Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-631 | April 17, 2015 Page 1 of 17

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

Danielle L. Gregory

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Abigail R. Miller

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of A.D., Minor 

Child, and Her Father, B.D.,

B.D., 

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

April, 17, 2015

Court of Appeals Case No.

49A02-1409-JT-631

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. Moores, 

Judge

The Honorable Larry Bradley, 

Magistrate

Cause No. 49D09-1402-JT-89

Bradford, Judge.
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Case Summary

[1] Appellant-Respondent B.D. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to A.D. (the “Child”). On March 13, 2013, the 

Department of Child Services (“DCS”) filed a petition alleging that the Child 

was a child in need of services (“CHINS”). The CHINS petition stated that 

DCS became involved with the family and the Child was removed from her 

parents’ care after the Child’s mother tested positive for cocaine both during her 

pregnancy and at the time of the Child’s birth. The CHINS petition further 

stated that Father had failed to demonstrate either the ability or a willingness to 

appropriately parent the Child. With respect to Father, the Child was 

adjudicated to be a CHINS on May 3, 2013. Father was subsequently ordered 

to participate in certain services. Father failed to do so. 

[2] DCS filed a petition seeking the termination of Father’s parental rights to the 

Child on February 19, 2014. Following a two-day evidentiary hearing, the 

juvenile court issued an order terminating Father’s parental rights to the Child. 

On appeal, Father contends that DCS did not provide sufficient evidence to 

support the termination of his parental rights. We affirm. 

Facts and Procedural History
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[3] Father is the biological father of the Child, who was born on March 9, 2013.1 

DCS initially became involved with the Child after the Child’s mother, who 

had an extensive history of substance abuse, tested positive for cocaine both 

during her pregnancy and at the time of the Child’s birth. 

[4] DCS filed a petition on March 13, 2013, alleging that the Child was a CHINS. 

With regard to Father, DCS alleged that Father “has not successfully 

demonstrated the ability and willingness to appropriately parent [the Child], 

and he is unable to ensure [the Child]’s safety and well being while in the care 

and custody of [Mother].” State’s Ex. 2. Father failed to appear at hearings on 

DCS’s CHINS petition on both March 13, and April 5, 2013. The juvenile 

court set the matter for a fact-finding hearing on May 3, 2013. Father did not 

appear for the May 3, 2013 fact-finding hearing.

[5] At the conclusion of the May 3, 2013 fact-finding hearing, the juvenile court 

adjudicated the Child to be a CHINS with regard to Father. Father appeared 

for a hearing on August 2, 2013, after which the juvenile court issued a 

dispositional order and parental participation decree in which it ordered Father 

to (1) participate in supervised visitation with the Child; (2) participate in homebased counseling; (3) complete a parenting assessment; and (4) submit to 

random drug screens. The juvenile court advised Father that failure to 

participate in the court-ordered services could lead to the termination of his 

 

1

 The termination of the Child’s mother’s parental rights is not at issue in this appeal. 
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parental rights to the Child. Father agreed to participate in the court-ordered

services. Father, however, failed to do so. 

[6] On February 19, 2014, DCS filed a petition seeking the termination of Father’s 

parental rights to the Child. The juvenile court conducted an evidentiary 

termination hearing on July 30, and August 4, 2014, during which Father was 

represented by counsel. Father, however, failed to appear for the proceedings 

on July 30, 2014. 

[7] During the termination hearing, DCS introduced evidence relating to continued 

concerns regarding Father’s apparent disinterest and unwillingness to properly

care for the Child. Specifically, DCS introduced evidence which demonstrated 

that Father repeatedly failed to visit with the Child or to participate in the 

services offered by DCS. Father had not seen the Child since August 16, 2013, 

and the juvenile court heard evidence that the Child would not even recognize 

Father. DCS also introduced evidence indicating that the termination of 

Father’s parental rights was in the Child’s best interest and that its plan for the 

permanent care and treatment of the Child was adoption. Father, for his part, 

presented evidence which he claimed demonstrated that he was willing and able 

to care for the Child despite his complete failure to participate in the courtordered services. Following the conclusion of the termination hearing, the 

juvenile court issued an order terminating Father’s parental rights to the Child. 

Father now appeals.

Discussion and Decision
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[8] The Fourteenth Amendment to the United States Constitution protects the 

traditional right of a parent to establish a home and raise his child. Bester v. Lake 

Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we 

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

relationships of our culture.” Id. However, although parental rights are of a 

constitutional dimension, the law allows for the termination of those rights 

when a parent is unable or unwilling to meet his responsibility as a parent. In re 

T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore, 

parental rights are not absolute and must be subordinated to the child’s interests 

in determining the appropriate disposition of a petition to terminate the parentchild relationship. Id. 

[9] The purpose of terminating parental rights is not to punish the parent but to 

protect the child. Id. Termination of parental rights is proper where the child’s 

emotional and physical development is threatened. Id. The juvenile court need 

not wait until the child is irreversibly harmed such that her physical, mental, 

and social development is permanently impaired before terminating the parentchild relationship. Id.

[10] Father contends that the evidence presented at the evidentiary hearing was 

insufficient to support the juvenile court’s order terminating his parental rights. 

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

evidence or assess the credibility of the witnesses. In re Involuntary Termination 

of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only 

consider the evidence that supports the juvenile court’s decision and reasonable 
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inferences drawn therefrom. Id. Where, as here, the juvenile court includes 

findings of fact and conclusions thereon in its order terminating parental rights, 

our standard of review is two-tiered. Id. First, we must determine whether the 

evidence supports the findings, and, second, whether the findings support the 

legal conclusions. Id.

[11] In deference to the juvenile court’s unique position to assess the evidence, we 

set aside the juvenile court’s findings and judgment terminating a parent-child 

relationship only if they are clearly erroneous. Id. A finding of fact is clearly 

erroneous when there are no facts or inferences drawn therefrom to support it. 

Id. A judgment is clearly erroneous only if the legal conclusions made by the 

juvenile court are not supported by its findings of fact, or the conclusions do not 

support the judgment. Id.

[12] In order to involuntarily terminate a parent’s parental rights, DCS must 

establish by clear and convincing evidence that: 

(A) one (1) of the following exists:

(i) the child has been removed from the parent for at least 

six (6) months under a dispositional decree;

(ii) a court has entered a finding under IC 31-34-21-5.6 

that reasonable efforts for family preservation or 

reunification are not required, including a description of 

the court’s finding, the date of the finding, and the 

manner in which the finding was made; or

(iii) the child has been removed from the parent and has 

been under the supervision of a county office of family 

and children or probation department for at least fifteen 

(15) months of the most recent twenty-two (22) months, 

beginning with the date the child is removed from the 
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home as a result of the child being alleged to be a child in 

need of services or a delinquent child;

(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 wellbeing of the child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;

(C) termination is in the best interests of the child; and

(D) there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2) (2011). Father does not dispute that DCS presented 

sufficient evidence to support the first and fourth elements set forth in Indiana 

Code section 31-35-2-4(b). Father, however, claims that DCS failed to establish 

the second and third elements that are required to be proven before the juvenile 

court could order the involuntary termination of his parental rights. 

Specifically, Father argues that DCS failed to establish that there is a reasonable 

probability that the continuation of the parent-child relationship poses a threat 

to the well-being of the Child. Father also argues that DCS failed to establish 

that termination of his parental rights is in the Child’s best interests.
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A. Whether DCS Presented Sufficient Evidence to Prove the 

Second Element That is Required to be Proven Before a Court 

May Order the Involuntary Termination of One’s Parental 

Rights

[13] On appeal, Father argues that DCS failed to establish by clear and convincing 

evidence that there is a reasonable probability that the continuation of the 

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

[14] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written 

in the disjunctive, the juvenile court need only find either that (1) the conditions 

resulting in removal from or continued placement outside the parent’s home 

will not be remedied, (2) the continuation of the parent-child relationship poses 

a threat to the child, or (3) the Child has been adjudicated CHINS on two 

separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003),

trans. denied. Therefore, where the juvenile court concludes either that (1) there 

is a reasonably probability that the conditions resulting in the Child’s placement 

outside the parent’s home will not be remedied, (2) there is a reasonable 

probability that the continuation of the parent-child relationship poses a threat 

to the well-being of the Child, or (3) the Child has been adjudicated a CHINS 

on two separate occasions, and there is sufficient evidence in the record 

supporting the juvenile court’s conclusion, it is not necessary for DCS to prove, 

or for the juvenile court to find, either of the other two factors listed in Indiana 

Code section 31-34-2-4(b)(2)(B). See generally In re S.P.H., 806 N.E.2d at 882 

(providing that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the 
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disjunctive, DCS need only prove and the juvenile court need only find that one 

of the factors listed in that sub-section is true).

[15] Initially we note that the trial court concluded both that (1) there is a reasonably 

probability that the conditions resulting in the Child’s placement outside of 

Father’s home will not be remedied and (2) there is a reasonable probability 

that the continuation of the parent-child relationship poses a threat to the wellbeing of the Child. With respect to its conclusion that there is a reasonable 

probability that the conditions resulting in the Child’s placement outside 

Father’s home would not be remedied, the juvenile court stated that 

There is a reasonable probability that the conditions that result in [the 

Child]’s removal and continued placement outside the home will not 

be remedied by her father. Due to his lack of effort in services, his 

ability to appropriately parent remains unknown. His indifference 

toward [the Child], as exhibited by not visiting her or asking about her, 

demonstrates that he is unwilling to parent.

Appellant’s App. p. 12. Father does not challenge this conclusion. However, 

we will nonetheless address the merits of Father’s claim that the evidence is 

insufficient to sustain the juvenile court’s conclusion that continuation of the 

parent-child relationship poses a threat to the well-being of the Child.

[16] In determining whether the continuation of a parental relationship poses a 

threat to a child’s well-being, a juvenile court should judge a parent’s fitness to 

care for his child as of the time of the termination proceeding, taking into 

consideration evidence of changed conditions. Bester, 839 N.E.2d at 152. 

However, the court must also consider a parent’s habitual pattern of conduct to 
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determine whether there is a substantial probability of future neglect or 

deprivation. Id. Again, a court need not wait until the child is irreversibly 

harmed such that her physical, mental, and social development is permanently 

impaired before terminating the parent-child relationship. See In re T.F., 743 

N.E.2d at 773. Moreover, a juvenile court “‘can reasonably consider the 

services offered by [DCS] to the parent and the parent’s response to those 

services.’” McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 

199 (Ind. Ct. App. 2003) (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind. Ct. 

App. 1997)).

[17] Here, the juvenile court determined that the continuation of the parent-child 

relationship posed a threat to the Child’s well-being. In making this 

determination, the juvenile court stated that 

Continuation of the parent-child relationship poses a threat to [the 

Child]’s well-being in that it would pose as a barrier to obtaining 

permanency for her through an adoption into the only home she has 

known when her father has demonstrated [that] he is not willing to 

offer her permanency.

Appellant’s App. p. 12. In support of its determination, the juvenile court 

found as follows:

1. [Father] is the father of [the Child], a minor child born on March 9, 

2013.

****

3. A [CHINS petition] was filed on [the Child] on March 13, 2013, 

under Cause Number 49D091303JC009639 on allegations that her 

mother tested positive for marijuana and cocaine throughout her 

pregnancy with [the Child], having an extensive substance abuse 
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history. Allegations against [Father] included he had not 

demonstrated the ability and willingness to appropriately parent and 

he was unable to ensure [the Child]’s safety while in the care of her 

mother.

4. [The Child] was ordered detained and placed outside the home at 

the Initial Hearing held on March 13, 2013. [Father] failed to attend 

the hearing.

****

6. [The Child] was found to be a child in need of services as to her 

father on May 3, 2013.

7. The ChINS Court proceeded to disposition on May 3, 2013, at 

which time [the Child]’s placement continued outside the home. She 

had been removed for at least six (6) months prior to this termination 

action being filed on February 19, 2014.

8. At disposition, the Court ordered no services for [Father] until he 

made himself available to the Court.

9. [Father] appeared in court for the first time on August 2, 2013, at 

which time disposition was modified to order [Father] to participate in 

a parenting assessment, home based services and random screens.

10. [Father] agreed to participate in services.

11. [Father] attended one ChINS hearing. He was incarcerated for 

approximately three months of the eleven months between the ChINS 

filing and the Permanency Hearing.

12. To assess needs and family functioning, home based therapy and a 

parenting assessment were referred.

13. Therapy was referred four times. [Father] failed to complete a full 

intake.

14. Three parenting assessments were referred. [Father] failed to 

complete an assessment.

15. Random drug screens were referred to assess and monitor any 

treatment needs.

16. [Father] failed to undergo random screens through Mosaic 

Recovery.

17. [Father] had an “on and off” relationship to [the Child]’s mother 

who was still using and was noncompliant in services. [Father] also 
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admitted to the family case manager that he would test positive in 

October of 2013, and testified he had smoked marijuana in 2014.

18. [Father] may have visited with his daughter a few times in March 

of 2013. He last exercised his parenting time in August of 2013 when 

he left early.

19. Parenting time was suspended for [Father] in November of 2013 

until he began participating in services. He failed to do so.

20. Since his one parenting time session with [the Child], he has not 

requested further visits or enquire[d] as to her well-being.

21. [Father] blamed his lack of participation on his employment.

22. The plan for permanency was changed from reunification to 

adoption on February 7, 2014, with the Court finding that [Father] had 

not done any random drug screens, failed to complete a parenting 

assessment or home based counseling, and tested positive for 

marijuana and opiates when the family case manager administered an 

oral drug swab in October of 2014.

23. [The Child] has resided in the same foster home since her release 

from the hospital after birth. She has a younger sibling residing in the 

home which is pre-adoptive.

24. [The Child] has special needs which are being met by her caregiver

through physical and developmental therapy.

Appellant’s App. pp. 11-12. In light of these findings, the juvenile court 

concluded that DCS established by clear and convincing evidence that the 

continuation of the parent-child relationship posed a threat to the Child’s wellbeing.

[18] Father does not challenge the above-stated findings of fact on appeal “as they 

were supported by the evidence presented.” Appellant’s Br. p. 11. Rather, 

Father argues that the above-stated findings do not support the juvenile court’s 

conclusion that the continuation of the parent-child relationship posed a threat 
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to the Child’s well-being. In support of this argument, Father refers to his 

testimony which he claims demonstrates that he was able to provide shelter and 

had the financial resources to provide food, clothing, care, and nurturing for the 

Child. Father also claims that the record reflects that the Child was never 

harmed in Father’s care or his home and that service providers indicated that 

they never saw Father with the Child. 

[19] It is well-established that the juvenile court, acting as a trier of fact, was not 

required to believe or assess the same weight to the testimony as Father. See

Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 

N.E.2d 308, 320 (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); 

A.S.C. Corp. v. First Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 

(1960); Haynes v. Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), 

trans. denied. Father’s challenge to the sufficiency of the evidence to support the 

conclusion of the juvenile court effectively amounts to an invitation for this 

court to reassess witness credibility and reweigh the evidence, which, again, we 

will not do. See In re S.P.H., 806 N.E.2d at 879. When considered as a whole, 

we conclude that the juvenile court did not err in concluding that continuation 

of the parent-child relationship posed a threat to the Child’s well-being.
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B. Whether DCS Presented Sufficient Evidence to Prove the 

Third Element That is Required to be Proven Before a Court 

May Order the Involuntary Termination of One’s Parental 

Rights

[20] Father also contends that DCS failed to prove by clear and convincing evidence 

that termination of his parental rights was in the Child’s best interests. We are 

mindful that in considering whether termination of one’s parental rights is in 

the best interests of a child, the juvenile court is required to look beyond the 

factors identified by DCS and look to the totality of the evidence. McBride, 798 

N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of 

the parent to those of the child involved. Id. Furthermore, this court has 

previously determined that the testimony of the case worker or Guardian Ad 

Litem (“GAL”) regarding the child’s need for permanency supports a finding 

that termination is in the child’s best interests. Id.; see also Matter of M.B., 666 

N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

[21] Here, the testimony establishes that the Child has a need for permanency and 

stability and that the termination of Father’s parental rights would serve the 

Child’s best interests. Family Case Manger (“FCM”) Phyllis Clemons testified 

that she believed that the termination of Father’s parental rights was in the 

Child’s best interests. Specifically, FCM Clemons testified that she believed 

that termination of Father’s parental rights was in the Child’s best interests 

because “she deserves ... permanency, she deserves a safe, secure, stable home 

environment. She deserves that.” Tr. p. 79. FCM Clemons testified that 

permanency for a child “is a safe, secure, stable home with family, love, um, 
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unconditional commitment and lifelong support” and that permanency is 

important for the Child “[b]ecause it provides stability.” Tr. pp. 75-76.

[22] Although Father initially agreed to complete all of the services ordered by the 

juvenile court, he has “made no progress in [completing] the services ordered.” 

Tr. p. 78. In fact, all of the services were eventually terminated unsuccessfully 

due to Father’s lack of participation. When asked by FCM Clemons about his 

lack of participation, Father repeatedly claimed that he could not visit with the 

Child or complete services because “he’d been busy working.” Tr. p. 64. 

Further, although Father claimed to be employed and capable of providing 

financial support for the Child, Father has never provided FCM Clemons with 

proof of employment and has never provided financial support for the Child. 

FCM Clemons indicated that she has concerns about Father’s ability to provide 

the Child with stability in light of Father’s lack of compliance in services and 

lack of engagement in visitation. 

[23] FCM Clemons also expressed concerns about Father’s ability to provide for the 

Child’s special needs. The Child suffers from some developmental issues, 

including issues with her muscle tone and her speech. As of the date of the 

evidentiary hearing, she was participating in physical and developmental 

therapy. Father had not demonstrated any ability—or desire—to meet the 

Child’s special needs regarding her speech and developmental delays. 

[24] In addition, the Child’s GAL, Vera Stewart, testified that she believed that 

adoption “is the right thing to happen for [the Child].” Tr. p. 104. GAL 
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Stewart further testified that she did not believe that Father should be given 

additional time to complete services “[b]ecause he’s had enough time to 

demonstrate [that] he wanted his child or interaction with her or any of the 

programs that have been provided for him and he hasn’t done anything.” Tr. 

pp. 104-05.

[25] Father concedes that he has not visited with the Child since August 16, 2013, 

and that the Child has bonded with her foster mother. The record also 

establishes that Father has failed to verify that he could provide the Child with a 

suitable living environment and that he made no attempt to seek to have the 

Child placed in his care or check on the Child’s welfare. Nevertheless, Father 

argues that “his blood relationship with [the Child], his establishment of 

paternity, his desire to parent her, and his ability to parent her, gives him a 

superior right that should not so easily be revoked.” Appellant’s Br. p. 12. 

Father, however, also concedes that “his desire to continue a parent-child 

relationship with [the Child] poses a barrier to [the Child] obtaining 

permanency through an adoption.” Appellant’s Br. p. 11.

[26] Despite Father’s claim to the contrary, the record demonstrates that throughout 

DCS’s period of involvement with the Child, Father has displayed, at best,

indifference toward the Child. This indifference is evidenced by his claim that 

he was too busy to visit the Child or to participate in services. The juvenile 

court did not have to wait until the Child was irreversibly harmed such that her

physical, mental, and social development was permanently impaired before 

terminating Father’s parental rights. See In re C.M., 675 N.E.2d at 1140. In 
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light of the testimony of FCM Clemons and GAL Stewart, considered with 

Father’s apparent indifference toward the Child and his failure to successfully 

complete the court-ordered services, we conclude that the evidence is sufficient 

to satisfy DCS’s burden of proving that termination of Father’s parental rights is 

in the Child’s best interests. Again, Father’s claim to the contrary merely 

amounts to an invitation for this court to reweigh the evidence, which we will 

not do. See In re S.P.H., 806 N.E.2d at 879.

Conclusion

[27] Having concluded that the evidence is sufficient to support the juvenile court’s 

order terminating Father’s parental rights to the Child, we affirm the judgment 

of the juvenile court.

[28] The judgment of the juvenile court is affirmed.

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