Court of Appeals of Indiana | Memorandum Decision 19A-JT-2035 | February 28, 2020 Page 1 of 19

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

Alexander W. Robbins

Public Defender - Morgan County

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Termination of the 

Parent-Child Relationship of:

A.M. (Minor Child)

and

W.M. (Father),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner,

February 28, 2020

Court of Appeals Case No.

19A-JT-2035

Appeal from the Morgan Circuit 

Court 

The Honorable Matthew G. 

Hanson, Judge

Trial Court Cause No.

55C01-1903-JT-90

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2035 | February 28, 2020 Page 2 of 19

Case Summary and Issue

[1] W.M. (“Father”) appeals the termination of his parental rights to his child and 

presents the sole issue of whether the juvenile court’s order terminating his 

parental rights was clearly erroneous. Concluding it was not, we affirm. 

Facts and Procedural History 

[2] Father and J.P. (“Mother”), now deceased, are the biological parents of A.M., 

born June 18, 2007 (“Child”). The Department of Child Services (“DCS”) 

became involved in this case in 2016. At that time, Mother had legal custody of 

Child and shared another child with her boyfriend, M.G. The four of them 

lived together. On November 1, 2016, DCS received a report that M.G. and his 

sister snorted heroin in the bedroom and M.G. overdosed; Mother was in the 

other room with Child’s half-sibling and Child was at school. DCS believed 

Mother was sober and an appropriate parent, and Mother agreed to enter into 

an informal adjustment to address M.G.’s substance abuse issues. Father was a 

“non-offending parent or at least extraneous” to the case and therefore, was not 

part of the informal adjustment. Transcript at 20.

[3] On December 14, 2016, DCS filed a petition alleging Child was a child in need 

of services (“CHINS”).1 Around February 2017, Father became involved with 

1

Initially, filings named Child as “A.P.” but Child’s correct name is “A.M.” See Tr. at 19; see also

Supplemental Exhibit Index at 3-15, 39-41.
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DCS in another matter concerning his wife and his wife’s two children. DCS 

began an informal adjustment due to Father’s use of methamphetamine and 

determined that Father’s wife was an appropriate caregiver for her children. 

Father entered into an informal adjustment and agreed to participate in services 

to address his substance abuse issues. Father completed a substance abuse

evaluation at Centerstone on February 7, which recommended substance abuse 

treatment. Despite attempts to contact Father, he never participated in any 

recommended services and was discharged. Eventually, Father and his wife 

separated and divorced; DCS successfully closed out the informal adjustment 

with Father’s wife. 

[4] An initial/detention hearing for Child was held in February 2017, and the 

juvenile court adjudicated Child a CHINS on March 28, 2017. Following a 

dispositional hearing on April 4 at which Father failed to appear, the juvenile 

court ordered Father to (among other things): maintain weekly contact with the 

DCS family case manager (“FCM”); timely enroll in recommended programs; 

obtain and maintain suitable housing and income; refrain from drug use; obey 

the law; submit to random drug screens; and complete a substance abuse 

assessment and follow all recommended treatment. See Supplemental Exhibit 

Index at 64-67. At the time, Child remained in Mother’s care.

[5] The juvenile court held a periodic case review hearing on July 10 and ordered 

Child to remain in Mother’s care. Father failed to appear. On July 13, Father 

reached out to the DCS FCM and asked what he needed to do to move forward 

in the CHINS case; the FCM informed Father he needed to participate in the 
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recommended services but Father stated he did not want to participate in group 

services. From July 13, 2017 to September 24, 2018, Father ceased all contact 

with the FCM despite numerous attempts to contact him through his parents, 

Child, and Mother. 

[6] Due to Mother’s own substance abuse issues, Child was removed from 

Mother’s care on July 24, 2017 and placed with her maternal grandparents. 

Later, on October 3, Father completed a new substance abuse evaluation at 

Centerstone during which he disclosed that he has been using 

methamphetamine daily for the last three or four years and he used as recently 

as three days prior to the evaluation. Centerstone referred Father to an 

intensive outpatient program (“IOP”)2 program – an addictions and parenting 

group, which focuses on parenting skills and maintaining sobriety. Father 

attended five sessions but missed eleven. Due to Father’s non-compliance with 

the program and positive drug screens, he was discharged from services.

[7] Following a review hearing on November 2, the juvenile court found that 

Father: had not complied with Child’s case plan; tested positive for 

methamphetamine; failed to visit Child; and had not cooperated with DCS. See 

id. at 96-97. In February 2018, the juvenile court found that Father “is not 

participating in this case.” Id. at 99. A permanency hearing was held on May 

3, 2018, and the juvenile court again found that Father was missing and not 

2 Although not explicitly defined in the record, we believe “IOP” refers to an intensive outpatient program.
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participating in the case. The court subsequently entered an order changing

Child’s permanency plan from reunification to reunification with a concurrent 

plan of adoption. Father failed to appear for each of these hearings.

[8] As of the August 9 review hearing, Father was still missing and non-compliant 

with the case plan. However, the FCM learned that Father had an active 

criminal case and successfully made contact with Father on September 24 at the 

courthouse. At the time, Father stated he would engage in services and 

“want[ed] to fight for his daughter.” Tr. at 25. However, Father never reached 

out to re-engage in services and again ceased contact with the FCM. The 

juvenile court held another review hearing on December 12 and again, Father 

failed to appear and the juvenile court found Father had been non-compliant 

with the case plan, had not enhanced his ability to fulfill his parental 

obligations, and had not visited Child. See Supp. Ex. Index at 106-07.

[9] In January 2019, Father was arrested on multiple counts of substance abuse 

related charges – possession of methamphetamine, possession of paraphernalia, 

possession of a narcotic drug, unlawful possession of a syringe, and maintaining 

a common nuisance. On March 1, 2019, DCS filed its petition for the 

involuntary termination of Father’s parental rights. While incarcerated, Father 

met with the FCM and indicated he was interested in participating in services. 

However, Father is not able to participate in any DCS-offered services while 

incarcerated because jail policy no longer allows service providers to work one 

on one in the jail. 
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[10] The juvenile court held a termination hearing on May 15, 2019; however, the 

juvenile court was informed that Mother had recently died. Therefore, the 

juvenile court removed Mother from the case and the matter remained set for a 

full termination hearing. The fact-finding hearing was held on August 1, 2019

during which Father testified that he has completed several courses while 

incarcerated. Following the hearing, the juvenile court entered an order 

terminating Father’s parental rights and found, in pertinent part:

147) The main issues facing the [C]hild at the time of removal 

included drug use and a lack of supervision on the part of the 

[M]other.

148) [A]s time progressed [M]other’s issues continued but 

[F]ather simply refused to be engaged.

149) By not engaging in any services whatsoever he simply 

walked away from his obligations to provide any sort of security 

or support and leave [sic] the issue of his daughter being raised to 

others.

150) [F]ather was tangentially involved with his wife and his 

other children with DCS and apparently was failing drug tests 

and not participating with those issues around the time this case 

began.

151) It is foolish to believe that [F]ather did not understand his 

requirement to get involved in this case, foolish to believe he did 

not know how to contact the DCS since he did on several 

occasions and foolish to believe he ever had the intent to care for 

this [C]hild.
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152) [A]round the time the [C]hild was taken from the [M]other 

for drug use, the [F]ather did call one (1) time in July of 2017 and 

stated a desire to be engaged.

153) Nothing ever came from that call.

154) Later in October of 2017 the [F]ather apparently did 

become engaged for a very short period of time and then once 

more disappeared.

155) [A]t no time thereafter for a period of over a year did the 

[F]ather ever try to contact the DCS, inquire about where his 

daughter was or how to see her, try to work with anyone to get 

her back nor showed any indication of presenting himself as a 

viable option to care for his [C]hild.

156) [O]nce in jail[, F]ather has suddenly found some direction 

by passing some drug classes and indicating a desire to continue 

classes if and when released.

157) Perhaps [F]ather is also driven by the fact of the recent 

passing of the [M]other which has left the [C]hild with only one 

viable parent.

158) It is not a far stretch to see that [F]ather has, like most in 

jail and facing significant time, “found Jesus.”

159) [F]ather, only once caught and facing up to thirty (30) 

years in jail, finally is trying to take some classes, has asked to 

contact the [C]hild and for the first time since December of 2016 

has shown any indication he intends to parent this [C]hild.

160) In the meantime, this [C]hild has suffered through her 

[M]other missing visits, cutting herself, cutting off her hair to get 
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her [M]other’s attention and finally her [M]other’s death all 

while [F]ather has done absolutely nothing to help her.

161) The stability issue remains, the drug issues remain, the 

unwillingness to step up and be a parent remains and 

unfortunately this [C]hild is in a much worse position today than 

she was at the time she was taken from her parents the first time.

162) [Child] has been through the trauma of living with others, 

her [M]other dying and her [F]ather simply ignoring her. These 

should not have to be the memories of a young lady that 

desperately has been seeking the attention and love of her 

parents.

163) The exact same dangers that were present for this [C]hild 

when the CHINS case began still exist today and are perhaps 

even more strongly present than ever before.

* * *

169) Father clearly has and has had issues with drugs for many 

years that are unresolved.

170) [F]ather only is sober now due to a long incarceration.

171) [F]ather jumpstarted his efforts but failed on at least two 

(2) occasions for a period of no more than a month to try and get 

involved and these feeble attempts are untenable.

172) Father’s complete lack of involvement is simply 

inexcusable and rises to the level of highest neglect.
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173) [F]ather’s feeble attempt to claim he had no notice or that 

DCS did not contact him appropriately to get him involved falls 

on deaf ears since [he] did contact them at least two (2) times, 

was served with personal notice when the case started and even 

worked with DCS in another case prior to this case being filed.

174) [T]his court is aware that criminal charges do not equal 

convictions in criminal cases, there are strong indications that 

[F]ather still has a substantial drug issue and/or that he will be in 

some sort of penal facility/institution for some time whether to 

fight these charges or if they are found true.

175) There was no indication or testimony that [F]ather even 

has the ability to care for this [C]hild even if he is released.

176) This is indicated by the fact he never showed up for any 

hearings, never got involved in this case, has been living in 

apartments or barns during this case, has never indicated having 

a job and simply presented no indication he has any plans to do 

these things.

Appealed Order 10-13. Based on these findings, the juvenile court concluded 

there is a reasonable probability that the conditions that led to Child’s removal 

and continued placement outside of Father’s care will not be remedied. The 

juvenile court also concluded that the continuation of the parent-child 

relationship poses a threat to Child’s well-being and termination of Father’s 

parental rights is in Child’s best interests. Father now appeals.

Discussion and Decision 
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I. Standard of Review

[11] We begin, as we often do, by emphasizing that the right of parents to establish a 

home and raise their children is protected by the Fourteenth Amendment to the 

United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 

2004), trans. denied. Although parental rights are of a constitutional dimension, 

they are not without limitation and 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). We

acknowledge that the parent-child relationship is “one of the most valued 

relationships in our culture,” but also recognize that “parental interests are not 

absolute and must be subordinated to the child’s interests in determining the 

proper disposition of a petition to terminate parental rights.” Bester v. Lake Cty. 

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (internal quotations 

omitted). The involuntary termination of one’s parental rights is the most 

extreme sanction a court can impose because termination severs all rights of a 

parent to his or her children. See In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 

2001), trans. denied. As such, termination is intended as a last resort, available 

only when all other reasonable efforts have failed. Id. The purpose of 

terminating parental rights is to protect children, not to punish parents. In re 

D.D., 804 N.E.2d at 265.

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

evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family 

& Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we 
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consider only the evidence most favorable to the judgment and the reasonable 

inferences that can be drawn therefrom. Id. 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; cert. denied, 534 

U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we 

must affirm. Id.

[13] As required by Indiana Code section 31-35-2-8(c), the juvenile court entered 

findings of fact and conclusions thereon. Therefore, we apply a two-tiered 

standard of review: we first determine whether the evidence supports the 

findings, then determine whether the findings support the judgment. Bester, 839 

N.E.2d at 147. “Findings are clearly erroneous only when the record contains 

no facts to support them either directly or by inference.” Quillen v. Quillen, 671 

N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous only if the findings 

do not support the court’s conclusions or the conclusions do not support the 

judgment thereon. Id.

II. Termination of Father’s Parental Rights

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

must allege and prove, in relevant part:

(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 
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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 foregoing elements by clear 

and convincing evidence. Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 

1144 (Ind. 2016). However, because subsection (b)(2)(B) is written in the 

disjunctive the juvenile court need only find one of the three elements in that 

subsection has been proven by clear and convincing evidence. See, e.g., In re 

I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). If a juvenile court determines 

the allegations of the petition are true, then the court shall terminate the parentchild relationship. Ind. Code § 31-35-2-8(a).

[15] We begin by noting that Father does not challenge any of the juvenile court’s 

findings; therefore, we accept the findings as true. McMaster v. McMaster, 681 

N.E.2d 744, 747 (Ind. Ct. App. 1997). Father challenges the juvenile court’s 

conclusion that a reasonable probability exists that the conditions that led to 
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Child’s removal and continued placement outside of his care will not be 

remedied. Specifically, Father argues this conclusion is erroneous because he 

has demonstrated a “lengthy commitment . . . to better himself in an effort to 

assume care for his daughter” by participating in several courses while 

incarcerated. Appellant’s Brief at 9. We disagree.

[16] We engage in a two-step analysis to determine whether conditions will be 

remedied: “First, we must ascertain what conditions led to [Child’s] placement 

and retention in foster care. Second, we determine whether there is a 

reasonable probability that those conditions will not be remedied.” In re K.T.K., 

989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted). With respect to the 

second step, a juvenile court assesses whether a reasonable probability exists 

that the conditions justifying a child’s removal or continued placement outside 

his parent’s care will not be remedied by judging the parent’s fitness to care for 

the child at the time of the termination hearing, taking into consideration 

evidence of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). 

Habitual conduct may include criminal history, drug and alcohol abuse, history 

of neglect, failure to provide support, and lack of adequate housing and 

employment, but the services offered to the parent and the parent’s response to 

those services can also be evidence of whether conditions will be remedied. 

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

trans. denied. DCS “is not required to provide evidence ruling out all 

possibilities of change; rather, it need establish only that there is a reasonable 
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probability the parent’s behavior will not change.” In re I.A., 903 N.E.2d at 

154. 

[17] Here, Child was removed from Mother’s care due to her substance abuse issues;

however, Child remained outside of Father’s care due to his substance abuse 

issues and failure to participate in services. We conclude there is ample 

evidence in the record to support the juvenile court’s conclusion that there is a 

reasonable probability that the conditions for Child’s continued placement, 

namely Father’s substance abuse and related issues, will not be remedied.

[18] As demonstrated through the record, Father has failed to participate in this case

by not complying with services to address his substance abuse issues, not 

attending court hearings, and not attending visitation with Child. Initially, as 

part of an informal adjustment, Father completed a substance abuse evaluation 

at Centerstone on February 7, 2017. Melissa Oran, DCS liaison at Centerstone, 

testified that treatment was recommended based on the evaluation; however, 

despite numerous attempts to contact Father, he never participated in any 

treatment. See Tr. at 14.

[19] FCM Wendy Tolliver3 has been involved in Father’s case since its inception in

November 2016. In July 2017, Father reached out to Tolliver and asked what 

he needed to do to move forward in the case. Tolliver stated that he needed to 

participate in services and “laid out everything that was recommended for 

3 The record establishes that Ms. Tolliver previously went by Wendy Pickett.
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him.” Id. at 24. However, Father stated he would not participate in groups 

“because he did not want people in town knowing his business.” Id. at 22. 

Father subsequently ceased all contact with Tolliver until September 2018 –

over fourteen months later. During this time, Tolliver attempted to contact 

Father through his parents, Child, and Mother, but was unsuccessful. It was 

not until Tolliver discovered that Father had an active criminal case that she 

was able to make contact with Father on September 24, 2018 by going to the 

courthouse. At that time, Father again indicated he would engage in services 

and “want[ed] to fight for his daughter.” Id. at 25. After this interaction, 

Father did not reach out to Tolliver, never engaged in services, and again 

ceased all contact with her.

[20] In October 2017, Father again completed a substance abuse assessment at 

Centerstone with Ashley Risk, a crisis access therapist. During the evaluation, 

Father indicated he has been using methamphetamine daily for the last three to 

four years and had used three days prior to the evaluation. Based on Father’s 

history, Risk acknowledged an IOP was “definitely warranted” and Father 

needed to complete the recommended treatment. Id. at 11. Risk referred 

Father to an IOP; he participated in five substance use and parenting group 

sessions but missed eleven. Ultimately, Father did not complete the program 

and was discharged from the group in November 2017 due to his 

“[n]oncompliance with attendance and then there were positive [drug] screens.” 

Id. at 15. At the fact-finding hearing, Oran testified that Father did not make 

any progress with respect to obtaining and maintaining sobriety and 
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consequently, toward reunification with Child. Tolliver also testified that 

Father did not make any kind of progress with respect to completing services 

and addressing his original issues. She further stated that substance abuse 

continues to be an issue for Father and there is “no proof that [Father] has 

remedied his substance abuse issues. He’s currently in jail on charges related to 

substance abuse. [A]nd has throughout the life of this case continued to receive 

charges related to substance abuse.” Id. at 30.

[21] Father’s criminal history also supports the juvenile court’s conclusion there is a 

reasonable probability Father will not remedy his substance abuse problems. 

Since this case began in November 2016, Father has been charged with multiple 

criminal charges related to his unresolved substance abuse issues, including 

multiple counts of possession of methamphetamine, possession of 

paraphernalia, possession of a narcotic drug, unlawful possession of a syringe, 

and maintaining a common nuisance. Father was arrested in January 2019 and 

has remained incarcerated since.

[22] Around that time, Father’s case was transferred to FCM Alexa Smith. In 

March 2019, Smith met with Father and he stated he was interested in 

participating in services. Smith then submitted referrals to Ireland Homebased 

Services for fatherhood engagement and individual therapy; however, the 

referrals were rejected because jail policy no longer allows service providers to 

work one on one in the jail. Therefore, Father is not able to participate in any 

DCS-offered services while incarcerated. At the fact-finding hearing, Smith 

testified that in her discussions with Father, he indicated he was potentially 
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facing up to thirty years in prison. More recently, Father told Smith he was 

trying to get a plea agreement that would allow him to join the Indiana Dream 

Team, which is a three-year program. Smith testified that Father’s “criminal 

charges indicate . . . ongoing substance abuse issues. [And] from the time he 

wasn’t incarcerated . . . I would have concerns for him to be able to maintain 

his sobriety outside of the incarceration.” Id. at 45. Ultimately, Smith opined 

that the issues prompting DCS involvement have not been resolved.

[23] Furthermore, Father failed to attend court hearings and failed to consistently 

visit Child. Tolliver testified that from February to July 2017, Father attended 

supervised visitation but “[f]rom that point forward because he was completely 

non-compliant in services and not participating in this case, he was not 

attending court[,] we were no[t] offering him visitation any longer.” Id. at 27. 

[24] Father contends he has made progress by completing several substance abuse

and religious courses available to him while incarcerated, including Mothers 

Against Methamphetamine and Reformers Institutional Program classes. See

Exhibit Index at 5-20. Given Father’s completion of these courses, he argues 

his case is similar to K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015), 

in which our supreme court reversed the termination of an incarcerated father’s 

parental rights where he made “substantial efforts towards bettering his life” by 

participating in numerous programs available to him during his incarceration. 

Id. at 648. In K.E., the father’s release was pending, he had completed twelve 

programs that were voluntary and did not result in sentence reductions, and he 

began participating in AA and NA. Id. at 648-49. In addition, the father 
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testified that he was sober, prepared to be a good father, would like to receive 

additional services from DCS upon his release, and stated even if his child is 

adopted, he hoped to remain in his life as much as possible. Id. at 649. Our 

supreme court held that despite the father’s criminal and substance abuse 

history, “[g]iven the substantial efforts that [the father] is making to improve his 

life by learning to become a better parent, . . . it was not proven by clear and 

convincing evidence that [the father] could not remedy the conditions for [his 

child’s] removal.” Id. 

[25] Father’s situation is distinguishable from the father’s in K.E. Although we 

acknowledge Father is unable to participate in DCS-offered services while 

incarcerated, his recent completion of these programs alone, while 

commendable, does not rise to the level of progress in K.E. nor does it negate 

years of his non-compliance. Critically, there is no evidence that Father’s

release is pending. To the contrary, all of his criminal cases remain unresolved 

and he faces potentially up to thirty years of incarceration, if convicted. 

Moreover, Father has not demonstrated the ability to remain sober when he is 

not incarcerated. 

[26] We have often noted that evidence of a parent’s pattern of unwillingness or lack 

of commitment to address parenting issues and to cooperate with services 

demonstrates the requisite reasonable probability that the conditions will not 

change. Lang, 861 N.E.2d at 372; see also A.F. v. Marion Cty. Office of Family & 

Children, 762 N.E.2d 1244, 1252 (Ind. Ct. App. 2002) (“A parent’s failure to 

appear for assessments and court hearings reflects ambivalence, and the failure 
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to attend parenting classes reflects an unwillingness to change existing 

conditions.”), trans. denied. Such is the case here. In sum, we conclude there is 

sufficient evidence in the record establishing Father’s failure to participate in the

case plan, preventing him from making any progress toward reunification. For 

these reasons, we conclude the juvenile court’s findings supported its 

conclusion.4

Conclusion

[27] We conclude there is sufficient evidence to support the juvenile court’s order 

terminating Father’s parental rights as to Child. Accordingly, the judgment of 

the juvenile court is affirmed.

[28] Affirmed.

Bradford, C.J., and Altice, J., concur.

4 Having determined that DCS met its burden of showing that the conditions that resulted in Child’s removal 

and continued placement outside of Father’s care will not be remedied, we need not address the juvenile

court’s conclusion that DCS also met its burden of proving that the continuation of the parent child 

relationship poses a threat to Child’s well-being. K.T.K., 989 N.E.2d at 1234.