ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

Amy Karozos Marjorie A. Millman

Indianapolis, Indiana Seymour, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 49S02-0902-JV-091

IN THE MATTER OF THE 

INVOLUNTARY TERMINATION OF THE 

PARENT-CHILD RELATIONSHIP OF

G.Y., MINOR CHILD, AND HIS

MOTHER, R.Y., AND HIS FATHER G.Y.

R.Y. (MOTHER),

Appellant (Respondent below),

v.

INDIANA DEPARTMENT OF CHILD SERVICES,

Appellee (Petitioner below)

AND 

CHILD ADVOCATES, INC.

Co-Appellee (Guardian Ad Litem)

_________________________________

Appeal from the Marion Superior Court, No. 49D09-0705-JT-020577

The Honorable Marilyn Moores, Judge

The Honorable Larry Bradley, Magistrate

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0804-JV-394

_________________________________

April 24, 2009
2

Sullivan, Justice.

The trial court terminated R.Y.‟s parental rights on grounds that the conditions which 

resulted in her son G.Y.‟s removal will not be remedied and that termination is in G.Y.‟s best 

interests. The Court of Appeals affirmed. Concluding that the evidence does not clearly and 

convincingly demonstrate that R.Y.‟s parental rights should be terminated, we reverse the 

judgment of the trial court. 

 

Background

R.Y. (“Mother”) gave birth to G.Y. on April 23, 2004. Mother had been G.Y.‟s sole 

caretaker during the first 20 months of his life and there are no allegations that she engaged in 

any criminal behavior during this period of time or that she was an unfit parent in any way. But 

in April, 2003, a year before G.Y.‟s birth, Mother had delivered cocaine to a police informant. 

She was arrested and incarcerated for this offense in December, 2005, i.e., 32 months after the 

offense and when G.Y. was 20 months old. On January 4, 2006, after Mother‟s multiple 

attempts to place G.Y. with relatives and friends during her incarceration failed, the Marion 

County Division of the Indiana Department of Child Services (“State”) filed a petition alleging 

that G.Y. was a Child in Need of Services (“CHINS”) because Mother had been unable to make 

the appropriate arrangements for his care. G.Y. was placed in foster care. 

In March, 2006, Mother pled guilty to Dealing in Cocaine as a Class B felony. The Jay 

Circuit Court entered a judgment of conviction and sentenced her to 12 years, with four years 

suspended to probation, i.e., eight years of executed time. In May, 2006, with Mother‟s consent, 

the Marion Superior Court, Juvenile Division, found G.Y. to be a CHINS. The court ordered 

continued placement in foster care and “Reunification with parent(s)” as “The Plan for 

permanency.” (Vol. of Exs. at 11.) In July, 2006, the court held a dispositional hearing and 

thereafter issued a dispositional order directing that G.Y. continue in foster care and that Mother 

comply with the court‟s “Participation Decree.” Id. at 13-17. The dispositional order again 

provided “Reunification with parent(s)” as “The Plan for Permanency.” Id. at 14. Under the 

Participation Decree, Mother was ordered, in part, to obtain a source of income and suitable 
3

housing, complete home-based counseling, a parenting assessment, parenting classes, and a drug 

and alcohol assessment. Id. at 16-17. She was also ordered to “[v]isit on a consistent, regular 

basis as recommended by counselor or caseworker.” Id. at 17. 

On May 18, 2007, the State filed a “Petition for Termination of the Parent-Child 

Relationship” between Mother and G.Y. (Appellant‟s App. 16-17.) The court held fact-finding 

hearings in January and February, 2008, at which time Mother‟s date of release from prison was 

May 30, 2010. (Tr. 6.) On March 26, 2008, the court entered Findings of Fact and Conclusions 

of Law, ordering Mother‟s parental rights involuntarily terminated. Mother appealed, 

contending that there was insufficient evidence to terminate her parental rights and that the State 

violated her due process rights when it failed to comply with statutory requirements during the 

termination process. In an unpublished memorandum decision, the Court of Appeals affirmed. 

R.Y. v. Marion County Dep‟t of Child Servs., No. 49A02-0804-JV-394, slip op., 895 N.E.2d 741

(Ind. Ct. App. Oct. 31, 2008). Mother seeks, and we grant, transfer.

Discussion

I

The Fourteenth Amendment to the United States Constitution protects the traditional 

right of parents to establish a home and raise their children. Bester v. Lake County Office of 

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing Pierce v. Soc‟y of Sisters, 268 U.S. 

510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). A parent‟s interest in the 

care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty 

interests.” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Indeed the parent-child 

relationship is “one of the most valued relationships in our culture.” Id. (quoting Neal v. DeKalb 

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

that parental interests are not absolute and must be subordinated to the child‟s interests in 

determining the proper disposition of a petition to terminate parental rights. Bester, 839 N.E.2d 

at 147 (citation omitted). Thus, “[p]arental rights may be terminated when the parents are unable 
4

or unwilling to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258, 

265 (Ind. Ct. App. 2004)).

When reviewing the termination of parental rights, we do not reweigh the evidence or 

judge witness credibility. Bester, 839 N.E.2d at 147 (citation omitted). We consider only the 

evidence and reasonable inferences that are most favorable to the judgment. Id. (citation 

omitted). Here, the trial court entered findings of fact and conclusions thereon in granting the 

State‟s petition to terminate Mother‟s parental rights. When reviewing findings of fact and 

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

second we determine whether the findings support the judgment. Id. (citation omitted). We will 

set aside the trial court‟s judgment only if it is clearly erroneous. Id. (citing In re Wardship of 

B.C., 441 N.E.2d 208, 211 (Ind. 1982)). A judgment is “clearly erroneous if the findings do not 

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

(quoting In re Matter of R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005)).

Indiana Code § 31-35-2-4(b)(2) requires that a petition to terminate a parent-child 

relationship involving a CHINS must allege that: 

(A)one (1) of the following exists:

(i) the child has been removed from the parent for at least six (6) months

under a dispositional decree; 

(ii) a court has entered a finding . . . 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; or

(iii) after July 1, 1999, the child has been removed from the parent and has 

been under the supervision of a county office of family and children 

for at least fifteen (15) months of the most recent twenty-two (22) 

months;

(B) there is a reasonable probability that:
5

(i) the conditions that resulted in the child‟s removal or the reasons for 

placement outside the homes of the parents will not be remedied; or

(ii) the continuation of the parent-child relationship poses a threat to the wellbeing of the child; 

(C) termination is in the best interests of the child; and 

(D)there is a satisfactory plan for the care and treatment of the child.

The State‟s burden of proof in termination of parental rights cases is one of “clear and 

convincing evidence.”

1

 I.C. § 31-37-14-2; Bester, 839 N.E.2d at 148 (citation omitted). “Clear 

and convincing evidence need not reveal that „the continued custody of the parents is wholly 

inadequate for the child‟s very survival.‟” Bester, 839 N.E.2d at 148 (quoting Egly v. Blackford 

County Dep‟t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992)). “Rather, it is sufficient to 

show by clear and convincing evidence that „the child‟s emotional and physical development are 

threatened‟ by the respondent parent‟s custody.” Id. (quoting Egly, 592 N.E.2d at 1234).

And 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 other words, if the State fails to prove any one of 

these four statutory elements, then it is not entitled to a judgment terminating parental rights. 

See I.C. § 31-35-2-4(b)(2); Angela B. v. Lake County Dep‟t of Child Servs., 888 N.E.2d 231, 

239 (Ind. Ct. App. 2008), trans. denied (“Without clear and convincing evidence to support each 

of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a 

parent-child relationship.”); In re D.Q., 745 N.E.2d 904, 911 n.2 (Ind. Ct. App. 2001) (same). 

 

1

“The „clear and convincing‟ standard is an intermediate standard of proof that: lies between a 

preponderance of the evidence and beyond a reasonable doubt which is required to find guilty in criminal 

prosecutions. The burden of proof by clear and convincing evidence is not a burden of convincing you 

that the facts which are asserted are certainly true or that they are almost certainly true or are true beyond 

a reasonable doubt. It is, however, greater than a burden of convincing you that the facts are more 

probably true than not true.” J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008) (citation omitted). “The 

clear and convincing standard is employed in cases „where the wisdom of experience has demonstrated 

the need for greater certainty, and where this high standard is required to sustain claims which have 

serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and 

unlawful acts to justify an exceptional judicial remedy . . . .‟” Id. at 934-35 (quoting Estate of Reasor v. 

Putnam County, 635 N.E.2d 153, 159-60 (Ind. 1994)). We believe that the Legislature has dictated this 

heightened burden of proof for termination of parental rights cases in recognition of their serious social 

consequences.
6

II

Mother contends that the State did not present clear and convincing evidence that 

termination of her parent-child relationship with G.Y. is in the child‟s best interests. 

With reference to the child‟s best interests, the trial court made the following findings:

[G.Y.] has resided in the same foster care placement since January of 2006, at which time 

he less [sic] than two years old. He is doing exceptionally well and is very attached to his 

foster parents and foster brothers. This home is pre-adoptive. 

Mother has consistent visitation at her prison facility. Visitation is monthly for a one to 

two hour period. There have been no concerns raised by the monitoring case manager, 

Wendy Budwig. 

Termination of the parent-child relationship is in [G.Y.]‟s best interests. Termination and 

subsequent adoption will provide [G.Y.] the opportunity to be adopted within the safe, 

stable home he sees as his. He has resided in the home for the last two years of his short 

life. 

The [State‟s] plan for [G.Y.] is adoption by his foster parents. This plan is satisfactory 

for his care and treatment.

[G.Y.]‟s Guardian ad Litem, Renee Fishel, agrees with [the State‟s] plan and that 

termination of the parent-child relationship is in the best interests of [G.Y.] because of the 

time that has elapsed and the stability and permanency [G.Y.] would receive. Ms. Fishel 

would have liked for Mother to have had continued visitation with [G.Y.] because she 

observed some kind of bond between them and thought it would be nice for [G.Y.] to 

know her in the future.

 

(Appellant‟s App. at 13-14.) 

Based on these findings, the trial court concluded that “[t]ermination of the parent-child 

relationship is in [G.Y.]‟s best interests so that he will be free for adoption where his needs will 

be met by a consistent caretaker in a permanent environment. To provide Mother additional time 

to be released from jail and try to remedy conditions would only necessitate [G.Y.] being put on 

a shelf instead of providing paramount permanency.” Id. at 14.

More specifically, the court concluded that:
7

[m]other remains incarcerated and unavailable to parent. Upon her release, she 

will be on probation for an additional four years. Prior to reunification, she will 

have to complete a parenting assessment, parenting classes, and drug treatment 

classes. These services will need to be successfully completed, as well as Mother 

obtaining suitable housing and gainful employment, prior to a referral for home 

based counseling. During the twenty-six months of Mother‟s incarceration, she 

has taken one substance abuse education class, one parenting class and some 

college courses. Given Mother‟s pattern of criminal activity, resulting in periods 

of incarceration, it is unlikely that conditions will change to where Mother will 

remain available to parent. 

Id. at 13. 

We hold that the State did not present clear and convincing evidence to support this 

conclusion. We reach that result after examining the following four reasons that the trial court 

gave for concluding that termination of Mother‟s parental rights is in G.Y.‟s best interests.

A

We begin with the court‟s reason that termination is in G.Y.‟s best interests because his 

mother will “remain unavailable to parent” because her “pattern of criminal activity” makes it 

likely that she will re-offend upon release. Our review of the record indicates that all of 

Mother‟s criminal history consists of offenses that were committed before G.Y.‟s conception in 

2003. After that time and for the first 20 months of his life, the record gives no indication that 

Mother was anything but a fit parent. 

After Mother‟s incarceration for an admittedly very serious offense (that, to repeat, 

occurred before the child‟s conception), Mother agreed that her son was a CHINS. The juvenile 

court ordered her to participate in treatment services and, despite the physical impossibility of 

completing some of these requirements while incarcerated, the record shows that Mother took 

positive steps and made a good-faith effort to better herself as a person and as a parent. At the 

time of the termination hearing, she had completed an eight-week drug rehabilitation program 

entitled “Fourth Dimension Recovery.” (Tr. 9-10.) Mother testified that the program focused on 
8

“making amend[s] for your wrong . . . Like your children and your parents . . . people that you 

just hurt emotionally because of your use.” Id. at 9. In addition to the large group classes, 

Mother testified that “we have our own individual counselors here.” Id. at 10. At the time of the 

termination hearing, she was on the waiting list for phase II of the program. Id. Mother also 

testified at the termination hearing that even though she has a history of drug use, she has not 

used cocaine since 2003. Id. at 7-8.

The record also shows that Mother had completed a 15-week parenting class that 

discussed issues regarding “development of children” and “discipline.” Id. at 11-12. She was 

actively participating in “an inmate to work mate program through Arrowmarks,” which results 

in an apprenticeship, certification, and job placement after release from prison. Id. at 11. In 

addition, she was in the midst of her second semester working towards an associate‟s degree and 

had started a culinary arts certification program. Id. at 10, 25. Mother testified that “when I get 

my associates degree next May [2008], it‟ll move it [her release date] back to 2009.” Id. at 24. 

At oral argument, Mother‟s counsel confirmed that her projected release date is now June, 2009, 

and may even be as early as May.

We do not find the likelihood of Mother reoffending to be a sufficiently strong reason, 

either alone or in conjunction with the court‟s other reasons, to warrant a conclusion by clear and 

convincing evidence that termination of Mother‟s parental rights is in G.Y.‟s best interests.

B

We next review the trial court‟s reason that termination is in G.Y.‟s best interests because

“[t]o provide Mother additional time to be released from jail and try to remedy conditions would 

only necessitate [G.Y.] being put on a shelf instead of providing paramount permanency.” 

(Appellant‟s App. 14.) The “put on the shelf” expression does not appear to us to be particularly 

apt here where the placement appears to have been producing very positive results. But we 

understand the court to mean that it would not be in the child‟s best interest for G.Y. to have to 

wait on his mother‟s release and subsequent compliance with the requirements of its 

Participation Decree. Id. The court specifically mentions its concerns over the following of such 
9

requirements: a parenting assessment, parenting classes, drug treatment classes, “obtaining 

suitable housing and gainful employment,” and home-based counseling. Id. at 13.

While it true that Mother will be serving four years of probation after her release and that 

she has yet to complete all the services required for reunification, the record shows that she has 

made a good-faith effort to complete the required services available to her in prison.2 As 

discussed supra, she has completed a drug treatment class, engaged in individualized drug 

counseling, and completed a parenting class. In addition, contrary to the trial court‟s findings, 

Mother has obtained “suitable housing” and “gainful employment” upon her release. She 

testified at the termination hearing that she has secured a full-time job through “Arrowmark” and 

through “Our Vision.” (Tr. 21.) She also testified that either her family or the “Bonner 

Program” would provide a house for her and G.Y. to live in. Id. at 21-22. The trial court‟s 

finding that Mother had not completed either a parenting assessment or home-based counseling 

is tempered by the fact that these services were not available to her while she was incarcerated.3

In addition to completing those requirements for reunification that were available to her 

in prison, Mother has taken additional steps to provide permanency for G.Y. upon her release. 

When asked about her intentions after release from prison, she testified at the termination 

hearing that she will graduate with her associate‟s degree by the time she leaves the “Inmates 

Workmate Program.” Id. at 21. She planned to start college and attain her bachelor‟s degree. 

Id. at 21-22. Her future plans also include completing “a phase II substance abuse program” and 

a culinary arts certification. Id. at 24-25. When confronted with her criminal history at the 

termination hearing, Mother acknowledged that before her most recent incarceration she had 

 

2 The court‟s “Participation Decree” lists requirements for reunification. (Vol. of Exs. at 16-17.) In 

relevant part, these include Mother providing a source of income and suitable housing; and completing a 

parenting assessment, parenting classes, a drug and alcohol assessment, and home-based counseling. Id. 

When asked what Mother needed to do to be reunified with G.Y., State caseworker Sharon Bowland 

responded, “She would need to complete the services through our, our agency, and that would be . . . 

parenting classes. That would be a drug treatment class. That would be a parenting assessment, and then 

any other services that the assessment would say that she needed to do.” (Tr. 27.) Bowland testified, 

however, that since Mother was incarcerated, the State was unable to provide a parenting assessment and 

other “normal services.” Id. 

3

See supra n.3. The State‟s caseworker Sharon Bowland also testified that home-based counseling was 

“the last piece that we put into place” and that Mother would “need to be out of prison” to receive this 

service. (Tr. 27.)
10

“low self-esteem . . . and never pursued my education.” Id. at 22. However, “now that I‟m 

doing it, I know . . . that I‟m better than the life that I live. And I . . . have a very good support 

system. And everybody‟s obligated to change . . . and I‟m not gonna lose my son over . . . this 

stupid life that I was living, no. I‟m not. I have kids that need me.” Id.4 

We do not find the amount of time that it will likely take Mother to comply with the 

conditions of the court‟s Participation Decree to be a sufficiently strong reason, either alone or in 

conjunction with the court‟s other reasons, to warrant a conclusion by clear and convincing 

evidence that termination of Mother‟s parental rights is in G.Y.‟s best interests.

C

We next review the trial court‟s reason that termination is in G.Y.‟s best interests because 

G.Y. has a closer relationship with his foster parents than he does with his mother. The trial 

court found that “[G.Y.] has resided in the same foster care placement since January of 2006, at 

which time he less [sic] than two years old. He is doing exceptionally well and is very attached 

to his foster parents and foster brothers.” (Appellant‟s App. 13.) By comparison, the court said, 

“Mother has consistent visitation at her prison facility. Visitation is monthly for a one to two 

hour period. There have been no concerns raised by the monitoring case manager, Wendy 

Budwig.” Id. 

The record shows that since her incarceration Mother has maintained a consistent, 

positive relationship with G.Y. The State‟s caseworker, Sharon Bowland, testified at the 

termination hearing that Mother “has been pretty consistent in maintaining that she wants to 

maintain contact with [G.Y.].” (Tr. 30.) They had shared visitations with one another once a 

 

4

 See Bester, 839 N.E.2d at 152 (Father testified that he was once a member of a street gang, but that he 

no longer engaged in gang activity. He also testified that he hadn‟t used any illegal drugs since his son 

was born. This Court noted that “[t]he evidence of record admittedly shows a young man with a troubled 

past. However by the time of the termination proceedings, and apparently for at least three years before 

that date, Father has conducted himself in a manner consistent with assuring that his son would be 

exposed to a healthy drug free environment.” We held that “the existence of Father‟s past criminal 

history does not demonstrate that the continuation of the parent-child relationship between Father and 

Child poses a threat to Child‟s well being.”). 
11

month for “at least a year.” Id. at 29. The visits ranged from two to four hours. Id. at 58-59. 

The State‟s case manager, Wendy Budwig, who accompanied G.Y. on five occasions to visit 

Mother, testified that “[t]he visits went well.” Id. at 60. She observed “a lot of interacting . . . 

mom would sit with him and do whatever he was doing, and interact with him.” Id. Guardian ad 

Litem Renee Fishel observed G.Y.‟s visitation with Mother for two hours and testified that 

“[t]heir interactions were appropriate. They were very playful with one another. They seemed 

to have a relationship.” Id. at 54. In addition to these visitations, Mother has sent cards, 

pictures, and letters to G.Y. in an attempt to connect with him. Id. at 21. 

We attach significance as well to the evidence in the record of Mother‟s commitment to 

reunification with G.Y. from the very point of her arrest. Within two days of her arrest, she had 

made arrangements for her sister to take care of him while she was incarcerated. Id. at 15. 

During the CHINS proceedings, she attempted to arrange foster care first with her sister, and 

then with a friend. Those attempts failed when neither of these individuals completed the 

required foster care classes. Id. at 18-19. Next, a “friend of the family” attempted to execute an 

“open” adoption which would have left it open for Mother to visit G.Y. at her discretion. This 

did not materialize because of the friend‟s medical condition. Id. at 19. Her sister then 

unsuccessfully filed for placement. Id. At the time of the termination hearing, her mother had 

requested placement. Id. at 20. Mother testified at the termination hearing that it was in the 

child‟s best interest “to be with my family. To know his birth family . . . To be taken care of and 

loved, and know that he‟s taken care of and loved by his family.” Id. at 8.

We do not find the fact that G.Y. currently has a closer relationship with his foster 

parents than he does with Mother to be a sufficiently strong reason, either alone or in conjunction 

with the court‟s other reasons, to warrant a conclusion by clear and convincing evidence that 

termination of Mother‟s parental rights is in G.Y.‟s best interests.

D

Lastly, we review the trial court‟s reason that termination is in G.Y.‟s best interests 

because of his general need for “permanency” and “stability.” This reason was based upon the 
12

testimony of the State‟s caseworker, Sharon Bowland, and Guardian ad Litem Renee Fishel that 

termination of the parent-child relationship was in G.Y.‟s best interest because he needed 

“permanency” and “stability.” Id. at 28, 55. But Fishel qualified her recommendation. She 

testified that “looking out for [G.Y.]‟s best interest, I‟d like to see some . . . future agreement 

between the two parties that would include future visitation, contact with his biological mother, 

so he knows who she is.” Id. at 55. Fishel‟s recommendation was based on her observation that 

“they appear to have a type of bond, a mother/child bond. They were very appropriate . . . 

Interaction was generated on both sides. From [G.Y.] to his mom, from mom to [G.Y.] . . . It 

would be nice for [G.Y.] to know who his mother is in the future.” Id. at 57.

Permanency is a central consideration in determining the best interests of a child. In our 

case, however, G.Y. is under the age of five and Mother‟s release from prison is imminent. 

Particularly given the highly positive reports about the quality of the placement here, we are 

unable to conclude that continuation of the CHINS foster care arrangement here will have much, 

if any, negative impact on G.Y.‟s well-being. We agree with Mother that “there was no evidence 

presented to show that permanency through adoption would be beneficial to [G.Y.] or that 

remaining as a foster care ward until he could be reunited with his mother would be harmful to

[G.Y.].” (Appellant‟s Pet. to Transf. at 6.) This is especially true given the positive steps 

Mother has taken while incarcerated, her demonstrated commitment and interest in maintaining a 

parental relationship with G.Y., and her willingness to continue to participate in parenting and 

other personal improvement programs after her release.

We do not find that G.Y.‟s need for immediate permanency through adoption to be a 

sufficiently strong reason, either alone or in conjunction with the court‟s other reasons, to 

warrant a conclusion by clear and convincing evidence that termination of Mother‟s parental 

rights is in G.Y.‟s best interests.

Conclusion

We reverse the judgment of the trial court.
13

Shepard, C.J., and Dickson and Rucker, JJ., concur.

Boehm, J., dissents with separate opinion.
Boehm, Justice, dissenting.

I respectfully dissent and agree with the Court of Appeals that the trial court‟s judgment 

terminating the mother‟s parental rights should be affirmed. 

The majority reviews a number of factors cited by the trial court and finds them 

insufficient to support the trial court‟s judgment that termination should be ordered. These 

include the likelihood that the mother will reoffend, the effect on the child of an additional 

period of instability, the mother‟s new job and living facilities when she is released, the child‟s 

bonding with his foster parents in the two years he has spent with them, and the degree of the 

mother‟s involvement with the child while she was incarcerated. Each of these ultimately turns 

on a judgment as to the credibility of the witnesses as to both their accounts of past events and, 

importantly, their evaluation of the mother‟s future ability to parent and the child‟s ability to 

thrive. I believe an appellate court should be very reluctant to conduct its own assessment of the 

cumulative effect of these factors on the child and the mother‟s likelihood of addressing the 

problems that led to the dispositional order. Similarly, the reliability of the guardian ad litem‟s 

judgment is a matter as to which we should defer to the trial court in the absence of a procedural 

error or a clearly erroneous assessment of the facts. 

I certainly agree that there is an unfairness in a CHINS dispositional order that includes 

directives to the mother that she is incapable of fulfilling while incarcerated. But I read the trial 

court‟s order as turning on the child‟s best interests and the determination that the conditions 

leading to the child‟s removal will not be remedied—not the mother‟s failure to comply fully 

with the dispositional order. In my judgment, the assessment of these factors by the trial court is 

not clearly erroneous, and therefore should be affirmed.