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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.

FILED
Jun 18 2012, 10:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT A.S. (MOTHER): GREGG S. THEOBALD Lafayette, Indiana

ATTORNEYS FOR APPELLEE: ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

ATTORNEY FOR APPELLANTS D.F. (FATHER) and J.S. (FATHER): MICHAEL B. TROEMEL Lafayette, Indiana

CRAIG JONES DCS Tippecanoe County Office Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF J.L.S., N.S., and M.S. (Minor Children), and A.S. (Mother), D.F. (Father), and J.S. (Father), Appellants, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 79A02-1111-JT-1123

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Loretta H. Rush, Judge

Cause Nos. 79D03-1107-JT 90, 79D03-1107-JT-91, 79D03-1107-JT-92, 79D03-1107-JT-93, 79D03-1107-JT-94 and 79D03-1107-JT-95

June 18, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE The following parties appeal the involuntary termination of their parental rights: (1) A.S. ("Mother") appeals the involuntary termination of her parental rights to J.L.S, M.S., and N.S.; (2) D.F. ("Father D.F.") appeals the involuntary termination of his parental rights to J.L.S; and (3) J.S. ("Father J.S.") appeals the involuntary termination of his parental rights to M.S. and N.S. We affirm. ISSUES 1. Whether there is clear and convincing evidence to support the involuntary termination of Mother's parental rights to J.L.S., N.S., and M.S. Whether there is clear and convincing evidence to support the involuntary termination of Father D.F.'s parental rights to J.L.S. Whether there is clear and convincing evidence to support the involuntary termination of Father J.S.'s parental rights to M.S. and N.S.

2.

3.

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FACTS J.L.S. was born to Mother and Father D.F. on September 4, 2007. M.S. was born to Mother and Father J.S. on December 29, 2008, and N.S. was born to Mother and Father J.S. on June 12, 2010. At the time of the 2011 termination hearing, Mother was twentyone years of age; Father D.F. was twenty-nine years of age; and Father J.S. was thirtythree years of age. (Mother's App. 29). All three children lived with Mother when the Tippecanoe County Department of Child Services ("DCS") filed an August 4, 2010 CHINS petition on the basis that Mother (1) was unable to meet the children's basic needs such as housing, formula, and diapers; (2) was not taking her mental health medications for ADHD and her bi-polar disorder; and (3) had not ensured that N.S. was receiving timely immunizations. In addition, DCS alleged that M.S. tested positive for marijuana, and Mother admitted using marijuana while M.S. was in utero. The children remained in Mother's care, and Mother and both Fathers agreed to participate in a number of interim services, including drug and alcohol assessments and random drug screens. In September 2010, Mother, M.S., and N.S. tested positive for methamphetamine. The children were placed in a foster home after a detention hearing on the following bases: Mother had left N.S. home alone; Mother did not follow an agreed upon safety plan; Mother tested positive for methamphetamine; Mother claimed that Father D.F. was smoking methamphetamine; Mother had not sought treatment for her cannabis

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dependence, bi-polar disorder, and ADHD; and Father D.F. admitted that his drug screen would come back positive for methamphetamines, Klonopin, and marijuana. On September 27, 2010, the trial court held a fact finding hearing and found the children to be children in need of services ("CHINS"). The majority of the trial court's

findings were materially similar to its findings in its detention order. The trial court also found that Father J.S. "does not have regular contact with his child and has failed to appear at the last two hearings in this matter. [Father J.S.] has a history of violence, repeated incarceration, and drug use." (DCS Ex. 1, at 28). The trial court found that all interim orders were to remain in effect and that Mother was to participate in a sex education class. On December 13, 2010, the trial court conducted a show cause hearing and found Mother and Father D.F. in contempt for their failure to participate in services. On January 24, 2011, the trial court conducted a periodic review hearing and ordered Mother to continue services as previously ordered. The trial court allowed Father D.F. to participate in future hearings by telephone, as he was incarcerated. On February 14, 2011, the trial court found that Mother had tested positive for cannabinoids on January 21, 2011. On July 13, 2011, the trial court approved a On October 19, 2011, after a

permanency plan of termination of parental rights.

termination hearing, the trial court entered findings of fact and conclusions of law in support of its determination that Mother's parental rights should be terminated as to J.L.S., N.S., and M.S; that Father D.F.'s parental rights should be terminated as to J.L.S.; and that 4

Father J.S.'s parental rights should be terminated as to M.S. and N.S. The trial court determined that there was no reasonable possibility that the reasons for continued placement outside the home would be remedied and that the continuation of the parentchild relationship posed a threat to the children's well being. The trial court also

determined that termination was in the children's best interests. Additional facts are discussed below.

DECISION The traditional right of parents to establish a home and raise their child is protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Parental rights may be terminated when parents are unable or unwilling to meet their parental responsibilities. Id. The purpose of terminating parental rights is not to punish a parent but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied. When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester, 839 N.E.2d at 147. We will only consider the evidence and reasonable inferences therefrom that are most favorable to the judgment. Id. When reviewing findings of fact and conclusions thereon entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings. Id. Then, we determine whether the findings support the judgment. Id. The trial court's judgment will be set 5

aside 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. (quoting In re R.J., 829 N.E.2d 1032, 1034 (Ind. Ct. App. 2005)). When DCS seeks to terminate parental rights pursuant to Indiana Code section 3135-2-4(b)(2), it must plead and prove in relevant 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; (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.1 These allegations must be established by clear and convincing evidence. In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010). Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only one of the elements by clear and convincing evidence. See I.A., 934 N.E.2d at 1133. Thus, if we hold that the evidence sufficiently shows that there is reasonable probability that the conditions resulting in removal or the reasons for placement outside the home of the parents will not be remedied, we need not address whether the continuation of the
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Neither Mother nor the fathers contend that DCS presented insufficient evidence that there is a satisfactory plan for care and treatment of the children.

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parent-child relationship poses a threat to the well-being of the child. See I.C.

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