Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016 Page 1 of 16

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 APPELLANTS

Andrew J. Sickmann

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

K.C. and K.C.,

Appellants-Respondents,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

November 18, 2016

Court of Appeals Case No.

89A01-1604-JT-913

Appeal from the Wayne Superior 

Court

The Honorable Darrin M. 

Dolehanty, Judge

Trial Court Cause No.

89D03-1512-JT-42

Altice, Judge.

Case Summary
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[1] K.C. (Mother) and K.C. (Father) (collectively, Parents) appeal the involuntary 

termination of their parental rights to J.C. (Child). Parents challenge the 

sufficiency of the evidence supporting the termination of their rights.

[2] We affirm.

Facts & Procedural History

[3] Child was born to Parents in July 2007. Mother is a drug addict and Father is 

an alcoholic. Since Child’s birth, Parents have been convicted of a number of 

crimes and have been incarcerated off and on. Specifically, Father was

convicted of resisting law enforcement (January 2010), public intoxication 

(February 2010), trespass (October 2012), and intimidation, neglect of a 

dependent, and disorderly conduct, as well as adjudicated a habitual offender 

(December 2013). Additionally, he was incarcerated at the time of the factfinding hearing in this case for events that occurred in January 2016. Similarly, 

Mother has been convicted, since her son’s birth, of possession of paraphernalia 

and battery (June 2012), conversion (July 2012), theft (January 2013), neglect of 

a dependent (February 2014), and burglary (October 2015).1 She is currently 

incarcerated with an expected release date of October 27, 2019.

 

1 Mother has been incarcerated approximately twenty times as an adult, and Child was the victim in 

Mother’s neglect offense. Father’s earlier, unrelated conviction for neglect of a dependent also involved 

Child as his victim.
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[4] The Indiana Department of Child Services (DCS) removed Child from his 

home on or about October 3, 2013, and Child has not been returned to the care 

of Mother or Father since that date. He has remained in the care of the same 

foster family throughout the underlying CHINS and termination proceedings. 

The reason for the removal was Mother’s admitted use of cocaine, marijuana, 

and opiates, as well as Father’s incarceration.

[5] Child was adjudicated a CHINS, and a dispositional order was entered on 

November 4, 2013. Parents were ordered to, among other things, cooperate 

and keep all appointments with service providers, refrain from using alcohol or 

drugs, submit to random drug/alcohol screens, secure and maintain a legal and 

stable source of income, and participate in a mental health evaluation and 

individual counseling. Due to Father’s continued incarceration, he was not 

able to participate in most services until his release in February 2015.

[6] DCS provided Mother with substantial services to help combat her addiction 

and assist with parenting and life skills. Mother entered and completed an 

inpatient drug treatment program in April 2014. She did pretty well coming out 

of treatment and was engaged with services for a couple of months. Except for 

her period of inpatient treatment, Mother lived in a homeless shelter from 

February to November 2014.

[7] Around July 2014, Mother again began struggling with attitude and attendance 

at sessions with her recovery coach, Cortney Baudendistal. Mother continued 

to miss appointments and did not see Baudendistal at all after February 2015. 
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Similarly, Mother missed about half of her meetings with her addiction and 

mental health therapist, Betty Hancock, and was discharged from this service in 

January 2015 due to attendance issues. During counseling sessions, Mother 

informed Hancock that she was once again using cocaine and heroin. 

According to Hancock, the little progress Mother had made was lost once she 

started using again.

[8] Becky Studebaker, the executive director of the homeless shelter at which 

Mother stayed, testified that Mother eventually “took a bad spin for the worst” 

and was asked to leave the shelter in November 2014. Transcript at 93. 

Studebaker indicated that in addition to positive drug screens, there were 

allegations that Mother was stealing from the shelter and was having conflicts 

with staff and other residents.

[9] Family case manager (FCM) Megan Fisher testified that Mother tested positive 

for cocaine in November and December 2014, as well as February and March 

2015. After testing positive in March, Mother informed FCM Fisher that she 

“had lost the will to fight”. Id. at 102. In addition to using cocaine, Mother 

began to miss visits with Child in March 2015 and by April ceased participating 

in all services. Mother was arrested for burglary on April 28, 2015, and has not 

visited with Child since due to her incarceration. Mother was subsequently 

convicted of Level 4 felony burglary and sentenced to six years in prison, 

consecutive to a misdemeanor sentence in a separate case. Her projected 

release date is October 27, 2019.
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[10] Shortly before Mother’s burglary arrest, Father was released from prison in 

February 2015 after serving over two years. He stayed at a mission in Muncie 

for a short time and then moved back to Richmond in March. Father contacted 

FCM Fisher upon his return and was referred to services. By April 21, 2015, 

Father had completed an evaluation for substance abuse and started counseling. 

He was also employed, consistently visiting Child, and had obtained housing. 

Father and Child quickly developed a bond.

[11] Father worked closely with Rodney Barbee, a case manager for the Engaging 

Fathers program. Barbee worked with Father on developing life skills and often 

supervised visits between Father and Child. Barbee provided transportation for 

Father, as Father is not allowed to drive. Visits between March and December 

2015 went well and eventually required very little supervision.

[12] Father’s initial residence was next to the carwash at which he worked. FCM 

Fisher visited the home and discovered that it had no electricity. Father then 

moved to an apartment above the carwash in April or May 2015. In addition to 

no electrical service, this apartment did not have running water, a kitchen or 

area for food preparation, or a bathroom. Father had to use the restroom 

downstairs in the car wash. 

[13] FCM Scarlett Hughes was assigned to the case in November 2015. She met 

with Father to discuss the main barriers to reunification with Child. FCM 

Hughes identified those as being that Father still needed to obtain appropriate 

housing and find some form of legal transportation. 
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[14] Father last visited with Child on December 25, 2015. The visit was supervised 

by Karen Bowen, the director of the Wayne County CASA program, and took 

place at Father’s residence above the carwash. Bowen observed that Child and 

Father did not talk much during the visit but seemed comfortable with each 

other. Father had gifts for Child but no food. Bowen was concerned by some 

of the individuals who dropped by the residence, as she knew two of them to be

drug users. Further, Bowen indicated that people just walked in and hung out 

throughout the visit. 

[15] In general, Bowen believed that Father was heading in the right direction and 

just needed to become less reliant on service providers. Father’s progress, 

however, was derailed when he was arrested on January 1, 2016. On that date, 

Captain Robert Lipps of the Richmond Police Department was dispatched to 

an automobile wreck near the carwash. Father indicated that he was driving 

when he backed into another vehicle. Captain Lipps noticed the odor of 

alcohol coming from Father. Officer Sergio Santiago also responded to the 

scene and observed signs of intoxication, including slurred speech and very 

unsteady balance. Officer Santiago placed Father, a habitual traffic violator, 

under arrest.

[16] This cause of action represents the second time that a petition to terminate 

parental rights has been litigated between the parties. The fact-finding hearing 

for the first, Cause No. 89D03-1504-JT-12 (Cause JT-12), was held in June 

2015, about four months after Father’s release from prison. The trial court 

entered a lengthy order in Cause JT-12 on June 29, 2015, in which it denied the 
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petition to terminate parental rights. With regard to Mother, the court noted 

her long-standing substance abuse issues and ongoing pattern of criminal 

conduct, which had resulted in her being in and out of jail regularly over the 

prior three years. The court found clear and convincing evidence that Mother 

would not be able to overcome the conditions that led to Child being removed 

from her home and that allowing her to continue to parent Child would pose a 

threat to Child’s well-being. The court, however, declined to reach the same 

conclusion as to Father. The court explained:

For a substantial portion of this child’s life, and most 

significantly for the past three years, father has been almost 

entirely absent from this child’s life. While letters from prison 

may be cathartic for the father, they do not even remotely 

approximate the child’s need to have a direct, immediate and 

meaningful interaction with his father on a daily basis, during the 

crucial formative years of his life. Father’s absence, and the 

relationship void created through that absence, cannot be 

overlooked, and will unfortunately have a lasting and negative 

impact on the child’s psyche. Nonetheless, since his release from 

incarceration in mid-February of this year, the father has 

complied with all referred services, has not missed a single 

opportunity to visit with the child, has not tested positive for use 

of illegal substances, has not committed further crimes, has 

obtained employment and a residence, and has interacted 

appropriately with his son. The evidence has not shown that 

father’s relationship with this child poses a threat to the child’s 

well-being. The evidence supports a conclusion that there is 

more than a reasonable probability that father will be able to 

meaningfully address and correct the conditions that have 

resulted in the child’s placement outside of the home.
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Granted, the father’s remarkable “come-back” has been for the 

short-term. The child is nearly eight (8) years old, and the 

father’s efforts to properly parent the child have come over the 

past 18 weeks. Further, during that short period, the overall 

interaction – the overall parenting has been for a pittance of 

hours, with visits occurring twice a week and comprising 3% of 

the child’s time. Nonetheless, in a matter of such grave 

importance, it is imperative that the evidence be clear; that the 

evidence be convincing, that the father not adequately address 

years of prior parenting shortfalls. Here, the evidence does not 

support that conclusion.

Vol. of Exhibits at 28-29. Accordingly, despite its findings with respect to 

Mother, the court denied the termination petition as to both Mother and 

Father.

[17] After Cause JT-12 concluded in Parents’ favor, Father continued making 

positive steps through December 2015. He remained employed at the carwash, 

continued in services, and regularly visited Child. The visits progressed from 

fully to partially supervised. Father was also attending AA meetings for a 

period of time. Father, however, remained without the ability to provide his 

own transportation and continued to lack appropriate housing. Father last 

visited Child on December 25, 2015, and last spoke with Child three days later. 

Father found himself once again incarcerated beginning in January 2016, with 

evidence that he was drinking alcohol again and driving without a license.

[18] On December 21, 2015, DCS filed the instant petition to terminate Parents’ 

parental rights to Child. The fact-finding hearing took place on March 11, 

2016. Parents both remained incarcerated at the time – Mother in the Rockville 
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Correctional Facility and Father in the Wayne County Jail. On March 24, 

2016, the trial court entered another detailed order but this time ordered the 

termination of Parents’ parental rights to Child. Parents now appeal. 

Additional facts will be presented below as needed.

Discussion & Decision

[19] 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. Ct. App. 1999), trans. denied. Thus, if the 

evidence and inferences support the decision, we must affirm. Id.

[20] The trial court entered findings in its order terminating Parents’ 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. Because Parents do not challenge any of the trial 

court’s findings, we will address only the second step. A judgment is clearly 

erroneous if the findings do not support the court’s conclusions or the 
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conclusions do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d 

98, 102 (Ind. 1996). 

[21] 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.

[22] 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.
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(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).

[23] On appeal, Parents argue that the evidence is insufficient to support the 

involuntary termination of their parental rights. Parents first challenge the trial

court’s findings as to subsection (b)(2)(B)(i) and (ii). We note that DCS was 

required to establish only one of the three 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 sufficient evidence to satisfy two of those 

requirements, namely, that there is a reasonable probability the conditions 

resulting in Child’s removal or continued placement outside Parents’ care will 

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

a threat to Child’s well-being. See I.C. § 31-35-2-4(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 

that led to Child’s placement and retention in foster care will not be remedied. 

[24] In making a determination in this regard, the trial court must judge a parent’s 

fitness to care for his or her child at the time of the termination hearing, taking 

into consideration evidence of changed conditions. In re E.M., 4 N.E.3d 636,
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643 (Ind. 2014). 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. Further, the court may consider the parent’s

history of neglect and response to services offered through DCS. McBride v. 

Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 

2003).

[25] 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 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 at 643. Although trial courts are required to 

give due regard to changed conditions, this does not preclude them from finding 

that a parent’s past behavior is the best predictor of their future behavior. Id.

[26] The result in this case is particularly tragic because Mother and Father clearly 

love and are bonded with Child, and Child desires to be with one or both of 

them. The record establishes, however, that Parents have been given ample 

time to remedy the conditions that have resulted in Child’s placement and 

retention in foster care and to establish that they can safely parent and provide 

for Child. Most notably, Parents needed to remain free of alcohol and drugs, 

not commit new criminal offenses, and obtain suitable housing and 

employment. 
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[27] With respect to Mother, the trial court concluded that there existed clear and 

convincing evidence that there is a reasonable probability that the conditions 

that led to Child’s removal will not be remedied. Indeed, the evidence 

establishes that Mother has a long-standing cocaine problem that she has been 

unable to overcome and an ongoing pattern of criminal behavior. Despite 

completing inpatient treatment and apparently remaining drug-free for several 

months, she began using cocaine again in late 2014 and started another

downward spiral. In March 2015, after missing many appointments with 

service providers, Mother informed FCM Fisher that she had lost the will to 

fight. Mother last used cocaine on the date of her arrest for burglary, April 21, 

2015, and had ceased participating in all services by that date. The trial court 

observed that the only change in Mother’s status since June 2015 was that at the 

first termination hearing she was in jail on a pre-trial basis and now she has 

been convicted of the Level 4 felony burglary and will remain in prison until 

October 27, 2019. Child will be twelve years old by that date. The trial court’s 

conclusion is overwhelmingly supported by the evidence.

[28] Regarding Father, the trial court also found clear and convincing evidence of a 

reasonable probability that the conditions that resulted in Child’s removal and

the reasons for placement outside Father’s home will not be remedied. The trial 

court acknowledged Father’s positive progress between June and December 

2015, which unfortunately ended with the events of January 1, 2016. On this 

date Father caused an automobile accident while under the influence of 

alcohol, despite the fact that he should not have been driving or drinking. 
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Father was incarcerated again and had not seen or spoken with Child since 

December 28, 2015. He remained in jail at the time of the final hearing – once 

again unable to parent Child due to incarceration – and his release date is 

unclear. Further, at the time of his arrest, Father had still not obtained suitable 

and safe housing despite being employed and receiving services for 

approximately nine months. 

[29] In entering its conclusion regarding Father, the trial court explained:

The Court does not conclude that there is an absolute absence of 

hope that Father might someday successfully avoid the issues 

that he continues to create for himself, mostly through repeated 

periods of incarceration. Nonetheless, the evidence clearly and 

convincingly supports a reasonable probability that Father will not 

be able to remedy the obstacles to reunification with his son.

Appendix at 73 (emphases in original). The trial court’s conclusion in this regard 

is not clearly erroneous.2

[30] Having determined that the trial court’s conclusion that there is a reasonable 

probability the conditions resulting in Child’s removal and continued placement 

 

2

Parents’ attempt to liken this case to In re G.Y., 904 N.E.2d 1257 (Ind. 2009), a case in which our Supreme 

Court reversed the termination of a mother’s parental rights, is unavailing. In G.Y., the mother’s convictions 

were all committed before her child’s conception. The Court observed that after that time and for the first 

twenty months of the child’s life, “the record gives no indication that Mother was anything but a fit parent.” 

Id. at 1262. After her incarceration and her child’s adjudication as a CHINS, the mother “took positive steps 

and made a good-faith effort to better herself as a person and as a parent.” Id. Despite her incarceration, she 

remained committed to maintaining a relationship with her child and reunifying with him upon her release. 

Further, her release from prison was imminent, and she had already secured suitable housing and 

employment. Id. at 1265. Parents are far from on equal footing with the mother in G.Y.
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outside Parents’ home will not be remedied is supported by its findings of fact 

and not clearly erroneous, we need not reach the issue of whether continuation 

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

Additionally, Parents do not challenge the trial court’s conclusion that 

termination is in the best interests of Child.

[31] Parents’ remaining challenge concerns the trial court’s conclusion that there is a 

satisfactory plan for Child’s care and treatment. To be “satisfactory” for the 

purposes of the termination statute, a plan “need not be detailed, so long as it 

offers a general sense of the direction in which the child will be going after the 

parent-child relationship is terminated.” In re A.S., 17 N.E.3d 994, 1007 (Ind. 

Ct. App. 2014) (quoting Lang v. Starke Cnty. Office of Family & Children, 861 

N.E.2d 366, 375 (Ind. Ct. App. 2007), trans. denied), trans. denied. A plan of 

adoption is satisfactory even if DCS has not identified a specific adoptive 

family. Id. “In other words, there need not be a guarantee that a suitable 

adoption will take place, only that DCS will attempt to find a suitable adoptive 

parent.” Id. 

[32] In this case, Child has been cared for by the same foster family since his 

removal in October 2013. The foster family was prepared to adopt Child but 

due to unforeseen circumstances in the months leading up to the fact-finding 

hearing, they were no longer in a position to adopt. Child’s foster mother 

testified, however, that they would care for him until an adoptive family is 

found. FCM Hughes testified that DCS’s plan for Child was adoption through 

the Special Needs Adoption Program (SNAP). The CASA detailed the SNAP 
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process and opined that “there will be a lot of people express interest in 

[Child].” Transcript at 173.

[33] The trial court found that DCS’s plan of adoption was satisfactory for the 

purposes of the termination statute. We agree, as the plan offered by DCS gave 

a general sense of the direction for Child’s care and treatment following 

termination. See Lang, 861 N.E.2d at 374-75.

[34] For the foregoing reasons, we affirm the trial court’s termination of Parents’ 

parental rights to Child.

[35] Judgment affirmed.

[36] Bradford, J. and Pyle, J., concur.