Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JT-907 | December 2, 2016 Page 1 of 14

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

James A. Edgar

J. Edgar Law Offices, P.C.

Indianapolis, 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:

I.C. and Z.S., minor children, 

and

C.S., Mother

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

December 2, 2016

Court of Appeals Case No.

49A02-1604-JT-907

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Larry E. Bradley, 

Magistrate

Trial Court Cause No.

49D09-1506-JT-416

49D09-1506-JT-417

Mathias, Judge.
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[1] The Marion Superior Court terminated C.S.’s (“Mother”) parental rights to her 

two minor children. C.S. appeals and raises two issues.

I. Whether the Department of Child Services (“DCS”) proved that there is 

a reasonable probability that continuation of the parent-child relationship 

posed a threat to I.C.’s well-being; and,

II. Whether C.S. was compelled to testify that she smoked marijuana, which 

violated her privilege against self-incrimination, and therefore, was 

denied her right to a fair trial.

[2] We affirm.

Facts and Procedural History

[3] In June 2012, Mother gave birth to I.C. Shortly after his birth, Mother was 

hospitalized for an infection for approximately three weeks. While Mother was 

in the hospital, I.C.’s father and maternal grandmother cared for him. During 

Mother’s hospitalization, a relative took one-month-old I.C. to the hospital and 

he was diagnosed with an open wound on his neck, rib fractures, broken collar 

bone, and a spinal column fracture. 

[4] I.C. was adjudicated a child in need of services (“CHINS”) on August 14, 2012. 

I.C. was placed in a foster home and Mother was ordered to participate in 

services including parenting and domestic violence classes, and therapy. Mother 

complied with services and participated in supervised visitation.
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[5] On July 19, 2014, I.C. was returned to Mother’s care for a trial home visit. On 

this date, Mother was also pregnant with her second child. Z.S. was born on 

August 10, 2014.1 Z.S. weighed under five pounds at birth. 

[6] Shortly after Z.S.’s birth, DCS removed both children from Mother’s care. Z.S. 

was adjudicated a CHINS after Mother admitted that she was unable to 

properly care for him and meet his special medical needs. Z.S. suffers from 

severe persistent asthma, gross motor developmental delay, and low muscle 

tone. Doctors describe him as medically fragile. Numerous environmental 

triggers, including smoke and secondhand smoke, can exacerbate Z.S.’s asthma 

to the point where he requires hospitalization. I.C. also suffers from asthma, but 

his condition is not as severe. Mother is a smoker and has been unable to quit 

smoking for any significant length of time.

[7] The DCS case worker who removed the children from Mother’s home in 

August 2014 observed safety concerns and a lack of edible food in the home. 

Mother was also not properly caring for the children and relied on physical 

discipline. Mother was ordered to continue to participate in reunification 

services. 

[8] After I.C. was removed from Mother’s care for the second time, he began to 

experience separation anxiety and feared being separated from anyone. When 

 

1 The children have different biological fathers, and the fathers’ parental rights are not at issue in this appeal. 

I.C.’s father’s parental rights were terminated in October 2015. Mother does not know the full name of Z.S.’s 

father.
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I.C. feels anxious, he makes himself vomit. I.C. participates in therapy. His 

therapist believes he is bonded to his foster parents and any change in his 

placement could cause negative long-term effects. His therapist strongly believes 

that a permanent home is important for I.C. because of the instability in his 

young life and attachment concerns.

[9] Mother participated in services including supervised visitation. However, 

visitation never progressed beyond supervised. Mother was taught how to clean 

her home to remove the smell of smoke and given tools to help her quit 

smoking. Mother has not been able to quit smoking and admits that she smokes 

when she feels stressed. Service providers smelled smoke in Mother’s home on 

occasion, though not every time they visited.

[10] Mother participated in therapy but missed the last three sessions in the weeks 

leading up to the termination hearing. She was also informed of, but failed to 

attend, a majority of the children’s medical appointments. The guardian ad 

litem expressed concern that Mother does not understand the children’s 

medical needs and that she continues to smoke despite the negative effects on 

her children’s health, particularly Z.S.

[11] The service providers agreed that Mother has had sufficient time and services to 

address the issues that led to the children’s removal. On the date of the 

termination hearing, nearly four-year-old I.C. was in Mother’s care for only two 

months since his birth. After his second removal in September 2014, Mother’s 

visitation was continually supervised. 
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[12] The DCS filed a petition to terminate Mother’s parental rights to I.C. and Z.S. 

on June 2, 2015, and a hearing was held on the petition on March 21, 2016.

The trial court issued its order terminating Mother’s parental rights to both 

children on April 11, 2016. The trial court found and concluded that

15. [Mother] receives monthly disability income of seven 

hundred and fifty-three dollars for cognitive deficiencies. She also 

receives food stamps.

16. [Mother] has maintained an apartment for three years. She 

has trouble maintaining her utilities. [Mother] estimates her rent 

and utilities to be around six hundred and seventy-five dollars per 

month.

17. [Mother] exercises eight hours of parenting time with the 

children. [I.C. and Z.S.] demonstrate a bond with their mother. 

[Mother] is appropriate, affectionate and engaging during 

parenting time.

18. During the time the CHINS cases have been pending, 

[Mother] has completed parenting classes, a domestic violence

class, and had completed most of her home based case 

management and therapy.

19. [Mother] has not made herself available for her last three 

therapy sessions. Four weeks ago, the therapist smelled cigarette 

smoke in [Mother’s] apartment.

20. [Z.S. and I.C.] have resided together in the same foster home 

since their respective placements in August 2014 and September 

2014. This placement is pre-adoptive.
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21. [I.C.] has special needs which include reactive airwaves 

disease, and receives therapy for delays in his speech. He also 

sees a therapist and doctor for an anxiety disorder.

22. [I.C.’s] therapist, Malinda Cox, sees [I.C.] as also having 

Reactive Attachment Disorder which could come from being in 

several placements during his long standing CHINS case. She 

believes he could be affected negatively if moved again causing 

more anxiety. Ms. Cox also believes that [I.C.] needs a 

permanent home that is stable and routine to avoid long term 

negative effects.

23. [I.C.] has been out of his mother’s care all of his life with the 

exception of a couple of months in 2014.

24. [Z.S.] has been out of his mother’s care all of his life with the 

exception of approximately one week.

25. [Z.S.] has special needs which include severe asthma, a 

swallowing issue, low tone muscles, and developmental issues.

26. [Z.S.] takes daily medicine for his asthma. He also uses a 

nebulizer as needed. He has been hospitalized four times in 2015

with breathing complications. The hospitalizations occurred after 

parenting time.

27. Cigarette smoke, strong odors and fragrances, animals, 

pollution, indoor mold, and cold weather can all be triggers for 

the children’s breathing problems.

***

33. [Mother’s] plan, other than not to smoke, is to go outside and 

to do it. After all this time, [Mother] still does not seem to grasp 
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the utmost importance of keeping her children, especially [Z.S.], 

from any contact with cigarette smoke.

34. [Mother] has attended some of her children’s medical 

appointments. She was provided with the appointment dates. 

She does not have a full awareness of all the children’s medical 

issues.

35. On June 2, 2015, the CHINS Court changed the children’s 

plan for permanency from reunification to adoption. At that time 

the Court found, in part, that the cases had been open since July 

2012 and August 2014, and no service provider had 

recommended that the children be placed into the care of their 

mother, that smoking continued to be an issue, and that [I.C.’s]

therapist stressed that he had been in “limbo” for about three 

years and needed permanency.

***

37. Continuation of the parent-child relationship poses a threat to 

the children’s well-being. The children have been placed out of 

the home for a considerable amount of time with no service 

provider recommending unsupervised visitation at this point. The 

children need and deserve a permanent home where their health 

is not endangered. If placed in the home with their mother, the 

threat to well-being could be life threatening, especially to [Z.S.]

if around smoke, even on clothes and furniture. Upon observing 

[Mother] during the trial and listening to her testimony, the 

Court has grave concerns that the children would not continue 

with their myriad of medical and services appointments due to 

scheduling and transportation, and the possible stress it would 

cause [Mother] when trying to meet her children’s special needs.
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Appellant’s App. pp. 31-32. The trial court also concluded that termination was 

in the children’s best interests and the foster home is pre-adoptive.

[13] Mother now appeals the termination of her parental rights to I.C. and argues 

that she was denied a fair trial. Additional facts will be provided as necessary.

Standard of Review

[14] In the appellate review of a termination of parental relationship, the following 

standard applies:

We do not reweigh the evidence or determine the credibility of 

witnesses, but consider only the evidence that supports the 

judgment and the reasonable inferences to be drawn from the 

evidence. We confine our review to two steps: whether the 

evidence clearly and convincingly supports the findings, and then 

whether the findings clearly and convincingly support the 

judgment.

In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quotations and citations omitted). “In 

the appellate review of claims alleging a lack of proof by clear and convincing 

evidence, the reviewing court must [] determine whether there is probative 

evidence from which a reasonable fact-finder could have found the challenged 

matters proven by clear and convincing evidence.” In re N.G., 51 N.E.3d 1167, 

1170 (Ind. 2016).

I. Whether Continuation of the Parent-Child Relationship Poses a 

Threat to I.C.’s Well-Being

[15] The traditional right of parents to establish a home and raise their children is 

protected by the United States Constitution, but may be terminated when 
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parents are unable or unwilling to meet their parental responsibilities. Bester v. 

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

DCS seeks to terminate the parent-child relationship of a child that has been 

adjudicated as a CHINS, its petition must allege:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least 

six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 

that reasonable efforts for family preservation or 

reunification are not required, including a description of 

the court's finding, the date of the finding, and the manner 

in which the finding was made.

(iii) The child has been removed from the parent and has 

been under the supervision of a local office or probation 

department for at least fifteen (15) months of the most 

recent twenty-two (22) months, beginning with the date 

the child is removed from the home as a result of the child 

being alleged to be a child in need of services or a 

delinquent child;

(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.
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(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;

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

(D) that there is a satisfactory plan for the care and treatment of 

the child.

Ind. Code § 31-35-2-4(b)(2)(A)-(D). If the trial court finds that each of these 

allegations “are true,” it must “terminate the parent-child relationship.” Ind. 

Code § 31-35-2-8(a). The trial court must enter findings of fact that support its 

conclusions. Ind. Code § 31-35-2-8(c). “[A] finding in a proceeding to terminate 

parental rights must be based upon clear and convincing evidence.” Ind. Code § 

31-34-12-2.

[16] Importantly, a trial court need not wait until a child is irreversibly influenced by 

a deficient lifestyle such that his physical, mental, and social growth is 

permanently impaired before terminating the parent-child relationship. In re 

E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows 

that the emotional and physical development of a child in need of services is 

threatened, termination of the parent-child relationship is appropriate. Id.

[17] Mother argues that the DCS failed to prove that there was a reasonable 

probability that continuation of the parent-child relationship poses a threat to 
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I.C.’s well-being because “there is no medical testimony in the record that 

would indicate that [her] use of cigarettes endangered I.C.’s health.” 

Appellant’s Br. at 13. We agree that Mother’s smoking habit poses a much 

greater threat to Z.S., who is medically fragile, than to I.C. However, I.C. does 

suffer from asthma, and we may logically conclude that residing in a home with 

Mother, who smokes, would negatively impact his health.

[18] Also, the trial court did not limit its conclusion of law concerning the threat to 

I.C.’s well-being to Mother’s smoking habit. Specifically, the court concluded 

that:

The children have been placed out of the home for a considerable 

amount of time with no service provider recommending 

unsupervised visitation at this point. The children need and 

deserve a permanent home where their health is not endangered. 

If placed in the home with their mother, the threat to well-being 

could be life threatening, especially to [Z.S.] if around smoke, 

even on clothes and furniture. Upon observing [Mother] during 

the trial and listening to her testimony, the Court has grave 

concerns that the children would not continue with their myriad 

of medical and services appointments due to scheduling and 

transportation, and the possible stress it would cause [Mother] 

when trying to meet her children’s special needs.

Appellant’s App. p. 32.

[19] I.C., who was nearly four years old on the date of the hearing, has only been 

placed in Mother’s care for two months of his young life. As a result of his 

placement in multiple foster homes, and his brief, temporary stay with Mother, 

I.C. suffers from separation anxiety and reactive attachment disorder. I.C.’s 
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therapist emphasized that I.C. needs a stable, permanent home and another 

move could have a long-term negative effect on him. 

[20] Mother has demonstrated that she is able to care for I.C. for short, supervised 

periods of time. However, her visits have remained supervised because Mother 

has not shown that she was capable of progressing beyond supervised visitation. 

Moreover, the evidence supports the trial court’s finding that Mother does not 

fully comprehend I.C.’s medical issues, and that Mother would be unable to 

continue to maintain I.C.’s medical and service appointments. 

[21] For all of these reasons, we conclude that the DCS presented clear and 

convincing evidence that there is a reasonable probability that the continuation 

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

II. Self-Incrimination

[22] The Fifth Amendment's Self-incrimination Clause provides that no person 

“shall be compelled in any criminal case to be a witness against himself.” U.S. 

Const. amend. V. This protection extends to state cases by virtue of the 

Fourteenth Amendment. See Withrow v. Williams, 507 U.S. 680, 688-89 (1993). 

“[T]his prohibition not only permits a person to refuse to testify against himself 

at a criminal trial . . . but also ‘privileges him not to answer official questions 

put to him in any other proceeding, civil or criminal, formal or informal, where 

the answers might incriminate him in future criminal proceedings.’” Minnesota 

v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted); see also Clifft v. Ind. Dep't. 

of State Revenue, 660 N.E.2d 310, 314 (Ind. 1995). 
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[23] However, “[t]he Fifth Amendment prohibits only compelled testimony that is 

incriminating.” Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 190 (2004). 

If those two elements are present,

a witness protected by the privilege may rightfully refuse to 

answer unless and until he is protected at least against the use of 

his compelled answers and evidence derived therefrom in any 

subsequent criminal case in which he is a defendant. Absent such 

protection, if he is nevertheless compelled to answer his answers 

are inadmissible against him in a later criminal prosecution.

Lefkowitz v. Turley, 414 U.S. 70, 78 (1973).

[24] Here, Mother was compelled to admit that she smoked marijuana over her 

objection that she had the right not to incriminate herself. Tr. pp. 66-67. Mother 

argues that the trial court “placed [her] in the precarious position of choosing to 

admit to smoking marijuana and expose herself to criminal prosecution or to 

refuse to answer, expose herself to contempt sanctions, and lose credibility with 

the court.” Appellant’s Br. at 17. Further, she claims that her “compelled 

admission of her use of marijuana was so prejudicial that it denied her a fair 

trial.” Id. at 19.

[25] We cannot agree. Mother testified that she used marijuana in the past (without 

a prescription) because she has vision problems. No testimony or other 

allegations indicated that she is a current marijuana user. The testimony was 

limited, and the DCS did not make any reference to the admission in its closing 

argument. Importantly, the trial court did not make any reference to Mother’s 

statement that she previously used marijuana in its order terminating her 
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parental rights. On the record before us, we cannot conclude that Mother’s 

compelled testimony that she smoked marijuana was considered by the trial 

court when it determined that Mother’s parental rights to I.C. and Z.S. should 

be terminated. Therefore, Mother has not established that she was denied a fair 

trial.

Conclusion

[26] We affirm the trial court’s order terminating Mother’s parental rights to I.C. 

and also conclude that Mother was not denied a fair trial.

[27] Affirmed.

Robb, J., and Brown, J., concur.