Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 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

John T. Wilson

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

R.P., C.P. and A.A. (Minor Children),

and

L.B. (Mother)

Appellant-Respondent,

v.

The Indiana Department of Child 

Services,

Appellee-Petitioner.

December 7, 2016

Court of Appeals Case No.

48A02-1603-JT-482

Appeal from the Madison 

Circuit Court

The Honorable George G. 

Pancol, Judge

Trial Court Cause Nos.

48C02-1505-JT-35

48C02-1505-JT-36

48C02-1505-JT-37

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 2 of 17

Case Summary and Issue

[1] L.B. (“Mother”) appeals the juvenile court’s termination of her parental rights 

to her children R.P., C.P., and A.A. (“Children”), raising a sole restated issue: 

whether the juvenile court’s termination order is supported by clear and 

convincing evidence. Concluding the termination order is not clearly 

erroneous, we affirm.

Facts and Procedural History

[2] In the summer of 2012, the Indiana Department of Child Services (“DCS”)

received a report regarding the well-being of Mother’s youngest child, A.A. 

DCS investigated the report and concluded there was sufficient probable cause 

to determine A.A. was a child in need of services (“CHINS”) because the

children were found dirty and one child stated Mother smoked marijuana, 

Mother was never home, and Mother rarely cooked for the Children. 

Thereafter, DCS implemented a program of informal adjustment.

[3] On August 16, 2013, DCS received a report regarding Mother’s arrest for 

burglary; Mother committed the crime while A.A. was with her. Mother 

remained in jail for three months, and because no suitable caregivers were 

available to care for the Children, DCS removed the Children and placed them 

in foster care. DCS then filed a petition alleging the Children were CHINS. 

Following a fact-finding hearing at which Mother admitted the allegations set 

forth in the petition, the juvenile court adjudicated the Children as CHINS and 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 3 of 17

ordered Mother to participate in reunification services. Specifically, the 

juvenile court ordered Mother to obtain and maintain suitable housing and 

employment and to participate in home-based case work, home-based therapy, 

a family functional assessment, and supervised visitation. Mother’s 

participation in these services was sporadic.

[4] On December 26, 2013, Mother was sentenced in her criminal case to four 

years in the Department of Correction, with the entirety of the sentence 

suspended to probation. In July 2014, Mother failed a drug screen and the trial 

court in her criminal case issued a warrant for her arrest. Knowing she violated 

a condition of her probation, Mother left town in an attempt to evade law 

enforcement. Mother was later apprehended. The trial court revoked Mother’s 

probation and ordered her to serve a portion of her remaining sentence on 

house arrest. In November 2014, Mother—while on house arrest— failed 

another drug screen, cut off her ankle monitoring device, and left town. Mother 

was not apprehended until March 2015 and was incarcerated in the county jail 

until May 2015. The trial court then ordered Mother to serve the remainder of 

her sentence at a work release facility. 

[5] On May 4, 2015, DCS filed a request to end Mother’s reunification services and 

a petition for termination of Mother’s parental rights. The juvenile court 

granted the request to end services and scheduled an evidentiary hearing on the 

termination petition for September 15, 2015. At the evidentiary hearing, both 

the court-appointed special advocate (“CASA”) and the DCS family case 

manager testified Mother’s parental rights should be terminated, relying in part 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 4 of 17

on Mother’s sporadic participation in services, criminal history, inability to 

comply with the terms of probation and house arrest, and the improved 

attitude, stability, and lifestyle the Children enjoyed in their foster homes. 

Mother acknowledged she did not participate in services as she should, was 

confined to work release, and could be sent to the Department of Correction if 

she failed to comply with the terms of her work release. However, Mother

believed she was making the rights changes at the time of the hearing. 

Specifically, she stated she had been working as an assistant manager at 

Subway for over three months and was taking classes to attain her GED. 

Mother’s work release case manager testified Mother had not yet failed any 

drug screens or violated any policies or procedures. The case manager further 

explained Mother paid ahead on rent, completed a substance abuse evaluation, 

and completed numerous classes related to substance abuse, budgeting, and 

employment. At the conclusion of the hearing, the juvenile court took the 

matter under advisement.

[6] Nearly six months later, the parties convened for a review hearing. At the 

beginning of the hearing, the juvenile court stated it intended to terminate 

Mother’s parental rights, but wanted to give Mother one last opportunity to 

admit any additional evidence showing why her parental rights should not be 

terminated. Mother stated her work release had been modified to house arrest 

and she had rented a house. Mother further explained she still worked at 

Subway as an assistant manager. 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 5 of 17

[7] Following the review hearing, the juvenile court issued an order terminating 

Mother’s parental rights, finding in relevant part,

2. On or about August 16, 2013, Mother was arrested for 

burglary while [A.A.] was with her. Mother was subsequently 

incarcerated, and the children had no willing and/or available 

caregivers. On August 20, 2013, Mother entered an admission to 

the allegations in DCS’ Verified Petition Alleging Children are 

Children in Need of Services.

3. The children were found to be Children in Need of Services 

. . . and a dispositional order was issued on October 9, 2013. The 

children have remained out of the parents’ care continuously 

since that date.

4. Pursuant to dispositional orders, Mother was offered the 

following services: home-based therapy, home-based casework, 

family functional assessment, substance abuse evaluation, 

random drug screens and visitation.

* * *

6. Mother failed to demonstrate an ability to remedy her stability 

issues. Mother was provided home-based casework in order to 

find employment, find housing, develop life skills and develop 

parenting skills. Mother participated in home-based case work 

during the CHINS case but demonstrated patterns of 

inconsistency in attendance and participation. Mother stopped 

participating in home-based casework in November 2014. 

Mother was unable to secure stable housing during the course of 

the underlying CHINS case. In the past five (5) years, Mother 

resided at approximately thirteen (13) residences and was evicted 

twice. At the time of the Termination Hearing, Mother was 

residing at a work release facility and did not have a place to 

reside upon her release. Due to her inconsistency in attendance 

and failure to continue services past November 2014, Mother 

was unable to attain her home-based case goals regarding life and 

parenting skills.

7. Mother failed to demonstrate an ability to remedy her 

substance abuse issues. Mother was first offered home-based 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 6 of 17

therapy and random drug screens by DCS in August 2012 

through the implementation of an informal adjustment. DCS 

continued to offer Mother a substance abuse evaluation, homebased therapy and random drug screens throughout the existence 

of the underlying CHINS case. Mother participated in the 

substance abuse evaluation which recommended a family 

functional assessment, home-based therapy, home-based 

casework and random drug screens. Mother had approximately 

three years to address her substance abuse issues. Mother failed 

to follow any recommendations from her substance abuse 

assessment. 

8. Mother failed to demonstrate an ability to remedy and/or 

improve her mental health. Mother was offered home-based 

therapy during the course of the CHINS case. The goals of 

home-based therapy were to work through past traumatic 

incidents in Mother’s life, to develop coping skills and to develop 

coping skills relating to substance use. Due to Mother’s 

inconsistency in attendance and participation in home-based 

therapy, Mother was unable to meet any of her therapeutic goals. 

Mother voluntarily stopped participating in home-based therapy 

in November 2014.

9. Mother failed to demonstrate a commitment to her children. 

The last time Mother visited her children was in November 2014. 

Prior to November 2014, Mother demonstrated patterns of 

inconsistency in her attendance and participation in visitation. 

Mother arrived to visitations late, left visitations early and failed 

to attend visitations without notice. [A.A.] has demonstrated 

severe behavioral issues linked to his mother’s disappearance and 

instability in his life. Mother is aware of the effect her 

inconsistency in visitation had on her children.

10. Mother attended approximately seven (7) to nine (9) child 

and family team meetings during the course of the underlying 

CHINS case. Mother understood what she needed to 

accomplish in order for reunification to occur. Mother had three 

years to accomplish the reunification goals. Mother did not 

benefit from the services offered to her by DCS.

11. Prolonging permanency for these children is detrimental to 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 7 of 17

their well-being. All three children are engaged in home-based 

case work and therapy. [R.P.] and [C.P.] participate in services

to develop their life skills. All three children struggle with 

anxiety regarding instability in their lives. Prolonging 

permanency for these children will have a negative effect on their 

mental health.

12. The Court accepts the recommendations made by the DCS 

family case manager and CASA that the continuation of the 

parent-child relationship poses a threat to the children’s wellbeing.

13. The Court accepts the recommendations made by the DCS 

family case manager and CASA that termination is in the 

children’s best interest.

Appellant’s Appendix at 43-45. Mother now appeals. Additional facts will be 

added as necessary.

Discussion and Decision

I. Standard of Review

[8] When we review a termination of parental rights, we neither weigh the 

evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.

2011), and we consider only the evidence and reasonable inferences most 

favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114, 

1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered 

findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore 

apply a two-tiered standard of review: we first determine whether the evidence 

supports the findings and then determine whether the findings support the 

judgment. In re C.G., 954 N.E.2d at 923. “We will set aside the court’s 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 8 of 17

judgment terminating a parent-child relationship only if it is clearly erroneous. 

Clear error is that which leaves us with a definite and firm conviction that a 

mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted).

II. Termination Order

[9] “[T]he involuntary termination of parental rights is an extreme measure that is 

designed to be used as a last resort when all other reasonable efforts have failed 

. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original) 

(citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be 

proven in order to terminate parental rights, which we quote in relevant 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.

* * *

(C) that termination is in the best interests of the child . . . .

The State must prove each element by clear and convincing evidence. Ind.

Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile 

court determines that the allegations of the petition are true, then the court shall 

terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 9 of 17

[10] Mother contends the juvenile court’s termination order was clearly erroneous.1 

Specifically, she claims DCS failed to present clear and convincing evidence to 

establish there is a reasonable probability the conditions resulting in the 

Children’s removal will not be remedied, a reasonable probability the 

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

the Children, and that termination is in the best interests of the Children. 

A. Remedy of Conditions

[11] “In determining whether the conditions that led to a child’s removal will not be 

remedied,” the juvenile court “must judge a parent’s fitness to care for her child 

at the time of the termination hearing and take into consideration evidence of 

changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). 

“[I]t is not just the basis for the initial removal of the child that may be 

considered for purposes of determining whether a parent’s rights should be 

terminated, but also those bases resulting in the continued placement outside of 

the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. 

The juvenile court must also “evaluate the parent’s habitual patterns of conduct 

to determine the probability of future neglect or deprivation of the child.” In re 

A.B., 924 N.E.2d at 670 (citation omitted). However, the trial court’s findings 

cannot focus solely on historical conduct absent findings as to the parent’s

 

1 We note Mother does not challenge any findings of fact and we therefore accept those as true. See In re 

B.R.., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (noting a parent waived a claim the juvenile court’s findings 

or conclusions were clearly erroneous by failing to specifically challenge the court’s findings or conclusions), 

trans. denied.
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 10 of 17

current circumstances or evidence of changed conditions. In re C.M., 960 

N.E.2d 169, 175 (Ind. Ct. App. 2011). The juvenile court may also consider the 

services the State offered to the parent and the parent’s response to such 

services. In re A.B., 924 N.E.2d at 670.

[12] The findings establish the Children were initially removed from Mother’s care 

because Mother committed burglary while with A.A., Mother was arrested, and 

no suitable caregivers were available for the Children. The juvenile court 

continued the Children’s removal due to Mother’s sporadic participation in 

services, Mother’s drug use, Mother’s violation of the terms of her probation 

and house arrest, and Mother leaving town twice to evade law enforcement. In 

maintaining DCS did not meet its burden, Mother argues the juvenile court 

focused solely on her past parental shortcomings and failed to consider 

evidence of her current circumstances and changed conditions, namely her 

progress through work release. Mother points to evidence at the time of the 

termination hearing that she had not failed any recent drug tests, she was 

working toward her GED, she attended several classes, including substance 

abuse classes, and had maintained stable employment. Mother also points to 

evidence admitted at the review hearing that her work release had been 

modified to house arrest, she rented a home, and continued to work at Subway. 

[13] We acknowledge the trial court’s findings must contain evidence of Mother’s 

current circumstances and changed conditions and the juvenile court did not 

enter any specific findings pertaining to Mother’s current circumstances except 

for the finding that Mother was confined to work release. However, we further 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 11 of 17

note a juvenile court has discretion to weigh such evidence against “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.” 

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 199 (Ind. 

Ct. App. 2003). A juvenile court also has the discretion to disregard the efforts 

a parent makes only shortly before termination and to weigh more heavily a 

parent’s history of conduct prior to those efforts. K.T.K. v. Ind. Dep’t of Child 

Servs., 989 N.E.2d 1225, 1234 (Ind. 2013).

[14] We commend Mother for her conduct during recent periods of work release 

and house arrest. We are mindful, however, the juvenile court was within its 

discretion to consider the fact Mother’s progress only occurred a few months 

prior to the termination hearing and while Mother was confined to work release

and house arrest, both of which carried the threat Mother could be incarcerated 

for any misconduct. The juvenile court weighed Mother’s recent 

accomplishments while on work release and house arrest against her conduct 

while on informal adjustment, her criminal and substance abuse history, her 

inability to secure stable housing, and her lack of participation in reunification 

services.2 As to services, DCS offered reunification services years before the 

 

2 This is evidenced by the juvenile court giving Mother an additional opportunity to update the court on her 

progress and further evidenced when it stated, 

This has been a very difficult decision for me. I do think that the Department is correct. That at 

the time of the hearing and even know [sic], I do feel . . . what has happened that caused the 

removal and everything [that] has happened since, that even though [Mother], I congratulate 

you on what you have done to get yourself on your feet and I hope you keep doing it and keep 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 12 of 17

termination hearing and it is clear the juvenile court considered Mother’s

historical responses to such services. Mother did not begin to take consistent 

steps towards a better lifestyle until she was confined to work release—only four 

months prior to the termination hearing. It was Mother’s responsibility to 

rehabilitate herself during the CHINS proceedings and prior to DCS filing a 

petition to terminate her parental rights. See Prince v. Dep’t of Child Servs., 861 

N.E.2d 1223, 1230 (Ind. Ct. App. 2007). Mother failed to do so and we cannot 

say Mother’s current conduct would remain consistent but-for the court’s 

current supervision.

[15] Further, the evidence establishes Mother was placed on probation and house 

arrest and violated the terms of each, all while she was supposed to be 

completing services to reunify with the Children. In addition, not only did 

Mother violate the terms of her probation and house arrest, she left town each 

time in an attempt to evade law enforcement. Such a decision required her to 

cease participation in services, including visitation with her Children. It is clear 

Mother put herself before her Children’s interests. We conclude DCS presented 

sufficient evidence to show a reasonable probability the conditions leading to 

 

yourself out of any further trouble . . . . [F]or your life, that at this point, I don’t think that the 

issues that were presented to me have been or can be remedied . . . .

Transcript at 110.
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 13 of 17

the Children’s removal or to their continued placement outside the home will 

not be remedied.3

B. Best Interests of the Children

[16] Mother argues DCS failed to prove termination of her parental rights was in the 

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

child, the [juvenile] court is required to look beyond the factors identified by the 

DCS and look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149 

(Ind. Ct. App. 2009).

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

terminating the parent-child relationship. Recommendations of 

the case manager and court-appointed advocate, in addition to 

evidence that the conditions resulting in removal will not be 

remedied, are sufficient to show by clear and convincing 

evidence that termination is in the child’s best interests.

In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans. 

denied.

[17] As noted above, DCS presented evidence sufficient to show a reasonable 

probability the conditions resulting in the Children’s initial and continued 

 

3 Mother also contends the juvenile court erred in finding continuation of the parent-child relationship 

posed a threat to the Children’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is 

written in the disjunctive and requires only one element in that subsection be proven to support 

termination of parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we 

conclude the evidence is sufficient to show a reasonable probability the conditions resulting in the 

Children’s removal will not be remedied, we need not determine whether the juvenile court erred in 

concluding continuation of the parent-child relationship posed a threat to the Children’s well-being.
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 14 of 17

removal will not be remedied. In addition, both the CASA and family case 

manager testified at the evidentiary hearing that Mother’s parental rights should 

be terminated. We further note permanency is a vital consideration in 

determining a child’s best interest. In re G.Y., 904 N.E.2d at 1265. Here, the 

findings indicate Mother and the Children lived in thirteen different residences 

over a five-year period. In addition, Mother has not had visitation with the 

Children since November 2014. The Children have been in foster care since 

August 2013 and both the CASA and family case manager testified Mother’s 

reunification with the Children would negatively affect the Children because 

the Children have thrived in their foster homes. We conclude DCS presented 

clear and convincing evidence from which the juvenile court could conclude 

termination of Mother’s parental rights was in the Children’s best interest.

Conclusion

[18] DCS established by clear and convincing evidence the elements necessary to 

support the termination of Mother’s parental rights. The judgment of the 

juvenile court terminating Mother’s parental rights is affirmed.

[19] Affirmed.

Mathias, J., concurs.

Brown, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 15 of 17

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

R.P., C.P. and A.A. (Minor 

Children),

and

L.B. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

Court of Appeals Case No.

48A02-1603-JT-482

Brown, Judge, dissenting.

[20] I respectfully dissent from the majority’s decision to affirm the juvenile court’s 

termination of Mother’s parental rights in that the juvenile court failed to make 

any findings or otherwise consider Mother’s efforts at remediation presented 

either at the September 15, 2015 hearing or at the review hearing held six 

months later. In determining whether the conditions that resulted in the 

children’s removal will not be remedied, this Court engages in a two-step 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 16 of 17

analysis. In re E.M., 4 N.E.3d 636, 642-643 (Ind. 2014). First, we identify the 

conditions that led to removal, and second, we determine whether there is a 

reasonable probability that those conditions will not be remedied. Id. at 643. In 

the second step, the trial court must judge a parent’s fitness as of the time of the 

termination proceeding, taking into consideration evidence of changed 

conditions, balancing a parent’s recent improvements against habitual patterns 

of conduct to determine whether there is a substantial probability of future 

neglect or deprivation. Id.

[21] In this matter, the Children were removed following Mother’s arrest for 

burglary in 2013. Evidence was presented that, at the time of the final review 

hearing, Mother had rented a home and was serving the remainder of her 

sentence on house arrest. She also had held a job as an assistant manager at 

Subway for nine months and had been taking classes to obtain her GED. 

Mother’s work release case manager testified at the termination hearing that 

Mother had not failed any drug tests or violated any policies or procedures, had 

completed a substance abuse evaluation, had completed classes related to 

substance abuse, budgeting, and employment, and even paid ahead on her rent. 

The court’s termination order overlooked such evidence and did not include it 

in its findings, instead focusing almost exclusively on evidence derived from the 

underlying CHINS case.

[22] Terminating a parent-child relationship is of such importance that we must be 

convinced the trial court has based its judgment on proper considerations and 

did so based upon clear and convincing evidence. See, e.g., Parks v. Delaware 
Court of Appeals of Indiana | Memorandum Decision 48A02-1603-JT-482 | December 7, 2016 Page 17 of 17

Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1280-1281 (Ind. Ct. App. 2007). I 

do not believe that this court can make such a determination based on the trial 

court’s findings. Although the termination order addressed Mother’s past 

parental shortcomings in its findings of fact, the court failed to make any 

findings regarding her fitness to care for the Children at the time of the 

termination hearing. I believe that the trial court’s focus on historical conduct, 

absent any factual findings as to Mother’s current circumstances or evidence of 

changed conditions, is akin to terminating parental rights in order to punish the 

parent. See, e.g., In re C.M., 960 N.E.2d 169, 175 (Ind. Ct. App. 2011). I would 

reverse the court’s termination order and remand for the court to consider and 

make findings concerning mother’s efforts at remediation and their impact on 

these proceedings. See K.E. vs. Ind. Dept. of Child Servs., 39 N.E.3d 641, 649, 652 

(Ind. 2015) (holding that the father’s release from prison was impending and 

that he has made substantial efforts toward bettering his life through programs 

available during his incarceration, that the court did not balance such recent 

improvements against his habitual patterns of conduct in its order, and that 

accordingly it was not proven by clear and convincing evidence that the father 

could not remedy the conditions leading to the child’s removal, and reversing 

the court’s termination order).