Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 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

Cynthia Phillips Smith

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

F.S. and A.S. (Minor Children)

and

A.N. (Mother), 

Appellant-Respondent, 

v. 

The Indiana Department of 

Child Services,

Appellee-Petitioner

July 8, 2019

Court of Appeals Case No.

19A-JT-210 

Appeal from the Tippecanoe 

Superior Court

The Honorable Faith Graham, 

Judge

Trial Court Cause Nos. 

79D03-1805-JT-77, 79D03-1805-

JT-78 

Altice, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 2 of 13

Case Summary

[1] A.N. (Mother) appeals from the involuntary termination of her parental rights 

to two of her minor children, F.S. and A.S. (collectively, the Children).1

 She 

challenges the sufficiency of the evidence supporting the termination order.

[2] We affirm.

Facts & Procedural History2

[3] On November 21, 2016, the day after A.S.’s birth, the Department of Child 

Services (DCS) became involved with the family because A.S.’s cord blood 

tested positive for cocaine. The following day, a hair follicle test was performed 

on F.S., who was eighteen months old. The test later returned positive for 

methamphetamine. Mother admitted to cocaine use during the pregnancy, as 

well as spice and marijuana, and acknowledged that she needed help with 

 

1 Mother has another child who lives with an established guardian.

2 The Children’s father’s rights were also terminated, but Father has not appealed the termination order. 

Accordingly, our recitation of the facts will focus on those related to Mother.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 3 of 13

addressing her substance abuse. At the time, DCS permitted the Children to 

remain in the home with services.

[4] DCS filed a petition alleging that that the Children were children in need of 

services (CHINS) on December 6, 2016. At the factfinding hearing on January 

31, 2017, Mother and Father both admitted that the Children were CHINS. 

Following the dispositional hearing on February 21, 2017, the trial court 

determined that the Children should remain in Mother’s care and ordered 

Mother to participate in services. Specifically, she was ordered to remain drug 

and alcohol free, submit to random urine screens, participate in individual 

therapy, and complete assessments for substance abuse, domestic violence, and 

parenting and follow all recommendations following the assessments.

[5] Almost immediately thereafter, the trial court held a modification hearing and 

issued an order, on March 2, 2017, modifying the dispositional decree. The 

court ordered the removal of the Children from Mother’s home and placement 

in foster care based on the following findings:

Mother and Father have been involved in two (2) domestic 

violence altercations and the children have been present. Father 

has been warned about trespassing and continues to go to the 

home. Mother allowed Bryce Henderson to stay in her home 

and he was arrested for an outstanding warrant. Mother reported 

she had only known Mr. Henderson for approximately one (1) 

month and allowed him to stay as he did not have utilities and 

she felt bad for him.

Both of these children have been exposed to substances. Mother 

admitted to using cocaine during her pregnancy ... [and F.S.] 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 4 of 13

tested positive for methamphetamine .... It is a concern Mother 

allowed someone she has only known for a month to reside in 

the home she shares with her children.

Exhibits Vol. 1 at 26. The Children have remained in foster care since their 

removal.

[6] In early May 2017, Mother became incarcerated, first in the Tippecanoe 

County Jail and then the Indiana Department of Correction, for battery with a 

deadly weapon. She was placed on work release on or about January 4, 2018. 

Following her release from prison, Mother began participating in services 

referred through DCS. She completed an intake assessment with a therapist at 

Wabash Valley Alliance on January 16, 2018, and a substance use assessment 

later that month. The therapist recommended individual counseling, which 

was scheduled but Mother never attended. Mother began supervised visits with

the Children at the beginning of February 2018 and had a handful of visits 

before she was reincarcerated from mid-February through mid-April 2018, 

following her use of illegal drugs. Thereafter, she was returned to work release

where she was serving a term of probation.

[7] At a permanency hearing on May 17, 2018, the trial court authorized DCS to 

file petitions to terminate the parent-child relationship. Despite the move 

toward termination, the court ordered DCS to continue to fund services for 

Mother, including substance abuse evaluation and treatment, individual 

counseling, case management, and supervised visits. The court noted that 

Mother “needs to be actively complying with all services, submitting to random 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 5 of 13

drug screens and staying clean from any and all substances.” Id. at 68. DCS 

filed the instant termination petitions on May 24, 2018. 

[8] DCS re-referred services for Mother after her release from incarceration in April 

2018. Mother visited with the Children three times in April and then did not 

show for a visit on April 26 due to being incarcerated. She then visited with the 

Children on May 22. This was her last contact with the Children, as visitation 

services were suspended due to Mother’s failure to comply with random drug 

screens. Mother had been a no-show for drug screens during the entire month 

of May. She submitted to one screen in June and then none thereafter. Mother

stopped contacting the family case manager (FCM), Jessica Wingate, entirely 

after June 14, 2018. Additionally, although referred by DCS, Mother never 

completed a parenting assessment, a domestic violence assessment, or 

individual counseling.

[9] The termination factfinding hearing took place on August 16, 2018 and October 

10, 2018. FCM Wingate testified that Mother had a period of partial 

compliance starting in January 2018, which ended when Mother was 

reincarcerated the following month. Despite being given the opportunity to 

engage in services upon her release, Mother did not successfully complete any 

services and was generally non-compliant. Further, FCM Wingate testified that 

the Children do not know Mother, which caused FCM Wingate concern for 

their emotional well-being during visits with Mother. Once the visits ceased, 

FCM Wingate explained that the Children “finally ha[d] some emotional wellbeing and consistency.” Transcript Vol. 2 at 99. In sum, FCM Wingate 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 6 of 13

recommended termination as in the best interests of the Children because 

“Mother has not been compliant when it was available for her to engage and 

she does not have a relationship with the children at this time.” Id. at 100.

[10] Similarly, the CASA, Erika O’Brien, recommended termination. CASA 

O’Brien had been assigned to the Children since May 2017. She explained her 

recommendation as follows:

This has been a long road, best described as a roller coaster. I’ve 

had a lot of faith in the proceedings and Dad has been on the 

right track, he was doing a great job and then just fell off. Mom, 

once she got out of jail she was on track, she was doing a great 

job. She then got off track, was incarcerated, we had to restart. 

So, all those things and at this point in the last few months Dad 

has not been involved, neither has Mom. I’ve seen ... no change 

or improvement or move towards getting the children at this 

juncture.

Id. at 118. CASA noted that since her involvement in the case – nearly a year 

and a half at the time – Mother had engaged in services for about a total of sixty 

days. Indeed, Mother acknowledged during her own testimony that her period 

of success with services lasted only “about 60 days.” Id. at 135. Mother 

testified that this success ended in February 2018 after she “admitted to 

smoking spice” while in community corrections. Id. at 134.

[11] On December 17, 2018, the trial court issued its order terminating the parentchild relationship between Mother and the Children. Mother now appeals. 

Additional information will be provided below as needed.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 7 of 13

Discussion & Decision

[12] When reviewing the termination of parental rights, we will not reweigh the 

evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628 

(Ind. 2016). Instead, we consider only the evidence and reasonable inferences 

most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 

2004), trans. denied. In deference to the trial court’s unique position to assess 

the evidence, we will set aside its 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. In light of the applicable clear and convincing 

evidence standard, we review to determine whether the evidence clearly and 

convincingly supports the findings and whether the findings clearly and 

convincingly support the judgment. In re R.S., 56 N.E.3d at 628.

[13] We recognize that 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. 

Although parental rights are of constitutional dimension, the law provides for 

the termination of these rights when parents are unable or unwilling to meet 

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 

2008). In addition, a court must subordinate the interests of the parents to those 

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating 

parental rights is not to punish the parents, but to protect their children. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 8 of 13

[14] Before an involuntary termination of parental rights may occur in Indiana, DCS 

is required to allege and prove by clear and convincing evidence, 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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing 

evidence that termination is in the best interests of the child and that there is a 

satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

4(b)(2)(C), (D).

[15] On appeal, Mother asserts that DCS failed to present clear and convincing 

evidence that the conditions resulting in the Children’s removal would not be 

remedied, that the continuation of the parent-child relationship poses a threat to

the Children’s well-being, and that termination is in the best interests of the 

Children. We will address each of these in turn, as needed.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 9 of 13

[16] Mother first contends that DCS failed to present clear and convincing evidence 

that there is a reasonable probability that the conditions resulting in the 

Children’s removal or continued placement outside the home will not be 

remedied. In deciding whether a reasonable probability exists that conditions 

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

children 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 whether there is a substantial probability of future 

neglect or deprivation of the children. Id. The court may consider evidence of 

the 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 Cty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 

2002), trans. denied. “A pattern of unwillingness to deal with parenting 

problems and to cooperate with those providing social services, in conjunction 

with unchanged conditions, support a finding that there exists no reasonable 

probability that the conditions will change.” In re L.S., 717 N.E.2d at 210.

[17] The record establishes that the reasons for the Children’s removal and 

continued placement outside Mother’s home centered on concerns of substance 

abuse and domestic violence.3

 On a related note, Mother’s unstable lifestyle 

 

3 Mother asserts that “DCS failed to elicit any testimony proving the reasons for removal”. Appellant’s Brief at 

11. The reasons for removal, however, are amply established in the exhibits that were admitted at trial 

without objection from Mother. 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 10 of 13

and anger issues led to repeated incarcerations. By the conclusion of the 

termination hearing, the Children had been removed from Mother’s care for 

twenty months and she had spent ten of those months incarcerated at various 

times. For the ten months that she was not incarcerated, she participated in 

some services, by her own account, for only about two months. 

[18] The trial court’s detailed findings of fact set out Mother’s history of compliance 

throughout the case, as well as her incarcerations. The court then summarized:

15. During the CHINS case, Mother demonstrated compliance 

with services for approximately six (6) to (8) weeks. Otherwise 

Mother failed to attend services even when not incarcerated. 

Mother failed to successfully complete any services. Mother was 

last discharged from services on May 30, 2018 for lack of contact 

and compliance.

16. Mother failed to complete a parenting assessment. Since 

February 2018, Mother has attended only approximately ten (10) 

scheduled visits. In April/May 2018, Mother was scheduled to 

participate in supervised parenting time twice per week. 

However, Mother attended only three (3) scheduled visits on 

April 18, April 20, and April 23, 2018. Mother was incarcerated 

at the time of the next visit scheduled on April 26, 2018. Mother 

attended a scheduled visit on May 22, 2018. Mother’s visits were 

thereafter suspended for failure to engage in random drug 

screening. Mother’s last contact with the children was on May 

22, 2018.

Appendix Vol. II at 23.

[19] The evidence and the court’s findings of fact overwhelming establish a 

reasonable probability that the conditions resulting in the Children’s removal 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 11 of 13

and continued placement outside Mother’s home will not be remedied. There 

were no changed conditions at the time of the termination hearing, and Mother 

had made no progress in the five months following her most-recent release from 

incarceration in May 2018. Particularly telling of Mother’s lack of commitment 

to do what needed to be done to reunify with the Children was her decision to 

end visits with them rather than submit to drug screens and to cease contact 

with FCM Wingate.

[20] I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, having upheld 

the trial court’s conclusion under I.C. § 31-35-2-4(b)(2)(B)(i), we need not 

review the trial court’s determination that continuation of the parent-child 

relationship would pose a threat to the Children’s well-being. 

[21] Finally, Mother asserts that the evidence was insufficient to support the trial 

court’s determination that termination was in the Children’s best interests. In 

making this best-interests determination, the trial court is required to look 

beyond the factors identified by DCS and consider the totality of the evidence. 

In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court must 

subordinate the interest of the parent to those of the children and need not wait 

until a child is irreversibly harmed before terminating the parent-child 

relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 

199 (Ind. Ct. App. 2003). Our Supreme Court has explained that 

“[p]ermanency is a central consideration in determining the best interests of a 

child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have 

previously held that the recommendations of the case manager and court-
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 12 of 13

appointed 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.” 

In re J.S., 906 N.E.2d at 236. 

[22] Mother’s brief argument regarding the best-interest element is that she loves the 

Children and that, due to her incarcerations, she has not been given the 

opportunity to prove that she can care for them. She also asserts that she and 

the Children are bonded and, thus, it would not be in the Children’s best 

interests to have their relationship with her severed. 

[23] On the contrary, the evidence establishes, and the trial court found, that the 

Children have no bond with Mother. Between May 2017 and October 2018, 

the Children had only visited with Mother about ten times. The lack of visits 

was due to Mother’s multiple incarcerations and her refusal to submit to 

random drug screens. As we have recognized, “[i]ndividuals who pursue 

criminal activity run the risk of being denied the opportunity to develop positive 

and meaningful relationships with their children.” Castro v. State Office of Family 

& Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting Matter of A.C.B., 

598 N.E.2d 570, 572 (Ind. Ct. App. 1992)), trans. denied.

[24] Both the CASA and the FCM recommended termination of Mother’s parental 

rights. Moreover, as the trial court found:

CASA noted that neither parent has been involved or made any 

steps toward reunification in the past few months. CASA 

reported the children are confused and emotionally troubled by 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-210 | July 8, 2019 Page 13 of 13

inconsistent contact with the parents. The children were 

emotionally impacted by Mother’s absence and Father’s 

inconsistent presence. The children did not demonstrate a bond 

with Mother at all. Since parenting time ceased, the children 

have emotionally stabilized. The children are currently placed 

with foster parents who are willing to adopt the children. The 

children are adoptable even if the current foster family is unable 

to adopt for any reason.

Appendix Vol. II at 24. The evidence was sufficient to show by clear and 

convincing evidence that termination was in the Children’s best interests.

[25] Judgment affirmed.

Kirsch, J. and Vaidik, C.J., concur.