a detailed order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Mother's care would not be remedied; there was a reasonable probability that continuation of the parent-child relationship posed a threat to the well-being of Child; termination of Mother's parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

[9] Mother challenges the trial court's termination of her parental rights. Specifically, she challenges two of the trial court's findings of fact as clearly erroneous and she further argues that DCS “did not prove that there is a satisfactory plan” for the care and treatment of Child. Appellant's Brief at 14.

[10] At the time of the termination petition, Ind. Code § 31-35-2-4(b)(2) required DCS 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;

(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.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)).¹ If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[11] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640.

[12] First, regarding Mother's challenge to the trial court's findings of fact, we note that any unchallenged findings of fact stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied. Mother specifically challenges only finding 16 and finding 22. Finding 16 states, “Should the current adoption fail for any reason, Mother admits that adoption would still be in her Child's best interest and another adoptive parent/parents would have to be located.” Appellant's Appendix Volume II at 37. Finding 22 states, “Mother agrees that she cannot care for the child and adoption is in the Child's best interest even if [Y.H.] cannot adopt.” Id.

[13] Contrary to Mother's assertion, a review of the record reveals evidentiary support for the challenged findings. Mother admitted that she is unable to meet Child's needs and that adoption is in Child's best interest. Although Mother expressed a clear preference for Child to be adopted by Y.H. and indicated her belief that removing Child from Y.H.’s home where he had resided for two years would be detrimental to him, when asked if she understood that DCS would “pursue another adoptive home” if Y.H. “couldn't adopt for whatever reason,” Mother answered “Yes, of course.” Transcript Volume II at 62. Mother further elaborated this understanding when she acknowledged that in the event Y.H. could not adopt Child, she “would like to see [Child] go to [a] home that has the same [therapeutic] education” as Y.H. Id. at 63. Mother admitted that she had no intention of engaging in any further reunification services and, when asked directly by the court, “[D]o you see an alternative to adoption of [Child] in this case?”, Mother responded “No, I don't.” Id. at 112. Clear and convincing evidence supports the challenged findings.

[14] Moreover, even assuming error in the two challenged findings, the trial court made ample unchallenged findings to support the termination of Mother's parental rights. As noted above, the court found that Mother admitted that Child has needs beyond her ability to provide and that adoption is in Child's best interests. In addition, the court found that Child had numerous issues when living with Mother including lying, stealing, hurting animals, and starting fires; Mother is no longer engaged in any services or seeking any services geared toward reunification with Child; and the CASA agrees that termination and adoption is in Child's best interest. Accordingly, any error in the challenged findings is harmless and did not affect Mother's substantial rights. See Ind. Appellate Rule 66(A); A.J. v. Marion Cnty. Off. of Fam. & Child., 881 N.E.2d 706, 715 (Ind. Ct. App. 2008) (explaining that erroneous findings of fact are harmless if the court's unchallenged or otherwise valid findings still support its judgment); In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“We may reverse a trial court's judgment ․ only if its findings constitute prejudicial error․ A finding of fact is not prejudicial to a party unless it directly supports a conclusion.”), trans. denied.

[15] As for her claim that DCS failed to prove that there was a satisfactory plan for Child's care and treatment, Mother's primary assertion is that the evidence showed that adoption specifically by Y.H. is the only satisfactory plan for Child's future care. We note that Indiana courts have traditionally 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) (citation and some quotation marks omitted), trans. denied. “A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children.” Id. There need not be a guarantee that a suitable adoption will take place, only that DCS will attempt to find a suitable adoptive parent. Id. Stated another way, a plan is not unsatisfactory simply because DCS has not identified a specific family to adopt a child. Id. “Part of the reason for this is that it is within the authority of the adoption court, not the termination court, to determine whether an adoptive placement is appropriate.” Id. (citing In re D.J., 755 N.E.2d 679, 685 (Ind. Ct. App. 2001)), trans. denied.

[16] DCS presented evidence that the plan for Child's care and treatment was adoption by Y.H., which was his current foster family, or by another family that was qualified to meet his particular needs. The trial court's finding 26 acknowledges that, at the time of termination, an adoption case filed by Y.H. was pending. As noted above, DCS was not required to prove, and the trial court was not required to find, that Child's adoption by Y.H. was guaranteed. Clear and convincing evidence supports the trial court's conclusion that there is a satisfactory plan for the care and treatment of the Child, that being adoption.²

[17] For the foregoing reasons, we affirm the trial court's termination of Mother's parental rights.

[18] Affirmed.

FOOTNOTES

1.   Although the trial court's termination order was entered on May 8, 2024, after the effective date of the amended statute, DCS filed the termination petition and the factfinding hearing commenced prior to the effective date. Mother cites the prior version of the statute that we refer to above and she makes no suggestion that the amended version applies to this case.

2.   Mother does not challenge the trial court's conclusions that there was a reasonably probability that the conditions that resulted in Child's removal will not be remedied, that continuation of the parent-child relationship poses a threat to Child's well-being, or that termination of Mother's parental rights is in Child's best interests. Accordingly, we do not address those conclusions.

Brown, Judge.

Mathias, J., and Kenworthy, J., concur.