Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015 Page 1 of 11

MEMORANDUM DECISION

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

Daniel A. Dixon

Lawrence County Public Defender 

Agency

Bedford, Indiana

ATTORNEYS FOR APPELLEE

INDIANA DEPARTMENT OF CHILD 

SERVICES

Gregory F. Zoeller

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

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of D.S. (Minor Child), and

B.T. (Mother),

Appellant-Respondent,

v.

May 28, 2015

Court of Appeals Case No. 47A01-

1405-JT-230

Appeal from the Lawrence Circuit 

Court

The Honorable Andrea K. McCord, 

Judge

The Honorable James F. Gallagher, 

Referee

Case No. 47C01-1306-JT-224
Court of Appeals of Indiana | Memorandum Decision 47A01-1405-JT-230 | May 28, 2015 Page 2 of 11

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 parentchild 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.