Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARIANNE WOOLBERT GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

ROBERT J. HENKE

AARON J. SPOLARICH

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary Termination of )

the Parent-Child Relationship of N.M., A.M. and )

H.M., minor children, and J.M., Father, )

)

J.M., )

)

Appellant-Respondent, ) No. 48A05-1307-JT-327

)

vs. )

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE MADISON CIRCUIT COURT 

The Honorable G. George Pancol, Judge

Cause Nos. 48C02-1302-JT-9, -10, & -11

February 11, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
2

J.M. (“Father”) appeals the involuntary termination of his parental rights to his 

children N.M., A.M., and H.M. In so doing, Father contends that the juvenile court’s order 

is not supported by sufficient clear and convincing evidence.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts supporting the involuntary termination of Father’s parental rights to his 

children, N.M., who was born on September 9, 1998, A.M., who was born on October 28, 

2000, and H.M., who was born on December 17, 2001, reveal that, on July 5, 2012, the 

Madison County Department of Child Services (“MCDCS”) received a report that Father 

had been molesting N.M. since N.M. was in kindergarten. The report further stated that 

Father was physically abusing all three children. Father did not deny that he physically 

abused N.M.

N.M., A.M., and H.M. were removed from Mother’s1 and Father’s home on July 6, 

2012, and were placed with their maternal grandparents. The juvenile court authorized 

MCDCS to file petitions alleging that the children were children in need of services 

(“CHINS”). MCDCS filed the CHINS petitions alleging that Mother was unable to care 

for the children and that Father had physically and sexually abused the children. The 

juvenile court conducted a detention and initial hearing, during which the juvenile court 

approved the continued removal of the children and placement with their maternal 

grandparents. At an additional hearing held on July 25, 2012, Father admitted the 

 

1 T.M., the children’s mother, died on October 15, 2012.
3

allegations of the CHINS petitions, and the juvenile court adjudicated the children as 

CHINS. 

On August 29, 2012, the juvenile court held a dispositional hearing, and entered its 

dispositional order.

2

 The dispositional order directed Father to do the following:

1) Participate in individual counseling and follow all recommendations;

2) Participate in family counseling and follow all recommendations;

3) Complete a drug/alcohol assessment and follow all recommendations;

4) Successfully complete parenting classes;

5) Complete a psychiatric evaluation and follow all recommendations;

6) Obtain and maintain a legal and regular source of income; and

7) Obtain and maintain adequate housing.

Id. at 73-87. In addition, Father was ordered to refrain from having contact with N.M.

On March 1, 2013, MCDCS filed its petition to involuntarily terminate Father’s

parental rights to the children. On May 23, 2013, the juvenile court conducted an 

evidentiary hearing on the termination petitions and took the matters under advisement. 

The juvenile court entered its order terminating Father’s parental rights on June 3, 2013. 

Father appeals from that order. Additional facts will be supplied.

DISCUSSION AND DECISION

We begin our review by acknowledging that this court has long had a highly 

deferential standard of review in cases concerning the termination of parental rights. In re 

K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing a termination of parental 

rights case, we will not reweigh the evidence or judge the credibility of the witnesses. In 

re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider 

 

2 Although the dispositional order addressed both parents, we recite the portions of the order 

pertaining to Father only as Mother is deceased.
4

only the evidence and reasonable inferences that are most favorable to the judgment. Id.

Moreover, in deference to the trial court’s unique position to assess the evidence, we will 

set aside the court’s judgment terminating a parent-child relationship only if it is clearly 

erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. 

Here, in terminating Father’s parental rights, the trial court entered specific findings 

and conclusions. When a trial court’s 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). First, we determine whether the 

evidence supports the findings, and second, we determine 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 inferences support the trial court’s decision, we must affirm. 

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. These parental interests, however, 

are not absolute and must be subordinated to the child’s interests when determining the 

proper disposition of a petition to terminate parental rights. Id. In addition, although the 

right to raise one’s own child should not be terminated solely because there is a better home 

available for the child, parental rights may be terminated when a parent is unable or 

unwilling to meet his or her parental responsibilities. K.S., 750 N.E.2d at 836. 
5

Before an involuntary termination of parental rights may occur, the State is required 

to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that 

resulted in the child’s removal or the reasons for placement

outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the 

parent-child relationship poses a threat to the well-being of the 

child.

(iii) The child has, on two (2) separate occasions, been adjudicated 

a child in need of services; 

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these allegations 

in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 

1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds 

that the allegations in a petition described in section 4 of this chapter are true, the court 

shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis 

supplied). Father challenges the sufficiency of the evidence supporting the juvenile court’s 

order. 

At the outset, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written 

such that, to properly effectuate the termination of parental rights, the trial court need only 

find that one of the three requirements of subsection (b)(2)(B) has been established by clear 

and convincing evidence. See e.g. L.S., 717 N.E.2d at 209. When reviewing a judgment 
6

requiring proof by clear and convincing evidence, our Supreme Court has stated the 

following:

an appellate court may not impose its own view as to whether the evidence 

is clear and convincing but must determine, by considering only the 

probative evidence and reasonable inferences supporting the judgment and 

without weighing evidence or assessing witness credibility, whether a 

reasonable trier of fact could conclude that the judgment was established by 

clear and convincing evidence. 

In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002) (citing Bud Wolf Chevrolet, 

Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind.1988)). “Clear and convincing evidence need 

not reveal that ‘the continued custody of the parents is wholly inadequate for the child’s 

very survival.” Bester, 839 N.E.2d at 148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. 

Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992)). “Rather, it is sufficient to show by clear and 

convincing evidence that ‘the child’s emotional and physical development are threatened’ 

by the respondent parent’s custody. Id. (quoting Egly, 592 N.E.2d at 1234).

When making such a determination, a trial 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. The court must also “evaluate the parent’s habitual patterns of conduct to 

determine the probability of future neglect or deprivation of the child.” 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 trial court may also consider any 

services offered to the parent by the county department of child services, here MCDCS, 
7

and the parent’s response to those services, as evidence of whether conditions will be 

remedied. Id. Moreover, the MCDCS is not required to provide evidence ruling out all 

possibilities of change; rather, it need establish only that there is a reasonable probability 

the parent’s behavior will not change. See In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 

2007).

Father does not challenge the juvenile court’s conclusions that the children have 

been removed from his care for the requisite time period set forth by statute. Ind. Code 

§31-35-2-4(b)(2)(A)(i). As such, Father has waived any challenge alleging that MCDCS 

proved that element at the termination hearing. See Ind. Appellate Rule 46 (A)(8)(a) 

(contentions on issues presented must be supported by citation to authority, Appendix, and 

record); Clanton v. United Skates of Am., 686 N.E.2d 896, 900 (Ind. Ct. App. 1997) (failure 

to present cogent argument results in waiver on appeal).

Father does challenge the juvenile court’s conclusions that 1) there is a reasonable 

probability that the conditions that resulted in N.M., A.M., and H.M.’s removal will not be 

remedied,3 2) there is a reasonable probability that continuation of the parent-child 

relationship poses a threat to the children’s wellbeing,4 3) that termination is in the best 

interest of the children,5 and 4) that MCDCS has a satisfactory plan for the care and 

treatment of the children.6

 

3 See Ind. Code § 31-35-2-4(b)(2)(B)(i).

4 See I.C. § 31-35-2-4(b)(2)(B)(ii).

5 See I.C. § 31-35-2-4(b)(2)(C).

6 See I.C. § 31-35-2-4(b)(2)(D). 
8

We observe that Father does not challenge any of the juvenile court’s findings of 

fact. Those unchallenged facts will stand as proven. “[W]here a party challenges only the 

judgment as contrary to law and does not challenge the special findings as unsupported by 

the evidence, we do not look to the evidence but only to the findings to determine whether 

they support the judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. 

App. 2000) (citing Boyer v. First Nat’l Bank of Kokomo, 476 N.E.2d 895, 897 (Ind. Ct. 

App. 1985)). Upon review, our task is to examine the juvenile court’s unchallenged 

findings to determine whether they support the juvenile court’s judgment. See generally 

City of Whiting v. City of East Chicago, 266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977) 

(providing that party waives challenge to sufficiency of evidence supporting trial court’s 

findings when party does not provide any argument relating to sufficiency of trial court’s 

findings on appeal).

Regarding whether the conditions that led to the children’s removal will not be 

remedied, we reiterate that the juvenile court must judge a parent’s fitness to care for his 

children at the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. 

App. 2010). Father contends that MCDCS simply gave up on the plan to reunite him with 

the children, by failing to provide services upon Father’s incarceration in September 2012.

Indiana Code section 31-34-21-5.5 requires the local department of child services 

to make reasonable efforts to preserve and reunify families during CHINS proceedings. 

However, Father appeals from the order involuntarily terminating his parental rights to his 

children. “We observe that the CHINS provision [requiring reasonable efforts to reunify 

and preserve families] is not a requisite element of our parental rights termination statute, 
9

and a failure to provide services does not serve as a basis on which to directly attack a 

termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 

2009) (citing In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)). “[T]he provision of 

family services is not a requisite element of our parental rights termination statute, and 

thus, even a complete failure to provide services would not serve to negate a necessary 

element of the termination statute and require reversal.” In re E.E., 736 N.E.2d at 796. 

Therefore, Father’s argument along that vein does not support his argument for reversal of 

the juvenile court’s decision.

Nonetheless, we note that the MCDCS did stop providing services to Father upon 

his incarceration in September 2012. MCDCS was not required, however, to provide 

services directed at reunification of Father with his children while he was incarcerated. See 

Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 622 (Ind. Ct. 

App. 2006) (because of Father’s incarceration, OFC did not communicate with Father 

throughout CHINS or termination proceedings concerning reunification with his children 

and did not provide services to Father). Father’s own actions resulted in his incarceration 

and resulted in MCDCS’s inability to provide services.

Additionally, we reject Father’s assertion that “the precise reason for removal no 

longer exists.” Appellant’s Br. at 12. Although Father focuses on the initial reason for 

removal, the termination statute also focuses on the bases resulting in continued placement 

outside the home. See In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005). 

The evidence presented at the termination hearing included the disclosures the 

children made during their therapy at Aspire, a non-profit comprehensive community 
10

mental health center. H.M. remembered a time when Father drop-kicked him, causing 

H.M. to land on his stomach and face, and breaking his glasses. H.M. further recounted a 

time when he and A.M. were required by Father to hold down N.M.’s legs while Father 

punched N.M. H.M. also spoke of a time when Father shove and kicked him. Each of the 

children referred to Father making them help him sell Mother’s prescription drugs, but 

N.M. provided more detail about Father requiring them to package the drugs for sale. A.M. 

indicated that Father placed his toe inside A.M.’s mouth on one occasion, and that Father 

would pick up A.M. by his neck. Father had grabbed N.M. by the throat. Besides their 

own physical abuse, the children saw Father slapping or otherwise physically abusing 

Mother in their presence. 

In addition to the physical abuse, the children confirmed that Father had sexually 

abused them by touching their private parts. Father fondled N.M. on both the outside and 

inside of his clothing. N.M. was forced to perform oral sex on Father and disclosed in a 

forensic interview that Father had anally penetrated him. N.M. slept with a baseball bat at 

night as a result of his fear that Father would come to maternal grandparents’ home. N.M. 

also wanted to acquire a BB gun in the event that Father was released from police custody.

At the termination hearing, Father characterized his behavior toward N.M. as “an 

innocent game of cup check.” Tr. at 71. Father described the game of cup check, as 

catching a person off guard while providing the answer “Bangkok” as the capital of 

Thailand, and tapping the outside of their cup. Id. at 72. Father explained his conviction 

for Class D felony sexual battery of N.M. as involving the same game, but without the 

involvement of a cup, and that Father hit the outside of N.M.’s penis. Father claimed that 
11

he pleaded guilty to the sexual battery in order to spare N.M. and claimed that the game 

was not played for sexual gratification. Father admitted that he had physically abused N.M.

The juvenile court correctly concluded that those facts supported the conclusion that 

the conditions that led to the children’s removal will not be remedied. Father sexually 

abused N.M., physically abused all three children, forced the children to assist in the sale 

of prescription drugs, and exposed them to domestic violence. Father’s testimony at the 

termination hearing minimizing the events that led to his conviction for sexual battery of 

N.M. lends further support to the conclusion that, as of the time of the termination hearing,

the conditions that led to the children’s removal would not be remedied.

Father has failed to meet his burden of showing that the juvenile court’s conclusion 

was not sufficiently supported by clear and convincing evidence. This basis alone would 

dispose of Father’s appeal. However, we address his remaining contentions. 

Father asserts that the juvenile court’s conclusion that Father’s relationship with the 

children posed a threat to the children’s wellbeing is not supported by clear and convincing 

evidence. He argues that “[t]here has been no showing that a return of the children into the 

custody of their Father would place them into a situation that is totally inadequate and 

places their very survival in question.” Appellant’s Br. at 12. However, he uses an 

inappropriate test for this assessment. 

A juvenile court need not wait until the children are irreversibly influenced by a 

deficient lifestyle such that their physical, mental, and social growth is permanently 

impaired before making the decision to terminate the parent-child relationship. In re E.S., 

762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). Where the evidence shows that the emotional 
12

and physical development of the children is threatened, termination of the parent-child 

relationship is appropriate. Id. 

With respect to this argument, all of the facts set forth in our discussion above 

support the juvenile court’s conclusion. Put succinctly, Father has physically, sexually, 

and emotionally abused his children. The children received services to assist them with 

the effects of the abuse they suffered at Father’s hands. The children do not want to be 

reunited with Father and are fearful of him. Based upon this history of abuse, Father’s 

challenge of the juvenile court’s conclusion fails.

Father challenges the conclusion that termination of his parental rights to the 

children would be in the best interests of the children. When considering the best interests 

of the child or children, a juvenile court must subordinate a parent’s interests to those of 

the child. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). The juvenile court is 

required to look beyond those factors identified by the local department of child services 

and to consider the totality of the evidence. Id. Furthermore, the recommendations of the 

case manager and court-appointed special advocate (“CASA”) to terminate parental rights, 

in addition to evidence that the conditions leading to the removal of the children from the 

home will not be remedied, is sufficient to show by clear and convincing evidence that 

termination of parental rights is in the child’s, or in this case, the children’s, best interests. 

Id.

As previously discussed above, there was sufficient evidence to establish that the 

conditions leading up to the children’s removal would not be remedied. The children’s 

CASA testified that “[t]hese children should absolutely not be with [Father].” Tr. at 50. 
13

The CASA further testified that the children are terrified of Father, and that termination of 

parental rights was in the children’s best interests. The family case manager testified that, 

in her opinion, continuation of the parent-child relationship posed a threat to the children’s 

wellbeing. 

The children have lived with maternal grandparents since November of 2011, with 

MCDCS formally placing them in maternal grandparents’ care in early July of 2012. One 

of the children’s therapists testified that the children want to stay with their maternal 

grandparents because of the bond they have established and the feeling of safety there. 

Another therapist believed that the children were happy in maternal grandparents’ care and 

were comfortable there. The children have shown progress in addressing the trauma of 

their Father’s abuse and the loss of their Mother. The unchallenged findings of fact 

sufficiently, clearly, and convincingly, show that termination of parental rights is in the 

best interests of the children.

Arguably, Father has presented a challenge to the juvenile court’s conclusion that 

MCDCS has a satisfactory plan for the children, which is adoption by maternal 

grandparents. Notwithstanding Father’s apparent waiver of his challenge by failing to 

present cogent argument, the juvenile court’s conclusion here is clearly and convincingly 

supported by the juvenile court’s findings of fact. Father claims that there is no guarantee 

that maternal grandparents will adopt the children or that the children will remain together. 

“[I]n order for the [juvenile] court to terminate the parent-child relationship the 

[juvenile court] must find that there is a satisfactory plan for the care and treatment of the 

child.” In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App. 2000). The plan need not be 
14

detailed, but should offer a “general sense of the direction in which the child will be going 

after the parent-child relationship is terminated.” Id. We have held that even where there 

is no specific family identified as prospective adoptive parents, the plan for adoptive 

placement can be satisfactory. Id. “Attempting to find suitable parents to adopt the 

children is clearly a satisfactory plan.” Lang v. Starke Cnty. Office of Family & Children, 

861 N.E.2d 366, 375 (Ind. Ct. App. 2007). The children have been placed with maternal 

grandparents since their removal from their parents’ home. MCDCS was not required to 

guarantee that the adoption would take place or that the children would remain together. 

As such, the juvenile court did not err in concluding that adoption was a satisfactory plan 

for the children. 

We will reverse a termination of parental rights “only upon a showing of ‘clear 

error’—that which leaves us with a definite and firm conviction that a mistake has been 

made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly, 592 

N.E.2d at 1235). Based on the record before us, we cannot say that the juvenile court’s 

termination of Father’s parental rights to N.M., A.M., and H.M. was clearly erroneous. We 

therefore affirm the juvenile court’s judgment.

Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.