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: ATTORNEYS FOR APPELLEE:

KRISTINA J. JACOBUCCI MICHAEL C. BROWN

Newby Lewis Kaminski & Jones, LLP Michigan City, Indiana

LaPorte, Indiana

ROBERT J. HENKE

DCS Central Administration

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )

THE PARENT-CHILD RELATIONSHIP OF: )

)

A.S. (Minor Child), )

)

And )

)

B.R. (Mother), )

)

Appellant-Respondent, )

)

vs. ) No. 46A04-1302-JT-58

)

THE INDIANA DEPARTMENT OF )

CHILD SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE LAPORTE CIRCUIT COURT

The Honorable Thomas J. Alevizos, Judge

Cause No. 46C01-1206-JT-59
2

August 27, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Respondent, B.R. (Mother), appeals the trial court’s termination of her

parental rights to her minor child, A.S.1

We affirm. 

ISSUES

Mother raises two issues on appeal, which we restate as: 

(1) Whether the trial court violated Mother’s procedural due process rights when it 

denied her request for a continuance; and 

(2) Whether the Indiana Department of Child Services (DCS) presented clear and 

convincing evidence to support the termination of Mother’s parental rights to her minor 

child.

FACTS AND PROCEDURAL HISTORY

Mother is the mother of A.S., born on October 6, 2009. On February 12, 2011, the 

Michigan City Police Department received a report of a child that had been left alone in 

an apartment. When officers arrived at the apartment, there was no response at the home. 

Because they could hear a child crying, they entered the apartment through a window. 

 

1 The trial court also terminated Father’s parental rights, but he did not file an appellate brief and is not 

part of this appeal. We will provide facts as to Father only as necessary to address Mother’s arguments.
3

The officers found A.S. alone in the apartment, wearing a diaper that was too small for 

him. He was dirty and had a foul smell. The apartment was unclean, with moldy food, 

feces, and dirty clothing on the floor. Because Mother failed to arrive home during the 

one and a half hours the officers remained in the apartment, the officers notified DCS, 

who removed A.S. from the home. Mother did not contact DCS or respond to the note 

left by DCS at the home when A.S. was taken into custody. The following day, DCS 

returned to the apartment and met with Mother. Mother did not inquire after her child or 

asked where he was. She admitted to having left the child home alone to get some milk. 

When she returned, she noticed police were present at her residence so she just kept 

driving. 

On June 6, 2011, the trial court adjudicated A.S. to be a Child in Need of Services 

(CHINS). At the dispositional hearing on June 29, 2011, where Mother failed to appear 

in person but was represented by counsel, the trial court ordered Mother to participate in 

a drug treatment program, parenting classes and case management services, submit to 

random drug screens, maintain stable housing and employment, keep DCS informed of 

her criminal status and address, and participate in supervised visitation. On August 27, 

2012, the DCS filed a petition to terminate Mother’s parental rights to her minor child. 

On January 8, 2013, the trial court conducted a hearing on DCS’s petition. At the 

beginning of the hearing, Mother orally requested a continuance to demonstrate her 

willingness to participate in services and her ability to assume parental responsibilities. 

The trial court denied her request. On January 9, 2013, the day following the evidentiary 
4

hearing, the trial court entered its Order, terminating Mother’s parental rights, finding in 

pertinent part:

19. There is a reasonable probability that the conditions that resulted in the 

Child’s removal or the reasons for placement outside the home of Mother 

will not be remedied in that:

a. Mother has not completed any of the services ordered by the 

court.

i. Mother was incarcerated in the LaPorte County Jail on July 

1, 2011, two days after disposition, but was released on July 

6, 2011.

ii. Mother was again incarcerated on July 20, 2011. Between 

disposition on June 29, 2011, and July 1, 2011, Mother did 

not participate in any of the services offered or provided; 

between July 6 and July 20, 2011, Mother did not participate 

in any services. She did not contact the [DCS] to inquire 

about those services or her child.

iii. Mother was released from the LaPorte County Jail on 

April 2, 2012 and did not seek any services during that date

and when she was once again incarcerated on May 29, 2012. 

During the time she was in the community she did not 

participate in or initiate any services nor did she contact 

[DCS] and seek assistance with transportation.

b. Mother remained incarcerated from May 29, 2012 until she 

bonded out of the LaPorte County Jail on December 21, 2012. In 

those few days between her release and the fact-finding hearing 

Mother contends that she has attended one AA/NA [meeting] on 

December 24, 2012 and completed one online [Moral Recognition 

Therapy] session at the library on December 23, 2012.

c. Mother has a history of unstable housing:

* * *
5

iv. Mother is currently residing with three other individuals 

at 1303 Wright Avenue; one of the individuals with whom 

Mother lives has a history of substantiated child neglect.

v. The [trial court] may not approve of other placement of a 

child in a home if a person who is currently residing in the 

home has committed an act resulting in a substantiated report 

of child abuse or neglect. [I.C. §] 31-34-20-1.5.

vi. Mother admits that this same individual with whom she is 

living has a history of heroin use, but contends that she has 

been clean for a year.

vii. Mother relies on others in the home to provide her 

housing, utilities and transportation.

viii. Mother’s residence remains unstable and inappropriate 

for a child. 

d. Moreover, Mother has a history of criminal conduct.

i. Mother’s criminal conduct has resulted in her frequent and 

extended incarceration, depriving Child of her ability to care 

for him.

ii. The trial court must evaluate the parent’s habitual patterns 

of conduct to determine whether there is a substantial 

probability of future neglect or deprivation of the child.

iii. DCS is not required to rule out all possibilities of change; 

rather, it need only establish “that there is a reasonable 

probability that the parent’s behavior will not change.”

iv. Mother’s repeated pattern of criminal behavior, which 

includes inter alia auto theft, theft, and neglect of a 

dependent, resulting in incarceration that has caused her to be 

absent for a significant amount of Child’s life.

v. Mother’s pattern of criminal activity which causes her to 

be incapable of caring for Child and demonstrates that there is 

a reasonable probability that the condition would not be 

remedied.
6

* * *

21. Termination of parental rights is in the best interest of the child in that:

a. The evidence supports the conclusion that conditions in the home 

will not change and that continuation of the parent-child relationship 

poses a threat to the well-being of the child.

b. He has been in the same foster home for nearly two years.

c. He has developed, is healthy and thriving in his current home. 

d. He bonded to the entire family.

e. Child deserves permanency; an opportunity to be adopted by his 

foster parents,

22. The [DCS] has a satisfactory plan for the care and treatment of the 

child, which is adoption by the current foster parents. 

(Appellant’s App. pp. 19-22 & 24-25).

Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Continuance 

Mother first contends that her due process rights were violated when the trial court 

denied her motion for continuance of the evidentiary hearing on the DCS’s petition to 

terminate her parental rights. The decision to grant or deny a motion for a continuance 

rests within the sound discretion of the trial court. Rowlett v. Vanderburgh Co. Office of 

Family and Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006). We will reverse the 

trial court only for an abuse of that discretion. Id. An abuse of discretion may be found 

in the denial of a motion for a continuance when the moving party has shown good cause 
7

for granting the motion. Id. However, no abuse of discretion will be found when the 

moving party has not demonstrated that he or she was prejudiced by the denial. Id.

Regarding the process due to a parent in termination proceedings, we have 

previously explained that:

[t]he Due Process Clause of the United States Constitution prohibits state 

action that deprives a person of life, liberty, or property without a fair 

proceedings. When the State seeks to terminate the parent-child 

relationship, it must do so in a manner that meets the requirements of due 

process. The nature of the process due in a termination of parental rights 

proceeding turns on the balancing of three factors: (1) the private interest 

affected by the proceeding, (2) the risk of error created by the State’s 

chosen procedure, and (3) the countervailing governmental interest 

supporting use of the challenged procedure.

In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied. In termination 

cases, both the private interests of a parent and the countervailing governmental interests

that are affected by the proceedings are substantial. Id. In particular, this termination 

action concerns Mother’s interest in the care, custody and control of her child, which has 

been repeatedly recognized as one of the most valued relationships in our society. Id. 

Additionally, it is well settled that the right to raise one’s child is an “essential, basic right 

that is more precious than property rights.” Id. Thus, Mother’s interest in the accuracy 

and justice of the proceeding is a “commanding” one. Id.

On the other hand, the State’s parens patriae interest in protecting the welfare of 

the child is also significant. Id. “Although the State does not gain when it separates 

children from the custody of fit parents, the State has a compelling interest in protecting 

the welfare of the child by intervening in the parent-child relationship when parental 
8

neglect, abuse or abandonment are at issue.” Tillotson v. Clay Co. Dep’t of Family and 

Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002), trans. denied. 

In support of her argument that the trial court abused its discretion in denying her 

request for a continuance, Mother relies on Rowlett v. Vanderburgh Co. Office of Family 

and Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied. In Rowlett, Father 

was incarcerated two months after his minor children were taken into protective custody 

and before he was ordered to perform any services. Id. at 618. Rowlett was still 

incarcerated at the time his parental rights were terminated, not providing him with the 

chance to participate in services. Id. At the scheduling conference, four months prior to 

the termination trial, Rowlett objected to the date set because he was to be released six 

weeks after the scheduled date of the hearing. Id. Then, a month later, still three months 

before the hearing, Rowlett filed a motion to continue, which was denied by the trial 

court. Id. On appeal, we found that Rowlett had made positive strides in turning his life 

around while in prison, including not using drugs, participating in a Therapeutic 

Community, participating in nearly 1,100 hours of individual and group services, and 

earning twelve hours of college credit. Id. at 619-20. Based on Father’s improvement 

and the fact that continuing the hearing until sometime after Rowlett was released would 

have little immediate effect on the children as the plan was adoption by the maternal 

grandmother, we concluded that the trial court should have granted Rowlett’s 

continuance. Id. at 620.
9

Likening her situation to Rowlett, Mother asserts that because she was released 

from incarceration a mere twelve days before the hearing on DCS’s petition to terminate 

her parental rights, she did not have a meaningful opportunity to participate in services. 

As such, she contends that she was prejudiced and her procedural due process rights were 

violated.

We find Rowlett clearly distinguishable from Mother’s case. First, unlike Rowlett, 

Mother waited until the day of the hearing to orally request a continuance. Furthermore, 

our review of the chronological case summary shows that this was already the second 

time Mother requested a continuance of the evidentiary hearing. Mother had made a first 

request to continue the evidentiary hearing on the DCS’s termination petition scheduled 

for December 10, 2012. On that date, Mother failed to appear at the hearing and her 

counsel orally made the request on her behalf, which was granted by the trial court. 

Second, while Rowlett was incarcerated during the entire pendency of the 

proceeding, Mother has been in and out of jail during the CHINS and termination 

procedures. Although Mother now complains that no services were available to her when 

she was released from incarceration on December 21, 2012 because the petition to 

terminate was pending, services were available to her during the times in between her 

multiple incarcerations. During those times, not only did she not avail herself of those 

services, she did not even initiate services. 
10

In light of these facts, we cannot conclude that Mother’s procedural due process 

rights were violated. Therefore, the trial court did not abuse its discretion when it denied 

her motion to continue the evidentiary hearing.

II. Sufficiency of the Evidence

On appeal, Mother argues that the DCS did not produce sufficient evidence to 

support the termination of her parental rights to her minor child. We recognize that the 

Fourteenth Amendment to the United States Constitution protects the traditional right of 

parents to establish a home and raise their children. In re J.S.O., 938 N.E.2d 271, 274 

(Ind. Ct. App. 2010). A parent’s interest in the care, custody, and control of his or her 

children is arguably one of the oldest of our fundamental liberty interests. Id. However, 

the trial court must subordinate the interests of the parents to those of the children when 

evaluating the circumstances surrounding a termination of a parent-child relationship. In 

re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. Parental rights may 

therefore be terminated when the parents are unable or unwilling to meet their parental 

responsibilities. Id. 

In reviewing termination proceedings on appeal, this court must not reweigh the 

evidence nor assess the credibility of the witnesses. Id. We consider only the evidence 

that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id. 

Where the trial court has entered findings of fact and conclusions of law, we apply a twotiered standard of review. Id. First, we determine whether the evidence supports the 

findings, and second, whether the findings support the conclusions of law. Id. In
11

deference to the trial court’s position to assess the evidence, we set aside the trial court’s 

findings and judgment terminating the parent-child relationship only if they are clearly 

erroneous. Id. 

In the instant case, Mother challenges the trial court’s conclusion of law 

terminating her parental rights because there was not sufficient evidence to prove that (1) 

the conditions that led to the removal of her child from the home would not be remedied

or (2) the continuation of the parent-child relationship posed a threat to A.S.’s well-being. 

In order to terminate her rights, DCS was required to prove by clear and convincing 

evidence:

(B) that one of the following [was] true:

(i) There [was] a reasonable probability that the conditions 

that resulted in the child’s removal or the reasons for 

placement outside the home of the parents [would] not be 

remedied. 

(ii) There [was] a reasonable probability that the continuation 

of the parent-child relationship[s] [posed] a threat to the wellbeing of the child. 

(iii) The child [had], on two (2) separate occasions, been 

adjudicated [] in need of services[.]

(C) that termination [was] in the best interests of the child.

Ind. Code § 31-35-2-4(b)(2)(B), -(C); Bester v. Lake Cnty. Office of Family and 

Children,839 N.E.2d 143, 148 (Ind. 2005). Clear and convincing evidence as a standard 

of proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910 

N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of 

the parents is wholly inadequate for the child’s very survival.” Bester, 839 N.E.2d at 148 

(quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 
12

1992)). Rather, it is sufficient to show that the child’s emotional and physical 

development are threatened by the parent’s custody. Id. 

When determining whether there is a reasonable probability that a parent will not 

remedy the conditions justifying a child’s removal from the home, the trial court must 

judge a parent’s fitness to care for his or her child at the time of the termination hearing. 

Rowlett, 841 N.E.2d at 621. The trial court must evaluate the parent’s habitual patterns 

of conduct to determine whether there is a substantial probability of future neglect or 

deprivation of the child. C.T. v. Marion Cnty. Dept. of Child Services, 896 N.E.2d 571, 

578 (Ind. Ct. App. 2008), trans. denied. DCS is not required to rule out all possibilities 

of change; rather, it need only establish “that there is a reasonable probability that the 

parent’s behavior will not change.” Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind. 

Ct. App. 2007)). Moreover, the trial court may properly consider a parent’s criminal 

history, drug and alcohol abuse, historical failure to provide support, and lack of adequate 

housing and employment. Matter of D.G., 702 N.E.2d 777, 779 (Ind. Ct. App. 1998). 

Here, the trial court focused on Mother’s non-existent compliance with the 

dispositional decree and parental participation order, her repeated incarcerations, and her 

lack of visitation with A.S., with the exception of a single visit which took place on May 

31, 2011. Mother failed to keep the family case managers informed of her location and 

the evidence reflects that she changed her address on a frequent basis while she continued

to rely on others to provide her with housing, utilities, and transportation. The trial court 

also emphasized Mother’s history of criminal conduct. Moreover, it should be noted that 
13

at the time of the termination hearing, Mother had a pending criminal case, the 

disposition of which was unknown. 

Mother now complains that she was never given the chance to participate in 

services. She notes that after her latest release, the DCS notified Mother that she was no 

longer eligible for services as the DCS’s petition for termination of parental rights was 

pending. Despite the DCS’s refusal to award her services, Mother points to her 

participation in AA/NA meetings and Moral Recognition Therapy. She also claims to 

have participated in a parenting class during her incarceration. 

First, we note that we have previously established that a failure to provide services 

does not serve as a basis on which to directly attack a termination order as contrary to 

law. In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). Moreover, the classes Mother 

claims to have participated in since her release, amounted to a single AA/NA meeting on 

December 24, 2012 and the completion of one online therapy session on December 23, 

2012. Furthermore, even though Mother had times when she was not incarcerated, she 

did not contact the DCS to get enrolled in services nor did she attempt to set up 

visitations with A.S. 

In sum, we determine that the evidence supports the trial court’s findings and the 

findings are sufficient to support the trial court’s conclusion that the conditions leading to 
14

the removal of A.S. from Mother’s home would not be remedied.2 Therefore, we affirm 

the trial court’s termination of her parental rights.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court did not abuse its 

discretion when it denied Mother’s motion for a continuance and (2) the trial court’s 

findings were sufficient to support its decision terminating Mother’s parental rights to her

minor child. 

Affirmed. 

KIRSCH, J. and C. J. ROBB concur

 

2 Mother also challenges the trial court’s conclusion of law terminating her parental rights because there 

was not sufficient evidence to prove that the continuation of the parent-child relationship posed a threat to 

A.S.’s well-being. Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, requiring that only one 

of the three conditions under section (B) be proved true by clear and convincing evidence, we do not need 

to reach Mother’s second assertion concerning A.S’s well-being.