Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 1 of 15

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

Cara Schaefer Wieneke 

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Natalie F. Weiss

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of T.M., Z.M., E.M., & N.M., 

(Children) and S.M. (Father);

S.M. (Father),

Appellant-Respondent,

v. 

The Indiana Department of 

Child Services, 

Appellee-Petitioner

September 24, 2019

Court of Appeals Case No.

19A-JT-1019 

Appeal from the Henry Circuit 

Court

The Honorable Bob A. Witham, 

Judge

Trial Court Cause No.

33C01-1901-JT-6 

33C01-1901-JT-7 

33C01-1901-JT-8 

33C01-1901-JT-9 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 2 of 15

May, Judge.

[1] S.M. (“Father”) appeals the involuntary termination of his parental rights to 

T.M., Z.M., E.M., and N.M. (collectively, “Children”). He argues the 

evidence does not support four of the trial court’s findings. Additionally, he 

asserts the trial court’s findings do not support its conclusions that the 

conditions under which Children were removed from his care would not be 

remedied, that the continuation of the parent-children relationship would 

present a threat to Children’s well-being, and that termination of Father’s 

parental rights was in Children’s best interests. We affirm.

Facts and Procedural History

[2] Father and K.M.1 (“Mother”) (collectively “Parents”) are the biological parents 

of T.M., born November 15, 2007; Z.M., born February 22, 2010; E.M., born 

August 12, 2013; and N.M., born June 20, 2017. Parents were married until 

late in the proceedings. On April 28, 2016, Mother called police to report 

Father had beaten her. Father was arrested, and the Department of Child 

Services (“DCS”) engaged the family in an informal adjustment. As part of the 

informal adjustment, Mother agreed to keep Children away from Father until 

Father received therapy to address domestic violence. 

 

1 Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.
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[3] On June 21, 2016, DCS removed Children from Parents’ care and filed 

petitions alleging T.M., Z.M., and E.M. were Children in Need of Services 

(“CHINS”) based, at least in part, on the domestic violence perpetrated by 

Father upon Mother. On August 12, 2016, Mother and Father admitted 

Children were CHINS and the trial court adjudicated Children as such. The 

trial court also entered a dispositional order that day.

[4] From July 2016 to November 2, 2016, Father engaged in some services, 

however, he was aggressive with DCS staff members during some of those 

services. On July 15, 2016, Father went to his mother-in-law’s house and 

would not leave after being asked to do so. He was charged with criminal 

trespass and pled guilty to that charge on July 20, 2016. On September 8, 2016, 

Father pled guilty to Class A misdemeanor domestic battery stemming from the 

April 28, 2016, incident with Mother. On November 2, 2016, Father told DCS 

that he wanted to voluntarily relinquish his parental rights to T.M., Z.M., and 

E.M. He later retracted that request.

[5] On December 11, 2016, Father broke a window at Mother’s house and yelled at 

Mother. He was charged with criminal trespass, criminal mischief, and 

invasion of privacy. He pled guilty to those charges on March 14, 2017. 

Additionally, on March 14, 2017, Father pled guilty to invasion of privacy and 

violation of a protective order based on an incident involving Mother on 

January 3, 2017.
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[6] On March 28, 2017, Father kicked in the door to Mother’s apartment, spit in 

her face, and took her phone when she tried to call 911. The State charged him

with residential entry, domestic battery, interference with the reporting of a 

crime, criminal mischief, and domestic battery with an unrelated prior 

conviction. Father pled guilty to these charges on August 8, 2017.

[7] On June 20, 2017, N.M. was born and on June 23, 2017, N.M. was removed 

from Parents’ custody because the other children in the household had been 

adjudicated as CHINS. On June 27, 2017, DCS filed a petition alleging N.M. 

was a CHINS. The trial court adjudicated N.M. as a CHINS on July 14, 2017. 

The trial court entered a dispositional decree in N.M.’s CHINS matter on 

September 6, 2017.

[8] On September 9, 2017, Father slammed Mother into a wall. On October 3, 

2017, Father pled guilty to criminal trespass for sleeping on Mother’s porch. 

On July 27, 2018, Father pled guilty to invasion of privacy for the September 9 

incident, and the trial court sentenced him to 600 days in jail. Father was 

incarcerated at the time of the termination fact-finding hearing.

[9] On July 3, 2018, the trial court changed the permanency plan for T.M., Z.M., 

and E.M. from reunification to adoption by their foster parents. On December 

21, 2018, the trial court changed the permanency plan for N.M. from 

reunification to adoption by her foster parents. On January 10, 2019, DCS filed 

petitions to terminate the parental rights of both Mother and Father. The trial 

court held a fact-finding hearing on April 1, 2019, during which Mother 
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voluntarily relinquished her parental rights to Children. On April 4, 2019, the 

trial court issued an order involuntarily terminating Father’s parental rights to 

Children.

Discussion and Decision

[10] We review termination of parental rights with great deference. In re K.S., 750 

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge 

credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), 

trans. denied. Instead, we consider only the evidence and reasonable inferences 

most favorable to the judgment. Id. In deference to the juvenile court’s unique 

position to assess the evidence, we will set aside a judgment terminating a 

parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 

(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).

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

protected by the Fourteenth Amendment of the United States Constitution.” In 

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must 

subordinate the interests of the parents to those of the children when evaluating 

the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837. 

The right to raise one’s own children should not be terminated solely because 

there is a better home available for the children, id., but parental rights may be 

terminated when a parent is unable or unwilling to meet parental 

responsibilities. Id. at 836.
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[12] To terminate a parent-child relationship, the State must 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 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). The State must provide clear and convincing proof 

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g 

denied. If the court finds the allegations in the petition are true, it must 

terminate the parent-child relationship. Ind. Code § 31-35-2-8. 

Challenged Findings

[13] When, as here, a judgment contains specific findings of fact and conclusions 

thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of 

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the 
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evidence supports the findings and 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 juvenile court’s 

decision, we must affirm. In re L.S., 717 N.E.2d at 208. 

[14] Father challenges four of the trial court’s findings, arguing they are not 

supported by the evidence. We accept the remaining findings as true because 

Father does not dispute them. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 

1992) (“Because Madlem does not challenge the findings of the trial court, they 

must be accepted as correct.”). 

Finding 7

[15] Finding 7 states, in relevant part: “DCS filed a CHINS petition as to [Children] 

. . . after [Mother] failed to comply with the safety plan of the Informal 

Adjustment: to keep [Father] out of the home until he had completed services 

to deal with domestic aggression.” (App. Vol. II at 14.) Father argues Finding 

7 is not supported by the evidence. However, during the termination hearing, 

Mother testified:

[DCS]: And part of the informal adjustment you were to 

keep the children safely away from [Father] until he 

had therapy. Is that right?

[Mother]: Yes.
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[DCS]: Then there arose some issues with regard to your 

health and the children were taken from your care.

[Mother]: Yes.

(Tr. Vol. II at 29.) Father contends Mother’s testimony proves Children were 

not removed from Mother’s care because of the domestic violence issues in the 

home, but because of Mother’s health issues. 

[16] However, the trial court made multiple findings that Father does not challenge 

regarding the ongoing domestic violence issues between Mother and Father,

including:

6. DCS had previously been working with the family as a result 

of domestic battery, with which [Father] was charged and 

convicted[.]

* * * * *

31. [Father] has been charged with and convicted of eight (8) 

separate criminal cases, all of which involved as victims [Mother] 

or her mother, [D.W.].

(App. Vol. II at 148-9.) Father admitted during the fact-finding hearing that he 

had been convicted twice for domestic battery against Mother, twice for 

invasion of privacy against Mother, and once each for trespass, residential 

entry, and criminal confinement against Mother. Other evidence regarding 

Father’s criminal history was admitted including Chronological Case 

Summaries, probable cause affidavits, and orders of conviction regarding these 
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crimes. Therefore, it is reasonable to infer that Children were, at least in part, 

removed from the familial home due to domestic violence perpetrated by 

Father. See Madlem, 592 N.E.2d at 687 (Ind. 1992) (“Because Madlem does not 

challenge the findings of the trial court, they must be accepted as correct.”); see

In re L.S., 717 N.E.2d at 208 (appellate court will affirm if evidence and 

inferences therefrom support finding).

Finding 25

[17] Finding 25 states “DCS has offered a number of services to [Mother] and 

[Father] to bring about reunification of [Children] with one or both of their 

parents.” (App. Vol. II at 149.) Father contends this finding is “wholly 

unsupported by the evidence.” (Br. of Father at 11.) However, DCS presented 

a permanency report from the CHINS case that indicated Father was offered 

“Sowers of Seeds Batters Intervention; clinical interview/assessment for 

psychological/psychiatric services; home-based casework; and home-based 

therapy.” (DCS Ex. 7). Additionally, during the fact-finding hearing, the 

Family Case Manager testified, “I had multiple conversations with [Father]

about his willingness to engage in services. Sometimes he said that he would 

engage in services and I had referred him to services.” (Tr. Vol. II at 46.) 

Finally, during the fact-finding hearing, Father answered in the affirmative 

when asked, “During the time of your involvement with DCS beginning in 

2016 have you at least on one occasion told DCS workers that you will not 

involve yourself in services that were offered without cost to you?” (Id. at 38.) 

Father’s argument is an invitation for us to reweigh the evidence and judge the 
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credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 

(appellate court will not reweigh evidence or judge the credibility of witnesses).2

Finding 26

[18] Finding 26 states, “[Father] has failed to comply with services and has spent a 

portion of the time the cases have been open as an incarcerated person.” (App. 

Vol. II at 149.) Father argues that although DCS admitted evidence of Father’s 

criminal history during the CHINS case, “one cannot discern from these 

documents precisely how much time Father spent incarcerated during the 

CHINS proceedings.” (Br. of Father at 11.) During the fact-finding hearing, 

DCS presented evidence that Father was incarcerated at the time of the hearing, 

though he recently had been admitted to the hospital for psychiatric services. 

Additionally, the Family Case Manager testified visitations between Father and 

Children had been terminated because Father was incarcerated. Finally, one of 

the Family Case Managers testified she could not engage Father in services 

during the CHINS case because he was incarcerated. Father’s argument is an 

invitation for us to reweigh the evidence, which we cannot do. See In re D.D., 

804 N.E.2d at 265 (appellate court will not reweigh evidence or judge the 

credibility of witnesses).

 

2 Additionally, we do not review the adequacy of services provided during CHINS proceedings when 

reviewing the propriety of a termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) 

(noting requirement for DCS to provide reasonable services was not a requisite element of parental rights 

termination statute and DCS’s failure to provide services could not serve as basis to attack termination order), 

trans. denied. 
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Finding 35

[19] Finding 35 states, “Continuation of the parent-child relationship between all 

four children and [Father] would disallow the children from establishing 

permanency of where and with whom they belong.” (App. Vol. II at 150.) 

However, the two preceding findings, which Father does not challenge, report 

Children’s well-being in their current placements. As this seems to be the 

subject of the challenged finding, we conclude any error in its inclusion is mere 

surplusage and not grounds for reversal of the termination order. See Lasater v. 

Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004) (“Findings, even if 

erroneous, do not warrant reversal if they amount to mere surplusage and add 

nothing to the trial court’s decision.”).

Reasonable Probability Conditions Would Not Be Remedied

[20] The trial court must judge a parent’s fitness to care for his child at the time of 

the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). 

Evidence of a parent’s pattern of unwillingness or lack of commitment to 

address parenting issues and to cooperate with services “demonstrates the 

requisite reasonable probability” that conditions will not change. Lang v. Starke 

Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Father 

argues the trial court’s findings do not support its conclusion that there existed a 

reasonable probability that the conditions under which Children were removed 

from Father’s care would not be remedied. 
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[21] The trial court found that Father battered Mother on at least one occasion in 

Children’s presence and that domestic violence was, at least in part, the reason 

for Children’s removal from the familial home. Further, DCS presented 

evidence that Father was to complete treatment called “Sowers of Seeds Batters

[sic] Intervention,” (DCS Ex. 7), and he did not. Additionally, the trial court’s 

unchallenged findings regarding Father’s fitness to care for Children include:

27. [Father] has been recently been [sic] hospitalized for 

approximately two weeks for in-patient treatment at Ball 

Memorial Hospital Psychiatric Unit.

28. [Father] testified that he does not know what caused his need 

for in-patient treatment and that he was not given a diagnosis 

upon release from his stay at the Psychiatric Unit.

29. [Father] admits that there have been more than two periods 

since the inception of [Children’s] CHINS cases during which he 

has been homeless for at least sixty (60) days.

30. [Father] has not had a consistent home, at the same address 

in his own name and funded solely by resources that he has 

legally acquired for any period of six (6) months or longer since 

July of 2016.

(App. Vol. II at 149.) The evidence and findings indicate Father’s inability to 

care for Children and his refusal to complete services to address the issues 

which precipitated Children’s removal. Therefore, the findings support the trial 

court’s conclusion that there was a reasonable possibility that the conditions 

under which Children were removed from the familial home would not be 
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remedied. See In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (termination 

appropriate when Children were removed due to domestic violence issues and 

Father refused to complete services).3

Children’s Best Interests

[22] In determining what is in Children’s best interests, a trial court is required to 

look beyond the factors identified by DCS and consider the totality of the 

evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. 

A parent’s historical inability to provide a suitable environment, along with the 

parent’s current inability to do so, supports finding termination of parental 

rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990 

(Ind. Ct. App. 2002). The recommendations of a DCS case manager and courtappointed advocate to terminate parental rights, in addition to evidence that 

conditions resulting in removal will not be remedied, are sufficient to show by 

clear and convincing evidence that termination is in Children’s best interests. In 

re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

[23] Father contends termination of his parental rights is not in Children’s best 

interests because the “scant evidence revealed during a hasty proceeding did not 

 

3 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the 

evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L. S., 

717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to 

terminate parental rights). Because the trial court’s findings supported its conclusion that the conditions 

under which Children were removed from Father’s care would be not be remedied, we need not consider 

Father’s argument regarding whether the continuation of the Father-Children relationship poses a risk to 

Children’s well-being.
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support the court’s conclusion that permanent, irreversible termination of a 

biological father’s parental rights as to his four children was in the children’s 

best interests.” (Br. of Father at 16.) We disagree. While DCS certainly could 

have been more thorough, the record before us provides evidence that Father 

battered Mother, Father was incarcerated for various crimes during the 

proceedings, Father did not complete services, Father did not have stable 

housing or employment, and Children were doing well in their current 

placement. Additionally, the Family Case Managers and the Court Appointed 

Special Advocate testified that termination of Father’s parental rights was in 

Children’s best interests. Therefore, we conclude the evidence and findings 

were sufficient to support the trial court’s conclusion that termination of 

Father’s parental rights was in Children’s best interests. See In re A.D.W., 907 

N.E.2d 533, 540 (Ind. Ct. App. 2008) (affirming termination of mother’s 

parental rights because family case manager testified termination was in 

children’s best interests and children were doing well in their placement).

Conclusion

[24] DCS presented evidence to support Findings 7, 25, and 26. Finding 35 was 

surplusage and, thus, not a basis for reversal. Additionally, the findings 

supported the trial court’s conclusions that the conditions under which Children 

were removed from Father’s care would not be remedied and that termination 

was in Children’s best interests. Accordingly, we affirm.

[25] Affirmed.
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Najam, J., and Bailey, J., concur.