Court of Appeals of Indiana | Memorandum Decision 79A02-1708-JT-2024 | February 16, 2018 Page 1 of 17

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

Carlos I. Carrillo

Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Termination of the 

Parent-Child Relationship of:

C.M. and R.M. (Minor 

Children),

 and

R.M. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

February 16, 2018

Court of Appeals Case No.

79A02-1708-JT-2024

Appeal from the Tippecanoe 

Superior Court 

The Honorable Faith A. Graham, 

Judge

Trial Court Cause Nos.

79D03-1702-JT-15

79D03-1702-JT-16
Court of Appeals of Indiana | Memorandum Decision 79A02-1708-JT-2024 | February 16, 2018 Page 2 of 17

Barnes, Judge.

Case Summary

[1] R.M. (“Father”) appeals the termination of his parental rights to his children, 

C.M. and R.M. (collectively, “Children”). We affirm.

Issues

[2] Father raises three issues, which we restate as:

I. whether the evidence is sufficient to support the 

termination of his parental rights;

II. whether the trial court abused its discretion by 

denying Mother’s motion to continue; and

III. whether DCS filed its petition to terminate parental 

rights too early.

Facts

[3] Father and S.M. (“Mother”) had two children, C.M., who was born in 

December 2009, and R.M., who was born in November 2013. In March 2014, 

the Department of Child Services (“DCS”) filed a petition alleging that the 

Children were children in need of services (“CHINS”) due to Father and 

Mother’s heroin and marijuana usage and because R.M. tested positive for 

cocaine and marijuana. The trial court found that the Children were CHINS, 

and they were placed in foster care. In October 2015, the Children were 

returned to Father’s care, and the CHINS case was closed. At that time, 

Mother was incarcerated for a burglary charge. 
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[4] In December 2015, Father snorted spice while he was in his van in an alley with 

the Children. C.M. saw him put a brownish-green substance up his nose. 

Father then had a seizure, and C.M. had to obtain help at a nearby gas station. 

R.M. told investigators that “Daddy is dead.” Ex. Vol. I p. 36. Father was 

arrested for resisting law enforcement and neglect of a dependent. The 

Children were again placed in foster care, and DCS filed a second CHINS 

petition. In February 2016, Father tested positive for amphetamine, 

buprenorphine, norbuprenorphine, morphine, and marijuana. A week later, he 

tested positive for buprenorphine and norbuprenorphine. After a fact-finding

hearing, the trial court again found that the Children were CHINS. The trial 

court ordered Father to participate in visitation, participate in home-based case 

management and follow all recommendations, follow all recommendations of a 

previous substance abuse assessment, participate in an intensive outpatient 

program (“IOP”) and follow all recommendations, participate in individual 

therapy and follow all recommendations, and submit to random drug screens.

[5] In May 2016, DCS filed a rule to show cause. At a hearing, Father admitted 

that he had failed to maintain contact with DCS, failed to attend a visitation, 

and failed to participate in any services ordered by the trial court. The trial 

court found Father to be in contempt but suspended his sentence as long as 

Father was compliant with all court orders. Father eventually began 

participating in services in August 2016.

[6] On October 26, 2016, the trial court held a permanency hearing. At that time, 

the trial court ordered Father to participate in a sexual abuse assessment due to 
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sexualized behaviors exhibited by C.M., a parenting assessment, and a relapse 

prevention or aftercare program after he finished the IOP. The trial court also 

ordered Father to have no contact with Mother. At that permanency hearing, 

the trial court noted: “Court shall not authorize DCS to file a Petition to 

Terminate Parental Rights for a period of ninety (90) days from today’s 

hearing.” Ex. Vol. I p. 13. 

[7] The trial court held another permanency hearing on November 14, 2016. The 

trial court found that the objectives of the dispositional decree had not been 

accomplished and ordered Father to participate in the same services that it had 

ordered in October 2016. The trial court again noted: “Court shall not 

authorize DCS to file a Petition to Terminate Parental Rights for a period of 

ninety (90) days from today’s hearing.” Id. at 11. 

[8] At a permanency hearing on January 30, 2017, the trial court approved a 

permanency plan of initiation of proceedings for termination of the parent-child 

relationship. On February 8, 2017, DCS filed a petition to terminate Father’s 

and Mother’s parental rights to the Children.

[9] A hearing on the petition was held in May 2017. At the start of the hearing, 

Mother requested that the hearing be continued to give her time to be released 

from jail and start services. Father joined in the motion, but the trial court 

denied it. The trial court entered findings of fact and conclusions thereon 

granting DCS’s petition to terminate the parental rights of both Father and 

Mother. Regarding Father, the trial court found:
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18. Father was himself a victim of verbal, physical, and 

sexual abuse during his childhood. Father was 

expelled from high school and later obtained a GED. 

Father is currently employed at Subaru through a 

temporary agency although he failed to provide copies 

of paystubs until recently. Father does not have a valid 

driver’s license.

19. Father completed a Pre-Trial Diversion Agreement for 

Theft (Class D Felony) in February 2011. Father was 

convicted of Conversion (Class A Misdemeanor) on 

November 5, 2014. Father reports other criminal 

history involving marijuana-related arrests, theft, and 

illegal possession of a handgun.

20. Father has an extensive history of substance use. 

Father completed an intake assessment at Wabash 

Valley Alliance on August 9, 2016. Father 

acknowledged a heroin/opiate addiction and was 

referred for a substance abuse evaluation. Father 

completed a substance abuse evaluation on August 10, 

2016. Father was diagnosed with Opioid Dependence 

and Cannabis Abuse. Prior attempts at substance 

abuse treatment were unsuccessful.

21. During the first CHINS case, Father did not complete 

outpatient substance abuse treatment but instead 

participated in suboxone replacement treatment. 

During the second CHINS case, Father participated in 

an intensive outpatient treatment program (IOP) and a 

support group but failed to attend 12 Step meetings. 

Father commenced IOP on September 2, 2016 and 

completed on December 9, 2016. During treatment, 

Father identified triggers and developed coping skills to 

address known triggers. Father has continued to 

regularly attend a weekly social support group at 
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Wabash Valley Alliance. Father also participated in 

counseling to address unhealthy relationships and 

boundaries with some progress.

22. During the second CHINS case, Father tested positive 

for the presence of drugs on 02/11/2016 

(buprenorphine/amphetamine/morphine/marijuana) 

and 02/18/2016 (buprenorphine). During IOP, drug 

screens were collected once or twice per month with 

negative results. Father failed to submit to all drug 

screens requested including as recently as 02/13/2017 

and 03/16/2017.

23. Father was found in contempt on May 16, 2016 for 

failure to maintain contact with DCS, failure to

participate in services ordered, and failure to attend all 

scheduled visits. A Writ of Body Attachment was 

issued for Father’s failure to appear at hearing on 

February 8, 2017 and later recalled when Father

appeared at a subsequent hearing.

24. Although Father has consistently attended visits, the 

level of supervision has remained fully supervised. 

Father currently visits every Sunday from 11:00AM to 

3:00PM. Father is affectionate and bonded with the 

children. Father’s interactions with the children are 

appropriate.

25. At the onset of the second CHINS case, Father was 

“couch surfing” in unsuitable residences. Father 

obtained a one (1) bedroom apartment in which he has 

resided for approximately one (1) year. However, the 

residence is not suitable for the children for more than 

short visits. Although a bug infestation was eventually 

remedied, the cleanliness of the home still does not 
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meet minimum standards at times. There are no beds 

for the children or the Father with the exception of a 

single stained mattress that should be discarded. There 

is not always an adequate food supply. The locking

mechanism on the door does not work and is a safety 

hazard.

26. Despite participation in case management services, 

Father had difficulty maintaining a budget to meet his 

own expenses let alone the added cost of two (2) 

children. Father often utilized funds on unnecessary

items leaving him unable to pay bills on time. Father 

was never able to purchase adequate furnishings for the 

home.

Appellant’s App. Vol. II pp. 72-73. Father now appeals.1

Analysis

I. Sufficiency of the Evidence

[10] Father challenges the termination of his parental rights to the Children. The 

Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. In re 

I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, 

custody, and control of his or her children is ‘perhaps the oldest of the 

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 

120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the 

 

1 Mother does not appeal the trial court’s order.
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most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County 

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of 

course, that parental interests are not absolute and must be subordinated to the 

child’s interests when determining the proper disposition of a petition to 

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when 

the parents are unable or unwilling to meet their parental responsibilities.’” Id. 

(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied). 

[11] When reviewing the termination of parental rights, we do not reweigh the 

evidence or judge witness credibility. Id. We consider only the evidence and 

reasonable inferences that are most favorable to the judgment. Id. We must 

also give “due regard” to the trial court’s unique opportunity to judge the 

credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial 

court entered findings of fact and conclusions thereon in granting DCS’s 

petition to terminate Father’s parental rights, as required by Indiana Code 

Section 31-35-2-8(c). When reviewing findings of fact and conclusions thereon 

entered in a case involving a termination of parental rights, we apply a twotiered standard of review. First, we determine whether the evidence supports 

the findings, and second, we determine whether the findings support the 

judgment. Id. We will set aside the trial court’s judgment only if it is clearly 

erroneous. Id. A judgment is clearly erroneous if the findings do not support 

the trial court’s conclusions or the conclusions do not support the judgment. Id. 

[12] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the 

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, 
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the court shall terminate the parent-child relationship.” Indiana Code Section 

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship 

involving a child in need of services must allege, in part: 

(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. 

(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. 

DCS must establish these allegations by clear and convincing evidence. Egly v. 

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

A. Changed Conditions

[13] Father challenges the trial court’s finding of a reasonable probability that the 

conditions resulting in the Children’s removal or the reasons for placement 
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outside Father’s home will not be remedied.2 In making this determination, the 

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

the termination hearing and take into consideration evidence of changed 

conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. 

The trial court must also “evaluate the parent’s habitual patterns of conduct to 

determine the probability of future neglect or deprivation of the child.” Id. 

[14] On this issue, the trial court concluded:

There is a reasonable probability the conditions that resulted in 

the removal of the children from the home or the reasons for 

continued placement outside the home will not be remedied. 

Neither parent has demonstrated the ability or willingness to 

make lasting changes from past behaviors. There is no 

reasonable probability that either parent will be able to maintain 

stability to care and provide adequately for the children.

Appellant’s App. Vol. II p. 73. 

 

2

Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship 

poses a threat to the well-being of the Children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B)

is written in the disjunctive. Subsection (b)(2)(B)(iii) is inapplicable here. Consequently, DCS was required to 

demonstrate by clear and convincing evidence a reasonable probability that either: (1) the conditions that 

resulted in the Children’s removal or the reasons for placement outside the home of the parents will not be 

remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the 

Children. The trial court found a reasonable probability that the conditions that resulted in the Children’s

removal and continued placement outside Father’s home would not be remedied, and there is sufficient 

evidence in the record to support the trial court’s conclusion. Thus, we need not determine whether there 

was a reasonable probability that the continuation of the parent-child relationship poses a threat to the 

Children’s well-being. See, e.g., Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 

2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans. denied.
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[15] On appeal, Father argues that he did not receive adequate services in the first 

CHINS case and that he “actively engaged” in proper services in the second 

CHINS case. Appellant’s Br. p. 33. According to Father, he has not had a 

positive drug screen since February 2016, and substance abuse is no longer an 

issue. Father contends that he has made improvements in therapy, that he had 

a stable job and home, and that he was working on his financial stability. 

[16] The Children were initially removed from Father and Mother in March 2014 

due to Mother and Father’s drug usage. Although that CHINS case was 

eventually closed in October 2015 and the Children were placed with Father, 

Father soon relapsed. In December 2015, Father snorted spice in a vehicle with 

the Children and had a seizure. Six-year-old C.M. had to get help for Father, 

R.M. feared Father was dead, and the Children were removed again. Father 

had a positive drug screen in February 2016, testing positive for amphetamine, 

buprenorphine, norbuprenorphine, morphine, and marijuana. A week later, he 

tested positive for buprenorphine and norbuprenorphine. Although Father 

claims that he last used illegal drugs in March 2016, Mother testified that 

Father was using drugs between April and June 2016. As of October 2016, 

DCS reported to the trial court that Father had been notified to submit to drug 

screening thirty-two times and that he had submitted only seven screens. 

[17] Although Father was ordered to complete services, he failed to do so and was 

found in contempt in May 2016. He waited until August 2016 to begin 

participation in the services. Father completed a substance abuse assessment in 

August 2016 and then began an IOP, which he completed in December 2016. 
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However, Father missed drug screens on February 13, 2017, and March 16, 

2017. He began home-based counseling in October 2017. The cleanliness of 

Father’s home was “kind of like a roller coaster,” meaning that sometimes it 

was acceptable but most of the time it was “below standards.” Tr. Vol. II p. 59. 

He began individual therapy in November 2016 and had been making progress. 

Father was continuing to work on his unhealthy relationships. Father’s current 

residence was not suitable for the Children, and he continued to struggle to 

resolve legal issues that resulted in the loss of his driver’s license. Although 

Father was working, he continued to have financial difficulties. Father had 

been visiting with the Children consistently but never progressed beyond 

supervised visitations.

[18] We acknowledge that Father made some progress late in the CHINS 

proceedings. However, DCS properly notes that, “after almost three years of 

services Father had not reached a point where relapse was unlikely, had not 

obtained adequate housing or maintained the housing he had, and Father 

continued to make poor financial choices which would perpetuate the risk the 

Children’s needs would not be met.” Appellee’s Br. p. 25. Father cannot 

simply miss drug tests and claim that he has been drug free since March 2016. 

The risk for relapse is significant, and we cannot say that the trial court’s 

finding regarding the reasonable probability the conditions that resulted in the 

removal of the children from the home or the reasons for continued placement 

outside the home will not be remedied is clearly erroneous. 
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B. Best Interests

[19] Father challenges the trial court’s finding that termination of his parental rights 

is in the Children’s best interests. In determining what is in the best interests of 

a child, the trial court is required to look at the totality of the evidence. D.D., 

804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of 

the parents to those of the child involved. Id. 

[20] Father argues that he had been consistently visiting with the Children, showed 

appropriate parenting skills, was bonded with the Children, and had made 

significant improvements through services. We also acknowledge that the 

Children are bonded with Father. C.M.’s therapist testified that C.M. misses 

her parents and worries about them. The therapist testified, however, that it 

was in C.M.’s best interest to be in a safe environment away from drug usage. 

DCS presented evidence that both the family case manager and the CASA 

believed that Father had not made enough progress during the CHINS 

proceedings. For many months during the second CHINS proceeding, Father 

failed to participate in services, was actively using drugs, and made no progress 

whatsoever. Late in the CHINS proceeding, Father began participating, but 

given his late participation and missed drug screens, it is unclear that Father’s 

progress will be permanent. The trial court found that termination of Father’s 

parental rights was in the Children’s best interests, and under these 

circumstances, we cannot say that the finding is clearly erroneous. 
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II. Continuance

[21] Father argues that the trial court abused its discretion by denying Mother’s 

motion for a continuance of the termination hearing. A trial court’s decision to 

grant or deny a motion to continue is subject to abuse of discretion review. In re 

K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). “‘An abuse of discretion may be 

found in the denial of a motion for a continuance when the moving party has 

shown good cause for granting the motion,’ but ‘no abuse of discretion will be 

found when the moving party has not demonstrated that he or she was 

prejudiced by the denial.’” Id. at 244 (quoting Rowlett v. Vanderburgh Cnty. Office 

of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied). 

[22] At the May 2017 hearing, Mother requested a continuance, and Father joined 

in the motion. Mother testified that she expected to be released from jail by

July 2017. She requested the continuance so that she could be released from 

jail and start services. Mother does not appeal the termination of her parental 

rights, and Father has not demonstrated how he was prejudiced by the denial of 

Mother’s motion. Under these circumstances, we cannot say that the trial court 

abused its discretion.

III. Filing of Petition to Terminate Parental Rights

[23] Father also argues that DCS’s filing of the petition to termination Father and 

Mother’s parental rights was untimely. Father relies on trial court orders from 

October 26, 2016, and November 14, 2016. On October 26, 2016, the trial 

court held a permanency hearing. At that time, the trial court noted: “Court 
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shall not authorize DCS to file a Petition to Terminate Parental Rights for a 

period of ninety (90) days from today’s hearing.” Ex. Vol. I p. 13. The trial 

court held another permanency hearing on November 14, 2016, and similarly 

noted: “Court shall not authorize DCS to file a Petition to Terminate Parental 

Rights for a period of ninety (90) days from today’s hearing.” Id. at 11. At the 

next permanency hearing on January 30, 2017, the trial court approved a 

permanency plan of initiation of proceedings for termination of the parent-child 

relationship. On February 8, 2017, DCS filed a petition to terminate Father’s 

and Mother’s parental rights to the Children.

[24] The February 8, 2017 filing was eighty-six days after the November 14, 2106 

hearing. Consequently, Father argues that DCS filed the petition to terminate 

his parental rights too early. According to Father, the trial court “lacked 

jurisdiction to grant said petition.” Appellant’s Br. p. 40.

[25] Our supreme court has “clarified ‘the nature of jurisdiction in Indiana trial 

courts’ and held that the concept of ‘jurisdiction over a particular case’ has been 

abolished.” Brown v. Lunsford, 63 N.E.3d 1057, 1060 (Ind. Ct. App. 2016) 

(quoting R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 

2012)). “Attorneys and judges alike frequently characterize a claim of 

procedural error as one of jurisdictional dimension. The fact that a trial court 

may have erred along the course of adjudicating a dispute does not mean it 

lacked jurisdiction.” Id. (quoting K.S. v. State, 849 N.E.2d 538, 541 (Ind. 

2006)). 
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To act in a given case, a trial court must possess both subject 

matter jurisdiction and personal jurisdiction. Subject matter 

jurisdiction exists when the Indiana Constitution or a statute 

grants the court the power to hear and decide cases of the general 

class to which any particular proceeding belongs. Personal 

jurisdiction exists when a defendant both has sufficient minimum 

contacts within the state to justify a court subjecting the 

defendant to its control, and has received proper notice of a suit 

against him in that court.

R.L. Turner Corp., 963 N.E.2d at 457 (citing K.S., 849 N.E.2d at 538, 540).

[26] Father’s claim does not implicate subject matter jurisdiction or personal 

jurisdiction. Rather, this is a claim of procedural error, which is subject to 

waiver. K.S., 849 N.E.2d at 542. Father did not raise this objection with the 

trial court, and it is waived. 

[27] Further, we note DCS argues on appeal that it does not need permission of the 

trial court to file a petition for termination of parental rights, and Father cites no 

authority for the proposition that DCS does need such permission. Father’s 

argument is also waived for failure to make a cogent argument. See Ind. 

Appellate Rule 46(A)(8)(a). 

Conclusion

[28] The evidence is sufficient to support the termination of Father’s parental rights 

to the Children. The trial court did not abuse its discretion by denying 

Mother’s motion to continue, and Father has waived his argument that DCS’s 
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filing of the petition to terminate Father’s parental rights was premature. We 

affirm.

[29] Affirmed.

Najam, J., and Mathias, J., concur.