Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 1 of 20

ATTORNEY FOR APPELLANT,

FATHER

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEY FOR APPELLANT, MOTHER

Cara Schaefer Wieneke

Special Asst. to the State Public Defender

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

David E. Corey

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of G.M. (Child) and M.M. 

(Mother) & K.C. (Father);

M.M. (Mother), and 

K.C. (Father),

Appellants-Respondents,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

March 13, 2017

Court of Appeals Case No.

35A02-1609-JT-2096

Appeal from the Huntington 

Circuit Court

The Honorable Thomas Hakes, 

Judge

Juvenile Court Cause No.

35C01-1603-JT-13
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 2 of 20

May, Judge.

[1] M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the 

involuntary termination of their parental rights to G.M. (“Child”). Mother 

challenges a number of the juvenile court’s findings and argues the Department 

of Child Services (“DCS”) did not present sufficient evidence the conditions 

under which Child was removed would not be remedied and termination was in 

the best interests of Child. Father makes similar arguments, but we find 

dispositive his argument the juvenile court could not terminate his rights when 

it had never issued a dispositional decree as to Father. We affirm in part, 

reverse in part, and remand.

Facts and Procedural History

[2] Child was born to Mother on December 10, 2014. Child was born with a heart 

condition requiring specialized care. On December 12, 2014, DCS removed 

Child under the juvenile court’s emergency order because Mother admitted 

using unprescribed painkillers and heroin during pregnancy. Father1 refused a 

drug screen and reported to DCS he was unable to care for Child because “he is 

on probation for rape and is not permitted to be around children unsupervised.” 

(DCS Ex. 3.) On December 16, 2014, DCS filed a petition alleging Child was a 

 

1 Father’s paternity was established on January 20, 2015.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 3 of 20

Child in Need of Services (CHINS) based on Mother’s drug use, Child’s drug 

withdrawal at birth, and Father’s inability to care for Child. 

[3] Father was incarcerated all but a three-month period during these proceedings. 

He was arrested shortly after Child’s birth for an alleged probation violation 

based on his testing positive for morphine and Percocet. In March 2015, the 

State filed another petition to revoke his probation, alleging Father tested 

positive for morphine. Father’s probation was revoked in May 2015, and he 

was ordered to serve the remainder of his suspended sentence for rape and 

burglary. 

[4] The juvenile court held an initial hearing on the CHINS petition on August 4, 

2015, and Father admitted Child was a CHINS. After Father’s admission, the 

juvenile court held a fact finding hearing as to the allegations involving Mother 

and ultimately adjudicated Child a CHINS. The juvenile court held a 

disposition hearing on September 4, 2015, and ordered:

2. Mother shall participate in a substance abuse evaluation, as 

well as ongoing substance abuse treatment.

3. Mother shall attend visitation with the child as long as she 

maintains clean drug screens.

4. Mother shall submit to random drug screens.

5. Mother shall participate in home based services.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 4 of 20

6. Mother and [sic] shall comply with all recommendations of 

DCS as outlined in paragraph IV of DCS’ Predispositional 

Report filed September 1, 2015.

7. Father may participate in services as he is able while 

incarcerated. Father’s dispositional hearing will not occur until 

his release from incarceration.

(DCS Ex. 11.)

[5] Mother did not participate in services or visit with Child consistently. She 

tested positive for illegal substances four times during the pendency of these 

proceedings. She did not attend Child’s medical appointments, despite being 

advised of when they were. Mother was incarcerated at the time of the final 

termination hearing. Father participated in some parenting-related services 

while incarcerated.

[6] On December 17, 2015, the juvenile court, on DCS request, changed Child’s 

permanency plan from reunification to adoption based on Mother’s 

noncompliance with services and positive drug screens. On March 7, 2016, 

DCS filed a petition to terminate Parents’ rights to Child. On July 14, 2016, the 

juvenile court held a hearing on the matter and entered an order terminating 

Parents’ rights to Child on August 12, 2016.

Discussion and Decision
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 5 of 20

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

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

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

2004), trans. denied. Instead, we consider only the evidence and reasonable 

inferences most favorable to the judgment. Id. In deference to the juvenile

court’s unique position to assess the evidence, we will set aside a judgment 

terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 

1161 (2002).

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

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

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

must subordinate the interests of the parents to those of the child, however, 

when evaluating the circumstances surrounding a termination. In re K.S., 750 

N.E.2d at 837. The right to raise one’s own child should not be terminated 

solely because there is a better home available for the child, id., but parental 

rights may be terminated when a parent is unable or unwilling to meet his or 

her parental responsibilities. Id. at 836. 

[9] To terminate a parent-child relationship in Indiana, DCS must allege and 

prove:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at 

least six (6) months under a dispositional decree.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 6 of 20

(ii) A court has entered a finding under IC 31-34-21-5.6 

that reasonable efforts for family preservation or 

reunification are not required, including a 

description of the court’s finding, the date of the 

finding, and the manner in which the finding was 

made.

(iii) The child has been removed from the parent and 

has been under the supervision of a county office of 

family and children or probation department for at 

least fifteen (15) months of the most recent twentytwo (22) months, beginning with the date the child 

is removed from the home as a result of the child 

being alleged to be a child in need of services or a 

delinquent child;

(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.

Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of 

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

“[I]f the State fails to prove any one of these statutory elements, then it is not 

entitled to a judgment terminating parental rights.” Id. at 1261. Because 

parents have a constitutionally protected right to establish a home and raise 

their children, the State “must strictly comply with the statute terminating 

parental rights.” Platz v. Elkhart Cnty. Dep’t of Public Welfare, 631 N.E.2d 16, 18 

(Ind. Ct. App. 1994).
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 7 of 20

I. Father’s Argument

[10] In its September 4, 2015, Dispositional Decree, the juvenile court ordered 

Mother to complete certain services, and stated regarding Father: “Father may 

participate in services as he is able while incarcerated. Father’s dispositional 

hearing will not occur until his release from incarceration.” (DCS Ex. 11.) As 

part of its order on December 3, 2015, approving the change in Child’s 

permanency plan from reunification to adoption, the juvenile court noted, 

“Father is incarcerated and is not under disposition.” (DCS Ex. 12.) Based 

thereon, Father argues DCS has not proven Child had been removed from his 

care under a dispositional decree for at least six months as required by Indiana 

Code Section 31-35-2-4(b)(2)(A)(i).

[11] As an initial matter, we note waiver of this issue would normally apply, as 

generally a party is not permitted to raise an issue for the first time on appeal. 

See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an 

issue for the first time in a motion to correct error or on appeal.”), reh’g denied. 

However, we have held, concerning the requirement a child be removed under 

a dispositional decree for at least six months before a court can terminate a 

parent’s rights, the “constitutionally protected right of parents to establish a 

home and raise their children mandates that the failure of a juvenile court to 

require compliance with any condition precedent to the termination of this right 

constitutes fundamental error which this court must address sua sponte.” ParentChild Relationship of L.B. and S.B. v. Morgan Cty. Dept. of Public Welfare, 616 

N.E.2d 406, 407 (Ind. Ct. App. 1993), trans. denied. 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 8 of 20

[12] The juvenile court stated in its December 3, 2015, order, “Father is incarcerated 

and is not under disposition.” (DCS Ex. 12.) “An involuntary termination 

petition must allege, and the State must prove by clear and convincing 

evidence, that the child was removed from the parents for at least six months 

under a dispositional decree at the time the involuntary termination petition 

was filed.” In re D.D., 962 N.E.2d at 74. As stated in the court’s order, Father 

was not “under disposition” on December 3, 2015, and thus when DCS filed 

the petition to terminate his parental rights three months later in March 2016, 

Child had not been removed as to Father for at least six months.2

 The juvenile 

court erred when it terminated Father’s parental rights to Child, and we must 

reverse the judgment as to Father.

II. Mother’s Arguments3

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

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

 

2 This issue is dispositive as to Father because DCS was required to prove Child had been removed from his 

care for at least six months or Child had been removed from his care for fifteen of the last twenty-two months 

as required by Indiana Code Section 31-35-2-4(b)(2)(A)(iii), and the juvenile court concluded DCS did both. 

However, in its brief, DCS conceded it did not meet the fifteen month criteria, as it filed its petition to 

terminate Parents’ rights when Child had been removed for one year, two months, and twenty-four days. As 

the statute is written in the disjunctive, DCS is required to prove only one of the three parts of Indiana Code 

Section 31-35-2-4(b)(2)(A). See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (Indiana Code Section 31-35-

2-4(b)(2)(A) written in the disjunctive and thus DCS need only prove one of the enumerated elements 

therein), trans. denied.

3 In its brief, DCS noted the juvenile court signed the dispositional order in this case on September 4, 2015, 

but the order was not entered in the Chronological Case Summary until October 7, 2015. DCS argued, 

“[u]sing the date the court signed the order, DCS met the ‘6 months under a dispositional [order]’ 

requirement. However, using the date the order was entered into the CCS, i.e., Oct. 7, 2015, this is only 

about five months before DCS filed its termination [petition] on March 7, 2016.” (Br. of Appellee at 8, n.5)
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 9 of 20

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the 

evidence supports the findings and whether the findings support the judgment. 

Id. “Findings are clearly erroneous only when the record contains no facts to 

support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 

102 (Ind. 1996). If the evidence and inferences support the juvenile court’s 

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

nine of the juvenile court’s findings, arguing the findings are not supported by 

the evidence.

A. Findings Regarding Visitation and Services

[14] Mother challenges two of the juvenile court’s findings regarding visitation with 

Child and Mother’s participation in services:

13. After removal of the child on or about December 12, 2014, 

the child was never returned to parents’ care and custody as a 

result of Mother’s absence from the child’s life and services, noncompliance with services, Mother’s positive drug screens, 

 

It is well-established the State’s noncompliance with the six-month statutory requirement as set forth in 

Indiana Code Section 31-35-2-4(b)(2)(A)(i) is fatal to an involuntary termination of parental rights. See, e.g., 

In re D.D., 962 N.E.2d 70, 76 (Ind. Ct. App. 2011) (termination of mother’s parental rights reversed because 

DCS filed petition to termination mother’s rights less than six months after juvenile court entered its

dispositional decree). Here, the CCS of Child’s CHINS case indicates on October 7, 2015, “COURT 

ENTERS DISPOSITIONAL ORDER (Hearing held September 4, 2015) (RJO). COPY OF ORDER TO DCS, 

ATTORNEY JUSTIN WALL & ATTORNEY CASEY MORGAN.” (DCS Ex. 2) (emphasis in original). 

The entry indicated “Order Signed: 09/04/2015[.]” (Id.) An entry from September 4, 2015, states, 

“Disposition hearing held. Court approves DCS recommendations and enters Order on same.” (Id.) (emphasis in 

original). The order was signed on September 4, 2015. Based thereon, we conclude DCS met the six-month 

statutory requirement set forth in Indiana Code Section 31-35-2-4(b)(2)(A)(i) because the time frame between 

September 4, 2015, and March 7, 2016, is at least six months.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 10 of 20

Mother’s failure to visit the child through a majority of the child’s 

life, [and] Mother’s current incarceration[.]

* * * * *

34. Prior to Mother’s recent incarceration, she did not engage in 

her court-ordered services regularly.

(Mother’s App. at 98, 100.)

[15] Mother argues, regarding the juvenile court’s findings 13 and 34, that she 

regularly visited with Child until Father was incarcerated in March 2015, 

because without him she did not have transportation to the visitations. The 

evidence indicates she visited with Child for eight one-hour sessions from 

January 2015 until March 2015. She cancelled seven visitations, and fifteen 

visitations were cancelled “due to [Child’s] condition or medical 

appointments.” (Id. at 101.) Mother claims DCS did not attempt to find a new 

service provider for visitation until August 2015 and Mother was never 

approved to begin supervised visits after taking the required intake assessment. 

DCS Services Manager Daniel Borne testified Mother was not allowed 

supervised visitation with Child after her intake assessment because “she 

needed to complete the drug screen to be able to start the visits and have regular 

interaction with [the Family Case Manager].” (Tr. at 94.) Mother’s final visit 

with Child was in October 2015 when she “visited, uh, late one, uh, evening, 

and she spent approximately an hour with [Child]” while Child was in the 

hospital for heart surgery. (Id. at 132.)
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 11 of 20

[16] Regarding services, Mother “does not dispute that she did not complete all the 

required services under the dispositional order.” (Br. of Mother at 15.) 

However, she complains she “was given only a few short months to comply 

with services” and her long work hours and lack of transportation “made 

complying with services more difficult than usual.” (Id.) Borne testified he 

received referrals for services including “psychological tests, uh, substance 

abuse treatment, substance abuse evaluation, and uh, drug screens” for Mother 

on February 21, 2015. (Tr. at 87.) Borne testified he “got another referral for 

home base[d] family center case work” in August 2015. (Id. at 88.) Borne 

stated Mother completed her initial intake clinical interview on August 20, 

2015, but never completed an initial substance abuse assessment and did not 

meet with a substance abuse counselor. This evidence is sufficient to support 

the juvenile court’s relevant findings.

[17] Mother’s arguments are invitations for us to reweigh the evidence and judge the 

credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

(appellate court cannot reweigh evidence or judge the credibility of witnesses). 

Further, her contentions involve the adequacy of services provided as part of 

her CHINS case, which is unavailable for our review during an appeal 

following termination of parental rights. See In re H.L., 915 N.E.2d 145, 148 n.3 

(Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on 

which to directly attack a termination order as contrary to law”). 

B. Findings Regarding Mother’s Drug Screens
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 12 of 20

[18] Mother takes issue with two of the juvenile court’s findings regarding her 

positive drug screens. The juvenile court found:

36. After March 2015, Mother’s only drug screen was 

administered in December 2015 by DCS.

* * * * *

52. Before Mother stopped reporting for drug screens, Mother 

tested positive for drugs on the following dates:

a. December 11, 2014: positive for oxycodone without a 

prescription[;]

b. February 16, 2015: positive [for] methadone without a 

prescription;

c. February 26, 2015: positive for opiates (hydrocodone) 

without a prescription[.]

(Mother’s App. at 100-01.) Mother also claims the part of Finding 13 

indicating she had “positive drug screens,” (id. at 98), is incorrect because she 

had only one positive drug screen from the time she was ordered to complete 

services in September 2015 until the termination petition was filed in March 

2016. 

[19] Mother argues the juvenile court should not have considered her three other 

positive drug screens because they were prior to the CHINS adjudication. She 

also argues, regarding the first positive drug screen for oxycodone without a 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 13 of 20

prescription, which was taken at the hospital following Child’s birth, “[i]t seems 

probable that Mother was given an epidural during labor and a pain reliever 

after delivery in the hospital, which would have shown up on the drug screen.” 

(Br. of Mother at 15-16.) However, Mother did not present any evidence to 

support that speculation. Moreover, in its order following the initial hearing on 

DCS’s petition to declare Child a CHINS on December 16, 2014, the court 

stated, “Court Orders Mother to have no drugs in her system when visiting the 

child. Court advises mother of contempt and that she can be held in contempt 

and incarcerated if she disregards the Order of the Court to have no drugs in her 

system while she is visiting child.” (DCS Ex. 6.) Thus, Mother knew she was 

not to take drugs prior to the dispositional order stating she should not do so. 

[20] The record contains evidence that supports the findings; DCS presented

multiple exhibits containing the results of Mother’s drug screens and Borne 

testified DCS referred Mother for a “substance abuse evaluation, and uh, drug 

screens” on February 21, 2015. (Tr. at 87.) Her arguments are invitations for 

us to reweigh the evidence and judge the credibility of witnesses, which we 

cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh 

evidence or judge the credibility of witnesses). 

C. Finding Regarding Mother’s Behavior during Visitation

[21] The juvenile court found regarding Mother’s interaction with Child during 

supervised visitation: “During visits, service provider Ira Bencun observed 

Mother would hold the child but would not initiate conversation to learn more 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 14 of 20

about the child’s condition and required care.” (Mother’s App. at 101.) 

Mother argues this finding is “basically correct, [but] it does not reflect the 

entirety of the evidence presented on the issue.” (Br. of Mother at 17.) Mother 

directs us to Bencun’s testimony Child “would be asleep most of the visit just 

because of his age” and Mother “was appropriate in holding him and handling 

him in that one hour that she would [inaudible] him each visit.” (Tr. at 105.) 

Bencun also testified that while Mother did not initiate conversations regarding

Child’s condition and required care, she received that information from Child’s 

foster mother. 

[22] Bencun’s testimony supports the juvenile court’s findings. Mother’s arguments 

are invitations for us to reweigh the evidence and judge the credibility of 

witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate 

court cannot reweigh evidence or judge the credibility of witnesses). 

D. Findings Regarding Mother’s Interaction with the GAL

[23] Regarding Mother’s interaction with the GAL, the juvenile court found:

107. The GAL testified that she was never able to meet either 

the parents in person prior to July 14, 2015 [sic] at the trial on 

DCS [sic] petition to involuntarily terminate parental rights.

* * * * *

113. The GAL testified that Mother has always had other 

priorities, such as her job, that, while important, seemed to take 

priority over her own child.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 15 of 20

(Mother’s App. at 105.) Mother’s argument regarding this issue is a litany of 

excuses regarding why she was unable to meet with the GAL such as “Mother 

was unable to respond to GAL’s letter . . . because she had no funds for 

envelopes and postage” and had the GAL “met Mother in person . . . she 

would have learned that Mother’s place of employment was short-staffed at the 

time; that Mother was required to work extra hours to keep her job; and that 

her employer has now hired additional staff, which will allow Mother to work 

fewer hours each week.” (Br. of Mother at 18.) Her excuses are invitations for 

us to reweigh the evidence and judge the credibility of witnesses, which we 

cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh 

evidence or judge the credibility of witnesses). The record contains evidence 

that supports the findings.

E. Finding Regarding Child’s Relationship with Foster Parents

[24] The juvenile court found, “[Child] has progressed well in his foster family, and 

he views his foster parents as his true parents.” (Mother’s App. at 106.) 

Mother contends she does not dispute that the foster family has cared for Child 

while the CHINS and termination cases proceeded, but “the juvenile court’s 

finding that [Child], a non-speaking toddler, views his foster parents as his ‘true 

parents’ is speculation at best and certainly not supported by the evidence.” 

(Br. of Mother at 19.) We agree the juvenile court’s determination Child feels 

foster parents are his “true parents” is unsupported by the evidence, as such a 

sentiment is hardly capable of determination under these facts. However, as the 

juvenile court made appropriate findings regarding Mother’s drug use, lack of 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 16 of 20

frequency in visitation with Child, and noncompliance with services, the 

finding by itself does not warrant reversal. See Roser v. Silvers, 698 N.E.2d 860, 

863 (Ind. Ct. App. 1998) (“Where juvenile court findings on one legal theory 

are adequate, findings on another legal theory amount to mere surplusage and 

cannot constitute the basis for reversal even if erroneous.”).

F. Reasonable Probability Conditions Resulting in Child’s Removal Would 

Not Be Remedied

[25] The juvenile court must judge a parent’s fitness to care for her children at the 

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

2010). Evidence of a parent’s pattern of unwillingness or lack of commitment 

to address parenting issues and to cooperate with services “demonstrates the 

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

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

[26] In terminating Mother’s parental rights, the juvenile court concluded there was 

a reasonable probability the conditions that resulted in Child’s removal from 

Mother’s care would not be remedied. Mother argues this conclusion is not 

supported by the findings because she had steady employment, reliable 

transportation, and a place for her and Child to live. She also reported at the 

termination hearing she was aware of Child’s special needs and felt her training 

as a certified nursing assistant would help her learn the specific requirements of 

his medical care quickly. She also testified she would be released from 

incarceration in November 2016. She argues she no longer has a problem with 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 17 of 20

drugs and at the termination hearing stated she “was more than willing to 

complete any services requested and believed that due to a change in her work 

schedule and the fact that she had obtained reliable transportation, she would 

have the ability to meet with service providers and complete those services.” 

(Br. of Mother at 20-1.)

[27] The evidence suggests otherwise. Mother did not complete services, and the 

time for completion of those services had long passed. As noted in our 

discussion of Mother’s challenged findings, she did not complete services 

offered by DCS, even after ordered by the court to do so; she did not regularly 

visit with Child and did not seek to understand his condition and how to treat 

it; and she had multiple positive drug screens, the last of which resulted in her 

arrest and subsequent incarceration for violation of probation. Mother’s 

arguments are requests for us to reweigh the evidence and judge the credibility 

of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate 

court cannot reweigh evidence or judge the credibility of witnesses). The 

juvenile court did not err when it concluded there was no reasonable probability 

Mother would remedy the conditions that led to Child’s removal from her care. 

G. Best Interests of the Child

[28] In determining what is in the child’s best interests, the juvenile court is required 

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

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

A parent’s historical inability to provide a suitable environment along with the 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 18 of 20

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

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

App. 2002). 

[29] Mother argues she was not given ample time to complete services to assist her 

in reunification with Child and thus termination is not in the best interests of 

Child. However, the adequacy of the services provided to her as part of Child’s 

CHINS case is unavailable for our review during an appeal following 

termination of parental rights. See In re H.L., 915 N.E.2d at 148 n.3 (“failure to 

provide services does not serve as a basis on which to directly attack a 

termination order as contrary to law”). 

[30] Further, DCS presented sufficient evidence termination was in Child’s best 

interests. Family Case Manager John Lane testified termination was in Child’s 

best interests because 

[Child is] established in a home in which he’s in and has been 

provided, umm, appropriate care during that time, in fact all of 

his life since being discharged from the hospital, and he has no 

bond with his parents and they’ve not provided, uh, any care for 

him even or bonded with him at this point.

(Tr. at 140.) Additionally, Kathryn Garrett, Child’s Guardian ad Litem 

testified termination was in Child’s best interests because:

Uh, well, with regard to mother, umm, it seemed to me that 

significant, uh, strides had not been made, uh, to repair the 

conditions that initiated the removal particularly with regard to 

her participation [in] service[s] or addressing her substance abuse 
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 19 of 20

issues. Uh, and, also her non-attendance, I guess, at medical 

appointments that she was able to go to, umm, the drug 

screening and also any supervised visitation. Umm, it was my 

understanding that there was [sic] several months that she was 

not incarcerated that she did not participate. . . . Umm, and I 

don’t believe either parent has, I guess, learned about the medical 

condition or what would involve going forward if the child were 

to be reunited with them.

(Id. at 160.) The juvenile court did not err when it concluded termination was 

in Child’s best interests and terminated Mother’s parental rights because there 

existed sufficient evidence to support that conclusion. We accordingly affirm 

the termination of Mother’s parental rights.

Conclusion

[31] The juvenile court erred when it terminated Father’s parental rights to Child 

because Child had not been removed from Father under a dispositional decree 

for at least six months as required by Indiana Code Section 31-35-2-

4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the 

juvenile court’s findings regarding Mother, including the juvenile court’s 

conclusions the circumstances under which Child was removed would not be 

remedied and termination was in Child’s best interests. Therefore, we reverse 

the termination of Father’s parental rights to Child, affirm the termination of 

Mother’s parental rights to Child, and remand to the juvenile court for 

proceedings consistent with this opinion.

[32] Affirmed in part, reversed in part, and remanded.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 20 of 20

Najam, J., and Bailey, J., concur.