Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 1 of 23

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 APPELLANTFATHER

Benjamin J. Church

Church Law Office

Monticello, Indiana

ATTORNEY FOR APPELLANTMOTHER

Mark A. Delgado

Monticello, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of P.L. (Minor Child);

L.P. (Father) and K.L. (Mother),

Appellants-Respondents,

v.

Indiana Department of Child 

January 9, 2019

Court of Appeals Case No.

18A-JT-1443

Appeal from the White Circuit 

Court

The Honorable Robert W. 

Thacker, Judge

Trial Court Cause No.

91C01-1710-JT-17
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 2 of 23

Services,

Appellee-Petitioner.

Najam, Judge.

Statement of the Case

[1] L.P. (“Father”) and K.L. (“Mother”) (collectively, “Parents”) appeal the trial 

court’s termination of their parental rights over their minor child, P.L. 

(“Child”). Parents each present a single issue for our review, namely, whether

the State presented sufficient evidence to support the termination of their

parental rights. 

[2] We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

[3] Mother and Father were in a relationship and lived together between 2012 and 

early 2015. On November 23, 2015, Mother gave birth to Child.1 In March 

2016, the Indiana Department of Child Services (“DCS”) received a report that 

 

1

 At the time Mother gave birth to Child, Father did not know that Mother had been pregnant or that he was 

the father of Child. A paternity action was filed in June 2016, and the court found Father to be Child’s father 

on September 30, 2016. 
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Mother was neglecting Child and that Mother was leaving Child in the care of 

Child’s maternal grandfather, whom Mother knew had abused Child. After 

Mother tested positive for marijuana at multiple drug screens, DCS removed 

Child from Mother’s care on March 3 and, thereafter, filed a petition alleging 

that Child was a child in need of services (“CHINS”).2 At that time, Father was 

incarcerated. On May 19, the trial court found Child to be a CHINS and 

ordered Parents to participate in services. After a few setbacks, Mother 

completed a substance abuse assessment, intensive outpatient treatment, and 

relapse prevention.

3

 

[4] Father was released from incarceration in March 2016. However, he was again

incarcerated in September 2016 with a scheduled release date of August 14, 

2018. During the six months that Father was not in custody, he did not 

participate in services, he only attended one of three scheduled visits with 

Child, and he did not express an interest in learning to care for Child. Because 

of Father’s incarceration in September 2016, and because DCS had concerns 

about Mother’s judgment and ability to properly care for Child, on October 18, 

2017, DCS filed a petition to terminate Mother’s and Father’s parental rights 

over Child. 

 

2

 No party filed a copy of the original CHINS petition in the record on appeal. 

3

 Mother had to restart relapse prevention twice after she had failed to attend classes, and she had to restart 

intensive outpatient treatment once after she had failed a drug screen. 
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[5] Following a hearing, the trial court granted the petition on June 6, 2018. In 

support of its order, the trial court entered the following findings of fact:

A. FACTS RELATING TO INITIAL REMOVAL OF 

CHILD, CHINS ADJUDICATION & DISPOSITIONAL 

ORDER.

* * *

4. On March 2, 2016, White County DCS received a report 

alleging abuse or neglect by Mother against the child. 

5. The report included allegations that Mother left the child in the 

care of maternal grandfather, [R.L.], whom she was aware had a 

history of committing physical and sexual abuse, as he had 

previously abused [M]other. The report further alleged that 

Mother continued to leave the child in the care of maternal 

grandfather after she was aware that he had physically abused the 

child including hitting [C]hild on the buttocks and witnessing 

him hit the child in the face. 

6. The report further alleged that Mother and possibly maternal 

grandfather were using marijuana.

7. DCS investigated and substantiated the allegations. 

8. DCS removed the child on an emergency basis on March 3, 

2016.

* * *

11. Father is currently on work release. 
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* * *

B. FACTS RELATING TO CONTINUED REMOVAL AND 

REASONABLE PROBABILITY REASONS FOR REMOVAL 

NOT REMEDIED.

1. Mother has a substantial history with DCS, leading to the 

termination of her parental rights as to a previous child.

2. Mother has a history of non-participation. In December of 

2015[,] Mother was referred for weekly in-home parenting 

services to Healthy Families, however only allowed one in-home 

visit.

3. Mother missed many visits with this child. Visitation was 

cancelled December 7, 2017, December 11, 2017, December 12, 

2017, December 14, 2017, [and] December 21, 2017[,] due to 

lack of communication from Mother. Mother missed February 

12, 2018[,] when she did not open the door when the child 

arrived for visitation. 

4. Mother fell asleep during at least 5 visitations, including times 

in which she fell asleep holding the child. 

5. Mother is resistant to suggestions and attempts to improve her 

parenting practices, disregarding expert recommendations.

6. Mother does not follow safe feeding practices as recommended 

by Riley pediatrician including no water or grape juice for 

infants. 

7. No significant progress has been made during the 26 months of 

DCS involvement in improving Mother’s parenting practices and 

parenting style.
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8. Mother’s house is not clean and safe for a child. The child had 

four documented instances of bed bug bites after visiting 

Mother’s house.

9. Mother does not engage in safe sleep practices although having 

been repeatedly coached in them. Mother allows the child to 

sleep on the foot of her bed.

* * *

12. Mother has not been consistently engaged with services, not 

attending therapy from November 3, 2017[,] through January, 

2018. 

13. Mother does not adequately provide for [C]hild’s medical 

needs. On November 23, 2017[,] Mother believed [C]hild had 

burned her fingers and needed to go to the emergency room but 

chose to ask the foster placement to take the child instead of 

taking the child herself during visitation. On November 21, 

2017[,] [M]other observed that [C]hild’s buttocks were red and 

bleeding but did not take the child to the doctor. 

14. Father is currently on work release, to be released August 14, 

2018.

15. Father is not currently paying child support for the child.

16. When not incarcerated, the Father had one visitation with the 

child and chose not to participate.

17. Father does not know the child and has not bonded with her.
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18. Father has been incarcerated three prior times, in 2012, 2013, 

and 2015.

19. Father does not have the resources available to care for the 

child now or when he is released from work 

release/incarceration.

20. Michelle Thedans, the ongoing Wabash Valley Therapist for 

the Mother since December 14, 2015, testified that as a therapist 

she does not believe presently that [Mother] can function in a 

caregiving parental capacity. The therapist believes the Mother 

has generally made individual progress with the Mother’s ability 

to care for herself and meet her own adult needs. However, such 

individual therapeutic progress by the Mother over the last two 

years, does not amount to the Mother having the skills to be a 

provider and caregiving parent to her child. The therapist 

testified that the Mother has her diagnosed depression under 

control through medication, but the Mother has a high degree of 

anxiety which is not controlled and is reflected in the Mother’s 

inability to cope with the general and situational pressures of 

being [the] caregiving parent to her child.

21. The Guardian Ad Litem [(“GAL”)], Rebecca Trent, testified 

that the Mother does not have the capacity and insight to be a 

suitable caregiving parent for the child, for the following reasons:

the Mother does not recognize and respond to situations with the

child that need the immediate attention of the parent such as 

dangerous situations, illness, and injury; the Mother is 

functioning at a low level with regard to the child’s needs with 

vague verbal responses to questions regarding the child’s care; the 

Mother is not meeting the child’s needs for learning interactions 

and will not be able to do so in the future, which results in the 

child’s intellectual and physical development and growth being 

diminished or delayed; the Mother has only a superficial bond 

with the child; and while the Mother has made some individual 

personal therapeutic progress, such progress has not been able to 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 8 of 23

sufficiently develop and enhance the Mother’s parenting skills 

and attentiveness. The Guardian Ad Litem testified that the 

Father does not have the capacity or insight to be a suitable 

caregiving parent for the child for the reason that the Father has 

no attachment to the child and has not actively participated with 

the child during the CHINS case, and the Father’s individual 

future is uncertain and unstable due to incarceration and criminal 

history. The Guardian Ad Litem recommends the termination of 

parental rights as to each parent.

C. TERMINATION IS IN THE CHILD’S BEST INTERESTS 

IN THAT:

1. Mother has not made significant progress towards alleviating 

the issues that caused the child to be removed from the home.

2. Mother has not participated fully in services.

3. Mother has not been willing or able to improve her parenting 

practices.

4. Mother remains unable to provide a safe home environment

for the child.

5. Father is unable to provide a safe home environment for the 

child.

6. Termination of the parent-child relationship is now in the best 

interests of the child for the reason that the child’s growth and 

development require[] a safe and stable home and reasonable 

parenting attention, which the child has not received from either

parent and which the evidence establishes the child would not be 

expected to receive in the future from either parent.
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7. The Department of Child Services has a satisfactory plan for 

the care and treatment of the child. The plan of adoption is in 

the best interest of the child . . . .

Mother’s App. Vol. II at 27-32. Based on those findings, the trial court 

concluded that there was a reasonable probability that the reasons for Child’s 

removal and continued placement outside the home would not be remedied and 

that termination of the parent-child relationships between Parents and Child is 

in Child’s best interests. Accordingly, the trial court entered an order

terminating the parental rights of Parents. This appeal ensued. 

Discussion and Decision

Standard of Review

[6] We begin our review of this issue by acknowledging that “[t]he traditional right 

of parents to establish a home and raise their children is protected by the 

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe 

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. 

denied. However, a trial court must subordinate the interests of the parents to 

those of the child when evaluating the circumstances surrounding a 

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 

832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is 

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

Although the right to raise one’s own child should not be terminated solely 

because there is a better home available for the child, parental rights may be 
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terminated when a parent is unable or unwilling to meet his or her parental 

responsibilities. Id. at 836.

[7] Before an involuntary termination of parental rights can occur in Indiana, DCS 

is required to allege and prove:

(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; and

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

the child.

Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of 

parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. 

Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting 

I.C. § 31-37-14-2). If the State fails to prove any one of the statutory elements, 

then it is not entitled to a judgment terminating parental rights. See id. at 1261. 

[8] When reviewing a termination of parental rights, we will not reweigh the 

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of 
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Fam. & Child. (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 that 

are most favorable to the judgment. Id. Moreover, in deference to the trial 

court’s unique position to assess the evidence, we will set aside the court’s 

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

Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. 

Ct. App. 1999), trans. denied.

[9] Here, in terminating Parents’ parental rights, the trial court entered specific 

findings of fact and conclusions thereon. When a trial court’s judgment 

contains special findings and conclusions, we apply a two-tiered standard of 

review. Bester v. Lake Cty. Off. of Fam. & Child., 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. “Findings are clearly 

erroneous only when the record contains no facts to support them either 

directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If 

the evidence and inferences support the trial court’s decision, we must affirm. 

In re L.S., 717 N.E.2d at 208.

[10] On appeal, Parents each contend that the State presented insufficient evidence 

to support the termination of their parental rights. Specifically, both Mother 

and Father contend that the trial court erred when it concluded that the 

conditions that resulted in Child’s removal and continued placement outside 
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the home will not be remedied4 and that termination was in Child’s best 

interests. We address each Parent’s contention in turn. 

Mother

Conditions that Resulted in Child’s 

Removal will not be Remedied

[11] Mother first contends that the trial court erred when it concluded that the 

conditions that resulted in Child’s removal from the home and continued 

placement outside the home will not be remedied as to her. In determining 

whether the evidence supports the trial court’s conclusion that Mother is

unlikely to remedy the reasons for Child’s removal, we engage in a two-step 

analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 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. (quotations and citations omitted). In the second step, 

the trial court must judge a parent’s fitness to care for his children at the time of 

the termination hearing, taking into consideration evidence of changed 

conditions. Id. However, the court must also “evaluate the parent’s habitual 

patterns of conduct to determine the probability of future neglect or deprivation 

of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. 

Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts 

have properly considered evidence of a parent’s prior criminal history, drug and 

 

4

 The trial court did not conclude that there is a reasonable probability that the continuation of the parentchild relationship poses a threat to Child’s well-being. 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 13 of 23

alcohol abuse, history of neglect, failure to provide support, and lack of 

adequate housing and employment. Id. Moreover, DCS is not required to rule 

out all possibilities of change; rather, it need establish only that there is a 

reasonable probability the parent’s behavior will not change. Id.

[12] Mother does not challenge any of the trial court’s findings in support of its 

conclusion that the conditions that resulted in Child’s removal will not be 

remedied. Rather, Mother maintains that the State presented insufficient 

evidence to demonstrate that she was unable to remedy the reasons for DCS’ 

involvement because she had participated in services, removed herself from the 

abusive environment with maternal grandfather and secured her own housing, 

and she was progressing in therapy. In essence, Mother contends that the trial 

court erred when it terminated her parental rights because she was “doing 

everything DCS asked of her.” Mother’s Br. at 11. But Mother’s arguments on 

appeal are simply a request that we reweigh the evidence, which we cannot do. 

Instead, we must determine whether the evidence most favorable to the 

judgment supports the trial court’s conclusions. In re D.D., 804 N.E.2d at 265. 

We hold that it does. 

[13] During the hearing on the petition to terminate Parents’ parental rights, Family 

Case Manager (“FCM”) Brooke Brown testified that she had concerns 

regarding Mother’s ability to ensure Child has the appropriate amount of food. 

Indeed, FCM Brown testified that there were “numerous” times that Mother 

did not feed Child during visitation. Tr. Vol. 2 at 40. Hayley Bradford, a 
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visitor facilitator, testified that Mother “struggled remembering” when to feed 

Child and she would frequently not give Child enough food. Id. at 55.

[14] Further, Mother would not give Child medication even though two separate 

doctors advised Mother that Child needed the medicine. Bradford testified that 

Mother did not make it a priority to call Child’s doctor even when Mother was 

concerned with Child’s health. FCM Brown testified to an instance in which 

Mother believed that Child had a yeast infection, but Mother informed FCM 

Brown that she was going to wait until the following week to call the doctor. 

The evidence shows that, on one occasion, Child burned her finger, but Mother 

did not “take action” and take Child to the emergency room. Ex. Vol. 4 at 9. 

Rather, Mother wanted the foster parents to take Child. And, on another 

occasion, Mother noticed that Child’s buttocks were red and bleeding, but 

Mother again did not take Child to the doctor. 

[15] FCM Brown also testified that, even after twenty-five months of DCS 

involvement, she still had concerns about Mother’s ability to maintain a safe 

home. She specifically testified that she had those concerns because it would 

take Mother weeks to fix problems in her household that could pose a risk to 

Child’s health or safety, including one occasion in which it took Mother four 

weeks to contact an exterminator after it was discovered that her apartment was

infested with bed bugs. Indeed, the evidence shows that, on four occasions, 

Child returned to her foster parents from Mother’s home with “big red bites all 

over her” and that her hands were swollen due to an allergic reaction to bed bug 

bites. Id. at 6. GAL Trent similarly testified that Mother is unable to recognize 
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potential safety issues, and that Mother will notice a safety problem “only after 

someone has mentioned it to her numerous times[.]” Tr. Vol. 2 at 156. Even 

then, it still takes Mother a long period of time to address the problem. 

[16] In sum, Child was initially removed from Mother’s care and custody due to the 

fact that Mother had failed multiple drug screens and due to concerns regarding 

Mother’s judgment. And DCS continued to place Child outside of Mother’s 

home due to ongoing concerns regarding Mother’s judgment and her ability to 

properly care for Child. Mother has a history of forgetting to feed Child, of 

disregarding medical advice, of failing to seek medical attention for Child when

it was needed, and of being unable to recognize and address issues with her 

apartment. And, even after twenty-five months of DCS involvement, DCS’s 

concerns regarding Mother’s judgment and ability to care for Child are 

“constant and ongoing” and continued to the date of the termination hearing. 

Tr. Vol. 2 at 157. As such, we cannot say that the trial court clearly erred when 

it found that the conditions that led to Child’s removal and continued 

placement outside of the home will not be remedied. 

Best Interests

[17] Mother next contends that the trial court erred when it found that termination 

of the parent-child relationship was in the best interests of Child. 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. A.S. v. 

Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010). 

“A parent’s historical inability to provide adequate housing, stability and 
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supervision coupled with a current inability to provide the same will support a 

finding that termination of the parent-child relationship is in the child’s best 

interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. 

App. 2006), trans. denied. 

[18] Mother maintains that termination is not in Child’s best interests because 

“Mother had completed substance abuse assessment, evaluation[,] and 

treatment[;] completed Intensive Outpatient Treatment and Relapse 

Prevention[;] and had not had any issues with substance abuse since completing 

the most recent Intensive Outpatient Program and Relapse Prevention.” 

Mother’s Br. at 13. Mother also contends that termination is not in Child’s best 

interests because Mother has secured housing and is bonded to Child. But, 

again, Mother’s contentions on this issue amount to a request that we reweigh 

the evidence, which we cannot do. 

[19] As discussed above, the evidence demonstrates that Mother has a history of 

forgetting to feed Child or feeding Child too little. Mother also would not give 

Child medication, even after two doctors informed Mother that Child needed 

the medicine. Additionally, Mother has a history of neglecting to seek medical 

attention for Child when needed. Further, Mother does not recognize safety 

problems, and she only notices the problems when someone else points them 

out to her. And, even then, Mother takes a long time to address the problems. 

Because of Mother’s “constant and ongoing” inability to recognize and address 

problems that could be a danger to Child, GAL Trent testified that she believed 

that Mother would likely be negligent if Child were to be in her constant care.
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Tr. Vol. 2 at 157. Accordingly, GAL Trent testified that termination of the 

parent-child relationship between Mother and Child is in the best interests of 

Child. And FCM Brown also testified that termination is in Child’s best 

interests because of concerns with Mother’s stability and judgment. 

[20] Based on the totality of the evidence, including Mother’s historical and ongoing

inability to provide a safe and stable home for Child, we cannot say that the 

trial court clearly erred when it found that termination of Mother’s rights is in 

Child’s best interests. We therefore affirm the trial court’s order terminating 

Mother’s parental rights.

Father

[21] Father contends that the trial court erred when it found that the conditions that 

resulted in the removal of Child or Child’s continued placement outside of the 

home will not be remedied as to him. Specifically, Father contends that the 

trial court erred when it made that finding because, as of the date of the hearing 

on the petition to terminate his parental rights, he only had four months left on 

work release and because he “had made significant strides to improve his life.” 

Father’s Br. at 14. Father further contends that the trial court disregarded “the 

positive steps [he] has made to better his own life.” Id. at 13. In essence, 

Father asserts that the trial court only considered his past behavior but did not 

balance that past behavior with the improvements he has made to his life. 

[22] Again, to determine whether the evidence supports the trial court’s conclusion

that Father is unlikely to remedy the reasons for Child’s removal, we first
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identify the conditions that led to Child’s removal and then determine whether 

there is a reasonable probability that those conditions will not be remedied. See 

In re E.M., 4 N.E.3d at 643. DCS originally removed Child from Mother’s care 

and custody for two general reasons: concerns about possible drug use by 

Mother and concerns about Mother’s judgment. After DCS had removed Child 

from Mother’s home, DCS placed Child in foster care due to Father’s 

incarceration. DCS continued Child placement outside of Father’s care 

because Father did not initially engage in services and because Father was again 

incarcerated shortly after the CHINS proceedings began. 

[23] We must agree with Father that, in terminating his parental rights, the trial 

court focused only on his past behavior and not on the undisputed 

improvements Father has made in his life. We acknowledge that Father has 

been incarcerated three times. Indeed, Father admits that he was first 

incarcerated in 2012 and then again in 2015. It is likewise undisputed that 

Father was released from imprisonment in March 2016 but was thereafter again 

incarcerated on September 28, 2016, and he remained incarcerated at the time 

of the hearing on the petition to terminate his parental rights.5 It is further 

undisputed that, during the six months in 2016 when Father was not 

incarcerated, Father did not participate in services, he only attended one of 

three scheduled visits with Child, he struggled with alcohol, and he did not 

display any interest in learning how to care for Child. 

 

5

 It is unclear from the record what offenses Father committed that led to his incarceration in 2012. 

However, Father was incarcerated in December 2015 “for a probation revocation.” Father’s Br. at 6. 
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[24] But the record also demonstrates that, after Father’s incarceration in 2016, he 

took positive steps and made a clear effort to better himself as a person. At the 

time of the termination hearing, Father had completed six months of substance 

abuse treatment and only had four classes remaining in a program called 

“Thinking for a Change.” Tr. Vol. 2 at 142. It is also not disputed that those 

were the only services available to Father while he was incarcerated.6 Further, 

Father was on work release at the time of the termination hearing. Father was 

employed as a welder, and he “absolutely” anticipated that he would continue 

his employment after he completed his term on work release. Id. at 143. 

[25] While Father did not yet have housing at the time of the termination hearing 

due to his placement on work-release, the State did not present any evidence to 

suggest that Father would be unable to obtain appropriate housing upon the 

completion of his work-release placement. Rather, the only evidence that the 

State presented at the termination hearing regarding Father’s future housing 

prospects was FCM Brown’s testimony that she was uncertain where Father 

would live. But that testimony does not demonstrate that Father will not be 

able to provide appropriate housing for Child. And Father testified that he had

been saving money and that he could “go get a place right now.” Id. at 149. 

And, while Father did not substantiate that claim, DCS did not present any 

evidence to support a contrary finding. See J.E. v. Ind. Dep’t of Child Servs. (In re 

 

6

 FCM Brown testified that the “limited” services available in White County include “services for substance 

abuse like the twelve[-]step program, and then . . . there’s another one. I don’t believe they offer fatherhood 

engagement in incarceration.” Tr. Vol. 2 at 16.
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K.E.), 39 N.E.3d 641, 647 (Ind. 2015) (holding that the trial court’s finding that 

Father did not have suitable housing was clearly erroneous when Father 

testified that he planned to live with his father upon his release from prison and 

when DCS did not present any evidence to support a contradictive finding.). 

[26] We acknowledge that, during the six months Father was not incarcerated in 

2016, Father did not engage in services, only attended one of three visits with 

Child, and did not express an interest in learning to care for Child. But that all 

occurred two years prior to the termination hearing. As of the date of the 

termination hearing, Father had been engaging in visitation with Child for over 

one year, without missing a visit. And those visits were going well. Karen 

Travis, a visitation supervisor, testified that Child reaches for Father to pick her 

up, and that Child and Father play together and talk to each other. The 

evidence demonstrates that Child “grin[s] when she sees Father” and that she 

“does not hesitate to reach for [Father’s] hand.” Ex. Vol. 5 at 59-60. Thus, 

while Father initially struggled with his responsibilities as a parent, the record 

shows that, since his incarceration, Father has maintained a consistent, positive 

relationship with Child. 

[27] We acknowledge that Father’s record is far from perfect. But a trial court must 

judge a parent’s fitness to care for his child at the time of the termination 

hearing, taking into consideration evidence of changed conditions. In re E.M., 4 

N.E.3d at 643. Here, the evidence demonstrates that, since his incarceration in 

2016, Father has worked within his limitations both to better himself by 

participating in the services that were available to him and to get to know 
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Child. Accordingly, Father has done everything in his power to remedy the 

mistakes of his past. 

[28] We recognize that the GAL is concerned that “[w]e have no idea what 

[Father’s] future behavior is going to be” and that it would be four months from 

the date of the termination hearing “before [Father’s] out before we can even 

see if he would be stable . . . enough to care for [Child] and be successful in 

doing that.” Tr. Vol. 2 at 159. But as discussed above, since his incarceration 

in 2016, Father has completed substance abuse treatment, he has obtained and 

maintained stable employment, and he has consistently visited with Child. The 

GAL’s testimony, while understandable, is ultimately speculation, which is 

insufficient to support the termination of parental rights. Moreover, in light of 

Father’s undisputed successful engagement with the only opportunities that 

have been available to him, Father “deserves a genuine chance to prove that he 

can parent his child.” K.T. v. Ind. Dep’t. of Child Servs. (In re O.G., II), 65 N.E.3d 

1080, 1096 (Ind. Ct. App. 2016). While Father may not prove that he can 

successfully parent Child, “he has a constitutional right to try.” Id. 

[29] We note that Mother and Father are not married, and they do not live together. 

This is not a case where Mother and Father continue to live lives that are 

intertwined. And Father’s constitutional right to parent his child are 

independent from Mother’s. While we cannot say that the trial court clearly 

erred when it terminated Mother’s parental rights, under these circumstances, 

we find that the evidence does not support the trial court’s conclusion that 

Father will not remedy the circumstances that led to Child’s removal from the 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 22 of 23

home and Child’s continued placement outside of the home.7 We therefore

reverse the trial court’s order terminating Father’s parental rights, and we 

remand to the trial court for further proceedings.8

Conclusion

[30] In sum, the trial court did not err when it found that the conditions that led to 

the removal of Child from Mother’s home will not be remedied and when it 

found that the termination of the parent-child relationship between Mother and 

Child is in the best interests of Child. But we hold that the State presented 

insufficient evidence to prove that Father will not remedy the conditions that 

led to the removal of Child and the continued placement of Child outside the 

home. Accordingly, we affirm the trial court’s order terminating Mother’s 

parental rights. But we reverse the trial court’s order terminating Father’s 

parental rights, and we remand for further proceedings. 

[31] Affirmed in part, reversed in part, and remanded.

 

7

 Because the State has failed to prove one of the requirements of Indiana Code Section 31-35-2-4(b)(2), we 

need not address Father’s contention that the trial court erred when it found that termination of the parentchild relationship between Father and Child is in the best interest of Child. See In re G.Y., 904 N.E.2d at 1261 

(“if the State fails to prove any of these four statutory elements, then it is not entitled to a judgment 

terminating parental rights.”). 

8

 In his brief on appeal, Father contends that the trial court’s findings that he has not bonded with Child, that 

he does not have the resources available to care for Child, that he does not have the capacity and insight to be 

a parent because he has no attachment to the Child and has not participated with Child during the CHINS 

case, and that his future is unstable and uncertain due to his criminal history are not supported by the 

evidence. But, even if we were to agree with DCS that those findings are supported by the evidence, those 

findings do not support the trial court’s conclusion that Father will not remedy the reasons for Child’s 

removal. Accordingly, we need not address Father’s contention regarding those findings of fact.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 23 of 23

Pyle, J., and Altice, J., concur.