Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 1 of 12

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

Russell Dean Bailey

Demotte, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Marjorie Newell

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

A.S.C. & A.J.C.,

C.C., 

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

March 21, 2017

Court of Appeals Case No.

37A03-1607-JT-1715

Appeal from the Jasper Circuit 

Court

The Honorable John D. Potter, 

Judge

Trial Court Cause No.

37C01-1603-JT-44 

37C01-1603-JT-45
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Barnes, Judge.

Case Summary

[1] C.C. (“Mother”) appeals the termination of her parental rights with regard to 

A.S.C. and A.J.C. (“the Children”). We affirm.

Issue

[2] Mother contends the evidence was not sufficient to support the termination of 

her parental rights.

Facts

[3] A.S.C. and A.J.C. are Mother’s children. A.S.C. was born on August 8, 2014, 

and A.J.C. was born on January 4, 2013. On April 22, 2015, DCS filed a Child 

in Need of Services (“CHINS”) petition alleging each child to be a CHINS. 

The trial court held a fact-finding hearing on that petition in July 2015 and 

adjudicated the Children to be CHINS. The trial court found:

While in the care, custody, and control of the parents due to the 

parents being homeless and the mother using herion [sic]: 1) That 

on or about April 17, 2015, Family Case Manager Knoth (“FCM 

Knoth”) went to the [sic] Lowell, Indiana where the parents and 

child were reported to be. FCM Knoth checked at area hotel 

parking lots, Brushwood Church, and Dollar General without 

being able to locate them. 2) That on or about April 20, 2015, 

FMC Knoth continued searching through relative contact and 

met with mother at the Jasper County Jail where she had been 

arrested on an unrelated matter. That mother admitted to have 

been staying [sic] at the Crisis Center, panhandling in Lowell, 

and being a heroin user. 3) That on or about April 22, 2015, 
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father and children were located in the Jasper County 

Courthouse employee parking lot and escorted back to the DCS 

office . . . . 5) That both mother and father have tested positive 

for heroin. 6) That the child[ren] need[] care, treatment, and 

rehabilitation that the parents are unwilling and/or unable to 

provide the child[re] without the coercive intervention of the 

court.

App. pp. 32 and 34.1

[4] DCS filed petitions to terminate Mother’s parental rights, and the trial court 

held a fact-finding hearing on June 24, 2016. On June 30, 2016, the trial court 

issued findings of fact and conclusions thereon in orders terminating Mother’s 

parental rights.2 Mother now appeals. 

Analysis

[5] 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 County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing 

Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 573 (1925), and 

Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923)). “A parent’s 

interest in the care, custody, and control of his or her children is ‘perhaps the 

oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 

U.S. 57, 65, 120 S. Ct. 2054, 206 (2000)). “It is cardinal with us that the 

 

1 The trial court issued identical findings in separate orders pertaining to A.S.C. and A.J.C.

2 The trial court issued separate, but identical, orders terminating Mother’s rights with regard to each child.
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custody, care and nurture of the child reside first in the parents . . . .” Troxel, 

530 U.S. at 65, 120 S. Ct. at 2060 (citing Prince v. Massachusetts, 321 U.S. 158, 

166, 64 S. Ct. 438, 442 (1944)). Parental interests, however, are not absolute 

and must be subordinated to the children’s interests in determining the proper 

disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147. 

“[P]arental rights may be terminated when the parents are unable or unwilling 

to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258, 

265 (Ind. Ct. App. 2004)).

[6] Pursuant to Indiana Code Section 31-35-2-4(b)(2), when DCS seeks to 

terminate the parent-child relationship of children who have been adjudicated 

CHINS, it must allege, in 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 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 well-being 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 
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(D) that there is a satisfactory plan for the care and 

treatment of the child. 

DCS must prove its allegations by clear and convincing evidence. Egly v. 

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992). 

[7] Our supreme court recently cautioned:

[T]he “clear and convincing” evaluation is to be applied 

judiciously. “Reviewing whether the evidence ‘clearly and 

convincingly’ supports the findings, or the findings ‘clearly and 

convincingly’ support the judgment, is not a license to reweigh 

the evidence. Rather, it is akin to the ‘reasonable doubt’ 

standard’s function in criminal sufficiency of the evidence 

appeals—in which we do not reweigh the evidence or assess the 

credibility of the witnesses, and consider only whether there is 

probative evidence from which a reasonable jury could have found 

the defendant guilty beyond a reasonable doubt . . . . Our review 

must give due regard to the trial court’s opportunity to judge the 

credibility of the witnesses firsthand, and not set aside [its] 

findings or judgment unless clearly erroneous.”

In re N.G. 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636, 

642 (Ind. 2014)) (alterations in N.G.) (emphasis in E.M.) (citations omitted) 

(quotations omitted). 

[8] When, as here, a trial court enters findings of fact and conclusions thereon, we 

apply a two-tiered standard of review. In re D.K., 968 N.E.2d 792, 797 (Ind. Ct. 

App. 2012). “First, we determine whether the evidence supports the findings, 

and second we determine whether the findings support the judgment.” Id. An 

appellant who does not cogently argue that the trial court’s findings were not 
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supported by sufficient evidence waives that argument on review, and we 

review only whether the facts found by the trial court are insufficient, as a 

matter of law, to support a judgment. See City of Whiting v. City of East Chicago, 

266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). “[W]here a party challenges only 

the judgment as contrary to law and does not challenge the special findings as 

unsupported by the evidence, we do not look to the evidence but only to the 

findings to determine whether they support the judgment.” Smith v. Miller 

Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. App. 2000) (alteration in original).

I. The Conditions Resulting in Removal Will Not Be Remedied

[9] Mother contends there is not clear and convincing evidence to support the trial 

court’s conclusion there is a reasonable probability that the conditions that 

resulted in the children’s removal will not be remedied and/or that the reasons 

for the children’s placement outside Mother’s home will not be remedied.3 

DCS removed the Children from Mother’s care and placed them outside her 

home because the family was homeless and Mother was using heroin. DCS 

identified several areas in which Mother needed to improve: she needed stable 

housing, substance-abuse treatment, random drug screens, and supervised 

visitation with the Children.

 

3 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only 

one of the requirements of subsection (B). We conclude there is a reasonable probability that the conditions 

that resulted in the children’s removal and the reasons for placement outside Mother’s home will not be 

remedied.
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[10] Consideration of whether the conditions will be remedied requires judging the 

parent’s fitness at the time of the termination hearing, “taking into 

consideration evidence of changed conditions.” K.E. v. Indiana Dep’t of Child 

Servs., 39 N.E.3d 641, 647 (Ind. 2015). 

Changed conditions are balanced against habitual patterns of 

conduct to determine whether there is a substantial probability of 

future neglect. 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 demonstrating that conditions will

be remedied.

Id. (internal quotations omitted) (citations omitted).

[11] Mother challenges two of the trial court’s findings of fact. Mother first 

contends the trial court’s finding that she failed nineteen out of nineteen drug 

screens was incorrect. Instead, she asserts that she took twenty-three tests, four 

of which were negative, and that one of her positive tests “could be explained 

because she had a valid prescription for pain medication.” Appellant’s Br. p. 

16. In support of that contention, Mother directs us to the progress report DCS 

family case manager Jody Knoth prepared for Mother’s October 5, 2015 

periodic review hearing. 

[12] We acknowledge that document stated Mother participated in a total of thirtyfive drug screens; four were negative; Mother failed to show up for an 

additional twenty drug screens; Mother tested positive for heroin, THC, 
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methamphetamine, amphetamine or some combination of those drugs in ten 

screens; and Mother tested positive, but had a valid prescription for oxycodone 

in one screen. See App. Vol. 2, p. 105. Those numbers are different from the 

ones cited by both the trial court’s findings and Mother’s Appellant’s Brief. 

However, we note that DCS’s exhibits 78 and 79 are the results of Mother’s 

drug screens prepared by Forensic Fluids Laboratories and Redwood 

Toxicology Laboratory. Those exhibits contain a total of nineteen results, all of 

which were positive. In light of these exhibits, we conclude the evidence 

supports the trial court’s finding with regard to Mother’s drug screens. 

[13] Mother next seems to challenge the trial court’s finding that she did not make 

progress toward obtaining housing. She argues, “the record is devoid of any 

showing that the homes that Mother and Father lived at with relatives was [sic] 

an unsafe environment for the children or any reasons why it [sic] was 

unsuitable.” Appellant’s Br. p. 17. Mother does, however, acknowledge 

Knoth’s testimony that she visited Mother while the family was living in a tent 

in Father’s mother’s garage and Knoth’s opinion that the tent was not suitable 

housing. 

[14] Christine Pirlot, a case worker with Family Focus, was assigned to help Mother 

find stable housing and employment. Pirlot testified that, between November 

2015 and March 2016, Mother did not have stable housing. She testified, 

“They would stay, sometimes at the motel out by 65. Occasionally they would 

stay with his mom, and sometimes there was a house on Melville that they 

stayed at. And so, they were kind of moving between those three.” Tr. Vol. II, 
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p. 35. Knoth testified she was unware of any time during the pendency of this 

case when Mother had suitable housing available and that, “every time” she 

visited the grandmother’s house, she was informed Mother was living in a tent 

in the garage. Id. at 78. Knoth testified she was “never notified they moved 

inside.” Id. We conclude this evidence demonstrates Mother did not obtain 

“single family housing,” which Knoth defined as “A house [or apartment] just 

for [Father], [Mother] and their children.” Id. at 74. That evidence is sufficient 

to support the trial court’s finding that Mother lacked stable, suitable housing.

[15] In addition to the findings with regard to Mother’s continued substance abuse 

and homelessness, the trial court found that Mother was in and out of 

incarceration while this case was pending and was incarcerated at the time of 

the evidentiary hearing. The trial court found the only progress Mother made 

toward addressing her problem with substance abuse was that she was able to 

“vocalize” her substance abuse problem as the cause of her “issues.” App. Vol. 

II, pp. 21 and 25. The trial court found Mother was not compliant or consistent 

in her participation in services. 

[16] Our review of the evidence reveals that, in August 2015, Mother was referred to 

services at Dunebrook focused on educating her regarding “nurturing parenting 

techniques to foster emotional, intellectual and physical development for [her] 

children.” Tr. p. 5. Mother was supposed to meet with her Dunebrook 

provider weekly, but between October 2015 and February 2016, she attended 

only four sessions. Dunebrook terminated its service in March 2016. “Due to 
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noncompliance of meeting weekly, there was no progression in the nurturing 

parenting curriculum that [Dunebrook] used.” Id. at 10. 

[17] DCS also referred Mother to Family Focus for assistance finding stable 

employment and housing, and Mother was scheduled to meet weekly with 

Pirlot. Pirlot testified that “on average,” she saw Mother monthly. Id. at 33. 

Pirlot’s monthly reports reveal she had difficulty contacting Mother. Pirlot also 

testified that Mother’s only progress was that she was “able to verbalize that 

[she] had an addiction issue.” Id. at 33. Mother did not obtain employment or 

stable housing; Mother was transient. Although Mother never provided Pirlot 

with any documentation regarding her medical problems, Pirlot acknowledged 

Mother had numerous health issues that made it more difficult for her to find 

employment. In lieu of employment, Pirlot encouraged Mother to apply for 

Social Security Disability. 

[18] Family Focus also provided addictions counseling for Mother. Social worker 

Paul Hannon attempted to contact Mother every week from August 2015 to 

January 2016. Hannon scheduled an initial meeting with Mother in late 

September 2015, but Mother did not show up. Mother’s first, and, ultimately, 

last appointment with Hannon was in December 2015. Mother had an 

appointment scheduled for January 2016, but she cancelled it. Hannon testified 

Mother was not willing to participate in addictions counseling and did not 

make progress in the service because of her lack of participation. 
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[19] Finally, Knoth testified that, while this case was pending, Mother was charged 

with criminal offenses on several occasions. In April 2015, she was charged 

with driving with a suspended license; in August 2015, she was charged with 

possessing a narcotic and with unlawfully possessing a syringe; and in June 

2016, Mother was alleged to have violated the terms of her probation by testing 

positive for heroin.

[20] We conclude this evidence establishes a clear pattern of Mother’s continued 

struggle with substance abuse and homelessness. See K.E., 39 N.E.3d at 647. 

This evidence of habitual conduct is sufficient to conclude there is a substantial 

probability of future neglect. See id. The trial court’s conclusion that there was 

a reasonable probability that the conditions resulting in removal will not be 

remedied was not clearly erroneous. 

II. Best Interests

[21] Mother contends, generally, that DCS did not demonstrate by clear and 

convincing evidence that termination of the parent-child relationship is in the 

Children’s best interests. In determining what is in the best interests of the 

children, the trial court is required to look at the totality of the evidence. In re 

D.D., 804 N.E.2d at 267. In doing so, the trial court must subordinate the 

interests of the parents to those of the children involved. Id.

[22] The trial court found that the Children have bonded with their prospective 

adoptive parents and that Mother is unable to provide them with permanency. 

Our review of the evidence reveals that, although the Children appear to be well 
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adjusted and are in good physical and psychological shape, they need 

permanence that Mother is clearly unable to provide. Further, it does not 

appear Mother is any closer to being able to provide that permanence than she 

was when this case began. The trial court’s conclusion that termination of 

Mother’s parental rights is in the Children’s best interests is not clearly 

erroneous. 4 

Conclusion

[23] The trial court’s termination of Mother’s parental rights with regard to the 

Children is not clearly erroneous. We affirm.

[24] Affirmed.

Kirsch, J., and Robb, J., concur.

 

4 Mother does not challenge the trial court’s conclusion that DCS has a satisfactory plan for the Children’s 

care.