author: MAY, Judge.

text:
    In the Matter of the Termination of the Parent-Child Relationship of J.C., Et. C., & El.C., Minor Children, S.C., Mother, Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner,
    No. 29A02-1210-JT-833.
    Court of Appeals of Indiana.
    May 24, 2013.
    Rehearing Denied Aug. 16, 2013.

      Carolyn J. Nichols, Noblesville, IN, Attorney for Appellant.
    Michael C. Price, DCS, Hamilton County, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

S.C. (Mother) appeals the involuntary termination of her parental rights to J.C., Et.C, and El.C., and presents three issues:

1. Whether the Department of Child Services (DCS) presented sufficient evidence there was a reasonable probability that the conditions that resulted in the children’s removal would not be remedied;
2. Whether DCS presented sufficient evidence involuntary termination of Mother’s parental rights was in the children’s best interests; and
3. Whether DCS presented sufficient evidence there existed a satisfactory plan for the care and treatment of the children.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and V.C. (Father) are the parents of Et.C., born July 26, 2006; J.C., born December 21, 2008; and El.C., born February 23, 2011. On March 18, 2010, DCS detained Et.C. and J.C. after Mother was arrested for theft and operating a vehicle while intoxicated. Father could not be located at the time of Mother’s arrest. On March 22, the juvenile court held a hearing to determine if Et.C. and J.C. were Children in Need of Services (CHINS) and should be removed from the family home. The court determined Et.C. and J.C. were CHINS, but did not order removal, as Father was able to care for them.

On July 26, the court ordered Mother and Father to participate in a variety of services; to maintain contact with DCS and the Guardian ad Litem (GAL); to keep all appointments with service providers; to allow announced and unannounced visits by DCS or the GAL; to maintain suitable housing and sources of support and income sufficient for the safe upbringing of Et.C. and J.C.; to participate in home-based therapy, counseling, and case management; to participate in and successfully complete a parenting assessment; and to abstain from the use of drugs and alcohol. That order left Et.C. and J.C. in Mother’s care, as Father was incarcerated.

On September 13, 2010, the court removed Et.C. and J.C. from Mother’s care because Mother had been arrested for neglect of a dependent and public intoxication after she fell asleep at a restaurant due to intoxication and then attempted to walk herself and the children across a busy highway. Et.C. and J.C. were placed in foster care.

On December 22, the court held a review hearing. It noted Mother was compliant with many requirements of the CHINS case plan, including that her drug screens had been negative and she had completed an Intensive Outpatient Program for substance abuse. Et.C. and J.C. could not be placed with Mother, however, because she was serving a sentence in a work-release facility.

On February 23, 2011, while still at the work release facility, Mother gave birth to El.C. DCS immediately filed a CHINS Petition because both parents were incarcerated. The court adjudicated El.C. a CHINS and ordered Mother to complete the services consistent with the other CHINS adjudication.

By May 2011, Mother had successfully completed all services required by the CHINS case management plan. The court ordered preparation for a trial home placement of the children with Mother to begin on July 1. In September 2011, things were going so well that Mother, Mother’s fiancé, and DCS service providers met to discuss full reunification and possible closing of the CHINS cases in the near future.

On October 7, 2011, the children were removed from Mother’s care for a final time after Mother battered her fiancé in the presence of the children because he would not give Mother more than the prescribed amount of her prescription medication. The children initially were placed in foster care, then were transferred to the care of paternal grandmother, where they have remained. On December 15, the juvenile court held a CHINS compliance hearing, changed the permanency plan from reunification to termination of parental rights, and suspended all of Mother’s services because of her arrest.

On February 29, 2012, DCS filed petitions to involuntarily terminate Mother’s parental rights. After hearing evidence, the trial court terminated Mother’s parental rights.

DISCUSSION AND DECISION

We review termination of parental rights with great deference. In re K.S., D.S., and B.G., 750 N.E.2d 832, 836 (Ind.Ct.App.2001). We will not reweigh evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.Ct. App.2004), trans. denied. Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. In deference to the juvenile court’s unique position to assess the evidence, we will set aside a judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.App.1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161, 122 S.Ct. 1197, 152 L.Ed.2d 136 (2002).

When, as here, a judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). We determine first whether the evidence supports the findings and second whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). If the evidence and infer-enees support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

“The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct.App.1996), trans. denied. A juvenile court must subordinate the interests of the parents to those of the child, however, when evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not be terminated solely because there is a better home available for the child, id., but parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

To terminate a parent-child relationship in Indiana, the State must allege and prove:

(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.
(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 county office of family and children 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.

Ind.Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009), reh’g denied. If the court finds the allegations in the petition are true, it must terminate the parent-child relationship. Ind.Code § 31-35-2-8.

In involuntarily terminating Mother’s parental rights to the children, the juvenile court found:

3.) On 3/18/10, DCS investigated a report of abuse and/or neglect regarding [Et.C] and his sister brother [sic] [J.C.]. [Mother] was arrested for the crime of theft and operating a motor vehicle while intoxicated. [Mother] had [Et.C] and [J.C.] with her at the time she was under the influence of intoxicating substances, and while committing the acts for which she was arrested.

9.) On 9/13/10, a second removal of [Et.C] and [J.C.] from the home of the biological parents had occurred. The CHINS court conducted a detention hearing on that date, making the following findings and orders, which this Court now adopts as its own findings in this termination cause:

• Detention was necessary to protect [Et.C.], and in the child’s best interests to remain removed from the home of biological parents;
• The biological parents were both incarcerated at this time;
• [Mother] was unable to remain awake while in a public restaurant, due to use and abuse of intoxicating substances, had crossed a busy thoroughfare on foot with [Et.C] and [J.C.] while in this state of impairment, and [Mother] was arrested for these acts, facing multiple counts of Neglect of a Dependent and public intoxication[.]
10.) As of 12/22/10, [Mother] had complied with the CHINS court’s disposi-tional orders. [Mother] had participated in home-based therapy, had completed an Intensive Outpatient Program (“IOP”) to address her drug abuse, and had submitted multiple negative drug screens. However [Mother] had multiple pending criminal charges relating to drug use for which she was subject to possible executed time which would necessarily interrupt reunification services ....
11.) On 2/23/11, [Mother] gave birth to another sibling of [Et.C], named [El.C.]. On 2/25/11, DCS filed a new CHINS case as it related to this new child, under cause number 29C01-1102-JC-246. By this date, [Mother] had been sentenced in the drug related criminal cases described in paragraph 10.) above, and was serving her sentence on a work-release program, which had also interrupted her reunification efforts. The biological parents admitted to the allegations of this new CHINS petition on 2/28/11.
12.) As of 6/20/11, [Mother] had resumed her compliance with reunification efforts, participating in home-based therapy, post-IOP substance abuse counseling, visitation sessions, and maintenance of negative drug screens.... [Mother’s executed sentence was completed and the CHINS court authorized DCS to attempt a Trial Home Visit of [Children] in the home of [Mother] in early July of 2011. The CHINS case was set for a Permanency Hearing on 12/5/11.
13.) On 10/13/11, a third detention and removal of [Children] occurred. [Mother] had again been arrested and incarcerated due to resumed drug-related conduct and criminal behavior. The CHINS court conducted a detention hearing on that date, making the following findings and orders, which this Court now adopts as its own findings in this termination cause:
• [Mother] had engaged in an episode of domestic violence in the family home, and in front of [Children];
• The violent episode included physical assault on [Mother’s] fiancé, and interfering with his attempt to dial for emergency assistance;
• This violent episode was specifically due to mother’s fiancé refusing to provide [Mother] with a controlled substance, which the fiancé had been delegated to dispense to [Mother] in appropriate amounts. [Mother] was violently demanding excess amounts of the controlled substance;
• [Mother] was arrested and incarcerated, and was already serving a sentence in unrelated, but drug-related, criminal charges;
* ⅜ ⅝ ⅜ ⅜ ⅜
14.) On 12/15/11, the CHINS court found the following facts in determining that [Mother] and father were not in compliance with the child’s case plan, or complying with the court’s dispositional orders, which this Court now also finds as facts in this termination proceeding:
• [Mother] had completed home-based therapy, individual counseling, and substance abuse treatment, and had participated in a Trial Home Visit as of 7/1/11;
• The CHINS case was close to successful reunification and dismissal until the incident described in paragraph 13.) above, which event occurred on 10/7/11;
• On 10/7/11 [Mother] engaged in an episode of domestic violence and substance abuse in the presence of all of her children;
• [Mother] consumed alcohol and got into an argument with her boyfriend because he refused to supply her with excess amounts of her prescription medications, leading to an assault by [Mother] on the boyfriend. The assault caused physical injury to the boyfriend, and damage and destruction to the inside of the family home;
• [Mother] was arrested and incarcerated for this event;
• Despite the near-completion of reunification services and a Trial Home Visit, [Mother] had again resumed substance abuse and criminal conduct that has led to her extended incarceration, and deprived her children of her presence and parenting ⅜ ⅜ ⅜ ⅜ ⅜ ⅜
16.) As of 5/21/12, [Mother] had been convicted of crimes arising from the incident of 10/7/11, which was due to [Mother’s] resumption of substance abuse by [Mother] [sic]. [Mother] received an executed sentence to the Indiana Department of Corrections [sic] with an earliest possible release date in January of 2013. [Mother] remains incarcerated as of the date of the Fact Finding Hearing on this termination petition. [Mother] also has pending violations of probation on other drug-related criminal convictions as of the date of the termination trial, and may receive additional executed time.
⅜ ⅝ ⅝ sji ⅜ :¡:
18.) The Court finds the following facts from [Mother’s] testimony at the termination trial on 6/25/12:
• [Mother] has been unavailable to fulfill her parental obligations due to incarceration from various drug-related incidents in March of 2010 for approxi-
. mately two weeks; in June of 2010 for approximately two days; in September of 2010 for approximately four days; from February 9, 2011 to May 31, 2011, during which she was serving an executed sentence on work-release; and since approximately May of 2012, based on her arrest for the incident on 10/7/11;
• [Mother] has the status of a “chemically addicted offender” as established through her record of criminal arrests and convictions;
• [Mother], by her own admission, will struggle with addiction forever;
• [Mother] intends to live with and marry [J.G.]. This is the same individual who was the victim of [Mother’s] physical assault on 10/7/11;
• [Mother’s] past substance abuse history also includes a conviction for operating a motor vehicle while intoxicated, for which she was sentenced to the Indiana Department of Corrections [sic] for approximately six (6) months in 2004 to 2005.
20.) [Mother] has been offered and provided with multiple reunification programs and services throughout the CHINS case, often working around periods of incarceration. These services have included home-based therapy, individual counseling, and substance abuse treatment, including after-care programs.
21.) None of these services, even after apparent successful completion, have had any lasting effect or prevented the next round of substance abuse, arrest, and incarceration. [Mother] was incarcerated between February and May of 2011. During this time, she gave birth to the youngest sibling of [Et.C], [El.C.]. Following the end of this incarceration, [Mother] worked up to a Trial Home Visit between July and October of 2011. A Child and Family Team Meeting (“CFTM”) took place in late September or early October of 2011, between members of DCS and [Mother], where the parties were preparing for the imminent dismissal of the CHINS case due to [Mother’s] apparently successful efforts to reunify. However, within days of this meeting, [Mother] returned to substance abuse and criminal conduct on 10/7/11, and now is serving an extended criminal sentence as a result.
22.) [Mother’s] pattern of reunification efforts, inevitably followed by a return to substance abuse and criminal activity, similarly leading to incarceration and enforced separation from her biological children, is damaging to the best interests and lives of these children. This
pattern demonstrates that no level of services or standard of performance met by [Mother], will free the childfren] from the likelihood that the pattern will repeat. No level of services has prevented [Mother] from continuing this pattern and jeopardizing the future prospects of the children]. The most recent episode of substance abuse and criminal activity led to a violent and dangerous outburst, causing property damage and physical injury to a grown adult, all while the [children] were present to observe. This subjected them to the possibility of physical harm, and the certainty of emotional trauma.
23.) [Mother] acknowledges that she will always struggle with addiction, is recognized by the statutory structure of this State that she is a chemically addicted offender, and intends to live with and marry the same individual who[m] she physically attacked to secure excess controlled substances.
24.) [Mother’s] series of criminal acts, arrest and incarceration, participation in reunification services, and subsequent relapses, demonstrates that the conditions that resulted in the child’s removal or the reasons for placement outside the home will not be remedied. They also demonstrate that continuation of the parent-child relationship poses a threat to the child’s well-being.

(App. at 19-25.)

1. Conditions Resulting in Removal

In deciding whether the conditions that resulted in a child’s removal will not be remedied, a juvenile court must judge a parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App.2001), trans. denied. .It must evaluate the parent’s habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Pursuant to this rule, courts have properly considered evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind.Ct.App.2002), trans. denied.

The juvenile court also may consider, as evidence whether conditions will be remedied, the services offered to the parent by DCS and the parent’s response to those services. Id. A juvenile court need not wait until a child is irreversibly harmed by a deficient lifestyle such that his or her physical, mental, and social growth are permanently impaired before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind.Ct. App.2002).

Mother argues DCS did not present sufficient evidence to support the juvenile court’s findings that there was a reasonable possibility that the conditions that resulted in the children’s removal from her care would not be remedied, because DCS provided inadequate services to her during the CHINS proceedings. We are unable, however, to address the adequacy of the services offered to her during the CHINS proceeding because that issue is unavailable during an appeal following termination of parental rights. See In re H.L., 915 N.E.2d 145, 148 n. 3 (Ind.Ct.App.2009) (“failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law”).

Mother also argues DCS did not present sufficient evidence to support four of its findings: 12, 21, 22, and 24. There was sufficient evidence to support these findings.

Finding 12 states:

12.) As of 6/20/11, [Mother] had resumed her compliance with reunification efforts, participating in home-based therapy, post-IOP substance abuse counseling, visitation sessions, and maintenance of negative drug screens.... [Mother]’s executed sentence was completed and the CHINS court authorized DCS to attempt a Trial Home Visit of [Children] in the home of [Mother] in early July of 2011. The CHINS case was set for a Permanency Hearing on 12/5/11.

(App. at 21.) Mother argues Finding 12 is not accurate because:

As of June 2, 2011, Mother was in compliance with the Department’s reunification efforts, but she was also in relapse. She had already been using a prescribed opioid compound and she was no longer able to access drug treatment at Aspire. She was also having allergic reactions to her medications and was visiting a number of different doctors and hospitals. Her therapist had already noticed a great increase in the number of medication [sic] Mother was taking. By June 7, 2011 Mother was back on prescribed benzodiazepines and thinking outloud that she could handle this medication. (App. p. 149.) It is doubtful that Mother will ever be able to handle that medication, and everyone involved should have known that.

(Br. of Appellant at 43) (citation to the record in original). DCS presented evidence Mother had been successfully participating in services as of June 2011, and her children were returned to her home for a trial home placement in July 2011. They remained there until October 7, 2011. Mother’s argument is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh evidence or judge credibility of witnesses).

Finding 21 states:

21.) None of these services, even after apparent successful completion, have had any lasting effect or prevented the next round of substance abuse, arrest, and incarceration. [Mother] was incarcerated between February and May of 2011. During this time, she gave birth to the youngest sibling of [Et.C], [El.C.]. Following the end of this incarceration, [Mother] worked up to a Trial Home Visit between July and October of 2011. A Child and Family Team Meeting (“CFTM”) took place in late September or early October of 2011, between members of DCS and [Mother], where the parties were preparing for the imminent dismissal of the CHINS case due to [Mother’s] apparently successful efforts to reunify. However, within days of this meeting, [Mother] returned to substance abuse and criminal conduct on 10/7/11, and now is serving an extended criminal sentence as a result.

(App. at 24.) Mother argues the trial court’s statement that she “returned to substance abuse and criminal conduct on 10/7/11” was erroneous because “[i]n reality, as noted above, Mother returned to substance abuse several months before that, the Department just chose not to intervene until she was once again in criminal jeopardy.” (Br. of Appellant at 43.)

Similarly, Mother takes issue with the trial court’s statement in Finding 22: “No level of services has prevented the biological mother from continuing this pattern and jeopardizing the future prospects of the child.” (App. at 24.) In her brief, Mother argues the finding was

a gross exaggeration of the truth. The Department provided absolutely no drug treatment for Mother. The Department left this up to Aspire of Indiana and Mother’s Medicaid coverage. Mother’s Medicaid coverage lapsed in May, but the Department did not assist in paying for further treatment at Aspire until the end of July of 2011, when it was too late to help. (App. p. 128). Mother never did have an appropriate level of treatment, because after the initially successful I.O.P. program, she did not obtain appropriate and highly necessary planning services to avoid relapse as a result of the delivery of her third child and the administration and prescription of pain relieving medications in February of 2011. (Statement of Facts, App. Br. pp. 8, 9,14,15).

(Br. of Appellant at 43) (citations in original). DCS presented evidence to support Findings 21 and 22. Prior to the termination petition, Children had been adjudicated as CHINS at least once, and all had been removed from Mother’s care more than once because of her drug use and criminal activity. Mother’s arguments to the contrary are an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh evidence or judge credibility of witnesses).

Finding 24 states:

24.) [Mother’s] series of criminal acts, arrest and incarceration, participation in reunification services, and subsequent relapses, demonstrates that the conditions that resulted in the child’s removal or the reasons for placement outside the home will not be remedied. They also demonstrate that continuation of the parent-child relationship poses a threat to the child’s well-being.

(App. at 24.) Mother argues:

Finding # 24 is actually a ‘Conclusion’. Based upon the facts of this case, we will never be able to make an accurate determination that the problematic conditions could not be remedied. Mother’s contention is that she never had a chance. She complied with all requests. She spent countless days talking to the Department’s case manager and service providers. Not one of these social workers had a degree in addiction medicine. None of the service providers were certified addiction counselors. The home-based therapist, [sic] eventually began to realize that Mother might be in trouble with her benzodiazepines, but no one paid any attention to her late and moderate warnings. (App.Br. pp. 22-29).

(Br. of Appellant at 44) (citation in original). While Finding 24 has conclusory language, it is a finding summarizing the other more specific findings which, as noted above, are all supported by the evidence. Mother’s arguments regarding the level of services received or observations her providers were obliged to make are invitations for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh evidence or judge credibility of witnesses).

2. Children’s Best Interests

Pursuant to Ind.Code § 31-35-2-4(b)(l)(C), DCS must provide sufficient evidence “that termination is in the best interests of the child.” In determining what is in the best interests of a child, the trial court is required to look beyond the factors identified by the DCS and consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind.Ct.App. 2009). In so doing, the trial court must subordinate the interests of the parent to those of the child. Id. The court need not wait until a child is harmed irreversibly before terminating the parent-child relationship. Id. Recommendations of the case manager and court-appointed advocate, in addition to evidence the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child’s best interests. Id.

A parent’s historical inability to provide a suitable environment, along with the parent’s current inability to do the same, supports finding termination of parental rights is in the best interests of the children. Lang v. Starke County Office of Family and Children, 861 N.E.2d 366, 373 (Ind.Ct.App.2007), trans. denied. Mother argues she never harmed her children, and the “DCS providers repeatedly commented on Mother’s tender care for her children, her neat and organized home, and her willingness to comply with the requests of the court and the Department of Child Services.” (Br. of Appellant at 45.)

As noted above, the trial court made findings regarding Mother’s drug use and criminal activity that resulted in the children’s removal more than once. Mother was incarcerated at the time of the termination hearing, with a release date in early 2013. She faced revocation of her probation for an earlier charge based on criminal activity. Mother’s arguments are invitations for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh evidence or judge credibility of witnesses).

3. Satisfactory Plan for Care and, Treatment of Children

Mother argues DCS’ plan for the care and treatment of the children following termination is not satisfactory because the children are currently in pre-adoptive placement with paternal grandmother, who has taken the children to prison to visit Father on numerous occasions, but she did not allow similar visitation to Mother while she was incarcerated. Mother is concerned that paternal grandmother, if permitted to adopt, might alienate the children from Mother while allowing a relationship with Father, even though both parents’ rights were involuntarily terminated for drug use and criminal activity.

Pursuant to Ind.Code § 31-35-2-4(b)(1)(D), DCS must provide sufficient evidence there is a satisfactory plan for the care and treatment of the child. We have held “[t]his 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.” In re L.B., 889 N.E.2d 326, 341 (Ind.Ct.App.2008). The juvenile court found there was a satisfactory plan; the children were all in pre-adoptive placement with their paternal grandmother, who had cared for them for almost a year when the termination proceedings ended.

Our standard of review and the controlling law compel us to hold the evidence supported finding of an adequate plan for the children’s future care, as a necessary element for termination of Mother’s parental rights, see id., we note that such finding is not tantamount to affirmation that adoption of these children by their paternal grandmother would be in their best interests. See Ind.Code § 31 — 19—11—1(a) (list of elements required for adoption of minor child, including finding adoption is in the best interest of the child). We find no error with the juvenile court’s decision.

CONCLUSION

DCS presented sufficient evidence the conditions that resulted in the children’s removal were not likely to be remedied, and the findings support the court’s conclusion termination was in the best interests of the children. There was a suitable plan in place for the care and treatment of the children. Accordingly, we affirm the termination of Mother’s parental rights.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . That same day, the court also terminated Father’s parental rights. He is not part of this appeal.

      . We quote from the court’s findings regarding Et.C. only, as the findings for all three children are virtually identical.

      . Mother also argues there was insufficient evidence the continuation of the parent-child relationship posed a threat to the well-being of the children pursuant to Ind.Code § 31-35 — 2—4(b)(l)(B)(ii). However, Ind.Code § 31 — 35—2—4(b)(1)(B) is written in the disjunctive, such that the trial court need find only one of the three elements to be true, and DCS presented sufficient evidence there was a reasonable possibility the conditions under which the children were removed would not be remedied. We therefore need not address that argument.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Donna M. BROWN, Appellant-Plaintiff, v. Paul F. BUCHMEIER and Sally M. Buchmeier d/b/a Fashion Trends, Appellees-Defendants.
    No. 33A05-1301-PL-13.
    Court of Appeals of Indiana.
    July 22, 2013.
    Ordered Published Sept. 18, 2013.

      Ronald L. Cross, Andrew J. Sickmann, Boston Bever Klinge Cross & Chidester, Richmond, IN, Attorneys for Appellant.
    Neha M. Matta, Travelers Staff Counsel Office, Indianapolis, IN, Attorney for Ap-pellees.
   OPINION

BROWN, Judge.

Donna M. Brown appeals the trial court’s order granting summary judgment to Paul F. Buchmeier and Sally M. Bu-chmeier d/b/a Fashion Trends. Brown raises one issue which we revise and restate as whether the court erred in granting the Buchmeiers’ motion for summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 20, 2006, Brown visited Fashion Trends looking for something to wear to a graduation ceremony for her grandchildren. Inside the store, Brown walked over to an area where there were steps for a landing. Earrings were displayed “on a board-like thing or something” and they were “more laid on the steps ... of the landing.” Appellant’s Appendix at 44. Brown was “on a step and [she] fell off a step.” Id. There were two steps “between the main floor and the landing in the area [in] which [Brown] fell.” Id. at 47.

On May 16, 2008, Brown filed a complaint for breach of duty of care owed to a business invitee by an owner. Brown alleged that the Buchmeiers: (1) failed to mark the steps with any type of edge marking or other visual attraction that would warn a person traversing the stairs of the changes in elevation; (2) displayed some of their merchandise in areas located on each side of the steps thus inviting the attention of a business invitee to be directed toward the merchandise and diverted away from the stairs; and (3) failed to have a hand railing or other such safety device at any point in or around the stairs. Brown also alleged that she suffered a broken hip, bruises, closed head injury, pain, suffering and permanent impairment of her motor functions as a result of the fall.

On August 13, 2012, the Buchmeiers filed a motion for summary judgment and alleged that they were “entitled to summary judgment because Ms. Brown has no evidence of a breach of a duty or proximate cause as she is unable to identify what caused her to fall.” Id. at 37. The Buchmeiers designated a deposition of Brown in which she indicated that she did not know what caused her fall. Specifically, the following exchange occurred during the direct examination of Brown during her deposition:

A I just, I think what I did was I maybe thought I was up and then just — I don’t know. I don’t know how I did it.
Q Okay.
A But I mean I’m pretty sure I was on the step and then just fell off.
Q The next thing you know you were down.
A I was down. I don’t know how it happened. I really don’t.
Q Okay. Do you recall if you tripped on something?
A No.
⅜ ⅜ $ ⅜ ⅜
Q Can you tell me, though, why you fell?
A No. I don’t know.
Q Do you think that you may have just forgotten you were on a step and stepped off, or do you know?
A I don’t know.

Id. at 44-15.

On August 27, 2012, Brown filed a response to the Buchmeiers’ motion for summary judgment. Brown designated her complaint and an affidavit in which she stated that she went up some of the steps so that she could look at the earrings, that she forgot that she was standing on steps, took a step backwards and fell off of the steps. Brown also stated: “In my deposition I stated that I wasn’t sure why I fell. This statement was meant to convey the idea that my attention had been directed away from the stairs and on to the earrings, and my mind was drawn away from my surroundings.” Id. at 74.

On October 1, 2012, the court held a hearing and the Buchmeiers’ attorney argued that Brown’s affidavit should be disregarded. On October 26, 2012, the court granted the Buchmeiers’ motion for summary judgment. On November 21, 2012, Brown filed a motion to correct error, which was later deemed denied.

DISCUSSION

The issue is whether the court erred in granting the Buchmeiers’ motion for summary judgment. Our standard of review for a trial court’s grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Man-gold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012). Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

“In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Wabash Cnty. Young Men’s Christian Ass’n, Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind.Ct.App.2012) (quoting Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004)), reh’g denied, trans. denied. “In negligence cases, summary judgment is ‘rarely appropriate.’ ” Id. (quoting Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004)). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person — one best applied by a jury after hearing all of the evidence.” Id. (quoting Rhodes, 805 N.E.2d at 387). “Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiffs claim.” Id. “This court has long held that ‘negligence cannot be inferred from the mere fact of an accident, absent special circumstances.’ ” Taylor v. Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind.Ct.App.2011) (quoting Hale v. Cmty. Hosp. of Indianapolis, Inc., 567 N.E.2d 842, 843 (Ind.Ct.App.1991)). Moreover, negligence cannot be established through inferential speculation alone. Id. The mere allegation of a fall is insufficient to establish negligence, and negligence cannot be inferred from the mere fact of a fall. Id. “The question of the breach of a duty is usually one for the trier of fact.” Cox v. Paul, 828 N.E.2d 907, 911 (Ind.2005). “However, if any reasonable jury would conclude that a specific standard of care was or was not breached, the question of breach becomes a question of law for the court.” Id. at 912.

Brown argues without citation to the record that she “has designated evidence, both in her Complaint and Affidavit that show that the Appellee’s store offered merchandise for resale located on stair-steps on which she was forced to stand in order to view the merchandise.” Appellant’s Brief at 11. Brown also argues without citation to the record that she “designated to the Trial Court that there were no edge-markings or hand-rails on or near the stair-steps to alert her to a change in elevation or to assist in traversing or standing on the stair-steps” and that “as a result of the placement of the merchandise on steps, she forgot about her surroundings and took a step backwards, causing her to fall and sustain injuries.” Id. Brown also contends that she “offered the Affidavit to the Trial Court to cure her mistaken statement in her Deposition.” Id. at 12.

The Buchmeiers argue that they did not breach a duty of reasonable care to Brown, that Brown cannot point to any defects with the steps or any other negligent condition in the store which caused her fall, that Brown has “absolutely no idea how or why she fell,” and that Brown has provided no basis in fact or reasonable inference to establish that a condition existed such that the Buchmeiers breached their duty of reasonable care to her. Appellees’ Brief at 8. The Buchmeiers also contend that Brown’s affidavit “serves only to squarely contradict her prior sworn deposition testimony which clearly indicates that Brown has no idea what caused her to fall.” Id. at 10.

The Buchmeiers designated evidence that Brown did not know what caused her fall which was sufficient to meet their initial burden of showing that there was no genuine issue of material fact that would allow a trier of fact to find anything more than a mere accident and that the Buchmeiers were entitled to judgment as a matter of law. Accordingly, the responsive burden was placed on Brown to show that a genuine issue of material fact did indeed exist. See Scott Cnty. Family YMCA, Inc. v. Hobbs, 817 N.E.2d 603, 604-605 (Ind.Ct.App.2004).

To the extent that Brown relies upon the allegations in her complaint, we observe that a nonmovant may not rest upon the pleadings when a movant meets his initial burden. See Crawford v. City of Muncie, 655 N.E.2d 614, 619 (Ind.Ct.App. 1995) (“To survive summary judgment, the nonmoving party may not merely rely upon the allegations in his complaint, but must come forward with sufficient factual allegations to establish the existence of genuine issues.”), reh’g denied, trans. denied; Ind. Trial Rule 56(E) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”).

Brown also relies on her affidavit; however, we cannot say that the affidavit succeeds in demonstrating an issue of fact. The affidavit states:

8. After some time passed, I forgot that I was standing on steps and took a step backwards and fell off of the steps. In my deposition I stated that I wasn’t sure why I fell. This statement was meant to convey the idea that my attention had been directed away from the stairs and on to the earrings, and my mind was drawn away from my surroundings.
9. The steps off of which I fell did not have any form of markings to remind me that I was standing on steps while I was looking at merchandise that Fashion Trends held out for sale.
10.The steps did not have any hand railings to help prevent my fall while I was standing on the steps looking at merchandise that Fashion Trends held out for sale.

Appellant’s Appendix at 74-75. The suggestions in her affidavit that markings on the steps were necessary to “remind” her that she was on steps, and that hand railings were necessary “to help prevent” her fall, without more, do not serve to create an issue of material fact. To the extent that Brown suggests in her designation of evidence that she fell as a result of looking at the merchandise for an extended period of time and taking a step backwards, we hold that any reasonable jury would conclude that the standard of care was not breached based merely upon this allegation. Further, Brown does not point to her deposition and our review does not reveal that she discussed hand railings or markings on steps during her deposition and when asked whether she thought that she may have just forgotten she was on a step and stepped off, she replied: “I don’t know.” Id. at 45. If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting her own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. See Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind.1983). Consequently, we cannot say that Brown’s affidavit raises an issue of fact. See id. (“Gaboury’s affidavit contradicts sworn statements in his deposition but he fails to offer any explanation for the discrepancies. We do not feel that issues of fact should be created in this manner and thus hold that ‘contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant.’ ”) (quoting Wachovia Mortg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C.App. 1, 9, 249 S.E.2d 727, 732 (1978)).

As to Brown’s claim that her affidavit attempts “to cure her mistaken statement in her Deposition,” Appellant’s Brief at 12, again we cannot say that the affidavit creates an issue of fact. Brown argues that Winfrey v. NLMP, Inc., 963 N.E.2d 609 (Ind.Ct.App.2012), is analogous. In Winfrey, Ralph Winfrey attended a physician’s appointment in the building owned by NLMP, Inc. (“NLMP”). 963 N.E.2d at 611. Directly adjacent to the parking lot was a sidewalk, on the other side of which was a grassy embankment leading down to a retention pond. Id. The property contained no signage, fencing, curbs, or other devices to alert visitors to the proximity of the pond to the parking lot. Id. Winfrey returned to his pickup truck only to find that another vehicle had parked such that he could not enter on the driver’s side and could not simply pull forward out of the spot. Id. Winfrey backed his truck over the sidewalk, apparently in an attempt to maneuver his truck into a position to be able to drive around the other vehicle. Id. When Winfrey shifted back into forward gear, his tires could not gain any traction on the embankment and his truck slid backward into the retention pond. Id. Winfrey was able to escape his flooding truck through the driver’s side window. Id. Afterward, Winfrey experienced back pain and muscle and ligature pain in his legs and knees. Id.

Winfrey filed a complaint against NLMP alleging negligence, and NLMP filed a motion for summary judgment. Id. Winfrey filed a response and attached an affidavit from an architect who visited the scene of the accident and averred that there were several precautions that might have prevented Winfrey’s loss, had they been taken. Id. The trial court granted NLMP’s motion for summary judgment. Id.

On appeal, the court found Hobbs, Hale, and Wright Corp. v. Quack, 526 N.E.2d 216, 218-219 (Ind.Ct.App.1988), trans. denied, distinguishable and observed that Winfrey designated evidence that details what he contended was a dangerous condition, namely, evidence of a slippery embankment at a forty-five-degree angle on which his truck tires could gain no traction, a lack of curbs or other barriers between the parking lot and the pond, and a pond of extreme depth. Id. at 614. The court reversed the trial court’s grant of NLMP’s motion for summary judgment and held that summary judgment in favor of NLMP was not warranted on the basis that Winfrey’s claim was based on nothing but inferential speculation alone. Id.

In Brown’s filing titled “Plaintiffs Designation of Evidence,” she stated: “The Plaintiff has alleged that the Defendants were negligent by breaching their duty of care owed the Plaintiff as a result of placing merchandise for resale on steps, all of which were absent any edge marking or hand railings, and which the Defendants deny.” Appellant’s Appendix at 65. In support of this proposition, she cited to her complaint and to “Exhibit ‘D’ Defendants’ Answer to Plaintiffs Complaint Par 6.” As previously stated, she could not rest merely upon her complaint. Further, Paragraph 6 of the Buchmeiers’ answer merely denied the allegations contained in Paragraph 6 of the complaint.

Brown was clear in her deposition that she did not know why she fell and we cannot say that her designated evidence creates an issue of fact. Under the circumstances, we cannot say that the trial court erred in granting the Buchmeiers’ motion for summary judgment. See Taylor, 949 N.E.2d at 366 (holding that the plaintiffs claim of negligence was based upon speculation and conjecture where she admitted that she neither saw nor felt anything on the floor prior to or in the moments after her fall and affirming the trial court’s grant of summary judgment in favor of the hospital where the plaintiff fell); Hobbs, 817 N.E.2d at 604-605 (holding that the designated evidence presented by the plaintiff did not meet the responsive burden of showing that there was a genuine issue of material fact that warranted presentation of the case to a jury where the plaintiff stated that he did not see any water or any type of foreign substance on the floor, did not observe any defects in the floor, and stated that it “just felt like I hit something wet and it just, it just slipped ... like you slip on ice or something”); see also Wright Corp., 526 N.E.2d at 218-219 (reversing a jury verdict in favor of plaintiff where plaintiff testified that she did not know why she fell and concluding that considering the evidence and all reasonable inferences therefrom most favorably to the plaintiff, reasonable men could not conclude that Wright was negligent).

For the foregoing reasons, we affirm the trial court’s order granting summary judgment to the Buchmeiers.

Affirmed.

RILEY, J., and BRADFORD, J., concur.

      . Ind. Appellate Rule 46(A)(8)(a) provides that "[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”

      . At the hearing, Brown’s counsel stated: "Should this case go to trial we believe there is a DVD that shows the fall, and we believe that will show exactly how the plaintiff fell." Transcript at 9. Brown did not designate the DVD or any photographic evidence.

      . Brown states that "[i]t is worth noting that the Defendants below never moved to strike Donna's Affidavit, and the same was submitted to the Trial Court at the Summary Judgment Hearing.” Appellant’s Brief at 12. We observe, however, that at the hearing, the Buchmeiers’ attorney pointed to Crawfords-ville Square, LLC v. Monroe Guar. Ins. Co., 906 N.E.2d 934, 941 (Ind.Ct.App.2009), trans. denied, and argued that that case held that, where a deposition and affidavit are in conflict, the affidavit is to be disregarded. The Buchmeiers’ attorney also stated:
      I point that case to the Court’s attention just to, by way of saying that the affidavit submitted says well, I just forgot where I was and stepped off into space, that’s my paraphrase, isn’t sufficient to get over the prior deposition testimony particularly where Ms. Brown was point blank asked "do you think you just forgot where your [sic] were and stepped backwards” and her response was “I don’t know", but even if you did receive that affidavit and consider it. What it doesn’t tell you, and what it must tell you, is why that's a problem with the steps.
      Transcript at 5.


author: ROBB, Chief Judge.

text:
    John LUTTRELL, Appellant-Petitioner, v. Melinda LUTTRELL, Appellee-Respondent.
    No. 49A02-1301-DR-85.
    Court of Appeals of Indiana.
    Sept. 12, 2013.

      Heather George Myers, Donna Jame-son, Greenwood, IN, Attorneys for Appellant.
    Jeanne M. Hamilton, Doninger Tuohy & Bailey LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

John Luttrell appeals the trial court’s awards and division of property following his divorce from Melinda Luttrell. John presents three restated issues on appeal: 1) whether the trial court properly divided the marital estate; 2) whether the trial court abused its discretion in awarding spousal maintenance to Melinda; and 3) whether the trial court abused its discretion in its award of attorney’s fees. Concluding that the trial court abused its discretion only in regards to consideration of the Luttrell’s children’s student loans, we affirm in part and remand in part.

Facts and Procedural History

John and Melinda were married in April 1987. They have three children, who were all adults at the time of the final hearing in this case. John was employed with the United States Postal Service throughout the marriage, while Melinda worked less than full-time for much of the marriage and was the primary caretaker for the children.

In August 2008, Melinda filed for social security disability insurance (“SSDI”). In November 2009, Melinda filed a petition for legal separation from John. Soon thereafter, John filed a counter-petition for dissolution of marriage, and the court converted the separation proceedings to divorce proceedings. In April 2010, an Administrative Law Judge (“ALJ”) found Melinda to have been disabled under the Social Security Act since January 15, 2008. The ALJ found that Melinda had the following severe impairments: cervical spon-dylosis, chronic pyelonephritis, anemia, spasmodic dysphonia, osteoporosis, and disorder of the back. Melinda was awarded a lump sum payment of $14,430.75 in social security disability benefits, representing lost income from January 15, 2008 to April 23, 2010, and she began receiving monthly SSDI payments in the amount of $915.

In September 2012, the trial court held a final hearing on the divorce proceedings. John and Melinda’s incomes for the years immediately preceding the final hearing were as follows:

In December 2012, the court entered a decree of dissolution, including findings of fact and conclusions of law. The court’s relevant conclusions included that the lump sum SSDI payment to Melinda was not an asset of the marriage subject to division; that two student loans, taken out in the names of their children, and for which John and Melinda co-signed, were not debts of the marriage subject to division; that the presumption of equal division of property had been rebutted and the marital estate would be split 60/40 in favor of Melinda; that maintenance was proper because Melinda’s ability to support herself had been materially affected, and John was therefore ordered to pay her $230 each month, and additionally pay a monthly premium of $542 to maintain Melinda on health insurance benefits through the United States Postal Service; and that, due to disparity of income, John was to pay $15,000 of Melinda’s attorney’s fees. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Division of Marital Estate

A. Standard of Review

Indiana Code sections 31-15-7-4 and 31-15-7-5 govern disposition of marital assets in a dissolution proceeding. There is a presumption of an equal division of property, but that presumption may be rebutted. Ind. Code § 31-15-7-5. We apply a strict standard of review to a dissolution court’s distribution of property. Wilson v. Wilson, 732 N.E.2d 841, 844 (Ind.Ct. App.2000), trans. denied. The party challenging the property division must overcome a strong presumption that the court complied with the statute and considered the evidence on each of the statutory factors. Id. We will reverse a property distribution only if there is no rational basis for the award — that is, if the result reached is clearly against the logic and effect of the facts and circumstances before the court, including the reasonable inferences to be drawn therefrom. Id. We do not reweigh the evidence, and we consider only the evidence favorable to the dissolution court’s decision. Id. We will also reverse where the trial court has misinterpreted the law or has disregarded evidence of statutory factors. Id.

B. Exclusion of Melinda’s Lump Sum SSDI Payment

John first argues that the trial court improperly excluded Melinda’s lump sum SSDI payment from the marital pot. The trial court relied on Severs v. Severs, 837 N.E.2d 498 (Ind.2005), in its determination that the lump sum payment was not a divisible marital asset. John is correct that the lump sum payment covered a period of time during the Luttrells’ marriage, and that Severs specifically addressed SSDI payments as a future income stream rather than examining a retroactive lump sum payment as is at issue here. John does not argue that he is entitled to any of Melinda’s future SSDI payments. Rather, John urges us to consider the lump sum payment here as more closely resembling worker’s compensation benefits, which our supreme court determined to be divisible marital assets to the extent that a payment was intended to replace earnings during the marriage. Leisure v. Leisure, 605 N.E.2d 755, 759 (Ind.1993). Were state law the only relevant basis for a determination of the issue at hand, we might be inclined to agree with John. However, Severs points to applicable federal law regarding social security benefits that supports the conclusion of the trial court.

The Social Security Act specifies that:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. .

42 U.S.C. § 407(a). Based on the plain wording of the statute, with references to “moneys paid” and “[any] other legal process,” it appears that it applies to the money that was paid to Melinda, and prevents that payment from being subject to division in the divorce proceedings. A limited number of Indiana cases reference section 407, and none address the precise issue at hand, although Severs comes closest. However, an evaluation of other case law, as well as the Social Security Act itself, further illuminates the applicability of section 407 to Melinda’s lump sum payment. The Act itself includes an exception to the broad prohibition contained in section 407. Section 659 provides that

Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38) ... moneys ... due from, or payable by, the United States ... to any individual ... shall be subject ... to withholding in accordance with State law ... and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.

42 U.S.C. § 659(a). That same section also defines “alimony,” and specifically excludes from the definition “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C. § 659(i)(3)(B) (emphasis added).

It is clear then that Congress knows how to provide an exception to the broad limits imposed by section 407, and moreover that Congress was mindful of the potential for division of benefits to come up in divorce proceedings and yet chose not to extend the exception to allow for divisibility of either past or future benefits except in the case of child support or alimony. See, e.g., Gomez-Perez v. Potter, 553 U.S. 474, 497, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) (“We reasoned that ‘Congress accordingly demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very ‘legislation cited.’ ... But in [§ 638a(c) ] it failed explicitly to do so.’ ”) (citation omitted); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (“It is presumable that Congress legislates with knowledge of our basic rules of statutory construction....”). Our reading of the Act is further supported by the United States Supreme Court’s decision in Phil-pott v. Essex County Welfare Board, in which the Court held that section 407 barred a New Jersey welfare agency from recovering disability benefits retroactively paid to the recipient in a lump sum, even though state benefits would have been reduced had the recipient received SSDI in monthly payments rather than a lump sum, and even though the recipient had executed an agreement to reimburse the state for welfare received. 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973).

Consequently, it appears that the restrictions found in section 407 apply to the lump sum payment that Melinda received. We therefore agree with Melinda that the broad statement by our supreme court that “any assignment or division of social security benefits to satisfy a marital property settlement under Indiana law is barred by 42 U.S.C. § 407,” is not limited to a future income stream as at issue in that case, but also applies to the lump sum payment that Melinda received. Severs, 837 N.E.2d at 501. The trial court thus properly excluded the payment from the pot of divisible property. This is so even though the payment was retroactive, even though a large portion of it covered a period of time during the marriage, and even though the money would have been available for both John and Melinda’s use had it been received as payments beginning in 2008 — when her disability began and when they were living as a married couple — rather than as a lump sum payment following their separation.

C. Exclusion of the Children’s Student Loans

The trial court concluded that the children’s student loans were not debts of the marriage subject to division. John argues that the loans, on which John and/or Melinda eo-signed, should have been considered by the trial court. We agree. While there is little relevant Indiana case law regarding disposition of contingent liability in divorce proceedings, we believe the loans should have been considered by the trial court.

We have previously noted that

in a dissolution proceeding, the trial court is mandated, by statute and case law, to divide the assets and liabilities of the parties to the proceeding in which they have a vested present interest. Of course, the trial court may not divide assets which do not exist just as it may not divide liabilities which do not exist.

In re Marriage of Lay, 512 N.E.2d 1120, 1123-24 (Ind.Ct.App.1987). However, we do not believe that it is fair to say that the Luttrells’ liability' for the student loans that they co-signed “does not exist.” While the children have not defaulted on either loan and so neither John nor Melinda has been called to pay on the loans, the question is only who will pay the loan, not whether John and Melinda might be liable. In essence, we believe that the Luttrells’ liability for the loans has “vested” for our purposes here, and thus the loans need to be considered by the trial court. See Leever v. Leever, 919 N.E.2d 118,124 (Ind. Ct.App.2009) (stating that “the term ‘vest’ generally means either vesting in possession or vesting in interest. Vesting in possession connotes an immediate existing right of present enjoyment, while vesting in interest implies a presently fixed right to future enjoyment,” and holding that an interest had vested in real estate under a constructive trust where the parties would receive a right to enjoy the property as they see fit once the trust no longer had a reason to exist — i.e. when one party’s parents no longer needed use of the residence in question) (citation omitted). While it is possible that neither John nor Melinda will be called upon to make good on their promise to repay the loans, at the same time, their names cannot be removed from the loans. If one of the children defaults, the co-signers will be liable on the debt. We remand to the trial court for consideration of the Luttrells’ liability under the children’s student loans.

D. Division of the Estate

John also argues that the trial court improperly divided the marital estate by failing to properly account for the value of a vehicle and by assigning the full value of the Luttrells’ 2008 and 2009 tax liability and any debt to an apartment complex solely to John. We disagree. John is correct that the trial court references an “Exhibit A” which is not included with the order. John suspects that the court meant to include as Exhibit A one of Melinda’s exhibits, which listed the value and amount owed on the car that Melinda was driving at the time. While it would have been preferable for the court to include any referenced exhibits, we consider the court’s disposition of marital property as a whole, not item by item. Krasowski v. Krasowski, 691 N.E.2d 469, 473 (Ind.Ct. App.1998). The court referenced all major items in the marital pot within its order— noting, among other things, that John would keep his vested retirement plan; John would pay certain loans; Melinda was entitled to a setoff for a savings plan; Melinda would keep the car she was driving and John would pay the loan for the car; and the parties would keep the personal property currently in their own possession. The court also clearly referenced statutory factors in its order, and justified its unequal division of property. This also applies to the court’s decision to put the responsibility for any tax liability on John, as well as any debt owed by the apartment complex (although no such debt was owed or claimed by the complex at the time of the hearing). On the whole, there is a rational basis for the court’s distribution of property, and John has not overcome the presumption that the court complied with the statute and considered the evidence on the statutory factors.

II. Spousal Maintenance

A. Standard of Review

The trial court may award spousal maintenance upon the finding that a spouse is incapacitated and her ability to support herself is materially affected. Ind.Code § 31-15-7-2. The trial court’s power to award maintenance is wholly within its discretion, and we will reverse only when the decision is clearly against the logic and effect of the facts and circumstances of the case. Bizik v. Bizik, 753 N.E.2d 762, 768-69 (Ind.Ct.App.2001), trans. denied. In determining whether a trial court has abused its discretion in a spousal maintenance determination, we will presume that the trial court properly considered the applicable statutory factors in reaching its decision. Id. at 769. The presumption that the trial court correctly applied the law in making an award of spousal maintenance is one of the strongest presumptions applicable to the consideration of a case on appeal. Id.

B. Maintenance Awarded to Melinda

Here, the trial court found that Melinda was incapacitated and that her ability to support herself is materially affected. The trial court awarded her spousal maintenance in the amount of $280 per month, in addition to John paying the monthly premium for her to stay on the postal service insurance. John argues that the statutory criteria were not met, apparently because Melinda works part time and because she did not have a medical expert testify as to her prognosis or limitations. Melinda testified as to her medical issues, her difficulty working, and her difficulty maintaining employment due to her many medical appointments and treatments. The Social Security Administration has found Melinda to be disabled. We do not agree that the trial court abused its discretion in awarding maintenance to Melinda. As for the part of the order requiring John to pay Melinda’s insurance premium through the postal service, he argues that she is eligible for Medicare parts A through D but only participates in part A, and that she could participate in parts B through D for a nominal fee. The trial court noted in its order that there was testimony suggesting that Melinda could participate in Medicare for a nominal fee, but that there was no evidence submitted by either party as to the actual cost. Further, Melinda testified that she had extensively researched her coverage options, and that Medicare would not cover many of her necessary appointments and treatments. The court found that Melinda needed health insurance to help cover the costs of treatments that are necessary for her disabilities and medical issues. The trial court’s award is not clearly against the logic and effect of the facts and circumstances of the case.

III. Attorney’s Fees

A. Standard of Review

In dissolution proceedings, the trial court may order a party to pay a reasonable amount for the other’s attorney’s fees. Ind.Code § 31-15-10-1. The trial court has broad discretion in awarding attorney’s fees, and we will reverse an award only where the decision is clearly against the logic and effect of the facts and circumstances. In re Marriage of Bartley, 712 N.E.2d 537, 546 (Ind.Ct.App.1999). In assessing attorney’s fees, the court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors which bear on the reasonableness of the award. Id. An award of attorney’s fees is proper when one party is in a superior position to pay fees over the other party. Id.

B. Attorney’s Fees Awarded to Melinda

John argues that the court abused its discretion in awarding attorney fees to Melinda because she received the lump sum payment of SSDI benefits, and “had [she] been more financially responsible with her expenditures, she would have been able to contribute more” to her attorney’s fees. Appellant’s Br. at 18. John also argues that because Melinda received money in marital assets, she had the resources to pay her own attorney’s fees. The trial court seems to have especially considered the disparity in income between John and Melinda in awarding attorney’s fees, and Melinda notes that the award works out to John paying approximately 60% of the total attorney bills, in line with the court’s 60/40 division of marital property. We disagree that the award was unreasonable or that the trial court abused its discretion in awarding the fees.

Conclusion

Concluding that the trial court properly excluded Melinda’s lump sum SSDI payment, improperly excluded from consideration the Luttrells’ liability on their children’s student loans, otherwise properly divided the estate, and properly awarded maintenance and attorney’s fees, we affirm in part and remand for proceedings consistent with this opinion.

Affirmed in part and remanded.

RILEY, J., and KIRSCH, J., concur.

      . Their son Shane has a student loan in the amount of $14,137 which was in deferral at the time of the final hearing, and for which both John and Melinda co-signed to guarantee payment in the case of a default. Their daughter Danisha has a student loan in the amount of $31,837 which was in forbearance at the time of the final hearing and for which John alone co-signed to guarantee payment in the case of a default.

      . John had incurred a total of $8,837 in attorney’s fees, and Melinda had accumulated $32,198 in attorney’s fees.

      . Congress later overrode Philpott by enacting legislation that authorized localities to recover interim assistance provided to SSI applicants once the applicant received retroactive benefits. See Rodriguez v. Perales, 86 N.Y.2d 361, 365, 633 N.Y.S.2d 252, 657 N.E.2d 247 (1995). That amendment, however, applies only to local governments recovering interim assistance, not to divisibility of payments in the context of divorce proceedings.

      . Some courts have held that, while SSDI payments may not be divided in divorce proceedings, they may be considered as part of the total picture as a court decides how to equitably divide up those items that are divisible. See, e.g., Stanley v. Stanley, 956 A.2d 1, 4 (Del.2008). We do pot reach that question here.

      . John also points to the fact that Melinda’s income for 2011 was "almost twice the poverty threshold” of $11,702 to support his claim that her ability to support herself is not materially affected. Appellant’s Brief at 14. To the contrary, we think this speaks more to how absurdly low the "poverty” threshold is set than it does to Melinda’s ability to support herself. Despite her income being nearly double the poverty threshold, Melinda testified that she qualifies for and receives food stamps and that qualifying for food stamps has allowed her to gain several pounds, as she had been living on $50 per week for food— which equates to less than $2.50 per meal.


author: CRONE, Judge.

text:
    Nathan K. BARKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1212-CR-575.
    Court of Appeals of Indiana.
    Sept. 17, 2013.
    Rehearing Denied Nov. 21, 2013.

      Theodore F. Adams, Michael J. Kyle, Baldwin Adams & Kamish, Franklin, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

      . We note that Barker pled guilty, yet he has not included in the record before us a transcript of his guilty plea hearing. See Ind. Appellate Rule 9(F)(5) ("In Criminal Appeals, the Notice of Appeal must request the Transcript of the entire trial or evidentiary hearing, unless the party intends to limit the appeal to an issue requiring no Transcript.”). We remind counsel of the importance of providing transcripts of proceedings below in order to facilitate our review.

   OPINION

CRONE, Judge.

Case Summary

Twenty-two-month-old J.S. died shortly after he was babysat by his mother’s live-in boyfriend, Nathan K. Barker. Early in the afternoon, Barker had called J.S.’s mother (“Mother”) at work and told her that J.S. had fallen off the couch. He said that he had called for an ambulance and that the paramedics had said that the child was fíne. In fact, he had never called for help. Later that night, Mother called 911, and by the next morning J.S. was on life support. J.S. died later that day, and an autopsy showed that he had suffered massive brain injuries as well as injuries to his abdomen, eyes, mouth, shoulder, thigh, buttocks, and penis.

The State charged Barker with class A felony neglect of a dependent causing death, class A felony battery causing death, and class D felony neglect of a dependent. Barker agreed to plead guilty to class A felony neglect of a dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and to cap the executed portion of his sentence at forty years. The court sentenced Barker to forty-five years, with forty years executed and the remainder suspended to probation, with 120 days to be served on home detention.

Barker now appeals, claiming that the trial court abused its discretion in designating aggravating and mitigating factors and in imposing a term that exceeded the forty-year cap on the executed portion of his sentence. He also claims that his sentence is inappropriate in light of the nature of the offense and his character. Finding that the imposition of 120 days of home detention causes the executed portion of Barker’s sentence to exceed the forty-year cap, we remand for a new sentencing order on that issue. In all other respects, we affirm his sentence.

Facts and Procedural History

Barker and Mother had dated off and on for several years. In the spring of 2011, they decided to live together in Mother’s home. At 10:00 a.m. on August 1, 2011, Mother left for work, and Barker, who was unemployed, stayed at home to watch Mother’s twenty-two-month-old son, J.S. Shortly after lunch, Barker called Mother at work and informed her that J.S. had fallen off of the couch, that Barker had called for an ambulance, and that the paramedics had examined J.S. and found him to be fine. There was no record of an ambulance ever being called or observed at the apartment.

When Mother returned home mid-afternoon, J.S. was sleeping, but Mother noticed that he had a bruise on his forehead and an injury on his lip. When he awoke, Mother fed him a popsicle, which he vomited. When she fed him dinner, he would not eat and vomited the juice that he drank. She went to the pharmacy to get him some nausea medicine. She checked on him around 11:30 p.m., only to discover that his fingernails were blue and he was not breathing. She immediately called 911 and performed CPR on J.S. while awaiting the paramedics.

J.S. was transported to a Shelby County hospital and transferred by lifeline helicopter to Riley Hospital in Indianapolis. There, J.S. was placed on life support. Early the next morning, pediatric abuse specialist Dr. Tara Harris examined J.S. Dr. Harris found significant bruising on his forehead, an injury to his jaw, and bruising under his chin. She determined that the injuries likely occurred from multiple separate impacts. J.S. also had an abrasion on his shoulder and bruising on his thigh and buttocks. His penis had multiple abrasions. His spleen was lacerated and hemorrhaging due to force to the abdomen. His pancreas also bore abnormalities consistent with trauma. He had three brain injuries: a subdural hemato-ma, a parenchymal hemorrhage, and a trauma-related lack of differentiation between gray and white brain matter. An autopsy listed the cause of J.S.’s death as force trauma to the head and the manner of death to be homicide.

On August 22, 2011, the State charged Barker with class A felony neglect of a dependent resulting in death, class A felony battery resulting in death, and class D felony neglect of a dependent. After several continuances, the trial date was set for September 24, 2012. Two weeks before trial, Barker entered into a plea agreement whereby he would plead guilty to class A felony neglect of a dependent causing death in exchange for the State’s dismissal of the remaining counts and a forty-year cap on the executed portion of his sentence. The trial court retained discretion to set the terms and conditions of the suspended portion of his sentence.

At the December 7, 2012, sentencing hearing, the trial court accepted Barker’s guilty plea, heard witness testimony, and admitted Dr. Harris’s deposition. The court sentenced Barker to forty-five years, with forty years executed, the balance suspended to probation, and 120 days of his probation to be served on home detention. In its sentencing order, the trial court stated, “The nature and circumstances of the crime committed are horrific and the acts committed are unimaginable which resulted in the loss of a twenty-two month old child’s life.” Appellant’s Amended App. at 165. The order also states,

The Court finds the following aggravating factors:

1. The harm and injuries suffered by the victim were greater than the elements necessary to prove the commission of the offense. The harm suffered by the victim was beyond brutal. The victim suffered bruising on his left thigh and buttocks, multiple abrasions on his penis, bruising on his forehead, swelling in the center of his forehead, bruising to the left side of his hairline, bruising under his chin and jaw area, abrasions to his cheek, neck, both sides of his jaw line and extended down onto the neck, abrasions on the back of his left shoulder, intra abdominal injury, lacerated spleen and a red circular mark to his right chest. He suffered in-tra cranial hemorrhage, severe brain injury, subdural and paren-chymal hematoma [on] the sides of his neck; all according to the deposition of Dr. Tara Harris. Dr. Harris’s testimony indicates that these injuries had to be a result of violent shaking or an acceleration/deceleration of significant force. There is no logical way these injuries could have been sustained from falling from the couch. The Court assigns this factor significant weight.
2. Defendant was in a position of care, custody and control of the victim when this offense occurred. Defendant and the victim’s mother were living together when this offense occurred; Defendant was providing child care while the victim’s mother was working. Defendant violated every standard of care one could conceive. The Court assigns this factor significant weight.
3. Defendant had the opportunity to seek medical assistance for the victim and did not do so; Defendant then lied to the child’s mother telling her paramedics had been called and that the child was okay. The Court assigns this factor significant weight.

This Court finds the following mitigating factor:

1. Defendant’s family has a history of Huntington’s disease. Defendant cared for his ailing father and watched his father suffer and die from this disease. Other family members have also died as a result of this disease. This was a traumatic experience for Defendant who does not know if he has the disease. The Court assigns this factor moderate weight.

Id. at 166-67.

Barker now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Aggravating and Mitigating Circumstances

Sentencing decisions rest within the sound discretion of the trial court, and as long as a sentence is within the statutory range, it is subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs where the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Robinson v. State, 894 N.E.2d 1038, 1042 (Ind.Ct.App.2008). The trial court sentenced Barker to a forty-five-year term for his class A felony conviction, which carries a sentencing range of twenty to fifty years. Ind.Code § 35-50-2-4. Thus, his sentence is within the statutory range, and we review it for an abuse of discretion.

In its sentencing statement, the trial court cited only one mitigator: Barker’s family history of Huntington’s disease. Barker contends that the trial court abused its discretion in failing to consider his guilty plea and remorse as mitigating circumstances. One way that a trial court may abuse its discretion is if the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration. Anglemyer, 868 N.E.2d at 491. The relative weight or value assignable to mitigators and aggravators is not subject to review for abuse of discretion. Id. The trial court is not obligated to accept the defendant’s argument concerning what constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.App.2012), trans. denied. Moreover, if the trial court does not find the existence of a mitigator after it has been argued by counsel, the court is not obligated to explain why it found the circumstance not to be mitigating. Anglemyer, 868 N.E.2d at 493.

In arguing that the trial court improperly ignored his guilty plea, Barker cites the lengthy witness list, claiming that his plea relieved the State of the burden of having to litigate a case of such magnitude that “would have taken an extreme emotional, physical, and fiscal toll on all parties associated with it.” Appellant’s Br. at 5. “A guilty plea is not necessarily a mitigating factor where the defendant receives substantial benefit from the plea or where evidence against the defendant is so strong that the decision to plead guilty is merely pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind.Ct.App.2011), trans. denied (2012). “A plea’s significance is reduced if it is made on the eve of trial.” Caraway v. State, 959 N.E.2d 847, 853 (Ind.Ct.App.2011), trans. denied (2012).

Here, Barker was charged in August 2011. He requested and received continuances over the six months that followed. At a pretrial conference on August 30, 2012, Barker gave no indication of any intent to plead guilty. He pled guilty on September 11, 2012, just two weeks before his scheduled trial date. By this time, witnesses had been served, and the State had completed the majority of its trial preparation. Simply put, Barker held out, and when he faced a looming trial with substantial evidence against him, he made a pragmatic decision to plead guilty.

Moreover, Barker received a substantial benefit from his plea in the form of two dismissed felony counts, one of which was a class A felony, and a cap on his executed sentence that decreased his prison exposure by at least ten years. Contrary to Barker’s suggestion, the class D felony charge was independently sustainable based on his failure to seek treatment after inflicting the injuries upon J.S. that served as the basis for the class A felony conviction. We find no abuse of discretion concerning the trial court’s treatment of Barker’s guilty plea.

As for Barker’s remorse, the trial court observed his demeanor firsthand throughout the proceedings and was therefore in a better position to evaluate his sincerity or lack thereof. Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind.Ct.App. 2012). The trial court stated at sentencing that it had read and considered letters written by J.S.’s family members and those written in favor of Barker. Barker’s own letter is a two-page, handwritten letter in which he spends about half a page apologizing and the remainder focusing on his family history of Huntington’s disease, his fear of having the disease, and its possible contributing role in the events surrounding J.S.’s death. The trial court read the letter, considered its contents, and found his family history of Huntington’s disease as a mitigating circumstance. The trial court did not overlook Barker’s apology; the court simply did not find it to be a significant mitigating circumstance. See Phelps v. State, 969 N.E.2d 1009, 1020 (Ind.Ct.App.2012) (“A trial court is under no obligation to accept a defendant’s alleged remorse as a mitigating circumstance.”), trans. denied. We find no abuse of discretion concerning the trial court’s treatment of Barker’s remorse.

Barker also contends that the trial court improperly designated an element of his offense as an aggravator. In Pedraza v. State, 887 N.E.2d 77 (Ind.2008), our supreme court stated that based on the 2005 changes to Indiana’s sentencing scheme, the consideration of a material element of a crime as an aggravator “is no longer an inappropriate double enhancement.” Id. at 80. Thus, to the extent that the trial court may have considered an element of Barker’s offense as an aggravator, it did not abuse its discretion.

II. Home Detention

“If [a] court accepts a plea agreement, it shall be bound by its terms.” Ind.Code § 35-35-3-3(e). Barker contends that the trial court violated the plea agreement’s forty-year cap on his executed sentence by ordering 120 days of home detention in addition to his forty-year executed sentence. “An ‘executed sentence’ is one that is actually served in a correctional facility, or other alternative correctional program, such as work release or home detention as opposed to a suspended sentence or sentence of probation.” Hilde-brandt v. State, 770 N.E.2d 355, 360 (Ind. Ct.App.2002), trans. denied. A person on home detention must remain at his residence except to engage in certain court-approved activities: to work or seek work, to obtain medical, psychiatric or counseling services, to attend an educational institution or program or a religious service, or to participate in work release or restitution. Ind.Code § 35-38-2.5-6(1); Reed v. State, 844 N.E.2d 223, 225 (Ind.Ct.App. 2006). A person who violates home detention is subject to prosecution for the crime of escape. Ind.Code § 35-38-2.5-6(2); Ind.Code § 35-44.1-3-4 (2012). Our statutes make it clear that home detention may be imposed as part of a community corrections program or as a condition of a person’s probation. Compare Ind.Code § 35-38-2.6-4.5 (where court imposes home detention as part of community corrections program) with Ind.Code § 35-38-2.5-5(a) (“as a condition of probation a court may order an offender confined to the offender’s home for a period of home detention”). In either case, the detainee is entitled to earn credit time. See Ind.Code § 35-38-2.6-6(a) (“A person who is placed in a community corrections program under this chapter is entitled to earn credit time under IC 35-50-6.”); Ind.Code § 35-38-2.5-5(e) (“A person confined on home detention as a condition of probation earns credit for time served”).

Here, Barker concedes that the trial court sentenced him to home detention as a condition of his probation. Notwithstanding, he argues that because a detainee is now entitled to receive credit for time served on home detention, home detention must be considered exeeutéd time rather than time suspended to probation. We agree.

To say that the case law has been murky on the issue of credit time for home detainees would be an understatement. Home detention may be imposed prior to trial, as a direct placement in a community corrections program, or as part of probation. In Capes v. State, our supreme court held that the defendant’s in-home detention prior to trial constituted confinement sufficient to qualify him for credit time. 634 N.E.2d 1334, 1335 (Ind.1994), overruled by Franklin v. State, 685 N.E.2d 1062 (Ind.1997). In Franklin, our supreme court held that an amendment to the post-conviction home detention statute evinced legislative intent that credit time could no longer be awarded to pretrial detainees. 685 N.E.2d at 1063-64. In Purcell v. State, our supreme court held that the trial court erred in failing to give the defendant 690 days’ credit for the time that he actually served on home detention pursuant to a direct placement in a community corrections program. 721 N.E.2d 220, 223-24 (Ind.1999). Purcell overruled Franklin, but only as to Franklin’s, holding that the applicable statute prohibited a defendant serving a direct home detention placement as part of community corrections from earning credit for time served. Id. In a footnote, the Purcell court emphasized that it had revisited the question of credit time for pretrial home detainees and concluded that a trial court is within its discretion to deny a defendant credit toward his sentence for pretrial home detention time served. Id. at 224 n. 6.

The casé most procedurally similar to Barker’s is Antcliff v. State, in which another panel of this Court addressed the issue of whether the trial court exceeded a six-year cap on the executed sentence contained in the defendant’s plea agreement when it ordered that he serve six years in the Department of Correction (“DOC”), followed by home detention as a condition of his probation. 688 N.E.2d 166, 168 (Ind.Ct.App.1997). In concluding that Antcliff s home detention did not amount to confinement in the sense of imprisonment or executed time, the Court relied on the fact that at that time, a person placed on home detention as part of his probation was not statutorily entitled to credit time. Id. In 2001, the legislature responded by amending Indiana Code Section 35-38-2.5-5 by adding subsection (e), specifically entitling the detainee serving home detention as part of his probation to earn credit for time served. When a statute mandates credit time, the trial court does not have discretion in awarding or denying such credit. Lewis v. State, 898 N.E.2d 1286, 1290 (Ind.Ct.App.2009), trans. denied. Whether home detention is imposed via a direct placement in a community corrections program or as a condition of probation, its accompanying statutory requirement that the detainee receive credit time militates toward counting it as part of the executed portion of his sentence. This position is further buttressed by the statute’s provision concerning a noncompliant detainee’s exposure to prosecution for felony escape, the very nature of which connotes confinement from which the errant detainee has fled. Ind.Code § 35-38-2.5-6(2). See Ind.Code § 35-44.1-3-4 (2012) (defining felony escape as intentionally fleeing from lawful detention or knowingly or intentionally violating a home detention order). See also Ind.Code § 35-38-2.5-13 (describing misdemeanor unauthorized absence from home detention as the offender leaving or remaining outside his home without permission or traveling to unauthorized location).

Based on the foregoing, we conclude that Barker’s 120-day home detention was part of his executed sentence and that by ordering it in addition to his forty-year commitment to the DOC, the trial court exceeded the forty-year cap on the executed portion of his sentence. Consequently, we remand for a new sentencing order that does not violate the forty-year cap outlined in Barker’s plea agreement.

III. Inappropriateness of Sentence

Barker also asks that we review and revise his sentence under Indiana Appellate Rule 7(B), which states that we “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [this] Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” When a defendant requests appellate review and revision of his sentence, we have the power to affirm or reduce the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind.2010). In conducting our review, we do not look to see whether the defendant’s sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.Ct.App. 2007). A defendant bears the burden of persuading this Court that his sentence meets the inappropriateness standard. Anglemyer, 868 N.E.2d at 490; Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

In considering the nature of a defendant’s offense, “the advisory sentence is the starting point the Legislature has selected as an appropriate sentence.” An-glemyer, 868 N.E.2d at 494. Barker was sentenced to a forty-five-year term for his class A felony conviction, which carries a thirty-year advisory term. Ind.Code § 35-50-2-4. The offense to which he pled guilty is neglect of a dependent causing death, which occurs when “[a] person having the care of a dependent ... knowingly or intentionally ... places the dependent in a situation that endangers the dependent’s life or health,” the perpetrator is at least age eighteen, and the incident results in the death of a dependent who is under age fourteen. Ind.Code § 35 — 46—1— 4(a)(1), -(3).

Barker concedes that the results of his offense were tragic but claims that the legislature already factored this in by classifying neglect of a dependent as a class A felony when it results in death. To end our analysis as he suggests would be to overlook the heinous nature of his particular offense. J.S.’s injuries indicate infliction of pain extending well beyond a roll off a couch. These injuries were vast and gruesome, including at least three brain injuries as well as injuries to the jaw, neck, buttocks, thigh, penis, abdomen, spleen, and pancreas. Moreover, the twenty-two-month-old J.S. was physically defenseless against the six-foot-three, 250-pound Barker and could not even tell his mother what had happened and that an ambulance had never been called. In short, the evidence paints a picture not merely of a distracted adult who failed to protect a child from danger but of a violent adult who perpetrated a lethal attack on a vulnerable toddler.

Barker was the danger. His breaches of trust as to both J.S. and Mother as well as his poor conduct during previous periods of incarceration reflect negatively upon his character. At the time of his offense, he was living with Mother in a romantic relationship and was supposed to be caring for her toddler while she worked to provide for the family. The child depended on him for care, and he breached that position of trust by physically attacking him. Additionally, Barker breached Mother’s trust on many levels: (1) Mother trusted him to care for her child; instead, he attacked him; (2) she trusted him to give her a truthful account of what caused J.S.’s injuries; instead, he lied and characterized the incident as an accidental roll off the couch; (3) she trusted him to call for help when her child was injured; instead, he said that he called for an ambulance when he did not; and (4) she trusted him when he told her that the paramedics had examined J.S. and determined that he would be fine. In short, Barker’s lies deterred Mother from seeking medical attention that may have saved J.S.’s life. Finally, we note that the pre-sentence investigation report indicates that Barker has a probation violation as well as a history of troublemaking while incarcerated, i.e., flooding his cell, destroying property, and battering a fellow inmate. Barker’s character simply does not merit a more lenient sentence. Thus, subject to our holding in section II of this decision, we conclude that Barker has failed to meet his burden of demonstrating that his sentence is inappropriate.

Based on the foregoing, we remand for a sentencing order that does not exceed the forty-year cap on the executed portion of Barker’s sentence. In all other respects, we affirm his sentence.

Remanded.

BARNES, J., and PYLE, J., concur.

      . Barker claims that in its brief, the State uses disrespectful language aimed at insulting opposing counsel. We remind counsel that the purpose of appellate briefs is to present this Court with concise arguments supported by statutory law, case law, and the record. Ind. Appellate Rule 46(A)(8). "Invectives are not argument and have no place in legal discussion.” Pittsburgh, C., C. & St. L.Ry. Co. v. Muncie & P. Traction Co., 166 Ind. 466, 77 N.E. 941, 942 (1906).

      . Because the statute relevant to Barker’s home detention specifies "credit for time served,” we will limit our discussion accordingly. Ind.Code § 35-38-2.5-5(e).

      . In Lewis, another panel of this Court held that the trial court acted within its discretion in not awarding the defendant credit for time served in pretrial home detention. 898 N.E.2d at 1292. Relying on our supreme court’s holding in Purcell, 721 N.E.2d at 224, n. 6, the Lewis court emphasized that there was no statute mandating a credit for time served when the home detention occurs before trial. The Lewis court explained the difference in the positions of pretrial and post-sentencing home detainees and concluded that they were neither similarly situated nor incongruously treated. Id. at 1290. See also Sennv. State, 766 N.E.2d 1190, 1201-02 (Ind. Ct.App.2002) (holding that defendant had failed to establish disparate and preferential treatment between pretrial and post-sentencing home detainees).