Court of Appeals of Indiana | Opinion 18A-JT-318 | July 31, 2018 Page 1 of 17

ATTORNEY FOR APPELLANT

Ana M. Quirk

Muncie, Indiana

ATTORNEYS FOR APPELLEE

THE INDIANA DEPARTMENT OF 

CHILD SERVICES

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE 

DELAWARE COUNTY, INDIANA 

CASA

Jon L. Orlosky

Muncie, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of Z.B., D.B., L.B., 

Me.B., Ma.B. (Minor Children)

 and

A.B. (Mother),

Appellant-Respondent,

v.

July 31, 2018

Court of Appeals Case No.

18A-JT-318

Appeal from the Delaware Circuit 

Court

The Honorable Kimberly S. 

Dowling, Judge

The Honorable Amanda L. 

Yonally, Magistrate
Court of Appeals of Indiana | Opinion 18A-JT-318 | July 31, 2018 Page 2 of 17

The Indiana Department of 

Child Services,

Appellee-Petitioner,

 and

Delaware County, Indiana 

CASA,

Appellee-Petitioner.

Trial Court Cause Nos.

18C02-1609-JT-37

18C02-1609-JT-38

18C02-1609-JT-39

18C02-1609-JT-40

18C02-1611-JT-53

Bailey, Judge.

Case Summary

[1] A.B. (“Mother”) challenges the juvenile court’s decision to terminate her

parental rights as to her five children who had previously been adjudicated 

Children in Need of Services (“CHINS”): Z.B., D.B., L.B., Me.B., (the 

“Siblings”) and Ma.B (collectively, the “Children”).1 Notably, the Delaware 

County Department of Child Services (“DCS”) opposed terminating Mother’s 

parental rights with respect to Ma.B., but Ma.B’s court-appointed special

 

1 The order also terminated the parental rights of S.B., who was the father of the Siblings; S.B. testified in 

favor of adoption, and does not actively participate in this appeal. Moreover, we note that there was no 

petition to terminate the parental rights of Ma.B.’s father, C.B.; he participated in the proceedings as an 

interested party, but also does not actively participate in this appeal.
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advocates (the “CASAs”) pursued termination through counsel. Mother now 

presents the following consolidated and restated issues:

I. Whether a CASA has the statutory authority to prosecute 

a petition to terminate parental rights when DCS opposes 

termination; and

II. Whether there is sufficient evidence supporting the 

termination of Mother’s parental rights.

[2] We affirm, but remand for correction of certain scrivener’s errors.

Facts and Procedural History

[3] At some point, DCS alleged that the Children were CHINS, and, in May of 

2015, Diana Robertson and Mary Fitzgerald became the Children’s CASAs. In 

June of 2015, Ma.B. was adjudicated a CHINS, and Mother admitted certain

CHINS allegations as to the Siblings, including:

a. On or about April 10, 2015, [Mother] entered into an 

Informal Adjustment with [DCS] due to educational 

neglect, substance abuse, home conditions, and lack of 

supervision.

b. [Mother] was positive on April 16, 2015 for 

methamphetamines and uses other illicit substances such 

as, but not limited to, heroin, methamphetamines and 

prescription narcotics.
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c. Home conditions barely meet minimal standards and 

[M]other is struggling to maintain appropriate living 

conditions.

d. Mother struggles to control [Z.B.’s] behaviors as he is 

destructive, violent and injures the other children.

Ex. Vol. I at 26, 167; Ex. Vol. II at 58, 201.

[4] The Siblings were at one point placed with family. As to Ma.B., Mother 

consented to a modification of custody so that C.B. (“Father”) became Ma.B.’s 

custodian, and Ma.B. began living with Father and his wife (“Stepmother”).

[5] On September 30, 2016, DCS filed a petition to terminate Mother’s parental 

rights as to the Siblings. On November 21, 2016, the CASAs filed a petition to 

terminate Mother’s parental rights as to Ma.B. DCS and Mother then moved 

to dismiss the petition concerning Ma.B., arguing—among other things—that 

the CASAs could not prosecute a petition to terminate parental rights where 

DCS did not support the petition.2 The court denied the motions to dismiss and 

consolidated the proceedings concerning the Children. The court then held a 

fact-finding hearing on June 15, August 23, and October 18, 2017. The court 

took the matter under advisement, and later entered an order terminating 

Mother’s parental rights to the Children.

 

2 DCS did not support the petition because Ma.B. was already placed with a parent. DCS and Mother 

asserted that Ma.B. was safe with Father as her physical custodian and that “[s]evering the parental rights of 

the mother is extreme and unnecessary where the child can be protected by a parent.” App. Vol. II at 55, 66.
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[6] Mother now appeals.

Discussion and Decision

Statutory Authority

[7] Mother and DCS present what appears to be an issue of first impression: 

whether a CASA has the statutory authority to prosecute a petition to terminate 

parental rights when DCS opposes termination. We interpret statutes de novo. 

In re Bi.B., 69 N.E.3d 464, 466 (Ind. 2017).

[B]efore interpreting a statute, we consider “whether the 

Legislature has spoken clearly and unambiguously on the point 

in question.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 

2009). If a statute is clear and unambiguous, we put aside 

various canons of statutory construction and simply “require that 

words and phrases be taken in their plain, ordinary, and usual 

sense.” Id. Indeed, “[c]lear and unambiguous statutes leave no 

room for judicial construction.” Id. We will find a statute 

ambiguous and open to judicial construction only if it is subject 

to more than one reasonable interpretation.

KS&E Sports v. Runnels, 72 N.E.3d 892, 898-99 (Ind. 2017).

[8] When a child is alleged to be a CHINS under certain statutory sections, the 

court must “appoint a guardian ad litem, court appointed special advocate, or 

both, for the child.” Ind. Code § 31-34-10-3. The court is also obligated to do 

so if a parent opposes a petition to terminate parental rights. I.C. § 31-35-2-7(a). 

In the termination context, the CASA’s role is “to represent and protect the best 

interests of the child in the termination proceedings.” I.C. § 31-35-2-7(b).
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[9] It is clear that a CASA may sign and file a petition to terminate parental rights

when a child has been adjudicated a CHINS. Indeed, Indiana Code Section 31-

35-2-4(a) provides as follows:

A petition to terminate the parent-child relationship 

involving a . . . child in need of services may be signed and 

filed . . . by any of the following:

(1) The attorney for the department.

(2) The child’s court appointed special advocate.

(3) The child’s guardian ad litem.

Moreover, it is equally clear that DCS represents the State’s interests in 

termination proceedings: “Upon the filing of a petition under section 4 of this 

chapter, the attorney for the department shall represent the interests of the state 

in all subsequent proceedings on the petition.” I.C. § 31-35-2-5.

[10] Mother and DCS read these statutes as prohibiting proceedings on a petition to 

terminate parental rights whenever DCS opposes the petition. They argue that 

DCS should not be burdened with involvement in termination proceedings that 

the State does not support. DCS further argues that letting a “CASA prosecute 

a termination petition is tantamount to letting a child prosecute a termination 

case against his or her parents.” DCS Br. at 29. DCS also directs us to caselaw 

in the adoption context where we have strictly construed statutes to preserve the 

parent-child relationship in light of the fundamental importance of the parent-
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child relationship. See In re K.F., 935 N.E.2d 282, 289 (Ind. Ct. App. 2010), 

trans. denied.

3

 The CASAs respond that because the legislature specifically 

authorized them to independently initiate termination proceedings, it follows 

that they can also independently prosecute these matters.

[11] We agree with the CASAs. An authorization to file a petition cannot be

reasonably read to prohibit prosecuting that petition, and this plain reading in 

no way affects the elements or burden of proof for termination. Moreover, our 

legislature specifically created a mechanism for DCS—or a guardian ad litem or 

a CASA—to express opposition to a petition to terminate parental rights. That 

is, any “person described in section 4(a)” may—as DCS did here—file a motion 

to dismiss the petition, asserting “a compelling reason, based on facts and 

circumstances stated in the petition or motion, for concluding that filing, or 

proceeding to a final determination of, a petition to terminate the parent-child 

relationship is not in the best interests of the child.” I.C. § 31-35-2-4.5(d)(1). 

That motion may be successful, but when it is not, we discern no impediment to 

proceeding with the petition to terminate parental rights. Thus, there was no 

error based upon DCS’s opposition to the petition concerning Ma.B.

 

3 To the extent that DCS relies upon In re S.G., 67 N.E.3d 1138 (Ind. Ct. App. 2017), that case involved a due 

process challenge to the constitutionality of a statute—and there is no constitutional challenge here.
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Sufficiency of the Evidence

[12] “A parent’s interest in the care, custody, and control of his or her children is 

‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty. 

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. 

Granville, 530 U.S. 57, 65 (2000)). Indeed, “the parent-child relationship is one 

of the most valued relationships in our culture.” Id. at 147 (quotation marks 

removed). “Our General Assembly has thus set a high bar for terminating 

parental rights.” In re Bi.B., 69 N.E.3d at 465.

[13] Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the 

parent-child relationship must allege, in pertinent part:

(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. . . .

(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. . . .

(C) that termination is in the best interests of the child; and 
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(D) that there is a satisfactory plan for the care and treatment of 

the child. 

The petitioner must prove each element by clear and convincing evidence. I.C.

§ 31-37-14-2. If the court finds that the allegations are true, “the court shall 

terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so, the 

court must enter findings and conclusions, irrespective of whether the parties 

have made a Trial Rule 52 request. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52. 

We will not “set aside the findings or judgment unless clearly erroneous,” T.R. 

52(A); clear error is “that which leaves us with a definite and firm conviction 

that a mistake has been made,” Egly v. Blackford Cty. Dept. of Pub. Welfare, 592 

N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to 

“whether the evidence supports the findings, and whether the findings support 

the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover, 

we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S., 

56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity 

of the trial court to judge the credibility of the witnesses,” T.R. 52(A).

[14] Here, the juvenile court found that although Mother’s substance abuse was an 

initial concern, substance abuse “was no longer a primary concern of DCS” by 

the time of the fact-finding hearing. App. Vol. II at 173.4 Indeed, much of that 

hearing—and the ensuing findings and conclusions—focused on issues related 

 

4

For each child, the court entered separate findings and conclusions. Where these findings and conclusions 

are identical, we cite only to the order concerning Z.B.
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to Mother’s ability to supervise the Children to ensure their safety.5 We note 

that at the time of the fact-finding hearing, Ma.B. was eleven years old and the 

Siblings were between three years old and ten years old.

[15] The court found that Mother began working with a therapist in the summer of 

2015. The initial focus for therapy “was substance abuse based on the referral” 

from DCS, but that focus “quickly transitioned to mother’s mental health and 

cognitive concerns based on the therapist’s experience and observations.” Id. at 

175. Mother’s therapist recommended a psychological evaluation, which 

revealed that Mother has cognitive disabilities that impact “her day-to-day 

living, including increased difficulty with problem-solving, lack of [judgment], 

difficulty interacting with peers in her environment, and difficulty with 

problem-solving on behalf of children.” Id. at 176. The evaluation “revealed a 

full-scale I.Q. of 64” for Mother, and Mother received “a provisional diagnosis 

of a neurocognitive disorder due to a traumatic brain injury.” Id. In view of 

Mother’s “extremely low cognitive functioning, low academic functioning, and 

issues with memory and clear thinking,” the psychologist recommended that

Mother “receive supportive services to assist in her day-to-day tasks,” and

receive parenting education “based on indications of [Mother’s] lack of 

empathy toward children and expectations of children.” Id.

 

5 There were other identified issues, such as Mother’s struggles with maintaining a stable residence. 

However, as we need only identify sufficient evidence to support the court’s decision, we elect not to discuss 

every issue identified in the findings or addressed in the parties’ briefs.
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[16] Mother agreed to have a service provider act as payee for her disability benefits

so she could receive assistance “with finding stable housing and managing her 

money.” Id. at 174. With that support in place, Mother also began working 

with a child and family therapist who started therapeutically supervising 

Mother’s visits in July of 2016; prior to that point, the visits were supervised but 

without therapeutic elements. The therapist was aware of the results of the 

psychological evaluation and “relied on those results in her therapeutic 

approach” with Mother. Id. at 176. During those therapeutically supervised 

visits, the therapist “observed significant conflict, arguing, [and] physical 

aggression” among the Children, and that Mother displayed a “lack of 

supervision.” Id. at 177. Mother “was unable to focus on more than one child” 

and “failed to notice and intervene during physical aggression and fights.” Id.

[17] In November 2016, a second therapist began helping to supervise visits, as the 

first therapist believed she “could not effectively work with [Mother] while at 

the same time keeping track of the children and ensuring their safety.” Id. The 

court found that adding a therapist “was necessary both to ensure the safety” of 

the Children and “to effectively address parenting issues” with Mother. Id. 

Around this time—in October 2016—Ma.B.’s visitation with Mother was 

suspended. Ma.B. had exhibited instances of self-harm prior to October 2016, 

and failed to make any improvement in therapy sessions between February 

2016 and October 2016. After suspending visitation, Ma.B. made “significant 

improvement, including being happier and more optimistic, reducing negative 

behavior, and progressing academically” to the point where she no longer 
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requires an individualized education program at school. Id. at 100. There were 

also no instances of self-harm after suspending visitation.

[18] Over the course of Mother’s therapeutically supervised visits, Mother made 

progress in some areas, including her ability to provide time-outs, but she “did 

not make progress in her ability to monitor and supervise.” Id. Mother often 

“lost track” of the Children and was unaware of their whereabouts. Id. 

Although Mother asked what she could do to improve, and a therapist 

responsively set up extra meetings to help with Mother’s parenting, Mother 

“did not attend th[ose] appointments.” Id. Moreover, at some point, Mother 

moved to Anderson, and her family case manager made efforts to transfer 

Mother’s services there; when Mother subsequently moved back to Muncie, she

“informed the service providers that she did not need their assistance and 

involvement.” Id. at 178. Mother also registered for certain parenting classes in 

March of 2017 “but failed to attend any of the classes.” Id. at 174.

[19] We note that mental or cognitive disabilities, standing alone, are not a proper 

basis for termination of parental rights. See In re V.A., 51 N.E.3d 1140, 1147

(Ind. 2016). However, a court may consider these issues where “parents are 

incapable of or unwilling to fulfill their legal obligations in caring for their 

children.” Egly, 592 N.E.2d at 1234. This is because “the purpose of 

terminating parental rights is not to punish parents, but to protect the children.” 

Id. (citing Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981)).
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[20] The court ultimately found that Mother “is not capable of safely or effectively 

parenting” the Children, id. at 178, and the evidence favorable to the court’s 

decision supports this finding. Moreover, this parenting issue—encompassing a 

lack of supervision and a struggle to control violent behaviors—was among the 

admitted CHINS allegations, and was an ongoing issue that led to continued 

placement outside Mother’s home. We note also that there was no indication 

that Mother’s cognitive functioning would improve; rather, Mother’s therapist 

opined that Mother should continue to have a payee and, for the rest of her life, 

Mother would likely struggle with managing aspects of day-to-day life.

[21] Under statutory subsection (b)(2)(B), the juvenile court determined that there 

was a reasonable probability both that the continuation of the parent-child 

relationship posed a threat to the well-being of the Children and that the 

reasons for placement outside the home would not be remedied. The court also 

made the requisite determinations with respect to the other subsections, 

observing that the plan was for Ma.B. to remain in Father’s care and also be 

adopted by Stepmother, and that the plan for the Siblings was to be adopted.

[22] Mother does not dispute whether the Children were out of her care for the 

statutory period or whether there was a satisfactory plan for the care and 

treatment of the Children. Instead, Mother appears to focus on the other 

elements, specifically asserting that the evidence does not indicate that the 

Children’s “survival was threatened or that termination was in their best 

interests.” Appellant’s Br. at 32. With respect to Ma.B., Mother focuses on 

whether the “conditions that caused the removal . . . have been remedied with 
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the change of placement and custody to [Father].” Appellant’s Br. at 29. DCS 

also argues that the evidence was insufficient with respect to Ma.B.6

[23] In her brief, Mother directs us to evidence indicating that she participated in a 

variety of services, and made progress during the more than two years that the 

Children were placed outside her home. However, we may not reweigh the 

evidence, which supports a conclusion that there is a reasonable probability that

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

the Children. See 31-35-2-4(b)(2)(B)(ii). Indeed, the lack of supervision and the 

attendant prospect of uncontrolled violence poses a threat to their safety.

[24] Mother and DCS argue that there was no threat to at least Ma.B. because 

Father had physical custody. To the extent Mother and DCS are arguing that 

termination of one parent’s rights is inappropriate when a child can live with 

the other parent, it is true that termination is intended as a last resort, available 

only when all other reasonable efforts have failed. In re V.A., 51 N.E.3d at 

1151-52. However, our legislature has not articulated different termination 

standards for children placed with a parent and for children placed in foster 

care—and the evidence indicates that Mother remained unable to safely care for 

Ma.B., even after participating in extensive services aimed toward reunification. 

 

6

In one way or another, much of DCS’s argument focuses on the plan for stepparent adoption. At one point, 

DCS argues that “the court’s satisfactory plan conclusion is . . . clearly erroneous” because the plan did not 

require terminating Mother’s parental rights through a termination proceeding. DCS Br. at 26. DCS argues 

thusly: “[w]hile it may be a satisfactory plan if rights are terminated, it is also a proper and statutor[ily] valid 

permanency plan that does not require the termination of Mother’s parental rights to achieve it.” Id. DCS 

has not persuaded us that the court clearly erred in determining that there was a satisfactory plan.
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This inability persisted whether or not DCS’s ultimate plan was for Ma.B. to 

remain in Father’s custody and be adopted by Stepmother. Moreover, the court 

found that it would be very traumatic for Ma.B. to return to Mother’s care. 

Finally, we are not persuaded by Mother’s assertion that, in light of the custody 

arrangement with Father, the potential for harm to Ma.B. was too speculative 

to support terminating parental rights.

7

[25] As to the best interests of the Children, in determining whether termination of 

parental rights is in the best interests of a child, the 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 doing so, the court must subordinate the interests of the 

parents to those of the children involved. Id. The court need not wait until a

child is irreversibly harmed before terminating the parent-child relationship. 

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

App. 2003). Moreover, the testimony of service providers may support a 

finding that termination is in the child’s best interests. Id.

[26] Here, the evidence favorable to the court’s decision indicates that the Children

would not be safe in Mother’s care. Moreover, Diana Robertson—the CASA 

called to testify at the fact-hearing—testified that terminating Mother’s parental 

 

7 As we have concluded that there is sufficient evidence supporting at least one of the elements under 

subsection (b)(2)(B), we do not address arguments related to whether Ma.B.’s custodial arrangement with 

Father adequately remedied the conditions that led to her removal from Mother’s home.
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rights would serve the best interests of the Children.

8

 In rendering her opinion, 

the CASA expressed particular concern about Ma.B.—and Ma.B.’s therapist

also opined that termination was in Ma.B.’s best interests. Thus, we conclude 

that there is sufficient evidence concerning the best interests of the Children.9

[27] There is clear and convincing evidence supporting the court’s decision to 

terminate Mother’s parental rights as to the Children, and we therefore affirm 

the decision of the juvenile court. However, we observe—and DCS has pointed 

out—that the court made scrivener’s errors in entering orders pertaining to 

D.B., L.B., and Me.B. That is, although each order contains a caption for the 

cause specific to each child, and each order identifies the captioned child in its 

findings, the concluding language refers to Z.B. when ultimately ordering the 

termination of parental rights. We remand for correction of these three orders.

Conclusion

[28] Because a CASA has the statutory authority to independently prosecute a 

petition to terminate parental rights, it was not improper for the CASAs to 

 

8 Mother briefly suggests that the filing of the petition as to Ma.B. “appears to be vindictive” because the 

relationship between Diana Robertson and Mother had deteriorated in the wake of an allegation that Ms. 

Robertson battered Z.B. Appellant’s Br. at 29. Mother also directs our attention to the number of CASArelated individuals that attended the hearing. Nonetheless, we reiterate that we cannot reweigh the evidence.

9 DCS argues that termination was not in Ma.B.’s best interests in part because the plan was for Stepmother 

to adopt Ma.B., and termination would affect Ma.B.’s “ability to benefit from Mother’s social security 

disability payments as well as to inherit from Mother.” Appellee’s Br. at 26. We note, however, that for a 

biological parent not married to the adoptive stepparent, the effect of adoption is to relieve the biological 

parent “of all legal duties” and divest the parent “of all rights with respect to the child”—and the act of 

adoption also affects intestate succession. See I.C. §§ 31-19-15-1, -2; I.C. § 29-1-2-8.
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prosecute the petition concerning Ma.B. while DCS opposed termination. 

Moreover, there was sufficient evidence supporting the termination of Mother’s 

parental rights as to the Children. However, we are remanding for correction of 

scrivener’s errors in the orders pertaining to D.B., L.B., and Me.B.

[29] Affirmed and remanded.

Crone, J., and Brown, J., concur.