Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 1 of 10

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

Harold E. Amstutz

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.,

Attorney General of Indiana

James D. Boyer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

M.D., M.D., and M.E., (minor 

children);

S.E. (mother)

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

May 25, 2017

Court of Appeals Case No.

79A04-1701-JT-109

Appeal from the Tippecanoe

Superior Court

The Honorable Faith A. Graham, 

Judge

Trial Court Cause Nos.

79D03-1603-JT-30

79D03-1603-JT-31

79D03-1603-JT-32

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 2 of 10

Statement of the Case

[1] S.E. (“Mother”) appeals the termination of the parental relationship with her 

children, Mar.D. (“Mar.D”), Mas.D.(“Mas.D.”), and Me.D. (“Me.D.”),

(collectively “the children”), claiming that: the Department of Child Services 

(“DCS”) failed to prove by clear and convincing evidence that (1) there is a 

reasonable probability that the conditions that resulted in the children’s removal 

or the reasons for placement outside Mother’s home will not be remedied; (2) a 

continuation of the parent-child relationship poses a threat to the children’s 

well-being; and (3) termination of the parent-child relationship is in the 

children’s best interests. Concluding that there is sufficient evidence to support 

the termination of the parent-child relationship, we affirm the trial court’s 

judgment.1

[2] We affirm.

Issue

Whether there is sufficient evidence to support the termination of 

the parent-child relationship.

 

1 Mar.D. and Mas.D. have the same father. His parental rights were terminated in the same order that 

terminated Mother’s parental rights. However, he is not a party to this appeal. Me.D.’s father voluntarily 

relinquished his parental rights before the termination hearing.
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 3 of 10

Facts

[3] Mother is the parent of son, Mar.D, who was born in December 2009; son,

Mas.D, who was born in January 2012; and daughter, Me.D., who was born 

prematurely in January 2015. Me.D.’s meconium also tested “extremely high” 

for THC, which is found in marijuana. (DCS Ex. 4 at 8). While Me.D. was in 

the Neo-Natal Intensive Care Unit, DCS received a report alleging the neglect 

of Mar.D and Mas.D. relating to their living conditions. At that time, Mother 

and the two boys were living with the boys’ paternal grandmother, paternal 

uncle, paternal uncle’s girlfriend, and their three children. DCS received a 

second report at the end of the month alleging the same conditions. 

[4] At the time of DCS’s initial visit to the house, the odor was “overwhelming.” 

(DCS Exhibit 4 at 8). Cockroaches ran around the living room, which was 

filled with bags of dirty clothes and trash. There were also cockroaches in the 

kitchen cabinets and refrigerator. The family acknowledged both a cockroach 

and bedbug infestation, and there were only two beds for the nine residents. 

The boys were removed from Mother’s home and placed in foster care.

[5] In April 2015, all three children were adjudicated to be children in need of 

services (“CHINS”). Mother was court-ordered to: (1) obtain and maintain 

safe housing suitable for the children; (2) obtain and maintain a legal and stable 

source of income; (3) abstain from the use or possession of illegal drugs; and (4) 

submit to random urine drug screens. Mother was also ordered to participate 

in: (1) therapy; (2) home-based case management services; (3) an intensive 

outpatient program; and (4) supervised parenting time. 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 4 of 10

[6] In March 2016, DCS filed a petition to terminate Mother’s parental rights. At 

the May 2016 termination hearing, all participants in the case learned that 

Mother was in the hospital because she had just given birth to a fourth child. 

The trial court rescheduled the hearing for August 2016 so that Mother could 

attend. At that hearing, the evidence revealed that Mother was sleeping in a 

homeless shelter and had never obtained suitable housing for the children. She 

had also failed to maintain stable employment and had missed seventy of 

seventy-five to seventy-eight scheduled drug screens. The few drug screens that 

she had submitted had been positive for marijuana. Mother had been 

unsuccessfully discharged from therapy and had never attended the intensive 

outpatient program. She had also been discharged from the home-based case 

management services program because she had showed no initiative and had 

failed to make any progress. The evidence further revealed that Mother had 

been unable to manage her children by herself during supervised visitation.

[7] Mother testified that in September 2015, she had been shot in the back at her 

sister’s home. She also testified that she had been a daily marijuana user until 

May 2016. Mother specifically explained that smoking marijuana was a “stress 

reliever from everything that was going on.” (Tr. 53). 

[8] Family Case Manager Carol Mullen (“Case Manager Mullen”) testified that 

Mar.D., who had been diagnosed with autism, had demonstrated significant 

social impairment when he had been removed from Mother’s home. Although 

Mar.D. was five years old at the time of removal, he did not eat solid food and 

was still wearing diapers. Both boys had tooth decay, and neither had had 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 5 of 10

routine medical care. The two boys did not interact with each other and had 

significant sleep issues. At the time of the termination hearing, Mar.D. was 

eating solid food, had demonstrated verbal skills, and was attending 

developmental preschool. Case Manager Mullen testified that termination was 

in the children’s best interests “[b]ecause the parents [were] not able to take of 

the children and provide them with developmental needs or even provide them

with basic safety in [Mother’s] case.” (Tr. 127). CASA Valerie Adkins 

(“CASA Adkins”) testified that the children had been removed from Mother’s

home because of Mother’s drug use and the condition of the home. Like Case 

Manager Mullen, CASA Adkins testified that termination was in the children’s 

best interests.

[9] Following the hearing, the trial court issued a detailed order terminating 

Mother’s parental rights. Mother now appeals. 

Decision

[10] Mother argues that there is insufficient evidence to support the termination of 

her parental rights. The Fourteenth Amendment to the United States 

Constitution protects the traditional right of parents to establish a home and 

raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, 

the law provides for termination of that right when parents are unwilling or 

unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 

(Ind. 2005). The purpose of terminating parental rights is not to punish the 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 6 of 10

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. 

App. 1999), trans. denied.

[11] A petition to terminate parental rights must allege:

(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.

(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). DCS must prove the alleged circumstances by 

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[12] When the trial court’s judgment contains specific findings of fact and 

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56 

N.E.3d 625, 628 (Ind. 2016).924 ne2d2 First, we determine whether the 

evidence supports the findings, and second, we determine whether the findings 

support the judgment. Id. We will set aside a trial court’s judgment 

terminating a parent-child relationship only if it is clearly erroneous. Id. 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 7 of 10

Findings are clearly erroneous only when the record contains no facts or 

inferences to be drawn therefrom that support them. In re A.G., 6 N.E.3d 952, 

957 (Ind. Ct. App. 2014). A judgment is clearly erroneous if the findings do not 

support the trial court’s conclusions or the conclusions do not support the 

judgment. Id. 

[13] As a preliminary matter, we note that Mother challenges none of the trial 

court’s findings. As a result, she has waived any argument relating to whether 

these unchallenged findings are clearly erroneous. See McMaster v. McMaster, 

681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial 

court findings were accepted as true). We now turn to the issue in this case.

[14] Here, Mother argues that there is insufficient evidence to support the 

termination of her parental rights. Specifically, she first contends that the 

evidence is insufficient to show that there is a reasonable probability that: (1) 

the conditions that resulted in the children’s removal or the reasons for 

placement outside the parent’s home will not be remedied; and (2) a 

continuation of the parent-child relationships poses a threat to the children’s 

well-being.

[15] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the 

disjunctive. Therefore, DCS is required to establish by clear and convincing 

evidence only one of the three requirements of subsection (B). In re A.K., 924 

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there 

is a reasonable probability that the conditions that resulted in the children’s
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 8 of 10

removal or the reasons for her placement outside Mother’s home will not be 

remedied.

[16] In determining whether the conditions that resulted in a child’s removal or 

placement outside the home will not be remedied, we engage in a two-step 

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the 

conditions that led to removal or placement outside the home and then 

determine whether there is a reasonable probability that those conditions will 

not be remedied. Id. The second step requires trial courts to judge a parent’s 

fitness at the time of the termination proceeding, taking into consideration 

evidence of changed conditions and balancing any recent improvements against 

habitual patterns of conduct to determine whether there is a substantial 

probability of future neglect or deprivation. Id. Habitual conduct may include 

parents’ prior criminal history, drug and alcohol abuse, history of neglect, 

failure to provide support, and a lack of adequate housing and employment. 

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), 

trans. denied. The trial court may also consider services offered to the parent by 

DCS and the parent’s response to those services as evidence of whether 

conditions will be remedied. Id. Requiring trial courts to give due regard to 

changed conditions does not preclude them from finding that a parent’s past 

behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643. 

[17] Here, our review of the evidence reveals that the children were removed from 

Mother because she was unable to provide them with safe and secure housing. 

She also regularly abused marijuana. At the time of the hearing, Mother was 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 9 of 10

sleeping in a homeless shelter, had been unsuccessfully discharged from 

therapy, and had never attended an intensive outpatient program. She had also 

been discharged from the home-based case management services program 

because she had showed no initiative and had failed to make any progress. 

This evidence supports the trial court’s conclusion that DCS proved by clear 

and convincing evidence that there is a reasonable probability that the 

conditions that resulted in the children’s removal or the reasons for placement 

outside Mother’s home will not be remedied. 

[18] Next, Mother argues that there is insufficient evidence that the termination was

in the children’s best interests. In determining whether termination of parental 

rights is in the best interests of a child, the trial court is required to look at the 

totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), 

trans. denied. In so doing, the court must subordinate the interests of the parents 

to those of the child involved. Id. Termination of the parent-child relationship 

is proper where the child’s emotional and physical development is threatened. 

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial 

court need not wait until the child is irreversibly harmed such that his physical, 

mental, and social development is permanently impaired before terminating the 

parent-child relationship. In addition, a child’s need for permanency is a 

central consideration in determining the child’s best interests. In re G.Y., 904 

N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers 

may support a finding that termination is in the child’s best interests. McBride v. 
Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 10 of 10

Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 

2003). 

[19] Here, our review of the evidence reveals that Mother has not been able to 

maintain stable housing or employment since the children’s removal in 

February 2015. In addition, both the family case manager and the CASA 

testified that termination is in the children’s best interests. This evidence 

supports the trial court’s conclusion that termination is in the children’s best 

interests.

[20] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake 

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 

1235 (Ind. 1992). We find no such error here and therefore affirm the trial 

court. 

[21] Affirmed.

May, J., and Brown, J., concur.