ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEY FOR APPELLEE LAKE

Deidre L. Monroe INDIANA DEP’T OF CHILD SERVS. COUNTY COURT APPOINTED

Gary, Indiana Gregory F. Zoeller SPECIAL ADVOCATE

Attorney General of Indiana Donald W. Wruck, III

Dyer, Indiana

Eugene M. Velazco, Jr.

Indiana Dep’t of Child Servs.,

Gary, Indiana

Robert J. Henke

Indiana Dep’t of Child Servs.,

Indianapolis, Indiana

__________________________________________________________________________________ 

In the

Indiana Supreme Court

_________________________________

No. 45S03-1308-JT-557

IN THE MATTER OF THE TERMINATION OF THE

PARENT-CHILD RELATIONSHIP OF 

E.M. AND EL.M.,

E.M.,

Appellant (Respondent), 

V.

INDIANA DEPARTMENT OF CHILD SERVICES,

Appellee (Petitioner). 

_________________________________

Appeal from the Lake Superior Court, Juvenile Division, Nos. 45D06-1102-JT-41 and 45D06-

1102-JT-42

The Honorable Mary Beth Bonaventura, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1208-JT-370

_________________________________

March 7, 2014

Rush, Justice.

Decisionsto terminate parental rights are among the most difficult our trial courts are called 

upon to make. They are also among the most fact-sensitive—so we review them with great deference 
2

to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing 

witness credibility. Because a case that seems close on a “dry record” may have been much more 

clear-cut in person, we must be careful not to substitute our judgment for the trial court when 

reviewing the sufficiency of the evidence.

We granted transfer to reiterate that caution. Father’s eventual efforts to establish a relationship with his children were commendable, and DCS’s family preservation efforts with him could have

been stronger. Yet the standard of review requires us to consider only the evidence favorable to the 

judgment—and in turn, to respect the trial court’s reasonable conclusion that Father’s efforts were 

both too little in view of his violence and earlier pattern of hostility toward services, and too late in

view of the children’s urgent need for permanency after several yearsin out-of-home placement. The

evidence was sufficient to support termination, so we defer to the trial court and affirm its judgment.

Facts and Procedural History

In late 2008, one-year-old E.M., his newborn sister El.M., and their five older half-siblings1

were adjudicated CHINS, based on reports of Father’s repeated domestic violence against Mother. 

The children were initially allowed to remain in the home on the condition that Father stay away, but 

were removed a few months later after Father violated that condition.

Besides the order to stay away from the home, the CHINS disposition also required Father 

to establish his paternity of E.M. and El.M.; to undergo a psychological evaluation and counseling 

for domestic violence, anger management, and parenting; and to have only supervised visits with the 

children. His only efforts in those matters consisted of attending two domestic-violence counseling 

sessions and (viewing disputed evidence favorably to the judgment) a single visit with the children 

after they were removed from the home. Moreover, Father was hostile and verbally abusive to service 

providers, and he denied that any domestic violence had occurred—even though police identified 

him as the aggressor in a March 2009 incident, shortly after the children’s removal, where he 

admittedly bit Mother’s face and Mother stabbed him in the abdomen. Father failed to appear for all 

but the first two CHINS hearings, then dropped out of contact with DCS. As a result, DCS 

 

1 Father and both children share the initials E.M. To distinguish them, we refer to Father as 

“Father,” to the older child as “E.M.,” and the younger child as “El.M.” The other children are 

not Father’s and are not involved in this appeal.
3

discontinued services to Father in mid-2009—and unbeknownst to DCS, Father was incarcerated in 

Illinois for a felony firearm conviction beginning in September 2009.

By mid-2010, Mother too had fallen out of compliance with services, and the children had 

been removed from the home for more than fifteen of the previous twenty-two months. DCS 

therefore petitioned to terminate Mother’s and Father’s parental rights, and adoption by relatives 

became an alternative permanency plan. And by early Spring 2011, E.M., El.M., and two of their

half-siblings had been placed with their maternal grandmother R.E., who planned to adopt them.

Immediately after his release from prison in January 2012, Father contacted DCS, told them

of his incarceration, and asked to resume visitation with E.M. and El.M. But DCS did not permit

any visits because the visitation order had been conditioned on Father’s participation in court-ordered

services, which he had abandoned—though he had completed parenting and anger-management 

classes in prison. Father also resumed attendance at hearings. But by then, adoption by R.E. had

long since become the sole permanency plan, and DCS continued to pursue termination.

At the final hearing, the witnesses for DCS and CASA unequivocally recommended terminating Father’s parental rights. They explained that E.M.’s and El.M.’s older half-siblings had 

post-traumatic stress disorder (PTSD) and were afraid of Father because of the domestic violence 

they’d witnessed, and that there had never been any “bonding” between Father and E.M. and El.M. 

The children had been removed from the home for nearly three and a half years and were thriving 

in placement with R.E. As the Permanency Family Case Manager summarized, “[w]e can’t keep 

starting [the children] over,” because it would be unfair to them “to wait around for [the] parents 

to get on board” with reunification.

The trial court’s order essentially agreed with DCS’s view. It found that Father “continues to 

deny that he has issues with domestic violence,” that he “has not completed any counseling or 

therapy,” and “has not seen his children in over two years.” It acknowledged that Father “has 

recently attempted to comply with the case plan,” but noted that he also “had ample opportunity 

before his incarceration to comply, which he refused. The children cannot wait three years for a 

parent to comply.” The court therefore terminated Father’s parental rights, and he appealed.

A divided panel of the Court of Appeals reversed by unpublished memorandum decision.

In re E.M., No. 45A03-1208-JT-370 (Ind. Ct. App. May 8, 2013), trans. granted, 993 N.E.2d 182 
4

(Ind. 2013). The majority held that the trial court unduly “emphasize[d] Father’s past conduct and 

minimize[d] his recent progress and efforts at the time of the termination hearing.” Slip op. at 10. 

The majority emphasized that despite Father’s early non-compliance, he had completed parenting 

and anger-management classes while in prison, contacted DCS upon his release in hopes of seeing 

the children, undergone a psychological evaluation, and completed or nearly completed additional 

parenting and anger-management classes by the time of the final hearing. Id. at 10–11. Thus, the 

majority concluded that the trial court placed too much weight on Father’s past conduct without 

sufficiently “taking into consideration evidence of changed conditions” at the time of the 

termination hearing. Id. at 11 (citing In re I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009)). Judge 

Kirsch dissented without separate opinion. Id. at 12.

We granted transfer, vacating the Court of Appeals opinion, and now conclude that the 

Court of Appeals majority contravened the standard of review by reweighing the evidence. We 

therefore affirm the trial court’s judgment. Additional facts will be supplied as necessary.

Standard of Review

We have repeatedly recognized that “parental rights are precious and protected by our Federal 

and State constitutions.” E.g., In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013). Accordingly, when seeking to terminate parental rights, DCS must prove its case by “clear and convincing 

evidence,” Ind. Code § 31-37-14-2 (2008)—a “heightened burden of proof” reflecting termination’s

“serious social consequences.” In re G.Y., 904 N.E.2d 1257, 1260–61 & n.1 (Ind. 2009).

But weighing the evidence under that heightened standard is the trial court’s prerogative—

in contrast to our well-settled, highly deferential standard of review. “We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the 

judgment and the reasonable inferences to be drawn from the evidence.” Egly v. Blackford Cty. 

Dept. of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We confine our review to two steps: 

whether the evidence clearly and convincingly supports the findings, and then whether the findings 

clearly and convincingly support the judgment. K.T.K. v. Indiana Dep’t of Child Servs., 989 N.E.2d 

1225, 1229–30 (Ind. 2013) (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). 

Reviewing whether the evidence “clearly and convincingly” supports the findings, or the 

findings “clearly and convincingly” support the judgment, is not a license to reweigh the evidence. 
5

Rather, it is akin to the “reasonable doubt” standard’s function in criminal sufficiency of the 

evidence appeals—in which “we do not reweigh the evidence or assess the credibility of the 

witnesses,” and consider only whether “there is probative evidence from which a reasonable jury

could have found the defendant guilty beyond a reasonable doubt.” Treadway v. State, 924 N.E.2d

621, 639 (Ind. 2010) (emphasis added). That is, we do not independently determine whether that 

heightened standard is met, as we would under the “constitutional harmless error standard,” which 

requires the reviewing court itself to “be sufficiently confident to declare the error harmless beyond

a reasonable doubt.” Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v. California, 386 U.S. 18 (1967)). Our review must “give ‘due regard’ to the trial court’s opportunity to 

judge the credibility of the witnesses firsthand,” and “not set aside [its] findings or judgment unless

clearly erroneous.” K.T.K., 989 N.E.2d at 1229 (citing Ind. Trial Rule 52(A)).

Discussion and Decision

Father challenges the sufficiency of the evidence to support terminating his parental rights, 

arguing that DCS failed to prove every necessary element of its case by “clear and convincing 

evidence.” So far as relevant here, DCS had to prove four elements: (1) E.M. and El.M. “ha[d] 

been removed from the parent for at least six (6) months under a dispositional decree”; (2) “there 

is a reasonable probability that the conditions that resulted in the child[ren]’s removal or the 

reasons for placement outside the home of the parents will not be remedied”; (3) “termination is 

in the best interests of the child[ren]”; and (4) “there is a satisfactory plan for the care and treatment 

of the child.” I.C. § 31-35-2-4(b)(2) (2008). On transfer, Father’s arguments focus principally on 

the second and third elements—whether there is “clear and convincing evidence” of a reasonable 

probability that he would fail to remedy the domestic violence that led to the children’s removal, and 

whether terminating any relationship with their father is in the children’s best interests. We address 

each argument in turn.

I. Remedying Conditions Resulting in Removal.

In determining whether “the conditions that resulted in the child[ren]’s removal . . . will 

not be remedied,” id., we “engage in a two-step analysis,” K.T.K., 989 N.E.2d at 1231. First, we 

identify the conditions that led to removal; and second, we “determine whether there is a 

reasonable probability that those conditions will not be remedied.” Id. (quoting I.A., 934 N.E.2d at 
6

1134) (internal quotation marks omitted). In the second step, the trial court must judge a parent’s 

fitness “as of the time of the termination proceeding, taking into consideration evidence of changed 

conditions,” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)—

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.” K.T.K., 989 N.E.2d at 

1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation marks omitted). 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. See K.T.K. at 1234.2 Requiring trial courts to give due

regard to changed conditions does not preclude them from finding that parents’ past behavior is 

the best predictor of their future behavior.

Here, the neglect and domestic violence that resulted in the children’s removal, see I.C. § 31-

34-1-1(1) (2008), were so severe that E.M.’s and El.M.’s older half-siblings fled from the home to 

call 911 during previous incidents, and witnessing the violence had caused them to suffer posttraumatic stress disorder (PTSD). And the violence was serious enough that when police arrived 

to investigate the incident that triggered the CHINS case, Father hid from them on the roof of the 

house. Yet the violence escalated still further during the CHINS case—culminating in the admitted 

biting and stabbing incident in March 2009. Against that background, Father’s prior pattern of 

apathy toward services and hostility toward service providers is significant—as is his testimony 

minimizing his domestic violence as merely becoming “upset beyond necessity” or “overreacting,” 

and shifting the blame to unspecified people who had “attacked” him and made him “angry”:

I admit that I have gotten upset, uh, beyond the necessity for things that I, for, uh, 

I have felt I have been attacked on certain levels and it has made me angry, yes, and 

 

2 Accord In re W.B., 772 N.E.2d 522, 534 (Ind. Ct. App. 2002) (“[T]he trial court did consider the 

Parents’ improved circumstances, but found the short-term improvements insufficient to outweigh 

the Parents’ habitual patterns of conduct. We find no fault with this conclusion.”); In re C.M., 675 

N.E.2d 1134, 1140 (Ind. Ct. App. 1997) (“Although [Mother] argues that she had started to 

comply with the dispositional order shortly before the termination hearing, it was within the 

province of the trial court, as the finder of fact, to ignore or discredit this evidence.”). See also, 

e.g., In re A.J., 881 N.E.2d 706, 714–16 (Ind. Ct. App. 2008), trans. denied; In re D.D., 804 N.E.2d 

258, 266 (Ind. Ct. App. 2004), trans. denied; In re D.G., 702 N.E.2d 777, 779 (Ind. Ct. App. 1998) 

(all stating that while parental fitness should be judged as of the date of the termination 

proceedings, trial court must also consider the parent’s historical patterns of conduct in 

determining the probability of future neglect, deprivation, or other detrimental behavior).
7

I agree, you know, that, uh, maybe I have overreacted. I think that, yeah, I’m 

probably guilty of it.

Tr. 190.

In view of that evidence, the trial court entered a number of specific findings of fact, which 

illuminate how it weighed Father’s past history against his recent efforts:

 The children were referred to DCS “due to domestic violence in the home between 

[M]other and [F]ather.”

 “Services were made available to all the parents,” including “anger management[ and]

domestic violence counseling . . . .”

 Father “continued . . . to live in the home, and the children and [M]other were being 

abused in the home” until they “had to be removed in February 2009.”

 Father “denied all services offered” and “refused to comply with any of the service 

providers” until services for him “ceased . . . due to his non-compliance and lack of 

contact.”

 Father “continues to deny that he has issues with domestic violence.”

 Father “has not completed any counseling or therapy.”

 “Even though [Father] has recently attempted to comply with the case plan, he has had 

ample opportunity before his incarceration to comply, which he refused.”

It is apparent from those findings that the trial court was unpersuaded by Father’s recent efforts—

inferring instead from his past hostility toward services that he was unlikely to succeed in remedying

a domestic-violence problem that he refused to even acknowledge. So viewed, the findings are 

sufficient to clearly and convincingly support the judgment.

The more difficult issue in this case, though, is the threshold question of whether the 

evidence supports those findings. The dissenting opinion would hold that four of the findings—the

children being abused in the home, Father denying all services offered, Father denying his issues 

with domestic violence, and Father failing to complete any counseling or therapy—are “unsupported 

by any evidence whatsoever,” slip op. at 2; and that the remaining findings are “wholly insufficient 

to support the trial court’s judgment,” id. at 4. But even though the evidence and potential 

inferences were conflicting, the record sufficiently supports the trial court’s findings. We therefore 

respectfully disagree with our colleague.
8

A. Father’s abuse of the children.

First, it was reasonable under the circumstances to find that Father’s violence towards 

Mother had also “abused” E.M. and El.M.—the trial court was not required to believe that they 

were unaffected by the same violence that had caused their older half-siblings to develop PTSD. 

“[M]any people assume that very young children are not affected at all” by violence between their 

parents, “erroneously believing that they are too young to know or remember what has happened.”

Joy D. Osofsky, The Effects of Exposure to Violence on Young Children, 50 Am. Psychologist 

782, 783 (1995). But “even in the earliest phases of infant and toddler development, clear 

associations have been found between exposure to violence and post-traumatic symptoms and 

disorders.” Id. Indeed, “[t]he developing brain is most vulnerable to the impact of traumatic 

experiences” before age one—and during the first three years, those experiences actually change 

the organization of the brain’s neural pathways. Abigail Sterne et al., Domestic Violence and 

Children: A Handbook for Schools and Early Years Settings 19 (2010) (citations omitted); Allan 

N. Schore, The Effects of Early Relational Trauma on Right Brain Development, Affect 

Regulation, and Infant Mental Health, 22 Infant Mental Health J. 201, 209–10 (2001). 

A lack of beatings therefore does not equate to a lack of abuse, nor does the children’s 

tender age equate to a lack of harm. Infants as young as fifteen months exhibit behavioral 

disturbances from spousal violence. Charles H. Zeanah, et al, Disorganized Attachment Associated 

with Partner Violence: a Research Note, 20 Infant Mental Health J. 77, 82–83 (1999). And for 

later infants and toddlers like El.M. and E.M., the symptoms are “very similar to post-traumatic 

stress disorder in adults.” Joy D. Osofsky, The Impact of Violence on Children, 9 Domestic 

Violence & Children 33, 36 (1999) (citing Osofsky et al., The Effects of Trauma on Young 

Children: A Case of Two-Year-Old Twins, 76 Int’l J. Psychoanalysis 595 (1995)). But “[y]ounger 

children generally do not have the ability to express their feelings verbally”—so their “observable 

reactions . . . may not tally with their emotional reactions,” and “[i]t may take some time before 

children are able to show any reaction at all” despite being affected. Sterne et al., supra, at 20. 

Based on the older half-siblings’ PTSD diagnoses and the younger children’s even greater 

vulnerability to psychological harm, the trial court was within its discretion to find that Father’s

violence against Mother had also abused E.M. and El.M.
9

B. Father’s denial of all services offered.

Second, the finding that Father “denied all services offered” was also proper. That finding 

is followed later in the same paragraph by another finding that he “recently attempted to comply 

with the case plan.” Reading those findings together, we find it to be clear in context that the court 

was referring only to Father’s pre-incarceration refusal of services—a matter he does not

substantially dispute. Moreover, that refusal of services was accompanied by his failure to attend 

most of the CHINS hearings in the same timeframe—further illustrating what was, at least during

that time, a deep-seated disregard of the children’s needs and of any attempt to remedy the abusive 

conditions in their home. In its proper context, we find no error in this finding.

C. Father’s continued denial of issues with domestic violence.

The trial court also had ample record basis to “fault Father for ‘contin[uing] to deny that he 

has issues with domestic violence.’” Slip op. at 5. Father unequivocally testified that his problem was

only anger, not violence. We are not being hyperliteral—he drew that distinction in no uncertain 

terms:

Q Sir, you stated you overreacted, um, sometimes, in terms of having some kind 

of domestic disturbances with [Mother]?

A No, that’s not what I said.

Q That’s not what you said?

A No, sir.

Q That you overreacted, that you would overreact?

A She said, did I ever have any anger issues, and I said, I do believe that in 

instances, I have overreacted—

Q Okay.

A —to, to, to, to where, the way I have been treated, uh, to, you know, in, when, 

when it relates to that situation and, and I could have, I could have responded 

better, that’s what I said. Yes, sir.

Q So you don’t really feel like you have a violence, violent tendencies, or anything 

like that? 

A I know I don’t have violent tendencies—in terms of committing to harming 

someone, no, sir.
10

Q All right. Well, back in 1993, you were convicted of Armed Robbery, did you, 

or did you not? [sic]

A Yes, sir.[

3

]

Father’s unequivocal denial of any issue with violence—despite his recent domestic violence and 

prior conviction for a violent crime—amply supports the trial court’s similarly unequivocal 

finding.

Nor can we agree that there is any “lack of evidence that violence in Father and Mother’s 

home would not be (and has not already been) remedied,” as the dissent would hold. Slip op. at 8. 

The trial court was not required to ascribe weight to the three-year lack of domestic violence 

between Father and Mother, when Father was incarcerated for most of that time; nor was it required 

to credit Father’s wife’s testimony that he had never been violent towards her. Moreover, the risk 

factor in abusive relationships is the abuser, not the victim. “Deprived of their victim, many abusers 

will go on to abuse another intimate partner or family member. . . . [A]pproximately one-third of 

abusers will reabuse in the short run, and more will reabuse in the long run.” Andrew R. Klein, Nat’l 

Inst. of Justice, Practical Implications of Current Domestic Violence Research: For Law 

Enforcement, Prosecutors and Judges 18–19 (2009), available at http://www.ncjrs.gov/pdffiles1/nij

/225722.pdf. The trial court was not required to turn a blind eye to the statistical reality that an 

abuser—particularly one who denies having a problem—would be at higher risk of future abuse, 

even if his preferred victim was his girlfriend instead of his wife.

D. Father not completing any counseling or therapy.

Fourth and finally, the finding that Father “has not completed any counseling or therapy” 

was technically correct, albeit of limited probative value. The only evidence of Father “completing”

anything like “counseling or therapy” was a “Certificate of Participation” in a “Parenting Education 

Program” about which Father presented no additional information, and a single sentence of Father’s 

own testimony: “I also completed anger management while I was incarcerated.” With no evidence 

 

3

In view of this evidence, the dissent is correct that finding Father’s recent imprisonment was for

armed robbery was clearly erroneous. Instead, it was for a felony weapons possession charge. But 

it is the fact of imprisonment, not the nature of the underlying offense, that is most relevant to 

this case. Moreover, even a relatively old conviction for a violent offense like armed robbery is 

relevant in view of Father’s recent domestic violence history. Conflating Father’s old conviction 

with his recent imprisonment was error, but does not warrant reversal.
11

about the substance of the parenting program, the trial court was not required to consider it a form 

of counseling or therapy; nor was it obligated to credit Father’s testimony about anger 

management. The remaining testimony was that Father had “one or two meetings left” for a second

anger management class and had “attended” a second parenting class, and a document showing that 

he had attended one hour of alcohol and drug counseling (as part of a twelve-hour program)—but 

not that he had “completed” any of those. Given Father’s near-completion of those subsequent 

classes, this finding standing alone could not support termination—but since the other findings are 

amply supported by the evidence, any shortfall in this finding does not undermine our confidence 

in the judgment.

To the contrary, the four findings we have particularly scrutinized highlight important 

differences between this case and Rowlett v. Vanderburgh Cty. Office of Family & Children, 

which also involved an incarcerated father. 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied. 

There, children of similar ages (three and two) were removed from the home, adjudicated CHINS, 

and placed with their grandmother. Id. at 617–19. The father was imprisoned while the CHINS 

case was pending, and the case progressed to termination about three years after the children’s 

removal, even though the father participated extensively in Department of Corrections programs that 

were appropriate to the issues (neglect and drug use) that were the basis for removal. Id. at 622. A 

divided panel of the Court of Appeals reversed the termination of the father’s rights because he 

“should have [been] granted . . . a sufficient period following his release to demonstrate his 

willingness and ability to assume parental duties.” Id. at 619–20.

But Father here is not similarly situated to Rowlett. There, the father had expressed desire 

for reunification starting on the very day the children were removed, and he was active in the 

CHINS case. Id. at 617–18. Further, he undertook 1,100 hours of appropriate programs, and he 

maintained his relationship with the children by letters and phone calls from prison. Id. at 622. 

And critically, the father’s testimony in Rowlett showed significant insight into his drug problem 

that led to the children’s removal: “I never wanna use drugs again. It’s ruined my life. It’s ruined 

everything about me.” Id. at 622. By contrast, Father here had nearly a year before incarceration 

to participate in court-ordered services yet did nearly nothing, including choosing not to appear 

for any but the first two CHINS hearings—and he made no effort to maintain his relationship with 

E.M. and El.M. while in prison, or even to notify DCS that he was there. And despite the programs 
12

he participated in during and after his imprisonment, Father’s testimony showed his continuing 

lack of insight into the domestic violence that led to the CHINS case.

The similarities between this case and Rowlett may have permitted the trial court to find in 

Father’s favor—but unlike Rowlett, the evidence was not compelling enough to require it. Instead, 

as in K.T.K., it was not “clearly erroneous” for the trial court to find that Father’s recent accomplishments, though commendable, were nevertheless outweighed by his historical patterns and ongoing 

failure to appreciate the extent of his domestic violence problems. The Court of Appeals’ focus on 

Father’s recent efforts was understandable, but nevertheless amounted to reweighing the evidence 

in violation of the standard of review.

II. Termination in Children’s Best Interests.

Perhaps the most difficult determination in a TPR is whether terminating parental rights is in

the children’s best interests—a question that necessarily places the children’s interest in preserving 

the family into conflict with their need for permanency. As Father discussed at oral argument, social

science research shows significant benefits to children when non-custodial fathers remain involved 

in their lives. E.g., Marcia J. Carlson & Katherine A. Magnuson, Low-Income Fathers’ Influence on

Children, 635 Annals of Am. Acad. Pol. & Soc. Sci. 95, 107 (2011) (collecting studies). Consistent 

with those findings, federal and state child-welfare laws mandate reasonable efforts “to preserve 

and reunify families.” 42 U.S.C. § 671(a)(15) (2006); I.C. § 31-34-21-5.5(b) (2008). Attempting 

to preserve and reunify families promotes not just parents’ fundamental liberty interest in raising 

their own children, see Troxel v. Granville, 530 U.S. 57, 65 (2000), but also the children’s best 

interests. Marginal reunification efforts, then, come at the expense of children and parents alike.

But children also have a paramount need for permanency, which we have called “a central 

consideration in determining the child’s best interests.” K.T.K., 989 N.E.2d at 1235 (quoting G.Y., 

904 N.E.2d at 1265) (substitutions omitted). Indeed, just as social science confirms the value of 

fathers, it also confirms the value of permanency. E.g., Thaddius A. Townsend, Going Before Solomon with a Special Request: The Need for Clearer Legal Recognition of Shared Custody Rights 

Between Parents and Nonbiological Parents, 41 Cap. U. L. Rev. 327, 351-52 (2013) (“Child welfare 

experts have recognized that legally secure permanent placement is necessary for a child’s psychological stability and sense of belonging.” (internal quotation marks omitted)). For that reason, our 
13

laws that require reasonable family-preservation efforts are balanced by mandates aimed at accomplishing speedy permanency. As an example, federal and state laws require courts to hold a child’s 

permanency hearing no later than 12 months after placement in foster care, 42 U.S.C. § 675(5)(C) 

(2006); I.C. § 31-34-21-7(a) (2008)—and as of October 1, 2013, to report annually on the median 

number of days to permanency in their child-welfare cases. Ind. Administrative Rule 1(F) (citing 

U.S. Dep’t of Health & Human Servs., Admin. for Children & Families, ACYF-CB-PI-12-02,

Program Instructions for the Court Improvement Program (2012), available at http://www.acf.hhs.

gov/sites/default/files/cb/pi1202.pdf). Simply stated, children cannot wait indefinitely for their 

parents to work toward preservation or reunification—and courts “need not wait until the child is 

irreversibly harmed such that the child’s physical, mental and social development is permanently 

impaired before terminating the parent-child relationship.” K.T.K., 989 N.E.2d at 1235 (internal 

quotation marks omitted).

So while permanency is important in every TPR case, it was particularly urgent here—as

reflected in the trial court’s pointed finding that “[t]he children cannot wait three years for a parent 

to comply” with services. It was undisputed that at the time of the hearing, the children had been 

removed from the home for nearly three and a half years—since E.M. was barely a year old and 

El.M. was in early infancy. And they had lived and bonded with their grandmother R.E. for nearly 

a year and a half, while having never bonded with Father. Yet as the Court of Appeals observed, 

Father was still not “ready to parent E.M. and El.M., who currently do not know their father,” and 

would likely need “additional services” in regard to parenting, domestic violence, and anger 

management. Slip op. at 11. 

The final question, then—and the one central to this Court’s difference of opinion—is

whether Father’s efforts after his release from prison necessarily made the children’s interest in 

family preservation more compelling than their need for permanency after three years. We agree 

fully with the dissent that focusing on permanency, standing alone, would impermissibly invert the 

best-interests inquiry; and we must sadly concur that preservation efforts have too often been 

extended halfheartedly to non-custodial minority fathers. As both opinions’ reliance on 

psychological and sociological research illustrates, child-welfare cases often implicate delicate 

social questions—and just as we have presumed the trial court’s familiarity with research about 

the effects of domestic violence on children in the household, we expect our child-welfare courts to 
14

be equally mindful of the dissent’s crucial concerns. Terminating a fit parent’s relationship with his

children fails to advance the State’s parens patriae interest, and gravely and irreparably harms families. That harm would be greater still if it were, even unconsciously, the product of racial bias.

But we perceive no such distortion in this particular case. Children’s vital interests in both 

preservation and permanency are inherently at odds in TPR cases—all the more so in this case, for 

the policy reasons the dissent thoughtfully identifies. And while the evidence in TPR cases is often 

lopsided, it was a much closer call here, because Father’s efforts to form a relationship with his 

children appear entirely genuine and demonstrate significant progress from his hostility toward

services and service providers at the beginning of the case. Yet it was not unreasonable for the trial 

court to find the countervailing evidence even more compelling—that the children had waited 

nearly three and a half years to have a permanent home, that Father was still in no position to provide 

them with that home, that he had not even bonded with them, and that his failure to make progress 

in regard to his domestic violence did not bode well for his ability to do so in any reasonable 

amount of additional time.

We recognize that Father’s incarceration played a substantial role in the lengthy delay and 

his failure to bond with the children—but incarceration alone cannot justify “tolling” a childwelfare case, as Father essentially seeks to do. First, Father cannot contend that those problems 

were merely a byproduct of imprisonment, when he had had nearly a year before then to engage 

in services and bond with his children, but failed to do so. And even after his apparent change of 

heart in prison, he could have notified DCS of his imprisonment, requested services, or at least 

sent progress reports from his prison programs. For that matter, he could have made at least some 

effort to communicate with E.M. and El.M., perhaps by sending cards or short letters, or by 

telephone as they became older—all of which Rowlett illustrates are viable from behind bars, even 

with children as young as two or three years old.

Still, we acknowledge that for all the reasons the dissent identifies, the evidence here was 

close, and Father’s admirable efforts after his release from prison could have permitted a denial of 

TPR. Unlike Rowlett, though, the evidence does not compel denial, either—as it might if this case 

involved a shorter delay, some efforts by Father to forge a relationship with his children from prison, 

or greater insight into his domestic violence problem. Because the trial court could reasonably have 
15

reached either conclusion, our deferential standard of review is dispositive. It was not clearly erroneous for the trial court to conclude that after three and a half years, Father’s efforts simply came 

too late, and that E.M. and El.M. needed permanency even more than they needed a final effort at 

family preservation.

Conclusion

We recognize the great value of encouraging noncustodial fathers to be involved in their 

children’s lives. Similarly, we acknowledge the efforts Father made toward that goal after his release 

from prison, in sharp contrast to his earlier hostility toward services. Yet despite his efforts, there 

were strong indications that he still had not come to terms with the domestic violence that triggered 

DCS’s involvement. The children’s best interests—especially their need for permanency after years 

in “temporary” placement—are paramount. After hearing the extensive testimony and reviewing 

voluminous exhibits, the trial court was within its discretion to find the children’s needs to be 

weightier than Father’s belated efforts. Because we may not reweigh that evidence, we affirm the 

trial court.

Dickson, C.J., and David and Massa, JJ., concur.

Rucker, J., dissents with separate opinion.
Rucker, J., dissenting.

In a carefully worded and well reasoned memorandum decision the Court of Appeals 

concluded there was insufficient evidence to support the trial court’s judgment terminating 

Father’s parental rights. In re E.M., No. 45A03-1208-JT-370 (Ind. Ct. App. May 8, 2013). It 

therefore reversed the judgment of the trial court. I agree with the Court of Appeals and thus 

respectfully dissent from the majority’s contrary view. 

The parent-child relationship is “one of the most valued relationships in our culture.” 

Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003) (quotation 

omitted). And a parent’s interest in the upbringing of his or her child is “perhaps the oldest of 

the fundamental liberty interests recognized by th[e] [c]ourt[s].” Troxel v. Granville, 530 U.S. 

57, 65 (2000) (plurality op.). It is thus not surprising that the United States Supreme Court has 

declared that before a State may completely and irrevocably sever a parent’s parental rights, the 

State must at a minimum support its allegations by “clear and convincing” evidence. The Court 

has elaborated: 

When the State initiates a parental rights termination proceeding, it 

seeks not merely to infringe that fundamental liberty interest, but

to end it. “If the State prevails, it will have worked a unique kind

of deprivation. . . . A parent’s interest in the accuracy and justice

of the decision to terminate his or her parental status is, therefore, a 

commanding one.” 

Santosky v. Kramer, 455 U.S. 745, 759 (1982) (quoting Lassiter v. Dep’t of Social Servs. of 

Durham Cnty., 452 U.S. 18, 27 (1981)). Indeed, the issue extends beyond the parent’s rights, but

also includes the rights of the child to his or her family. See Karen A. Wyle, Fundamental

Versus Deferential: Appellate Review of Terminations of Parental Rights, 86 Ind. L.J. Supp. 29, 

35 (2011). “[T]he child and his parents share a vital interest in preventing erroneous termination 

of their natural relationship.” Id. at 35-36 (quoting Santosky, 455 U.S. at 760). “While the State 

and the child share an obvious interest in protecting the child’s welfare and safety, ‘the State 

registers no gain towards its declared goals when it separates children from the custody of fit 

parents.’” Id. at 36 (quoting Stanley v. Illinois, 405 U.S. 645, 652 (1972)). 
2

As the majority recognizes, we review the trial court’s termination order to determine 

whether the evidence clearly and convincingly supports the trial court’s findings and whether the

findings clearly and convincingly support the judgment of termination. See slip op. at 4 (citing 

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013) (quotation omitted)). I 

agree this standard is “not a license to reweigh the evidence,” id., but rather implements our 

appellate authority to reverse in the presence of clear error. See Tr. Rule 52(A). But, in 

following the Supreme Court’s admonition to apply a heightened standard of proof in 

termination cases, we must be mindful that “a standard of proof loses much of its value if a 

reviewing court does not apply sufficient scrutiny to enforce it.” Wyle, supra at 37. 

Involving a mother, four fathers, and seven children, this case represents the efforts of 

one inner-city Father, attempting to “step up to the plate” and take responsibility for raising his 

children. In terminating Father’s parental rights the trial court relied on several findings that 

were unsupported by any evidence whatsoever. Among the critical erroneous trial court findings 

were that “the children . . . were being abused in the home.” Termination Order at 2. 

In point of fact, there is absolutely no evidence in the record that E.M. and El.M. were 

ever abused. Relying on literature standing for the general proposition that young children may 

be affected by exposure to domestic violence, the majority concludes “it was reasonable under 

the circumstances to find that Father’s violence towards Mother had also ‘abused’ E.M. and 

El.M.” Slip op. at 8. The majority seems to equate exposure to violence as “abuse” apparently 

reasoning that if a child is so exposed then the child is affected by the exposure and thus abused. 

Even accepting such a proposition, there is simply nothing in this record upon which the trial 

court could find that either E.M. or El.M. “were being abused in the home.” First, there is 

nothing in this record supporting the notion that E.M. or El.M ever observed the violence that 

occurred between Father and Mother. The case worker testified the “children had reported 

seeing” Father hit Mother on more than one occasion. Tr. at 60. But there were six children in 

the home at the time, with E.M. being the youngest. (El.M was not even born at the time). And 

as the caseworker explained she only interviewed “[t]he older children.” Tr. at 57. More to the 

point, although the record shows that two of the older half-siblings were diagnosed with 

psychiatric disorders, the same was not true with respect to E.M. or El.M. The following 
3

testimony from the children’s caseworker at the May 2011 termination hearing goes to the heart 

of the matter: 

Q. [A]s it relates to what the children are doing at this point, [E.M.] and 

[El.M], have they been diagnosed with any type of issues?

A. No.

Q. So they are doing, uh, physically and mentally fine?

A. Correct.

Tr. at 116. And although the therapist at the Carmelite Home where the children were placed 

from March 2009 to March 2011 found it necessary to provide therapy for the “older boys,” Tr. 

at 124, the therapist testified, “[n]o, I haven’t” to the question “as it relates to [E.M and El.M] 

have you had any relationship with them?” Tr. at 139. The inference if any that may be drawn 

from the testimony of the therapist is that had either E.M. or El.M exhibited any signs 

whatsoever of “psychological harm,” slip op. at 8, then the therapist would have provided 

appropriate intervention. Further, the Case Manager’s progress report dated April 16, 2010 

reveals “[E.M.] is a two year old African American male child who appears healthy and is age 

appropriately active. [El.M] is a one year old African American female child. [El.M] appears 

healthy and active. . . . There have been no reported behavioral problems with [E.M.] or [El.M].” 

CHINS Progress Report, Apr. 16, 2010 at 2, 3. Similar observations were made in the progress 

reports dated January 7, 20111and May 17, 2012.2 Thus, on the record before us the majority’s 

observation that “even in the earliest phases of infant and toddler development, clear associations 

have been found between exposure to violence and post-traumatic symptoms and disorders,” slip 

op. at 8 (quotation omitted), is simply not applicable to E.M. and El.M. Absent any evidence 

that E.M. or El.M were exposed to domestic violence and if exposed were affected by it, the trial 

 

1

“[E.M] is a three year old African American male child who continues to develop age appropriately. 

[E.M.’s] socialization skills are improving. [El.M] is a two year old African American female child who 

continues to appear healthy and is appropriately active.” CHINS Progress Report, Jan. 7, 2011 at 2. 

2

“[E.M.] is a four year old African American male child who is currently in preschool. [E.M.] is doing 

well in the home. [El.M] is a three year old African American female child who has been screened for 

preschool. [El.M] is doing well at home and gets along with her siblings.” CHINS Progress Report, May 

17, 2012 at 2. “[E.M.] and [El.M.] attend the preschool program at Caroline Sibley Elementary School

and are meeting developmental milestones.” Id. at 3.
4

court was not permitted to infer that Father abused his children. The trial court’s finding of 

abuse is unsupported by any evidence at all and was thus clearly erroneous. 

The trial court also found that Father “denied all services offered.” Termination Order at

2. This too is unsupported by the evidence. One such service involved psychological

counseling. The majority says that this finding read in context with another finding actually 

means that the trial court was referring to “Father’s pre-incarceration refusal of services . . . .” 

Slip op. at 9 (emphasis in original). But a Case Manager’s Progress Report dated July 31, 2009—

two months before Father was incarcerated—reveals: “[Father] (E.M. and El.M’s father) has 

made sporadic visits with his children. [Father] did provide an evaluation recently, but earlier 

declined anger management services when the children were removed from the home.” CHINS 

Progress Report, July 31, 2009 at 4. The report is consistent with the Case Manager’s testimony 

that “[t]here was a[] [psychological] evaluation completed for [Father].” Tr. at 89. It is clear 

that Father did engage in some services, though his participation was reluctant and less than 

satisfactory. And if, as the majority contends, the trial court was referring to an earlier point in 

time then the evidence does not support the trial court’s finding. On review, we examine the 

findings the trial court did make and ask whether those support the judgment; we do not examine 

the evidence to justify findings the trial court may have made—but did not—that might have 

supported the judgment. In any event to say that Father denied “all services” is simply incorrect. 

Once the foregoing clearly erroneous findings are set aside, the findings that remain are 

in my view wholly insufficient to support the trial court’s judgment terminating Father’s parental 

rights. More particularly there is scant evidence—and certainly not clear and convincing 

evidence—to support the conclusion that the condition resulting in the children’s removal will 

not be remedied and that termination is in the children’s best interest. 

In order to terminate a parent’s parental rights “the State must prove, by clear and 

convincing evidence, each and every element set forth in I.C. § 31-35-2-4(b)(2), (A)-(D).” In re 

G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009), reh’g denied. Relevant for our purposes the statute 

provides the State must prove, “[t]here 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 
5

not be remedied.” Ind. Code § 31-35-2-4(b)(2)(B)(i). Where the State fails to prove “any one” 

of the statutory elements “it is not entitled to a judgment terminating parental rights.” G.Y., 904 

N.E.2d at 1261. 

In this case E.M. and El.M. along with five other of Mother’s children were removed 

from the parents’ home and placed in foster care because of “[Father’s] abuse to [Mother] in the 

presence of the children.” CHINS Pet. Feb. 24, 2009 at 2. There is evidence that on March 9, 

2009—shortly after the children’s removal—violence again erupted between Father and Mother. 

But there is no evidence of any domestic violence between Father and Mother after that date. 

The trial court seemed to fault Father for “contin[uing] to deny that he has issues with domestic 

violence.” Termination Order at 2. The implication of course is that because Father apparently 

had issues of domestic violence in March 2009—and declined Court offered services for anger 

management—he still has such issues three years later. But Father has since engaged in anger 

management counseling and when questioned at the termination hearing acknowledged that he 

had “anger issues,” had “gotten upset . . . beyond . . . necessity,” “in instances [has] overreacted” 

and “could have responded better.” Tr. at 190, 203, 204. Further, Father has long since stopped 

living with Mother and her five additional children and instead is residing in Illinois with his 

wife of fifteen years, Y.M., and their two children. There is no evidence that Father and Y.M. 

have ever had a violent relationship, nor is there evidence that Father’s children with Y.M. or 

Y.M.’s two other children raised by Father have ever been the subject of state intervention. 

Considering: (1) no evidence that there have been any instances of domestic violence 

between Father and Mother since 2009, three years before termination; (2) Father engaged in 

anger management counseling; (3) Father no longer lives with Mother but lives with his wife of 

many years in another state; and (4) no evidence of domestic violence between Father and his 

wife, it appears to me Father has actually carried a burden he has no duty to carry, namely, 

demonstrating that the conditions that led to the children’s removal—domestic violence in the 

home of Father and Mother—no longer exists. Stated somewhat differently, the State has failed 

to show by clear and convincing evidence that the conditions that led to the children’s removal 

will not be remedied. On this ground alone the State “is not entitled to a judgment terminating 

[this Father’s] parental rights.” G.Y., 904 N.E.2d at 1261. 
6

Not only is there no clear and convincing evidence that the removal conditions will not 

be remedied, the evidence supporting the trial court’s conclusion that termination of Father’s 

parental rights is in the best interest of E.M. and El.M. is likewise deficient. Specifically, the 

trial court found that Father “has not seen his children in over two years,” and that he and the 

children have not “bonded.” Termination Order at 2, 3. 

First, whatever bonding occurred before Father’s incarceration—and the evidence is in 

conflict on this point—that bond obviously suffered during Father’s incarceration. But unlike 

the situation with Mother’s other children—the oldest of whom was age eleven at the time of 

termination—Father’s children were only three and four years of age at the time of termination. 

We have previously determined that despite a father’s lack of bonding, that is, “insufficient 

emotional attachment” with his two-year-old child, even with repeated visitation, was not 

sufficient to support terminating father’s parental rights. See In re I.A., 934 N.E.2d 1127, 1135-

36 (Ind. 2010). See also G.Y., 904 N.E.2d at 1265 (considering child’s age of less than five 

years and mother’s imminent release from prison in reversing termination). 

Further, upon release from incarceration Father immediately contacted DCS to establish 

visitation with E.M. and El.M. but DCS denied his requests. See Tr. at 111. One might query 

how is bonding possible when the State denies the very avenue by which it might occur? 

Nevertheless, when Father and stepmother appeared at a June 1, 2012 CHINS Review Hearing, 

the trial court ordered DCS to “make copies of all documentation [Father] has and submit it to 

the Court. DCS is to begin an interstate compact3of [Father’s] home in the State of Illinois for 

[El.M.].”4 Review Hrg. Order, June 1, 2012 at 2. The record does not reflect the outcome of the 

 

3

“The Interstate Compact on the Placement of Children (“ICPC”), enacted in all fifty states, provides a 

mechanism by which children can be sent to new foster or adoptive homes across state lines. The ICPC 

includes a reporting requirement that allows a receiving state to investigate the fitness of the proposed

home and to determine whether the child may be placed according to a proposed plan.” In re Termination 

of Parent-Child Relationship of A.B., 888 N.E.2d 231, 234 n.3 (Ind. Ct. App. 2008) (citing I.C. § 31-28-

4-1), trans. denied (emphasis added). We have recognized that no Indiana court has addressed the 

question of whether the ICPC applies to the interstate reunification of children with their natural parents, 

and other jurisdictions differ on the issue. See Bester v. Lake Cnty. Office of Family and Children, 839 

N.E.2d 143, 145 n.2 (Ind. 2005). 

4 The court made no such order with regard to E.M., which would appear consistent with the court’s

notation that “[Father] is not the legal father of [E.M.].” Id. But curiously, DCS’s Predispositional 
7

interstate compact investigation. In similar fashion the record is silent on what occurred between 

June 2012—when the trial court anticipated the reunification of Father and El.M.—and July 

2012 when the trial court determined that termination of Father’s parental rights were in the best 

interest of E.M. and El.M because of Father’s absence and lack of bonding. In my view there 

was no clear and convincing evidence on this point in June and the same was true a month later.

Finally, the majority invokes what it sees as the children’s “paramount need for 

permanency” as support for the trial court’s conclusion that termination is in E.M. and El.M.’s 

best interests. Slip op. at 12. I would first observe the trial court did not mention “permanency” 

as grounds for terminating Father’s parental rights. The order of termination does say “the 

children deserve a loving, caring, safe, and stable home.” Termination Order at 3. But this is an

unassailable finding applicable to all children. The question is whether this finding “clearly and 

convincingly” supports the trial court’s judgment of terminating this Father’s parental rights. In 

my view it does not. 

In any event, even if we assume that the older half-siblings who were school-aged 

suffered emotionally and behaviorally in the home of Father and Mother, and thus may have an 

urgent “need for permanency,” there is simply no evidence in this record that either E.M. or 

El.M., ages three and four at the time of termination, have ever suffered emotionally or 

behaviorally. Further, to make permanency the lodestar of the analysis would invert it. The 

guiding principle is the child’s best interests, and preserving a relationship with a fit parent is 

clearly in the best interest of the child. Cf. Wyle, supra at 35. As some commentators have 

noted, an overemphasis on permanency in the child welfare context can in some cases produce 

undesirable results. See, e.g., Paul Anthony Wilhelm, Note, Permanency at What Cost? Five 

Years of Imprudence Under the Adoption and Safe Families Act of 1997, 16 Notre Dame J.L. 

Ethics & Pub. Pol’y 617, 618-19 (2002) (asserting that the shift in national social policy focus 

from reunification to expeditious resolution of child welfare cases in the name of permanency 

has contributed to the breakup of families of lower socio-economic status); Madelyn Freundlich, 

 

Report reflects that Father established paternity of E.M. by paternity affidavit. DCS’s Predispositional 

Report of Oct. 23, 2008 at 5. See also Tr. at 71-72 (DCS case manager testifying that Father was listed on 

E.M.’s birth certificate). 
8

Expediting Termination of Parental Rights: Solving a Problem or Sowing the Seeds of a New 

Predicament?, 28 Cap. U. L. Rev. 97, 107 (1999) (recognizing that when “permanency 

alternatives in the law are cast as a dichotomy: reunification . . . or termination . . .” other 

arrangements for maintaining a child’s ties with birth families may not be pursued, ultimately to 

the detriment of the child’s best interests). 

Compounding the risks of institutionally overvaluing “permanency” is the present social 

reality of the increase in children living in families headed by single mothers. See Carmen 

Solomon-Fears, et al., Cong. Research Serv., R 41431, Child Well-Being and Noncustodial 

Fathers 1 (2013). The effects on children can be far-reaching, including poor school 

performance, emotional and behavioral problems, becoming teenage parents, and poverty. Id. 

We should encourage rather than frustrate the efforts a father makes in attempting to take 

responsibility in raising his child or children. And while social science research and child 

welfare advocates recognize “significant benefits to children when non-custodial fathers remain 

involved in their lives,” slip op. at 12 (citation omitted), research also unfortunately indicates 

that “[h]istorically, [c]hild [w]elfare [s]ervices have systematically minimized the role and the 

involvement of the African-American father.” Working with the African American Father: The 

Forgotten Parent, California Public Child Welfare Training Academy Trainer Guide at 3 (2009). 

In training child welfare personnel in working with African-American families, agencies 

“traditionally place[ ] most . . . emphasis on working with the mother with scant attention being 

paid to the father except as being an absent parent.” Id.5 Cf. Leslie Brown, et al., Manufacturing 

Ghost Fathers: The Paradox of Father Presence and Absence in Child Welfare, 14 Child & 

Family Social Work 25, 26 (2009) (observing in a study of Canadian child welfare cases that 

“fathers were rarely considered as placement resources, even when the alternative was 

permanent guardianship. Grandmothers, usually maternal, were more likely to be sought as a 

resource for children. Fathers who expressed interest in custody were typically told to get a 

lawyer . . . .”).

 

5

In this case the Case Manager testified that reunification with Father was never a part of the permanency 

plan for E.M. and El.M. See Tr. at 106-07.
9

The combination of an imperfect father, a system that presupposes the absence of 

African-American males from the household, and an institutional focus on permanency have all 

merged in this case resulting in the termination of “one of the most valued relationships in our 

culture.” Neal, 796 N.E.2d at 285 (quotation omitted). This certainly cannot be in E.M and 

El.M’s best interest. 

It bears repeating that “termination is intended as a last resort, available only when all 

other reasonable efforts have failed.” I.A., 934 N.E.2d at 1136. Of course it is true that we 

“need not wait until the child is irreversibly harmed . . . before terminating the parent-child 

relationship.” Slip op. at 13 (quoting K.T.K., 989 N.E.2d at 1235 (quotation omitted)). But each 

case is different, each child is different, and each parent is different. And here I fail to see even 

the potential for harm to E.M. and El.M. from continuing their parent/child relationship with 

Father, especially considering the lack of evidence that violence in Father and Mother’s home 

would not be (and had not already been) remedied, and that just a few weeks prior to termination 

the trial court ordered an interstate compact for possible physical placement in Father and 

stepmother’s home in Illinois. 

Finally, in affirming the trial court’s judgment, the majority says: “the evidence here was 

close” and “the trial court could reasonably have reached either conclusion [to permit or deny 

the State’s petition for termination of parental rights].” Slip op. at 14. But this is not a game of 

horseshoes and close is not good enough. In order to terminate a parent’s parental rights the State 

must prove its case by clear and convincing evidence. It has failed to do so. Therefore I would 

reverse the trial court’s judgment.