Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019 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

Don R. Hostetler

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Natalie F. Weiss

Deputy Attorney 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.W., B.W., and 

D.W. (Minor Children), and 

D.W. (Father),

Appellant-Respondent,

v.

Indiana Department of Child 

Services and Child Advocates, 

Inc.

Appellees-Petitioners

January 16, 2019

Court of Appeals Case No.

18A-JT-1488

Appeal from the Marion Superior 

Court Juvenile Division 

The Honorable Marilyn A. 

Moores, Judge

The Honorable Gary Chavers, 

Judge Pro Tempore

The Honorable Larry Bradley, 

Magistrate

Trial Court Cause No.

49D09-1708-JT-702, 49D09-1708-

JT-705, 49D09-1708-JT-706
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019 Page 2 of 17

Altice, Judge.

Case Summary

[1] D.W. (Father) appeals the involuntary termination of his parental rights to his 

three children. On appeal, Father argues that the court’s termination order is 

not supported by sufficient evidence.

[2] We affirm.

Facts & Procedural History

[3] Father and S.T. (Mother)1 have three children: A.W., born in 2008; D.W., 

born in 2012; and B.W., born in 2014 (collectively, the Children). The 

Department of Child Services (DCS) became involved with the family in May 

2016 after a police officer observed Father and Mother buying heroin with 

D.W. and B.W. in the car. A police officer initiated a traffic stop. The officer 

found narcotics in Mother’s bra and determined that Father was driving on a 

suspended license. The officer also noted that D.W. was not restrained in a car 

seat and was “wearing a sagging urine filled diaper and was shoeless” and that 

both children were covered in dirt. Exhibits at 21. Father was arrested as a 

result of this incident, and D.W. and B.W. were placed in foster care. 

 

1 Mother’s parental rights were not terminated by the order terminating Father’s parental rights. We will 

state the facts as they pertain to the termination of Father’s parental rights. 
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[4] On May 17, 2016, DCS filed a verified petition alleging D.W. and B.W. to be 

children in need of services (CHINS). On July 11, 2016, DCS filed another 

CHINS petition after learning that Father had a third child, A.W., who was 

living with Father’s mother. Father failed to appear at the initial hearing on the 

CHINS petition relating to A.W., and the juvenile court ordered removal of 

A.W. from Father’s care and authorized placement in foster care with paternal 

grandmother. On August 10, 2016, the juvenile court entered its order 

adjudicating the Children CHINS based on Father’s request for “assistance 

maintaining ... sobriety” and the allegations in the CHINS petitions. Id. at 32.

[5] At a dispositional hearing held on September 7, 2016, the juvenile court ordered 

Father to participate in services to address substance abuse and instability,

including home-based therapy, home-based case management, to submit to a 

substance abuse assessment, and to submit to random drug screens. The court 

also ordered that A.W. be removed from her parental grandmother’s home due 

to safety concerns and placed in foster care.2 Following a May 10, 2017 

permanency hearing at which Father did not appear, the juvenile court changed 

the permanency plan from reunification to adoption for the Children. DCS 

filed petitions for the involuntary termination of Father’s parental rights on 

August 8, 2017. On May 17, 2018, the juvenile court held a termination of 

parental rights hearing. The court issued its order terminating Father’s parental 

 

2 A.W. was placed in the same home as D.W. and B.W.
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rights to the Children on May 25, 2018. The court made the following findings

in support thereof:

10. Home based therapy was referred to address any underlying 

needs, and to help in alleviating substance abuse by learning 

coping skills.

11. Therapy would also have addressed how substance abuse 

relates in regards to the [C]hildren. [Father] did not strongly 

agree that substance abuse affected his parenting.

12. Although therapy was referred at least three times, no 

monthly progress reports were received from service providers.

13. Erica Terry worked with [Father] as his home based case 

manager between July of 2016 to March of 2017.

14. Ms. Terry helped [Father] with filling out employment 

applications and transportation. She also tried to help him 

address his heroin addiction.

15. [Father] worked “here and there” at temporary jobs for a 

total of one week while Ms. Terry was the case manager.

16. [Father] had unstable housing during this time, living with his 

mother, the [C]hildren’s maternal grandmother, and in a hotel, 

none which were appropriate for the [C]hildren. At the time of 

trial, he was residing with his grandmother in a two-bedroom 

residence.

17. Case management was closed due to Ms. Terry not being 

able to locate [Father]. She reported no progress had been made 
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in addressing issues and felt that additional time would not help. 

[Father] did not do things on his own.

18. The major condition to be addressed is [Father]’s substance 

abuse which included heroin use before and during the CHINS 

cases. 

19. [Father] went into a five-day detoxification program in July 

of 2016, but failed to follow up on recommendations. He 

relapsed and was readmitted to detoxification in August of 2016. 

He left after three days and failed to follow up.

20. [Father] may have done another detoxification in the fall of 

2017.

21. [Father] did another detoxification program from April 18, 

2018 until April 30, 2018. He received a diagnosis at discharge 

of Mood Disorder, Psychosis, and Opioid and Alcohol 

Dependence.

22. [Father] was to follow up with a mental health intake on May 

1, 2018. He failed to do so. Psychiatric medical management 

and outpatient drug treatment were pending the May 1, 2018 

intake which was not followed up on.

23. Random urine screens were referred in June of 2016. As of 

April of 2017, [Father] had submitted to one screen. 

24. Home Based Case Manager Terry would transport [Father] 

to submit to screens but he would mostly fail to get out of the car.

25. [Father] did screens inconsistently in the fall of 2017 and 

early 2018.
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26. On screens taken between December 14, 2017 and February 

27, 2018, [Father] tested positive for illegal drugs twelve times. 

The drugs differed at times but included methamphetamine, 

amphetamine, THC, and Buprenorphine.

27. [Father] has failed to undergo a drug screen since March 2, 

2018.

28. [Father] testified he has overcome his addictions, and does 

not need drug services.

29. [Father] presented in court with a poor memory and 

somewhat scattered thoughts. This, coupled with [Father] 

relying on providers and family raise serious concerns about 

[Father]’s ability to parent three children.

30. The [C]hildren have been in therapy since September of 2017, 

and have progressed to the point that goals of processing trauma 

and coping skills have been met.

31. The [C]hildren are together in a preadoptive foster home 

where they have been observed as comfortable and have 

integrated into the preadoptive family.

32. The Court suspended [Father]’s parenting time on May 10, 

2017, when the [C]hildren’s plan for permanency was changed to 

adoption, at which time the Court found that neither parent had 

made any meaningful or sustainable progress toward 

reunification.

33. The Guardian ad Litem and [C]hildren’s therapist never 

recommended that parenting time be reinstated. The therapist 

was concerned that parenting time would be traumatic for the 

[C]hildren and they could regress.
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34. There is a reasonable probability that the conditions that 

resulted in the [C]hildren’s removal and continued placement 

outside the home will not be remedied by [F]ather who has not 

followed up with drug treatment recommendations after 

attending detoxification at least three times. He has not 

successfully participated in services to overcome housing and 

employment instability. The [C]hildren’s CHINS cases have 

been open two years and [Father] has not made sustainable 

progress during that time.

35. There is a reasonable probability that the continuation of the 

parent-child relationship poses a threat to the [C]hildren’s wellbeing in that it would pose as a barrier to obtaining permanency 

for them through an adoption when their [F]ather is unable to 

offer permanency and parent in a safe and stable environment, or 

meet the [C]hildren’s needs.

36. Based on the length of time the CHINS cases have been 

pending, the services offered but not completed, and the question 

of whether it would be safe to return the [C]hildren, the 

Guardian ad Litem, Jessica Sherman, recommends termination 

of parental rights so the [C]hildren can move on with their lives. 

Ms. Sherman believes that giving [Father] additional time would 

interfere with permanency and create more stress and anxiety for 

the [C]hildren.

37. The [DCS] family case manager does not feel that issues 

have been remedied, or will be. She also feels that the [C]hildren 

have a great familial bond where they reside.

38. The [C]hildren’s therapist believes it would be detrimental if 

the [C]hildren were removed from their placement. The 

[C]hildren need stability and consistency.
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Appellant’s Appendix Vol. II at 41-2. Father now appeals. Additional facts will 

be provided as necessary. 

Discussion & Decision

[6] Before we consider Father’s arguments that the evidence was insufficient to 

support termination of Father’s parental rights, we first address his claim that 

the juvenile court could not rely on the results of his drug tests because DCS 

could not establish a reliable chain of custody. Specifically, Father argues that 

the chain of custody for his drug tests is unreliable because (1) the collection 

technician left specimens unattended in his car, (2) the specimens were left in a 

FedEx drop box with no testimony regarding FedEx procedures, and (3) the 

laboratory toxicologist did not know who unsealed Father’s samples prior to 

testing.

[7] We begin by noting that DCS is not required to establish a perfect chain of 

custody. See Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). “To establish a 

proper chain of custody, the State must give reasonable assurances that the 

evidence remained in an undisturbed condition.” Id. (citing Cliver v. State, 666 

N.E.2d 59, 63 (Ind. 1996)). “[O]nce the State ‘strongly suggests’ the exact 

whereabouts of the evidence, any gaps go to the weight of the evidence and not 

to admissibility.” Id. (quoting Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind. 

1997)). Moreover, there is a presumption of regularity in the handling of 

evidence by officers, and there is a presumption that officers exercise due care 

in handling their duties. Id. To mount a successful challenge to the chain of 
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custody, one must present evidence that does more than raise a mere possibility 

that the evidence may have been tampered with. Id.

[8] The collection technician who collected specimens from Father testified that he 

would leave specimens in his car while collecting specimens from other 

individuals, but that he was the only person who had access to his car, which 

was locked at all times. The technician further described the process in which 

he collected the samples and his handling of the samples thereafter. The 

technician would apply gloves, open a sealed test kit, and label the collection 

tubes. The technician would then open the mouth swab and, without touching 

the swab itself, direct the donor to pull the swab out and apply it to their mouth 

until it turned blue indicating a sufficient sample of saliva had been collected. 

The technician would then put the swab in a collection tube and seal it. The 

sealed tube would then be put into a bag that was then sealed and placed into a 

FedEx bag that was sealed as well. To ship the samples to the laboratory, the 

technician would drop the sealed bags at a FedEx drop box. The technician 

testified that he followed this procedure for all drug tests and that he had 

collected approximately 1800 specimens during his employment with the drug 

testing company. 

[9] Once the specimens arrived at the laboratory, an employee inspected the 

packaging and specimen to ensure that all seals remained intact. If there was 

evidence of tampering, such would have been noted on the laboratory report. 

Additionally, a forensic toxicologist and custodian of records with the 

laboratory testified that there were no notations indicating that Father’s
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specimens were compromised in any way and that the results were accurate. 

DCS’s evidence provides reasonable assurances that Father’s mouth swabs were 

undisturbed and that the results of the testing were accurate. See Culver v. State, 

727 N.E.2d 1062, 1067 (Ind. 2000) (finding that the State established a proper 

chain of custody when testimony revealed that blood samples were contained in 

a marked and sealed box that was intact when the forensic DNA examiner 

tested the evidence).

[10] Father presented no evidence other than to imply a mere possibility that the 

samples may have been altered. DCS’s evidence established that Father’s 

specimens were handled and stored in such a way that it would be nearly 

impossible for someone to conceal the fact that the specimens were mixed up or 

had been tampered with. Father’s arguments go to the weight of the evidence, 

not its admissibility. The juvenile court properly admitted Father’s drug test 

results into evidence.

[11] Having determined that the trial court could rely on the drug test results, we 

now turn to Father’s arguments that the evidence was insufficient to support the 

involuntary termination of his parental rights. When reviewing the termination 

of parental rights, we will not reweigh the evidence or judge the credibility of 

the witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. 

denied. Instead, we consider only the evidence and reasonable inferences most 

favorable to the judgment. 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. 
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Ct. App. 1999), trans. denied. Thus, if the evidence and inferences support the 

decision, we must affirm. Id.

[12] The trial court entered findings in its order terminating Father’s parental rights. 

When the trial court enters specific findings of fact and conclusions thereon, we 

apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & 

Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the 

evidence supports the findings, and second, we determine whether the findings 

support the judgment. Id. “Findings are clearly erroneous only when the 

record contains no facts to support them either directly or by inference.” 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.

[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.
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[14] Father argues that the evidence was insufficient to support the trial court’s 

termination of his parental rights. 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 wellbeing 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] Father challenges the court’s findings as to subsection (b)(2)(B)(i) and (ii). We 

note that DCS was required to establish only one of the requirements of 

subsection (b)(2)(B) by clear and convincing evidence before the trial court 

could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. 

App. 2003). Here, the trial court found that DCS presented clear and 
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convincing evidence that there is a reasonable probability the conditions 

resulting in the Children’s removal or continued placement outside Father’s 

care will not be remedied and that continuation of the parent-child relationship 

poses a threat to the Children’s well-being. See I.C. § 31-35-2-1(b)(2)(B)(i), (ii). 

We focus our inquiry on the requirements of subsection (b)(2)(B)(i)—that is, 

whether there was sufficient evidence to establish a reasonable probability that 

the conditions resulting in the Children’s removal or continued placement 

outside Father’s care will not be remedied.

[16] In making such a determination, the trial court must judge a parent’s fitness to 

care for his child(ren) 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 child. Id. In making this 

determination, courts may consider evidence of a parent’s prior criminal 

history, drug and alcohol abuse, history of neglect, failure to provide support, 

and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of 

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. 

The court may also consider the parent’s response to the services offered 

through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 

372 (Ind. Ct. App. 2007), 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 
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reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d 

at 210.

[17] Additionally, DCS need not provide evidence ruling out all possibilities of 

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

parent’s behavior will not change. In re Involuntary Termination of Parent-Child 

Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust 

that delicate balance to the trial court, which has discretion to weigh a parent’s 

prior history more heavily than efforts made only shortly before termination.” 

In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Although a trial court is required to 

give due regard to changed conditions, this does not preclude a finding that a 

parent’s past behavior is the best predictor of his or her future behavior. Id.

[18] The Children were removed from Father’s care because of Father’s admitted 

drug use and request for help to obtain sobriety. DCS also identified Father’s 

instability in housing and employment as reasons for removal of the Children. 

Throughout the CHINS proceedings, Father did not participate in a majority of 

the referred services for his substance abuse and demonstrated a pattern of 

relapsing after receiving treatment. As noted by the court in its order, Father 

attended a five-day detoxification program, but failed to follow up or comply 

with recommendations upon his release. A short time after his release, Father 

was readmitted into a detoxification program, but left after three days and again 

failed to comply with recommended services. Father points to his latest effort 

of participating in a detoxification program from April 18 until April 30, 2018, 

which is nearly two years since the Children were removed from his care and 
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about one month before the termination hearing, as evidence that there is a 

reasonable probability that the conditions resulting in removal of the Children 

will change. Father’s history of drug use and multiple relapses, however, is 

more telling of the probability of whether circumstances will change, especially 

in light of Father’s minimal participation in other services. 

[19] Father also failed to submit to random drug screens. Even when his homebased case manager provided transportation so Father could submit to a drug 

screen, Father would refuse to get out of the car. Of the drug screens Father 

submitted, most of which were in late 2017 and early 2018, he tested positive 

for illegal drugs (i.e., methamphetamine, amphetamine, THC, and/or 

buprenorphine) twelve times. Father did not submit any drug screens after 

March 2, 2018. 

[20] Father wholly failed to comply with home-based therapy and home-based case 

management. Although his case manager made three referrals, Father did not 

participate in any services. With regard to employment, Father’s case manager 

helped Father apply for jobs, but over the course of nearly two years, Father 

worked for a total of one week. With regard to housing, Father lived with 

either his mother, Mother’s mother, or in a motel. Father’s case manager 

testified that none of these locations were suitable for the Children. 

[21] Father made little to no progress in changing the conditions that resulted in 

removal of the Children from his care. Father’s recent efforts at trying to 

maintain sobriety, obtain employment, and secure a place to live are 
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overshadowed by Father’s lack of effort to address these issues in the nearly two 

years since the CHINS action was filed. As the court found, Father did not 

make any “sustainable progress.” Appellant’s Appendix Vol. II at 42. Father’s 

arguments to the contrary are simply requests to reweigh the evidence, which 

we will not do on appeal. The evidence was sufficient to support the court’s 

determination that there is a reasonable probability that the conditions that 

resulted in the removal of the Children will not be remedied.

[22] Father also argues that the evidence was insufficient to support the trial court’s 

finding that termination was in the Children’s best interests. In determining 

whether termination of parental rights is in the best interests of a child, 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). 

In so doing, the trial court must subordinate the interest of the parent to those of 

the child, and the court need not wait until a child is irreversibly harmed before 

terminating the parent-child relationship. McBride v. Monroe Cnty. 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-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. 
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[23] Father’s case manager, the Children’s therapist, and the Guardian ad Litem all 

testified that the Children need permanency. Service providers also expressed 

concern that the Children would regress if the proceedings were permitted to 

continue. Each service provider believed that termination was in the best 

interests of the Children. We will not second guess the providers in this regard. 

[24] In sum, the court could properly rely on the results of Father’s drug screens,

and the evidence was sufficient to support the court’s termination of Father’s 

parental rights to the Children.

[25] Judgment affirmed.

Najam, J. and Pyle, J., concur.