Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 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

MOTHER

Donald E.C. Leicht

Kokomo, Indiana

ATTORNEY FOR APPELLANT FATHER

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Involuntary 

Termination of the Parent-Child 

Relationship of Ja.M., X.M., 

Je.M., and R.M. (Minor 

Children), and S.J. (Mother) and 

D.M. (Father)

Appellants-Respondents,

v.

The Indiana Department of Child 

Services,

Appellee-Petitioner.

March 17, 2015

Court of Appeals Case No.

34A04-1409-JT-430

Appeal from the Howard Circuit 

Court

The Honorable Lynn Murray, Judge

Cause Nos. 34C01-1402-JT-36, 

34C01-1402-JT-37, 34C01-1402-JT38, 34C01-1402-JT-39

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 2 of 16

[1] S.J. (“Mother”) and D.M. (“Father”) appeal the order of the Howard Circuit 

Court terminating their parental rights to their children, Ja.M, X.M., Je.M, and 

R.M. On appeal, Mother and Father both claim evidence was insufficient to 

support the trial court’s decision to terminate their parental rights. 

[2] We affirm. 

Facts and Procedural History

[3] Mother and Father are the biological parents of four children: Ja.M., born in 

March 2000; X.M., born in August 2001; Je.M., born in November 2002; and 

R.M., born in December 2003. Mother had a history of neglect of the children, 

resulting in a previous finding that the children were in need of services. 

According to Mother, in the previous instance, the children were removed from 

her care when she was arrested and Father was already incarcerated. Mother 

claimed that, in this previous instance, the children were returned to her care 

within two months. Father, too, had a prior involvement with child welfare 

services in Michigan who found a substantiated allegation of physical abuse. 

[4] The present case began in September 2012, when Father had custody of the 

children because he and Mother were “having some issues,” and Mother 

needed a “break.” Tr. p. 94. Father took the children to Michigan via a bus, but 

during the trip Father suffered a psychotic breakdown and was hospitalized. 

Child welfare authorities in Michigan took custody of the children and placed 

them with their paternal aunt, who in turn took them to back to Mother in 

Kokomo, Indiana. Mother was homeless at the time and contacted the 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 3 of 16

Department of Child Services (“DCS”) for assistance. DCS recommended that 

Mother and the children stay at a homeless shelter, but Mother declined 

because, at that time, she had an outstanding warrant for her arrest. Mother 

was arrested on October 5, 2012, and DCS took custody of the children because 

Father was still hospitalized in Michigan in a mental health facility. 

[5] On October 9, 2012, DCS filed a petition alleging that all four children were 

children in need of services (“CHINS”). Both parents denied the allegations in 

the CHINS petition. The trial court appointed counsel for the parents and 

appointed a Court Appointed Special Advocate (“CASA”) to represent the 

interests of the children. A hearing was held on the CHINS petition on 

November 5, 2012, at the conclusion of which the trial court found that the 

children were CHINS.1 At the dispositional hearing held on December 3, 2012, 

the court ordered the children to be wards of DCS and continued their 

placement in foster care. The trial court also ordered the parents to: 

• cooperate and maintain contact with DCS and its family case managers 

and service providers and follow their recommendations; 

• notify DCS of any change in the parents’ contact information;

• attend and participate in the visitation plan and follow the rules and 

procedures set forth by DCS and the service providers coordinating and 

supervising the visits; 

• maintain contact with the case managers and service providers, including 

notifying them of cancellations of appointments at least twenty-four 

hours in advance; 

 1 Father appeared at the hearing in person and by counsel. In fact, it appears that Father appeared in person 

and by counsel at all of the hearings held in this matter. 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 4 of 16

• attend, participate in, and complete a parenting program, and provide 

proof of such completion to DCS; 

• maintain gainful employment and provide evidence of such employment 

to DCS; 

• obtain and maintain clean, suitable, and stable housing for themselves 

and the children and allow DCS and the service providers access to the 

home; 

• refrain from all illegal activity and abide by the law so as to not hamper 

their ability to care for the children; 

• cooperate with and follow the recommendations of “Family Educator 

Services; and 

• attend all medical appointments regarding the children and follow all 

recommendations of the medical personnel. 

In addition, the court ordered that visitation be supervised initially, “which 

visits may progress to semi-supervised or unsupervised visits at the discretion of 

the DCS without further order of the Court.” Ex. Vol., DCS Ex. 6. The court 

also ordered Father to attend and participate in individualized mental-health 

counseling. 

[6] Following the CHINS dispositional order, Mother failed to appear at any 

hearing or have any contact at all with the children for a period of twenty-two 

months. Father was initially cooperative, and he actively participated with the 

service providers and worked with his home-based case manager to acquire 

appropriate housing. He also obtained employment. Father also initially 

attended all supervised visitation sessions that were scheduled. By the time of 

the six-month review hearing, though, Father was not compliant with his 

mental health counseling requirement; he did attend an initial intake 

appointment but failed to attend any subsequent appointments. 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 5 of 16

[7] At the September 9, 2013, permanency hearing, the evidence revealed that 

Father had not been cooperative with the offered services or with DCS. In fact, 

Father’s whereabouts had been unknown for a period, and he failed to respond 

to the numerous attempts by DCS to contact him. Father completed his mental 

health evaluation and parenting assessment but failed to follow through with 

the recommendations given to him and had not attended therapy regularly. 

When Father did attend the visitations, he brought food for the children but 

struggled with engaging with the children; instead, he simply provided things 

for them to do. 

[8] By the December 9, 2013, hearing, Father had obtained housing but explained 

that he would not be allowed to stay there due to a problem with documenting 

his identity. Father’s participation in therapy, services, and visitation was 

sporadic but improved as the hearing grew closer. Despite the children’s desire 

to remain in foster care, the goal remained reunification of the family. 

[9] On February 20, 2014, DCS filed a petition to terminate Mother’s and Father’s 

parental rights. At a March 10, 2014, hearing, evidence was presented 

indicating that Father’s participation in services, therapy, and visitation 

remained inconsistent; in fact, he had not attended any therapy sessions during 

December and January, although he reported that he had met with his therapist 

in February. With regard to visitation, three scheduled visits had been cancelled 

due to weather. Of the other scheduled visits, Father attended five but did not 

appear for three. 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 6 of 16

[10] At the termination hearing, held on June 30 and July 21, 2014, the trial court 

heard evidence that Ja.M., X.M., and R.M. were all diagnosed with adjustment 

disorder. Je.M. also acted out in sexually inappropriate ways. He was 

diagnosed with post-traumatic stress disorder, adjustment disorder, and sexual 

abuse. Father had admitted during a March 2014 Child and Family Team 

meeting that, while in the parents’ care, the children had been exposed to 

sexually explicit material and had even been sexually abused.2 Father admitted 

that he had done nothing to protect his children from this abuse.3 Je.M. also 

told his therapist that both of his parents had been physically abusive and that

often no food was in the house. 

[11] Father’s case manager testified that she had helped Father secure housing but 

that Father was unable to move due to overdue utility bills. Father also was 

unable to maintain steady employment. He had obtained work several times, 

but each time, he quit within three months, usually because he complained of 

being unhappy with the job or had conflict with coworkers. Thus, Father was 

employed only sporadically. He moved into his current home, a three-bedroom 

trailer, which he shared with his girlfriend and her children, in February of 

2014. In the prior year, Father had attended only nine therapy sessions and 

attended only approximately one half of his scheduled visits with the children. 

[12] At the time of the children’s removal, Mother had been arrested and was in jail 

for two days. After her release, she went to Detroit, Michigan, and had no 

 2 According to the children’s therapist, the culprit was a cousin of the children. 

3 Apparently, Father was hesitant to contact the police because he was involved in illegal activities himself. 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 7 of 16

contact with the children for twenty-two months. Mother claimed that she had 

left a telephone message for the DCS case manager the year before the 

termination proceedings began, but the DCS caseworker testified that she never 

received such a message. Although Mother obtained employment in May 2014, 

she still did not have stable housing and lived with different friends and family 

each day. Mother failed to follow through with any services offered and had no 

contact with anyone involved in the case until June 2014, when she contacted 

the CASA. 

[13] On August 18, 2014, the trial court entered findings of fact and conclusions of 

law granting DCS’s petition to terminate the parental rights of Mother and 

Father. Mother and Father now appeal. 

Standard of Review

[14] We have long had 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). On appeal, 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 rights4, we apply a two-tiered standard of review. 

 4 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). 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 8 of 16

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 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)). 

[15] “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 

to the child’s interests” in determining the proper disposition of a petition to 

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

[16] 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:
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 9 of 16

(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.

[17] 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 County Office of Family & 

Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is 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. Mother’s Argument

[18] On appeal, Mother claims only that evidence was insufficient to support the 

trial court’s conclusion that a reasonable probability exists 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. See I.C. § 31-35-2-4(b)(2)(i). We note 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 10 of 16

that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and 

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). Here, the trial court found that the first 

two disjunctive requirements of subsection 2(b)(2)(B) were established: (i) that 

the conditions which led to the removal of the children would not be remedied, 

and (ii) that there is a reasonable probability that the continuation of the parentchild relationship poses a threat to the well-being of the child. See Appellant 

Father’s App. pp. 74-75. By not challenging this second disjunctive finding, 

Mother has waived any argument thereon and effectively conceded this finding 

on appeal. See In re Termination of Parent-Child Relationship of J.G., 4 N.E.3d 814, 

820 n.2 (Ind. Ct. App. 2014), trans. denied. Nevertheless, the evidence before the 

trial court was more than sufficient to show that the continuation of parentchild relationship posed a threat to the well-being of the children. Mother did 

not visit the children, did not participate in any of the offered services, and was 

without stable housing at the time of the termination hearing. This is sufficient 

to support the trial court’s determination that the continuation of the parentchild relationship posed a threat to the well-being of the children.

[19] 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-
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 11 of 16

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 

also consider the services offered to the parent by DCS and the parent’s 

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

Id. 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. 

[20] Mother admits that she was “AWOL” during the CHINS proceedings, see

Appellant Mother’s App. at 10, but claims that this should be excused because 

of her self-diagnosed depression during that time, which she likens to 

imprisonment. We note, however, that DCS made service referrals for Mother, 

including one for a mental-health evaluation. Instead of taking advantage of 

this referral, Mother wholly failed to participate in any services and made no 

effort to participate in the CHINS proceedings. 

[21] Nor did Mother visit her children. “[F]ailure to exercise the right to visit one’s 

children demonstrates a ‘lack of commitment to complete the actions necessary 

to preserve [the] parent-child relationship.’” Lang v. Starke Cnty. Office of Family 

& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (quoting In re A.L.H., 774 

N.E.2d 896, 900 (Ind. Ct. App. 2002)). 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 12 of 16

[22] Although Mother was employed, she still did not have stable housing, and in 

fact, was homeless at the time of the termination hearing. Given her complete 

failure to follow through with any services, her effective abandonment of the 

children, and her continued inability to properly care for the children, we 

cannot say that the trial court clearly erred in concluding a reasonable 

probability exists that the conditions which led the children’s removal would 

not be remedied. 

II. Father’s Argument

A. Conditions That Led to Removal of the Children Would Not Be Remedied

[23] Father too challenges the trial court’s determination that the conditions that led 

to the children’s removal would not be remedied. Although Father participated 

in the services to a greater extent than did Mother, we cannot say that the trial 

court’s decision was clearly erroneous. The children were removed from 

Father’s care after he suffered a psychiatric breakdown. Father’s compliance 

with the mental health services was sporadic at best. Father did complete a 

mental health intake appointment but initially failed to attend the scheduled 

follow-up appointments. Thereafter, his attendance at therapy was, at best,

sporadic. By the time of the March 2014 termination hearing, Father had not 

attended any therapy sessions during December 2013 or January 2014. 

[24] After initially attending the scheduled visitations with the children, Father then 

missed several scheduled visitations, usually without informing DCS that he 

would not be there. Father was also unable to maintain steady employment,and 

had only recently moved into a three-bedroom trailer with his girlfriend and her 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 13 of 16

two children. Under these facts and circumstances, and given our deferential 

standard of review, we cannot say that the trial court clearly erred in concluding 

that reasonable probability exists that the conditions that led to the children’s 

removal would not be remedied. 

B. Continuation of the Parent-Child Relationship Poses a Threat to the Wellbeing of the Children

[25] Father also claims evidence was insufficient to support the trial court’s 

conclusion that the continuation of the parent-child relationship posed a 

threated to the well-being of the children. When reviewing the question of 

whether continuation of the parent-child relationship poses a threat to the 

child’s well-being, termination is proper when the evidence shows that the 

emotional and physical development of a child is threatened. C.A. v. Ind. Dep’t of 

Child Servs., 15 N.E.3d 85, 94 (Ind. Ct. App. 2014). Again, we repeat that a trial 

court need not wait until a child is irreversibly influenced by a deficient lifestyle 

such that his or her physical, mental, and social growth is permanently 

impaired. Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct.

App. 2006). 

[26] In addition to the evidence referred to above regarding the parents’ inability to 

properly care for the children was evidence that the children had suffered while 

in the parents’ care. All four children suffered from adjustment disorder, and 

Je.M. was diagnosed with attention-deficit disorder and post-traumatic stress 

disorder. Both parents beat the children, did not send the children to school 

regularly, and did not always have enough food for the children to eat. The 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 14 of 16

children were not properly cared for when Father was not home, and they were 

exposed to sexually explicit material and sexual abuse, yet Father did nothing 

to protect them.5 Given this history and both parents’ lack of progress in 

improving their parenting skills, the trial court could reasonably conclude that 

the continuation of the parent-child relationship posed a threat to the well-being 

of the children. 

C. Termination of the Parent-Child Relationship is in the Best Interests of the 

Children 

[27] Father also challenges the trial court’s determination that termination of the 

parent-child relationship is in the children’s best interest. In determining what is 

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

identified by the DCS and 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. Moreover, the 

recommendation by both the case manager and child advocate to terminate 

parental rights, in addition to evidence that the conditions resulting in removal 

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

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

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

 5 Father denies that he made the statements regarding his knowledge of sexual abuse, but the trial court was 

free to not believe Father’s denials. 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 15 of 16

[28] Father’s argument that termination was not in the children’s best interest is as 

follows: 

Simply because the children have a better life and like their new home 

better than their previous home with their father is insufficient to 

overcome the constitutionally protected rights to raise one’s own 

children. It seems that if [Father] has done everything that was asked 

of him, then he should have the right to raise his children. Otherwise, 

the Department failed [Father] by not giving him the appropriate goals 

for reunification. What else is a parent supposed to do?

Appellant Father’s Br. at 5. 

[29] Father’s parental rights were not terminated simply because the children have a 

better home in foster care than they did with the parents. The children were 

physically abused and neglected in the parents’ care. Nor did Father do 

“everything that was asked of him” as he claims. Id. Specifically, Father failed 

to complete his mental health therapy, attended visitations with the children

only sporadically, and did not maintain steady employment. We also cannot

overlook the fact that the children were in foster care for over twenty months. 

The CASA testified that the children were in “desperate need of permanency,” 

and were “ready to move on with their li[ves].” Tr. p. 97. Both the CASA and 

the DCS case manager testified that, in their opinions, termination was in the 

children’s best interests. See A.D.S., 987 N.E.2d at 1158 (noting that the 

recommendation of a case manager or child advocate to terminate parental 

rights, in addition to evidence that the conditions resulting in removal will not 

be remedied, is sufficient to show that termination is in the child’s best 

interests). In short, the evidence supports the trial court’s determination that 
Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015 Page 16 of 16

termination of the parent-child relationship was in the best interests of the 

children.6

Conclusion

[30] The trial court’s conclusion that the conditions that led to the removal of the 

children would not be remedied was supported by sufficient evidence, as was 

the trial court’s conclusion that the continuation of the parent-child relationship 

posed a threat to the well-being of the children and that termination of the 

parent-child relationship was in the best interests of the children. The parents’ 

arguments on appeal are little more than a request that we reweigh the 

evidence, which we will not do. Accordingly, we affirm the order of the trial 

court terminating both Mother and Father’s parental rights. 

[31] Affirmed. 

Najam, J., and Bradford, J., concur.

 6

 Father makes no argument that DCS failed to prove that a satisfactory plan for the care and treatment of 

the children is in place, but even if he did, DCS presented evidence that the plan for the children was 

adoption, and the current foster mother had expressed interest in adopting the children. This is sufficient. See

Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (holding that a plan 

for adoption was a satisfactory plan for the care and treatment of the children even though there was not yet a 

specific family in place to adopt the children).