Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 1 of 8

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 M.B.

Joel C. Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent–Child Relationship 

of A.B. (Minor Child)

and 

M.B. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

August 20, 2019

Court of Appeals Case No.

19A-JT-571

Appeal from the Vigo Circuit 

Court

The Honorable Sarah K. Mullican, 

Judge

Trial Court Cause No.

84C01-1805-JT-625
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 2 of 8

Bradford, Judge.

Case Summary

[1] M.B. (“Father”) is the biological father of A.B. (“Child”). In August of 2017, 

Child was placed with Father on a trial home visit. In September of 2017, Child 

was adjudicated to be a child in need of services (“CHINS”) after Father 

admitted that she was a CHINS and agreed to participate in services. The 

Department of Child Services (“DCS”) petitioned for the termination of 

Father’s parental rights after Father was arrested on federal drug-related charges

in October of 2017. In January of 2019, the juvenile court ordered that Father’s 

parental rights to Child be terminated. Father contends, inter alia, that the 

juvenile court’s termination of his parental rights was clearly erroneous. 

Because we agree, we reverse and remand for further proceedings. 

Facts and Procedural History

[2] Father and Mother1 are the biological parents of Child, born February 21, 2016. 

On March 9, 2017, Mother became upset with Father and rammed her vehicle 

into his while Child was seated inside of Mother’s vehicle. DCS took custody of 

Child after Mother was arrested, and Father admitted to smoking marijuana the 

day before and refused to take a drug test. On March 10, 2017, DCS filed a 

 

1 Mother does not participate in this appeal. 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 3 of 8

petition alleging that Child was a CHINS. On August 17, 2017, Father 

admitted that Child was a CHINS and agreed to participate in services. On 

September 7, 2017, the juvenile court adjudicated Child a CHINS. 

[3] Father successfully completed home-based case management, maintained a 

working mobile telephone to communicate with DCS, consistently participated 

in visitation with Child, allowed the family case manager (“FCM”) to conduct 

home visits, completed a substance-abuse assessment which did not 

recommend any drug treatment, and established a home in his own apartment,

even though he eventually had to move back into his grandmother’s house.

Obtaining a part-time job was the only goal Father did not successfully achieve, 

despite applying for various jobs. By mid-August of 2017, DCS placed Child 

with Father on a trial home visit. On October 12, 2017, the trial home visit 

ended after Father was arrested on federal charges for distributing illegal drugs. 

FCM William Welch testified that visitation between Father and Child was 

suspended following his incarceration because visitation while a parent is 

incarcerated is not something that DCS typically permits. FCM Welch also 

testified that despite being unable to visit Child, Father emailed FCM Welch a 

few times regarding possible placements for Child and sent him a letter 

regarding things “in general,” to which FCM Welch responded to by sending 

photos of Child and information regarding her well-being. Tr. pp. 55–56. 

[4] On June 13, 2018, DCS petitioned for the termination of both Mother’s and 

Father’s parental rights. On December 17, 2018, the juvenile court conducted a 

termination hearing. At the termination hearing, Father appeared 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 4 of 8

telephonically due to his pre-trial incarceration on the pending federal 

distributing charges. The amount of time Father was to remain incarcerated 

was subject to speculation by both parties. DCS believed that Father would be 

incarcerated for several more years, while Father contended that “They ain’t 

said nothing yet. They keep postponing me.[

2

] They said I was going to be here 

a year or two years at the most or even a year if I get a plea bargain.” Tr. pp. 

72–73. Father’s criminal history, all of which occurred prior to this current 

matter, was established and included a 2006 conviction for methamphetamine 

dealing, a 2012 conviction for marijuana possession, a 2014 conviction for 

marijuana dealing, and a 2016 conviction for maintaining a common nuisance.

[5] FCM Welch testified and court-appointed special advocate Mackenzie Kelley 

(“CASA Kelley”) submitted a report regarding Child’s well-being in her foster 

placement but stopped short of testifying as to what was in Child’s best 

interests. CASA Kelley noted that Child was happy and doing well in her foster 

placement and called her foster parents “mom” and “dad,” which lead to 

CASA Kelley recommending that Child remain in foster placement and efforts 

be made to establish a permanent home. Appellant’s App. Vol. II p. 15. FCM 

Welch testified that Child was doing very well, was integrated into her foster 

placement, and likened the other children living in her foster placement to 

siblings. FCM Welch also testified that his concern was that both of Child’s 

parents were incarcerated. On January 4, 2019, the juvenile court terminated 

 

2

Father testified that his trial date had been postponed four times. 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 5 of 8

both Father’s and Mother’s parental rights in Child. Regarding Father, the 

juvenile court stated in its order only that 

When Father began screening clear for the Department after 

May, 2017, [Child] was ultimately placed with him on a trial 

home visit, beginning August 28, 2017. Although Father 

otherwise seemed to do well with [Child], the trial home visit 

ended on October 10, 2017, when Father was arrested for dealing 

drugs by federal authorities. From that date to the present he has 

been held pretrial and does not have a trial date. DCS believes he 

will be incarcerated for several more years. 

Appellant’s App. Vol. II p. 25. 

Discussion and Decision

[6] The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. Bester v. 

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The 

parent–child relationship is “one of the most valued relationships in our 

culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind. 

2003) (internal citations omitted). Parental rights, however, are not absolute 

and must be subordinated to the child’s interests when determining the proper 

disposition of a petition to terminate the parent–child relationship. Bester, 839 

N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their 

parental responsibilities their rights may be terminated. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 6 of 8

[7] In reviewing the termination of parental rights on appeal, we neither reweigh 

the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of 

Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied. 

We consider only the evidence and reasonable inferences therefrom which are 

most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile 

court has entered findings of facts and conclusions of law, our standard of 

review is two-tiered. Id. First, we determine whether the evidence supports the 

factual findings, second, whether the factual findings support the judgment. Id. 

The juvenile court’s findings and judgment will only be set aside if found to be 

clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences 

drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 

2005). “A judgment is clearly erroneous if the findings do not support the 

juvenile court’s conclusions or the conclusions do not support the judgment.” 

Id.

[8] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to 

support a termination of parental rights. Of relevance to this case, DCS was 

required to establish by clear and convincing evidence “that termination is in 

the best interests of the child[.]” Ind. Code § 31-35-2-4(b)(2). In challenging the 

sufficiency of the evidence to sustain the termination of his parental rights, 

Father contends that the juvenile court erred by concluding, inter alia, that 

termination of his parental rights was in Child’s best interests.

[9] We are mindful that, in determining what is in the best interests of the child, the 

juvenile court must look beyond factors identified by DCS and consider the 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 7 of 8

totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). 

The juvenile court need not wait until a child is irreversibly harmed before 

terminating the parent–child relationship because it must subordinate the 

interests of the parents to those of the children. McBride v. Monroe Cty. Office of 

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). 

[10] Here, it seems that the termination of Father’s parental rights was based solely

on his pre-trial incarceration and the assumption that it might last several more 

years. Father, however, has not been convicted, and it is, of course, not certain 

that he will be. Given Father’s presumption of innocence and speculation as to

the length of his incarceration, this is insufficient to support termination. While 

a conviction or definite sentence might support a decision to terminate parental 

rights, the record before the juvenile court in this case did not provide such

evidence. 

[11] The State contends that Father’s criminal history and Child’s success in her 

current foster placement also support the juvenile court’s best interests 

determination. The juvenile court’s termination order, however, never mentions 

Father’s criminal history as a contributing factor to its decision. Consequently, 

we shall assume it was not. Moreover, while FCM Welch and CASA Kelley 

testified that Child is doing well and integrated into her foster placement, that 

does not necessarily mean Father’s parental rights should be terminated. See In 

re V.A., 51 N.E.3d 1140, 1152 (Ind. 2016) (“[T]ermination is intended as a last 

resort, available only when all reasonable efforts have failed.”). It is our 

sincerest hope that all children who must be placed in a foster home thrive in 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019 Page 8 of 8

their placement, but the fact that it might be a better home does not warrant the 

termination of biological parent’s rights. See id. at 1151 (noting that a parent’s 

rights may not be terminated solely because there is a better home available for 

the child). A review of the record in this case indicates that the juvenile court 

based its decision solely on the fact that Father was being held in pre-trial 

incarceration with, at best, a purely speculative length of incarceration. Under 

this particular set of circumstances, we cannot say that DCS produced sufficient 

evidence to support the juvenile court’s determination that termination of 

Father’s parental rights was in Child’s best interests. 

[12] The judgment of the juvenile court is reversed and remanded for further 

proceedings. 

Vaidik, C.J., and Riley, J., concur.