Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

David E. Corey

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Involuntary 

Termination of the Parent-Child 

Relationship of:

Au.R. and Ay.R. (Minor 

Children) 

and 

R.W. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

December 2, 2015

Court of Appeals Case No.

54A05-1506-JT-743

Appeal from the Montgomery 

Circuit Court

The Honorable Harry A. Siamas, 

Judge

Trial Court Cause Nos. 

54C01-1501-JT-18

54C01-1501-JT-19
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 2 of 16

Mathias, Judge.

[1] R.W. (“Mother”) appeals the order of the Montgomery Circuit Court 

terminating her parental rights to her two minor children, Au.R. (“Son”) and 

Ay.R. (“Daughter”). On appeal, Mother presents two issues: (1) whether the 

trial court erred in admitting testimony of an Indiana Department of Child 

Services (“the DCS”) caseworker that, in her opinion, Mother posed a threat to 

the wellbeing of the children; and (2) whether the trial court’s decision to 

terminate Mother’s parental rights was supported by sufficient evidence. 

[2] We affirm. 

Facts and Procedural History

[3] As Mother does not challenge the trial court’s findings of fact, we set forth the 

facts as found by the court: 

1. [Daughter] was born [in] 2004. [Son] was born [in] 2008. 

Their parents are [Mother] and A.R. A.R. was murdered in 

August 2012. 

2. On December 9, 2013, the DCS were called to the Riviera 

Motel in Crawfordsville to assist Crawfordsville police. The 

police were investigating a counterfeiting operation at that 

location. [Mother] and her boyfriend J.M. had been living at the 

motel for about three weeks along with [Daughter] and [Son]. 

[Daughter and Son] had not been attending school. The motel 

room was filled with boxes of merchandise which had been 

purchased with counterfeit money. A large amount of counterfeit 

money was found in the motel room. The children’s clothes were 

in Tupperware tubs. Drug paraphernalia for methamphetamine 

use was found in the motel room and some drug paraphernalia 
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was found mixed in with the children’s clothes. 

Methamphetamine, heroin, hashish and Suboxone was found in 

the motel room. The children had head lice. The children were 

fearful. [Mother] had been using methamphetamine and heroin 

daily for at least six weeks prior to December 9, 2013. She was 

smoking methamphetamine in the motel bathroom with the 

children in the next room when the police knocked on the door 

of the room on December 9th. She tested positive for 

methamphetamine when given a drug test. [Mother] had sores on 

her body and was under the influence of methamphetamine on 

December 9th. 

3. The DCS had done previous investigations of [Mother] and 

her care of the children. In January 2011, [Mother] was found 

unresponsive from a drug overdose in her home in Marion 

County. The children were present at the time. 

4. [Mother] has a history of abusing controlled substances. She 

had treatment at Harbor Lights for two or three months and was 

able to maintain sobriety for a period of time before relapsing 

into illegal drug use again. 

5. [Mother] was convicted of possession of methamphetamine, 

a class B felony and forgery a class C felony in July 2014. She 

received a ten year sentence for the possession of 

methamphetamine conviction. Five years of the sentence were 

executed and five years were suspended. She received a four year 

sentence for the forgery conviction. All four years were 

suspended. At the time of the termination hearing, [Mother] was 

incarcerated at the Indiana Department of Correction[] for these 

convictions. [Mother]’s earliest release date is either December of 

2015 or February 2016 depending on sentence cuts she may 

receive for completion of programs in IDOC. [Mother] has 

pending criminal charges in Boone County that she believes will 

be resolved by plea agreement. 

6. On December 9, 2013, the DCS took both children into 

protective custody and placed them with their maternal 
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grandmother. The children have been removed from their mother 

who was the custodian of both children from that date to the date 

of the hearing on the petition to terminate [Mother]’s parental 

rights. 

7. On December 11, 2013, the DCS filed its “Verified Petition 

Alleging Child in Need of Services” as to both [Daughter] and 

[Son]. 

8. On January 28, 2014, a fact finding hearing was held and 

the Court adjudicated both children to be in need of services. 

9. On February 24, 2014, the Court held a dispositional 

hearing. The Court ordered that both children were made wards 

of the DCS. The children continued in their placement with their 

maternal grandmother and her husband. The Court ordered the 

children to have a mental health evaluation. No services were 

offered to [Mother] since she was in jail. 

10. The children have remained in placement with their 

maternal grandmother and her husband since December 9, 2013. 

11. On June 16, 2014, a review hearing was held by the court. 

The Court ordered that the children continue to be placed with 

their maternal grandmother with services offered to the children 

that included mental health counseling through Cummins 

Mental Health. No services were offered to [Mother] since she 

was incarcerated in jail. 

12. On December 5, 2014, the court held a permanency hearing. 

The children’s placement and counseling services were 

continued. The Court ordered that the permanency plan be 

changed to a concurrent plan of reunification and adoption. 

13. [Daughter] suffers from post traumatic stress disorder and 

episodic depressive disorder. [Daughter]’s removal from her 

mother is the traumatic event that causes her PTSD. She receives 

weekly therapy for these conditions. 
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14. [Son] suffers from post traumatic stress disorder and reactive 

attachment disorder. His PTSD is caused by his father’s death, 

removal from his mother and the stress caused by prison visits 

with his mother. [Son] has outbursts at school that are getting 

worse. These outbursts occur around the time of his prison visits 

with this mother. [Son] was not nurtured prior to his removal 

from his mother. He is bonded with his grandmother. [Son] 

receives weekly therapy for these mental health issues. [Son] will 

be held back in his current school grade. 

15. Both children need the stability and support that they 

currently receive in their grandmother’s home. The children have 

lived with their maternal grandmother prior to December 2013. 

They lived with her from May 2012 to January 2013. When 

[Son] was two years old he lived with maternal grandmother for 

two months while [Mother] and his father were in drug rehab. 

16. The DCS plan post termination is adoption of the children. 

While maternal grandmother does not believe termination of 

[Mother]’s parental rights is in the best interests of the children, 

she would adopt them both . . . if necessary. [Grandmother] and 

her husband are in their 60’s and she is concerned about both 

their advanced age to adopt and the financial burden that 

adoption might cause herself and her husband. 

17. [Mother] is participating in substance abuse and parenting 

programs while she is incarcerated. She has received minor 

misconduct reports while she is incarcerated. She plans to live 

with a cousin upon her release from IDOC. She wants to reunite 

with her children. 

Appellant’s App. pp. 5-8. 

[4] As noted by the trial court, the DCS filed its petition alleging that the Children 

were in need of services (“CHINS”) on December 11, 2013. The trial court held 

a detention hearing on December 11, 2013, and ordered the children to be 
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placed with their maternal grandmother (“Grandmother”). The court found the 

Children to be CHINS after a January 24, 2014 factfinding hearing. At the 

dispositional hearing held on February 24, 2014, the trial court ordered Mother 

to contact DCS for services upon her release from incarceration. The court also 

ordered the Children to have visitation with Mother while she was incarcerated. 

[5] As of the June 14, 2014, review hearing, the court determined that Mother had 

not improved her parenting abilities and that she could not participate in 

services due to her continued incarceration. Then, at the December 5, 2014,

permanency hearing, the trial court approved of a concurrent plan of 

reunification and adoption. 

[6] On January 23, 2015, the DCS filed petitions to terminate Mother’s parental 

rights to the Children. The trial court held an evidentiary hearing on the matter 

on May 28, 2015. On June 23, 2015, the trial court issued its findings of fact 

and conclusions of law, ordering that Mother’s parental rights be terminated. 

Mother now appeals. 

Termination of Parental Rights

[7] “The purpose of terminating parental rights is not to punish parents but to 

protect their children. Although parental rights have a constitutional dimension, 

the law allows for their termination when parties are unable or unwilling to 

meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. 

App. 2004) (citation omitted). Indeed, parental interests “must be subordinated 
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to the children’s interest[s]” in determining the proper disposition of a petition

to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). 

[8] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental 

rights must meet the following relevant requirements:

(2) The petition must allege:

(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.

[9] Section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, the trial court 

is required to find that only one prong of subsection 2(b)(2)(B) has been 

established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220 

(Ind. Ct. App. 2010). The DCS must prove “each and every element” by clear 

and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. 

Clear and convincing evidence need not establish that the continued custody of 

the parents is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is 
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sufficient to show by clear and convincing evidence that the child’s emotional 

development and physical development are put at risk by the parent’s custody. 

Id. If the court finds that the allegations in a petition are true, the court shall

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

I. Admission of Evidence 

[10] Mother first argues that the trial court erred in the admission of certain 

testimony. In addressing this argument, we observe that questions regarding the

admission of evidence are left to the sound discretion of the trial court, and we 

will not reverse that decision except for an abuse of that discretion. In re the 

Involuntary Termination of the Parent Child Relationship of A.H., 832 N.E.2d 563, 

567 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs when the 

trial court’s decision is against the logic and effect of the facts and 

circumstances before it. Id. 

[11] Here, Mother takes issue with the admission of certain testimony from DCS 

case manager,

1 Itzayno Prieto (“Prieto”). Prieto testified that she had an 

Associate’s degree in “pub science and criminal justice” and a Bachelor’s 

Degree in liberal arts from Purdue University, with “some of her background . . 

. in child development and psychology, sociology.” Tr. p. 86. When asked if she 

thought Mother posed a threat to the Children’s well being, Mother’s counsel 

 

1

 Prieto testified that her current title is “permanency worker,” which used to be referred to as a family case 

manager or ongoing case manager. 
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objected based on Prieto’s lack of education and expertise in evaluating threats. 

The trial court overruled the objection, and Prieto testified that Mother was a 

threat to the Children’s well being because: 

Again, this was a conscious decision by [Mother]. We did not 

land her here. Her actions landed her in a situation. She is 

incarcerated because of the consequences of her actions. She 

knowingly put her children in that situation with the 

paraphernalia in their clothes; she knowingly, willingly did that. 

She could have made arrangements for her children, but she did 

not. So we had to step in and we have been overseeing the care, 

control and placement of her children this whole time. 

Tr. pp. 95-96. 

[12] On appeal, Mother claims that this evidence should have been excluded under 

Indiana Evidence Rule 701. This rule provides: 

If a witness is not testifying as an expert, testimony in the form of 

an opinion is limited to one that is: 

(a) rationally based on the witness's perception; and

(b) helpful to a clear understanding of the witness’s testimony 

or to a determination of a fact in issue.

[13] Mother argues that Prieto’s testimony was not based on her own observations 

of Mother and therefore fails under subsection 701(a). Mother notes that the 

Children were removed from her care in December 2013, whereas Prieto was 

not assigned to the case until June 2014. She also notes that Prieto only spoke 

with Mother twice, once briefly in a holding room and once over the telephone. 

She also claims that the testimony was inadmissible because it was not helpful 
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to a clear understanding of the witness’s testimony or to a determination of a 

fact at issue. 

[14] However, even if we assume arguendo that the testimony was inadmissible, its 

admission was at most harmless error. The improper admission of evidence is 

harmless error when the trial court’s judgment is supported by substantial 

independent evidence to satisfy the reviewing court that no substantial 

likelihood exists that the questioned evidence contributed to the judgment. B.H. 

v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 363 (Ind. Ct. App. 2013). 

[15] Mother claims that Prieto’s testimony was prejudicial to her because the 

testimony specifically addressed one of the factors the DCS had to establish, i.e. 

whether a reasonable probability exists that the continuation of the parent-child 

relationship poses a threat to the well being of the child. See I.C. § 31-35-2-

4(b)(2)(B). 

[16] The trial court, however, did not base its termination decision on a finding of a 

threat to the well being of the Children. As noted above, the termination statute 

is written in the disjunctive and the trial court is required to find that only one 

prong of subsection 2(b)(2)(B) has been established by clear and convincing 

evidence. In re A.K., 924 N.E.2d at 220. The trial court here based its 

termination decision on its conclusion a reasonable probability exists that the 

conditions that resulted in the children’s removal would not be remedied, not 

on a conclusion that Mother poses a threat to the well being of the children. See

Appellant’s App. p. 10. 
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[17] Because the trial court did not terminate Mother’s parental rights based upon 

the “threat” prong of subsection 2(b)(2)(B), the admission of Prieto’s testimony 

regarding her opinion that Mother posed a threat to the well being of the 

Children was at most harmless error. See B.H., 989 N.E.2d at 363 (concluding 

that erroneous admission of progress reports into evidence was harmless where 

the trial court’s termination order did not reference the reports or their content). 

II. Sufficiency of the Evidence

[18] Mother also claims that the trial court’s decision to terminate her parental rights 

was not supported by sufficient evidence. We have a highly deferential standard 

of review in cases involving the termination of parental rights. In re D.B., 942 

N.E.2d 867, 871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor 

assess witness credibility. Id. We consider only the evidence favorable to the 

trial court’s judgment and the reasonable inferences to be drawn from this 

evidence. Id. Where, as here, the trial court enters findings of fact and 

conclusions of law in its termination of parental rights,2 we apply a two-tiered 

standard of review. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 

(Ind. Ct. App. 2013), trans. denied. We first determine whether the evidence 

supports the findings; we then determine whether the findings support the 

judgment. Id. Findings are clearly erroneous only when the record contains no 

 

2

 Although trial courts are not statutorily required to enter findings of fact and conclusions of law when 

terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision, 

trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute 

and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220 

(Ind. Ct. App. 2010). 
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facts to support them either directly or by inference. Id. If the evidence and 

inferences support the trial court’s decision, we must affirm. Id. Likewise, we 

will set aside the trial court’s judgment terminating a parent-child relationship 

only if it is “clearly erroneous.” Id. In this context, “clear error” is that which 

“leaves us with a definite and firm conviction that a mistake has been made.”

Id. (quoting J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 

(Ind. Ct. App. 2004)). 

[19] Here, Mother contends that the DCS failed to meet its burden with regard to 

the elements set forth in Indiana Code section 31-35-2-4(2)(B)(2) and (C). We 

address both of these arguments in turn. 

A. Conditions That Led to the Children’s Removal

[20] The trial court concluded that a reasonable probability exists the conditions 

which led to the Children’s removal were unlikely to be remedied. When 

making a determination as to whether a reasonable probability exists that the 

conditions resulting in a child’s removal or continued placement outside of a 

parent’s care will not be remedied, the trial court must judge a parent’s fitness to 

care for her child at the time of the termination hearing while also taking into 

consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-

57. The trial court is also required to consider the parent’s habitual patterns of 

conduct in order to determine the probability of future neglect or deprivation of 

the child. Id. at 1157. The trial court may consider 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. Id. The trial court may 
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also consider the services offered to the parent by the DCS and the parent’s 

response to those services as evidence of whether conditions will be remedied. 

Id. The DCS is not required to provide evidence ruling out all possibilities of 

change. Id. Instead, it needs to establish only that a “reasonable probability” 

exists that the parent’s behavior will not change. Id. 

[21] Considering only the facts favorable to the trial court’s judgment, we cannot say 

that the trial court clearly erred in determining that a reasonable probability 

exists that Mother’s behavior would not change. Mother was thirty-seven years 

old at the time of the termination hearing and has a long history of substance 

abuse, beginning when she was only fifteen years old. Throughout her adult 

life, Mother has abused cocaine, opiates, and methamphetamine. Importantly, 

most of Mother’s drug use occurred after her children were born. Mother’s drug 

use led to the DCS becoming involved in 2011, when Mother overdosed and 

the Children first lived with their Grandmother. Although Mother sought 

treatment after the overdose and temporarily maintained sobriety, she began 

using again. When the Children returned to Mother’s care, Grandmother was 

so concerned that she contacted the DCS regarding her daughter’s drug use. 

Shortly thereafter, the DCS was called to the scene where Mother was using 

methamphetamine in a hotel room containing drug paraphernalia, 

counterfeiting equipment, and counterfeit cash. Some of the paraphernalia was 

even stored with the Children’s clothing. In fact, Daughter was even able to 

direct the police to where Mother kept her drugs. 
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[22] On appeal, Mother refers us to her testimony in which she claimed to have 

participated in services while incarcerated and to Grandmother’s testimony that 

Mother had changed. The trial court in fact considered Mother’s participation 

in services while incarcerated. However, upon reviewing Mother’s past 

behavior, the court came to the conclusion that a reasonable probability exists 

that Mother’s drug abuse problem would continue. Under the facts and 

circumstances of this case, we cannot say that this conclusion was clearly 

erroneous. 

B. Best Interests of the Children

[23] Mother also challenges the conclusion of the trial court that termination of her 

parental rights is in the best interests of the Children. In determining what is in 

the best interests of a child, the trial court must look beyond the factors 

identified by the DCS and look to the totality of the evidence. A.D.S., 987 

N.E.2d at 1158. In so doing, the court must subordinate the interests of the 

parent to those of the children. Id. The court need not wait until the children are 

irreversibly harmed before terminating the parent-child relationship. Id. A

recommendation by both the case manager or child advocate to terminate 

parental rights is sufficient to show by clear and convincing evidence that 

termination is in the child’s best interests. Id. at 1158-59. Permanency is a 

central consideration in determining the best interests of a child. Id. at 1159. 

[24] Here, Prieto and the court-appointed special advocate (“CASA”) both testified 

that termination of the parent-child relationship would be in the Children’s best 

interests. The CASA explained that the Children needed a stable and secure 
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home environment. Also, the Children’s therapist testified that both Children 

needed stability, which they had obtained in Grandmother’s care. 

[25] Mother’s arguments are again little more than a request that we consider the 

evidence not favorable to the trial court’s decision, reweigh the evidence, and 

come to a conclusion opposite that reached by the trial court. However, this is 

not our role as an appellate court. See In re D.B., 942 N.E.2d at 871. The facts 

most favorable to the trial court’s decision show that the Children were 

removed from Mother’s care in December 2013. Mother’s earliest possible 

release date is in December 2015. However, at the time of the termination 

hearing, Mother was also facing pending charges in Boone County. Although 

Mother believed that these charges would be resolved by a plea agreement, this 

had not yet happened, and no evidence in the record indicates what sentence 

Mother will receive in that case. In short, at the time of the hearing, the 

Children had already been removed from Mother’s care for approximately a 

year and a half. Mother’s argument would have us keep the Children in the 

limbo of foster care for at least another six months, and quite possibly longer, 

despite the evidence regarding the Children’s need for stability. 

[26] Further, evidence indicates that the Children were neglected while in Mother’s 

care. Indeed, Son was diagnosed with attachment disorder, which is mostly 

seen in children who are not nurtured at a young age. Son has also had 

outbursts that occurred when he visited Mother in prison. The Children are 

bonded to Grandmother, who also provided care for them at an earlier point in 

their lives when Mother was in drug therapy. In Grandmother’s care, the 
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Children receive weekly therapy to assist them with their mental health and 

behavioral issues. Grandmother, although she did not wish to see Mother’s 

parental rights terminated, testified that she would be willing to adopt the 

Children, if necessary.3 

[27] Again, based on the facts and circumstances of the present case, we are unable 

to conclude that the trial court clearly erred in concluding that termination of 

Mother’s parental rights was in the Children’s best interests. 

Conclusion

[28] The trial court’s admission of the testimony regarding Mother being a threat to 

the well being of the Children was at most harmless error because the trial court 

did not base its termination decision on this factor. Also, the trial court’s 

decision to terminate Mother’s parental rights is based on sufficient evidence. 

[29] Affirmed. 

Baker, J., and Bailey, J., concur. 

 

3

 Mother makes no argument regarding a satisfactory plan for the care and treatment of the Children. See

I.C. § 31-35-2-4(b)(2)(D). Even if she did, the plan for adoption is a satisfactory plan. See In re A.S., 17 N.E.3d 

994, 1007 (Ind. Ct. App. 2014), trans. denied.