Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 1 of 13

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/FATHER

Gregory L. Fumarolo

Fort Wayne, Indiana

ATTORNEY FOR 

APPELLANT/MOTHER

Timothy E. Stucky

Stucky, Lauer & Young, LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re: the Termination of J.O-E., 

JH.O-E., M.N. and A.N. (minor 

children)

and

Ar.N. (Father) and Me.N. 

(Mother),

Appellants-Respondents,

v.

The Indiana Department of 

Child Services,

July 19, 2017

Court of Appeals Case No.

02A04-1701-JT-143

Appeal from the Allen Superior 

Court

The Honorable Sherry A. Hartzler, 

Judge

The Honorable Lori K. Morgan, 

Magistrate

Trial Court Cause Nos.

02D08-1512-JT-159

02D08-1512-JT-160
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Appellee-Petitioner. 02D08-1512-JT-161

02D08-1512-JT-162

Pyle, Judge.

Statement of the Case

[1] Me.N. (“Mother”) and Ar.N. (“Father”) each appeal the termination of the 

parent-child relationship with their children M.N. (“M.N.”) and A.N. 

(“A.N.”). Mother also appeals the termination of the parent-child relationship 

with her older children J.O-E. (“J.O-E.”) and JH.O-E (“JH.O-E”) Both parents 

claim that there is insufficient evidence to support the terminations. 

Specifically, both parents argue that the Department of Child Services (“DCS”) 

failed to prove by clear and convincing evidence that: (1) there is a reasonable 

probability that the conditions that resulted in the children’s removal or the 

reasons for placement outside the home will not be remedied; (2) a continuation 

of the parent-child relationship poses a threat to the children’s well-being; (3) 

termination of the parent-child relationship is in the children’s best interests;

and (4) there is a satisfactory plan for the care and treatment of the children. 

Concluding that there is sufficient evidence to support the termination of the 

parent-child relationships, we affirm the trial court’s judgment.
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[2] We affirm.

Issue

The sole issue for our review is whether there is sufficient 

evidence to support the terminations.

Facts

[3] Mother is the parent of N.E., who was born in 2001; twins J.O-E. and JH.O-E, 

who were born in 2002; M.N., who was born in 2005; and A.N., who was born 

in 2014. Father is the parent of M.N. and A.N.1 In September 2012, Mother 

and Father entered into an informal adjustment with DCS, which required the 

parents to maintain a clean and safe home and ensure their children’s school 

attendance. When Mother and Father failed to follow the terms of the 

adjustment, N.E., J.O-E., JH.O-E, and M.N. were adjudicated to be children in 

need of services (“CHINS”) in April 2013. Both parents were court-ordered to 

follow a parent participation plan that required them to: (1) maintain clean, 

safe, and appropriate housing at all times; (2) obtain a family functioning 

assessment and follow the recommendations; (3) enroll in Stop Child Abuse 

and Neglect’s (“SCAN”) home-based services program, participate in all 

sessions, and successfully complete the program; (4) enroll in individual 

 

1 N.E.’s father lives in Mexico, and the father of J.O-E. and JH.O-E lives in Guatemala. Neither of these 

fathers is a party to this appeal.
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counseling, attend all sessions, and successfully complete the program; and (5) 

ensure the children attended school daily.

2

 

[4] The children initially remained with their parents following the CHINS 

adjudication. However, the children were removed from the home in May 

2013 and returned to the home for a trial visit in June 2013. In December 2013, 

the children were removed from the home again because of “educational 

neglect and a dirty home.” (Tr. 139). Specifically, the children’s schools were 

constantly calling DCS Family Case Manager Alisa Shank (“Case Manager 

Shank”) to let her know that the children “had a very strong odor about 

themselves and their belongings . . . and that’s when they were in school . . . .” 

(Tr. 139). All of the children had excessive absences and tardiness. In addition, 

the house had become uninhabitable. There was clutter throughout the house 

as well as dog feces and clothes on the floor. Mother also had feral cats, which 

sprayed on clothing and furniture and left a strong smell of ammonia. At one 

point the police went to the home because the neighbors had complained that 

the smell was so bad that they thought it was a meth house. 

[5] Three years after the children were adjudicated to be CHINS, DCS filed 

petitions to terminate the parent-child relationships in late December 2015 and 

early January 2016. Testimony at the termination hearing revealed that the 

parents had failed to comply with the court-ordered parent participation plans. 

 

2 A.E. was born after the four oldest children were adjudicated to be CHINS. She was removed from the 

home and adjudicated to be a CHINS shortly after her birth in February 2014.
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First, Mother and Father had never been able to provide clean, safe, or 

appropriate housing. Testimony from Case Manager Shank revealed that 

Mother and Father had lived in three houses that had been condemned while 

they were living in them. Mother and Father had eventually ended up living at 

Father’s auto shop. At the time of the hearing, Father had sold the auto shop

and relocated to Georgia. Mother still lived in the Fort Wayne area but did not 

have “independent housing.” (Tr. 214). In addition, although Mother and 

Father participated in SCAN’s home-based services program, neither parent 

was able to successfully complete the program. SCAN Family Coach Megan 

Brendell (“SCAN Coach Brendell”) testified that Father stopped responding to 

her texts and messages in February 2016, and Mother walked out of their last 

appointment in June 2016.

[6] Dockside Therapist Steve Hanan (“Therapist Hanan”) met individually with 

both Mother and Father. Therapist Hanan testified that Mother, who had been 

diagnosed with bipolar disorder and borderline personality disorder, “never 

attained . . . what we’d call success in any of her goals.” (Tr. 60). According to 

Therapist Hanan, Mother, who “would always slip back into a chaotic 

lifestyle,” had terminated therapy. (Tr. 60). Therapist Hanan further testified 

that Father “left therapy at a very short duration.” (Tr. 70). SCAN Family 

Coach Tonya King (“Family Coach King”), who supervised family visits 

testified that the visits were chaotic. Mother spent most of her time with fifteenyear-old N.E. and told the other children that N.E. was “her king.” (Tr. 99).

Mother also told the other children that N.E. was her favorite and that she 
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loved him the most. Family Coach King was concerned that during one of the 

visits, Mother encouraged and praised N.E. for making racial slurs in front of 

the other children. 

[7] Case Manager Shank testified that she recommended terminating the parentchild relationships because she “fear[ed] for [the] children going back into the 

situation because it wasn’t rectified [. . .] it wasn’t ever going to be rectified.” 

(Tr. 159). DCS Family Case Manager Erica Bashara (“Case Manager 

Bashara”) also recommended terminating the parent-child relationships. 

Specifically, Case Manager Bashara testified that DCS had filed the petition to 

terminate the parental relationships because the “original situation which [had] 

gotten [DCS] involved with this family had not been remedied [and] if anything 

we’ve seen worse than what we started with.” (Tr. 184). Case Manager 

Bashara further testified that termination was in the children’s best interests and 

that the plan for the care and treatment for the children was adoption.

Guardian Ad Litem Mark Thoma (“GAL Thoma”) testified that he did not 

believe it was appropriate to terminate the parental relationship between 

Mother and N.E. because the mother and son shared a close bond. Specifically, 

GAL Thoma did not believe that N.E. would consent to be adopted, and N.E. 

had stated throughout the course of the proceedings that he planned to stay in 

contact with Mother. On the other hand, GAL Thoma testified that 

termination of the parent-child relationships was in the best interests of J.O-E., 

JH.O-E, M.N., and A.N.
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[8] Following the hearing, the trial court issued an order terminating the parental 

relationships between Mother and J.O-E., JH.O-E, M.N., and A.N.3 Each 

parent separately appeals the terminations.

Decision

[9] The traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment to the United States Constitution. In 

re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. 

However, a trial court must subordinate the interests of the parents to those of 

the child when evaluating the circumstances surrounding a termination. Id. at 

1188. Termination of the parent-child relationship is proper where a child’s 

emotional and physical development is threatened. Id. 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. Id.

[10] Before an involuntary termination of parental rights may occur, DCS 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 

 

3 The trial court did not terminate the parental relationship between Mother and N.E.
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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 wellbeing 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). DCS must prove the alleged circumstances by 

clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 

1225, 1230 (Ind. 2013).

[11] When reviewing a termination of parental rights, this Court will not reweigh 

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 

628 (Ind. 2016). We consider only the evidence and any reasonable inferences 

to be drawn therefrom that support the judgment and give due regard to the 

trial court’s opportunity to judge the credibility of the witnesses firsthand. 

K.T.K., 989 N.E.2d at 1229. 

[12] When the trial court’s judgment contains specific findings of fact and 

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56 

N.E.3d at 628. First, we determine whether the evidence supports the findings, 

and second, we determine whether the findings support the judgment. Id. We 

will set aside a trial court’s judgment terminating a parent-child relationship 
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only if it is clearly erroneous. Id. Findings are clearly erroneous only when the 

record contains no facts or inferences to be drawn therefrom that support them. 

In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly 

erroneous if the findings do not support the trial court’s conclusions or the 

conclusions do not support the judgment. Id. 

[13] Mother and Father both argue that DCS failed to prove by clear and convincing 

evidence that: (1) there is a reasonable probability that the conditions that 

resulted in the children’s removal or the reasons for placement outside the 

home will not be remedied; and (2) a continuation of the parent-child 

relationship poses a threat to the children’s well-being. However, we note that 

INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, 

DCS is required to establish by clear and convincing evidence only one of the 

three requirements of subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. 

App. 2010), trans. dismissed. We therefore discuss only whether there is a 

reasonable probability that the conditions that resulted in the children’s removal 

or the reasons for their placement outside the home will not be remedied.

[14] In determining whether the conditions that resulted in a child’s removal or 

placement outside the home will not be remedied, we engage in a two-step 

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the 

conditions that led to removal or placement outside the home and then 

determine whether there is a reasonable probability that those conditions will 

not be remedied. Id. The second step requires trial courts to judge a parent’s 

fitness at the time of the termination proceeding, taking into consideration 
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evidence of changed conditions and balancing any recent improvements against 

habitual patterns of conduct to determine whether there is a substantial 

probability of future neglect or deprivation. Id. Habitual conduct may include 

parents’ prior criminal history, drug and alcohol abuse, history of neglect, 

failure to provide support, and a lack of adequate housing and employment. 

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), 

trans. denied. The trial court may also consider services offered to the parent by 

DCS and the parent’s response to those services as evidence of whether 

conditions will be remedied. Id. 

[15] Here, our review of the evidence reveals that the children were removed from 

Mother and Father because of “educational neglect and a dirty home.” (Tr. 

139). Evidence at the termination hearing revealed that Mother and Father had 

never been able to provide clean, safe, or appropriate housing. Specifically,

Case Manager Shank testified that during the course of the CHINS proceeding, 

Mother and Father had lived in three houses that were condemned while they 

were living in them. Mother and Father eventually ended up living in Father’s 

auto shop. At the time of the hearing, Father had sold the auto shop and 

relocated to Georgia. Mother remained in the Fort Wayne area but still did not 

have “independent housing.” (Tr. 214). In addition, Case Manager Shank

testified that the situation that resulted in the children’s removal had not been 

and would never be rectified. Case Manager Bashara testified that the “original 

situation which [had] gotten [DCS] involved with this family had not been 

remedied [and] if anything we’ve seen worse than what we started with.” (Tr. 
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184). In addition, service providers such as SCAN Coach Brendell and 

Therapist Hanan testified that Mother and Father had failed to successfully 

complete their programs. This evidence supports the trial court’s conclusion 

that there was a reasonable probability that the conditions that resulted in the 

children’s removal would not be remedied. We find no error. 

[16] Next, Mother and Father both argue that there is insufficient evidence that the 

termination was in the children’s best interests. In determining whether 

termination of parental rights is in the best interests of a child, the trial court is 

required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267 

(Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the 

interests of the parents to those of the child involved. Id. Termination of the 

parent-child relationship is proper where the child’s emotional and physical 

development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 

2002), trans. denied. “‘A parent’s historical inability to provide adequate 

housing, stability and supervision coupled with a current inability to provide the 

same will support a finding that continuation of the parent-child relationship is 

contrary to the child’s best interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. 

App. 2000) (quoting Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. 

App. 1992), trans. denied, superceded by rule on other grounds). Further, the 

testimony of the service providers may support a finding that termination is in 

the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798 

N.E.2d 185, 203 (Ind. Ct. App. 2003). 
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[17] Here, our review of the evidence reveals that Mother and Father have 

historically been unable to provide housing, stability, and supervision for their 

children and were unable to provide the same at the time of the termination 

hearing. In addition, Case Managers Shank and Bashara testified that 

termination was in the children’s best interests. The testimony of these service 

providers, as well as the other evidence previously discussed, supports the trial 

court’s conclusion that termination was in the children’s best interests.

[18] Last, both parents argue that DCS does not have a satisfactory plan for the 

children’s care and treatment. This Court has previously explained that the 

plan for the care and treatment of the children need not be detailed, so long as it 

offers a general sense of the direction in which the children will be going after 

the parent-child relationships are terminated. In re L.B., 889 N.E.2d 326, 341 

(Ind. Ct. App. 2008). Here, Case Manager Bashara testified the plan for the 

care and treatment of the children was adoption. This is a satisfactory plan. See

In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

[19] We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 

1235 (Ind. 1992). We find no such error here and therefore affirm the trial 

court. 
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[20] Affirmed.

May, J. and Brown, J., concur.