Court of Appeals of Indiana | Memorandum Decision 79A02-1602-JT-444 | October 19, 2016 Page 1 of 16

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

Jennifer L. Schrontz

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

E.F.,

Appellant-Defendant,

v.

Indiana Department of Child 

Services,

Appellee-Plaintiff.

October 19, 2016

Court of Appeals Case No.

79A02-1602-JT-444

Appeal from the Tippecanoe 

County Superior Court

The Honorable Faith A. Graham, 

Judge

Trial Court Cause No.

79D03-1508-JT-67

Altice, Judge.

Case Summary
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[1] E.F. (Mother) appeals the involuntary termination of her parental rights (TPR)

to K.S.F. (Child). Mother challenges the sufficiency of the evidence supporting 

the termination.

[2] We affirm.

Facts & Procedural History

[3] Mother began using opiates when she was twenty years old and heroin when 

she was twenty-one. On March 9, 2014, Mother, then twenty-two years old,

gave birth to Child. The Tippecanoe County Department of Child Services 

(DCS) became involved with Mother that same day upon receiving a report of 

neglect from the hospital. 

[4] On April 7, 2014, DCS filed a child in need of services (CHINS) petition 

alleging that Child was born with opiates in her system.

1 Further investigation 

revealed that Mother reported to nursing staff that she was unaware that she 

was pregnant, that she received no prenatal care, that she admitted to using 

heroin two to three times a week during the eight months preceding Child’s 

birth, and that she most recently used heroin two days prior to Child’s birth. 

Indeed, Child’s meconium tested positive for opiates. At one day old, Child 

began displaying signs of heroin withdrawal, including seizures, tremors, lack 

of sleep, sneezing, and scratching at herself, for which Child had to be treated 

 

1

See Ind. Code § 31-34-1-10(1) (“a child is a child in need of services if . . . the child is born with . . . any 

amount, including a trace amount, of a controlled substance or a legend drug in the child’s body”).
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with morphine. Although Mother identified who she thought was Child’s 

father, DNA testing revealed that another individual, D.H., was actually 

Child’s biological father.2

[5] At an initial hearing, the court authorized the continued removal of Child from 

Mother’s care. Child remained hospitalized for two months following her birth. 

Upon her release, Child was placed in foster care, where she remained 

throughout these proceedings. 

[6] At a May 5, 2014 fact-finding hearing, Mother admitted to the allegations and 

factual circumstances set forth in the CHINS petition and the court adjudicated 

Child a CHINS. The court held a dispositional hearing on June 4, 2014, and 

thereafter entered its dispositional decree ordering Mother to participate in 

services. 

[7] The eighteen months between Child’s birth and the termination hearing can be 

divided into three distinct, six-month periods. During the first six months after 

Child was born, Mother’s participation in services was sporadic. She was 

ultimately discharged for failure to participate. Further, Mother twice admitted 

herself into the Salvation Army Harbor Lights (Harbor Lights) rehabilitation 

facility, but she failed to complete the initial stages of the program and each 

time she returned to using heroin. She also failed to maintain regular visits with 

 

2 D.H. also had his parental rights terminated, but he does not participate in this appeal. We will confine the 

facts and our discussion to that which is relevant to Mother. 
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Child. In fact, Mother would disappear for short periods as she continued to 

struggle with her heroin addiction. During this time, Mother tested positive for 

opiates on at least twenty-eight occasions.

[8] In October 2014, the beginning of the second six-month period, Mother entered 

the Harbor Lights rehabilitation facility for a third time. This time Mother 

successfully completed the detox and residential programs and followed up with 

an intensive outpatient program (IOP) through Wabash Valley Alliance

(WVA). After completing the IOP, Mother went through sixteen weeks of 

relapse prevention. She did not, however, follow through with the 

recommended social support group through WVA, but rather chose to attend

narcotics anonymous (NA). 

[9] Additionally, during this six-month timeframe, Mother participated in and was 

receptive to some of the services offered by DCS, actively and appropriately 

interacted with Child during visits, obtained full-time employment and an 

apartment, and her drug-screens were clean. Mother also engaged in case 

management services. Individuals assigned to work with Mother and Child, 

including the Family Case Manager (FCM) and Court Appointed Special 

Advocate (CASA), described Mother as making “tremendous progress” and 

noted that the goal was reunification of Mother and Child. Transcript at 6. In 

fact, near the end of this six-month period, service providers were considering 

arranging an in-home visit between Mother and Child.
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[10] The in-home visit, however, never occurred because beginning in March 2015 

(the third six-month period), Mother’s participation in services started to 

decline. First, Mother failed to show for a therapy session. Shortly thereafter, 

on March 21, 2015, Mother was called for a drug screen, but was unable to 

produce a specimen. Over the course of the next few months, Mother failed to 

report for six additional drug screens, giving various reasons or wholly failing to 

communicate. In May, Mother had two positive drug screens and admitted to 

service providers that she had a relapse and had used spice. The FCM, CASA, 

and others talked with Mother about how to get back on track and referred her 

back to WVA for relapse prevention. Mother did not follow through with 

services at WVA, but rather claimed that she was attending NA meetings 

several times a month as her relapse prevention. Mother could not, however,

produce any documentation to support her claim that she was attending NA 

meetings. 

[11] Mother also failed to attend a scheduled appointment for case management 

services on February 20 and again on March 30, 2015. Mother was then placed 

under a no tolerance policy, but nevertheless missed a scheduled appointment 

in May 2015. In May, the case management service provider reported that 

although Mother had made progress initially, the case had “taken a significant 

downturn.” Exhibit 4 at 70. The service provider noted that Mother had

“demonstrated that she is unable to save and budget her money despite 

continued pressure and persistence” and that she “does not have the time to 

manage the daily responsibilities of being a full time parent.” Exhibit 4 at 70. 
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Mother was eventually terminated from case management services for failure to 

participate.

[12] With regard to Mother’s housing situation, the case management service 

provider noted that Mother’s “stability and ability to even keep her home is in 

question from month to month.” Id. Initially, Mother received government 

assistance. When it was discovered that Mother had falsified on her housing 

application that Child was in her care and that Mother had failed to inform the 

apartment complex that she had obtained employment, Mother’s rent payment 

increased. Although Mother had been living in the same apartment since 

September 2014, she received an eviction notice in May 2015 based on her 

failure to pay rent for April and May. With help from family members, Mother 

was able to pay the back rent and avoid eviction, but she “fell short with other 

bills” and had her electricity shut off for six days. Transcript at 218. 

[13] At the time of the termination hearing, Mother remained employed. Mother, 

however, had lost her driver’s license for failing to pay “a judgment on an 

accident without insurance”, but nevertheless continued to drive without a 

license. Id. at 227.

[14] Mother’s visitation with Child similarly declined. In April, Mother was late 

cancelling a visit with Child, arrived at another visit without diapers, and ended 

another visit forty-five minutes early. On May 5, 2015, Mother failed to show 

for her scheduled visit with child. Two days later, Mother failed to confirm her 

visit with Child and was therefore considered a “no show”. During a visit in 
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September 2015, at which Mother and paternal grandparents were present, 

Mother became angry and started screaming at a supervisor. Mother was asked 

to leave and informed that the police would be called. As Mother left, she 

continued screaming and making a scene. The police arrived and escorted 

everyone out of the facility. Mother’s visitation was thereafter suspended due 

to inappropriate behavior in the presence of Child. 

[15] In June 2015, after Mother’s participation in services started to decline, DCS 

requested that the permanency plan be changed to concurrent plans of 

reunification of Mother and Child and initiation of TPR proceedings. 

Eventually, on August 5, 2015, the permanency plan for Child was changed 

when DCS filed a verified TPR petition. The court held a TPR hearing on 

October 26, 2015, at which service providers and Mother testified. On 

February 8, 2016, the court entered its order, along with findings of fact and 

conclusions of law, granting the TPR petition. Mother now appeals. 

Additional facts will be provided where necessary.

Discussion & Decision

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

evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its 

judgment terminating a parent-child relationship only if it is clearly erroneous. 
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In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the 

evidence and inferences support the decision, we must affirm. Id.

[17] The trial court entered findings in its order terminating Mother’s parental 

rights. When the trial court enters specific findings of fact and conclusions 

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

Family & Children, 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). A judgment is 

clearly erroneous only if the findings do not support the court’s conclusions or 

the conclusions do not support the judgment thereon. Id.

[18] We recognize that 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. 

Although parental rights are of constitutional dimension, the law provides for 

the termination of these rights when parents are unable or unwilling to meet 

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 

2008). In addition, a court must subordinate the interests of the parents to those 

of the child when evaluating the circumstances surrounding the termination. In 

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating 

parental rights is not to punish the parents, but to protect their children. Id.
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[19] Before an involuntary termination of parental rights may occur in Indiana, DCS 

is required to allege and prove by clear and convincing evidence, among other 

things:

(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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing 

evidence that termination is in the best interests of the child, I.C. § 31-35-2-

4(b)(2)(C), and that there is a satisfactory plan for the care and treatment of the 

child. I.C. § 31-35-2-4(b)(2)(D).

[20] Here, the trial court concluded that DCS established that I.C. § 31-35-2-

4(b)(2)(B)(i) and (ii) had been satisfied. Mother challenges both conclusions. 

Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only 

conclude that the trial court properly determined one of the conditions therein 

had been met. See In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). With 

respect to (i), the court noted: “Neither parent has demonstrated the ability or 
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willingness to make lasting changes from past behaviors. There is no 

reasonable probability that either parent will be able to maintain sobriety and 

stability in order to care and provide adequately for [Child].” Appellant’s 

Appendix at 15.

[21] In determining whether there is a reasonable probability that the conditions that 

led to a child’s removal and continued placement outside the home will be 

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 

989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions 

led to the child’s placement and retention in foster care, and, second, we 

determine whether there is a reasonable probability that those conditions will 

not be remedied. Id. In the second step, the trial court must judge a parent’s 

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

evidence of changed conditions and balancing a parent’s recent improvements 

against “‘habitual pattern[s] of conduct to determine whether there is a 

substantial probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d 

636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this 

rule, “trial courts have properly considered evidence of a parent’s prior criminal 

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

and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of 

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. 

[22] In addition, DCS need not provide evidence ruling out all possibilities of 

change; rather, it need establish only that there is a reasonable probability the 

parent’s behavior will not change. In re Involuntary Termination of Parent-Child 
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Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust 

that delicate balance to the trial court, which has discretion to weigh a parent’s 

prior history more heavily than efforts made only shortly before termination.” 

In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due 

regard to changed conditions, this does not preclude them from finding that a 

parent’s past behavior is the best predictor of their future behavior. Id.

[23] We first address Mother’s challenges to several of the court’s findings. Mother 

challenges Finding 22 wherein the court noted that “[n]either parent has 

followed recommendations for ongoing substance abuse support groups.” 

Appellant’s Appendix at 14. Mother asserts that this finding is erroneous and 

directs us to evidence that she completed a rehabilitation program and followed 

through with an IOP. Mother also points to her testimony that she attended 

weekly NA meetings since April 2015. Mother’s testimony, however, is 

contrary to other evidence in the record. Indeed, Mother produced no evidence 

to support her claim that she regularly attended NA meetings and she even 

acknowledges that she did not have perfect attendance. DCS also presented 

evidence that relapse prevention through NA meetings was not the same as 

relapse prevention services offered by WVA, in which Mother chose not to 

participate after completion of her IOP program. These are the same services 

for which DCS made its most recent referral after Mother relapsed, but Mother 

did not follow through. 

[24] All of the evidence Mother points to that tends to show that she sought 

treatment for her addiction and followed through with relapse prevention 
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services occurred during the second six-month period when Mother made great 

strides and cooperated with service providers. Mother ignores her conduct in 

the six months immediately prior to the termination hearing, which indicates 

Mother’s return to a point where she is unable to care for Child. Mother also 

ignores the fact that she presented no evidence to corroborate her testimony that 

she was regularly attending NA. In sum, Mother’s challenge to Finding 22 is 

simply an improper request that we reweigh the evidence. We conclude that 

Finding 22 is supported by the evidence.

[25] Mother also challenges Finding 23 wherein the court noted that “[d]espite 

lengthy services and periods of progress, Mother has failed to demonstrate 

sustained stability. Mother was evicted on April 1, 2015.” Id. While there is 

conflicting evidence regarding the circumstances surrounding Mother’s possible 

eviction at one point in time, the evidence in the record amply supports the trial 

court’s finding that Mother has not demonstrated stability. Mother completed 

several assessments at the start of the CHINS proceedings, but admits that her 

participation in other services was sporadic for the first six months. Mother 

followed up this initial six-month period with six months of participation in 

services. Indeed, Mother finally completed her third attempt at substance abuse 

treatment, began visitations with Child, secured a job, obtained housing, and 

participated in other case management services. 

[26] In the six months immediately preceding the termination hearing, however,

Mother’s participation started to decline. Although Mother participated in 

services to some degree, she ignores the fact that she missed at least six drug 
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screens, had a relapse by using spice, stopped cooperating with case 

management service providers such that services were terminated, and did not 

fully participate in visitation with Child. As above, Mother’s challenge boils 

down to a request that we reweigh the evidence. Having reviewed the record, 

we conclude that the evidence in the record supports the court’s finding that 

Mother “failed to demonstrate sustained stability.” Id.

[27] Mother next challenges part of Finding 24 wherein the court noted that 

“Mother stopped engaging in services in late July/early August of 2015.” Id. 

Mother acknowledges that she stopped participating in services, but claims that 

she did so only because the court ordered that DCS no longer fund any services 

for her. In making this argument, Mother ignores her conduct that led to this 

point. With the filing of the petition to terminate Mother’s parental rights, 

many services to Mother were suspended. The decision to move forward with 

termination was made only after Mother’s lack of participation in services and 

cooperation with DCS declined to a point where all previous progress was 

nearly lost and there was no indication that the circumstances were going to 

change. We conclude that Finding 24 is supported by the evidence in the 

record. 

[28] Mother’s challenges to these findings serve as the basis for her challenge to the 

court’s conclusion that the there is a reasonable probability the conditions that 

resulted in Child’s removal and continued placement outside the home will not 

be remedied. The court acknowledged that Mother had made significant 

progress at one point during the CHINS proceedings. Indeed, the FCM and the 
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CASA noted that during the second six-month segment, Mother had made 

“tremendous progress” and that the permanency plan was reunification of 

Mother and Child. Transcript at 6. At some point, the circumstances changed 

and Mother’s participation and cooperation with service providers went 

downhill. The same service providers who supported Mother and worked with 

her to the point of considering an in-home visit are the same service providers 

who testified that the circumstances that resulted in the removal of Child from 

Mother’s care have not changed and are unlikely to change given Mother’s 

conduct in the six months immediately preceding the termination hearing. The 

general concern was Mother’s lack of stability. Having reviewed the record, we 

cannot say the court’s finding in this regard is clearly erroneous. 

[29] Mother also challenges the court’s conclusion that termination is in the best 

interests of Child. There is no doubt that Mother loves Child and such was 

acknowledged by the court and service providers. Despite this, the same service 

providers, who had worked with and fought for Mother’s right to parent Child,

testified that termination of Mother’s parental rights is in Child’s best interests. 

See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the recommendations 

of the case manager and court-appointed advocate to terminate parental rights, 

in addition to evidence that the conditions resulting in removal will not be 

remedied, is sufficient to show by clear and convincing evidence that 

termination is in the child’s best interests”). The record reflects that Mother 

made significant progress at one point in time, but any progress has since been 

lost. Child has now been in foster care for eighteen months and needs 
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permanency. Mother’s conduct in the six months prior to the termination 

hearing is more telling of what the future holds than her conduct during a brief 

six-month period. In re E.M., 4 N.E.3d at 643. We cannot say that the court 

erred in concluding that termination was in the best interests of Child.

[30] Finally, Mother challenges the court’s conclusion that DCS established it had a 

satisfactory plan for the care and treatment of Child. DCS informed the court 

that the permanency plan for Child was adoption by the foster parents, to 

whom Child was closely bonded. Mother argues that DCS should have 

considered a guardianship with Child’s paternal grandparents and asserts that 

such placement is an alternative to termination of her parental rights. The 

record reveals that the paternal grandparents have been involved throughout 

parts of the CHINS proceedings, even filing a motion to intervene and 

participating in visits with Child. Further, during the pendency of the CHINS 

proceedings, Father asked the court to consider placement of Child with the 

paternal grandparents rather than a foster home.3 

[31] As Mother acknowledges, DCS is required only to detail a general direction of 

its plan. See In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here, 

DCS did just that. DCS noted that Child is bonded with the foster family she 

has been with for most of her young life and that Child needs permanency. We 

 

3 Although no details are provided, the record indicates that the paternal grandparents were considered for 

placement of Child, but were found unsuitable.
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cannot say that the court’s conclusion that there is a satisfactory plan in place 

for Child is clearly erroneous.

[32] Based on the foregoing, we conclude that the court’s findings of fact are 

supported by the evidence in the record and the court’s conclusions supporting 

termination of Mother’s parental rights are not clearly erroneous. 

[33] Judgment affirmed.

[34] Bradford, J. and Pyle, J., concur.