Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

Andrew J. Sickmann

Boston Bever Klinge Cross & Chidester

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of D.J. (Minor 

Child) and

K.T. (Mother) and P.J. (Father),

Appellants-Respondents,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

April 18, 2018

Court of Appeals Case No.

89A01-1711-JT-2675

Appeal from the Wayne Superior 

Court

The Honorable Darrin M. 

Dolehanty, Judge

Trial Court Cause No.

89D03-1707-JT-14

Crone, Judge.
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Case Summary

[1] K.T. (“Mother”) and P.J. (“Father”) (collectively “Parents”) appeal the trial 

court’s order involuntarily terminating their parental rights to their minor child, 

D.J. (“Child”). Parents contend that the trial court erred in concluding that 

there is a reasonable probability that the conditions that resulted in Child’s 

removal will not be remedied and that termination is in Child’s best interests. 

They also contend that their due process rights were violated when the trial 

court overruled their objections to being called as witnesses by the Indiana 

Department of Child Services (“DCS”) at the factfinding hearing. Finding no 

error and no due process violation, we affirm.

Facts and Procedural History

[2] Parents are Child’s biological parents. Before Child was born, Parents lived 

with Child’s two half siblings, Jo.B. and Ja.B. In March 2016, DCS filed 

petitions alleging that Jo.B. and Ja.B. were children in need of services 

(“CHINS”). In May 2016, Parents admitted to the truthfulness of the 

allegations in the petitions, including that they each had a substance abuse 

problem that affected their ability to care for the children. The trial court in 

those proceedings ordered Parents to participate in certain services. On August 

19, 2016, the court held a detention hearing, after which the children were 

removed from Parents’ home and made temporary wards of DCS.

[3] Child was born on August 22, 2016. One week later, while Child was still in 

the hospital, DCS filed a petition alleging Child to be a CHINS. The trial court 
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authorized DCS to take Child into protective custody because he had tested 

positive for illegal substances at birth and Parents were using illegal drugs, 

including heroin. DCS placed Child with his maternal aunt. Parents initially 

denied the allegations in the CHINS petition but ultimately admitted that Child 

was a CHINS and that they had a substance abuse problem. In November 

2016, the trial court issued a dispositional order directing Parents to participate 

in various services. DCS referred Parents for outpatient and residential 

substance abuse treatment, supervised parenting time, drug screens, and a 

residential detoxication program. As detailed more fully below, after a hearing 

on January 23, 2017, the trial court found Parents in contempt of the 

dispositional order and sentenced them to sixty days of incarceration, to be 

stayed on the condition of full compliance with the order.1

[4] In March 2017, the CHINS cases were closed for Jo.B. and Ja.B., who at that 

time were living with their biological father. On July 5, 2017, DCS filed a 

petition to involuntarily terminate Parents’ parental rights to Child. On 

October 12, 2017, the trial court held a factfinding hearing, during which DCS 

called Parents as witnesses in its case in chief over their objections. On October 

 

1 On that same date, a contempt hearing was also held in Jo.B.’s and Ja.B.’s CHINS cases. Mother admitted 

that drug screens administered between September and December of 2016 showed that she had used heroin, 

marijuana, suboxone, and hydrocodone. Father admitted that drug screens administered between September 

and December of 2016 showed that he had used heroin, marijuana, and cocaine. “He also admitted that he 

had failed to attend substance abuse therapy and was removed from that program due to having failed to 

attend.” Appealed Order at 2. He further admitted that he had missed six visits with the children in 

November 2016.
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30, 2017, the court issued an order setting out the foregoing undisputed facts 

and the following additional findings:2

34. Shannon Trancoso was selected as the Court Appointed 

Special Advocate (CASA) for Child, as of October 28, 2016.

35. Ms. Trancoso has observed interaction between Child, 

Mother and Father.

36. During the course of Child’s CHINS case, Ms. Trancoso has 

spoken with Mother about her addiction issues. Mother has 

expressed to Ms. Trancoso that her addiction started at the age of 

nineteen (19). Mother is now twenty-five (25) years old. Mother 

was not specific about which drug or drugs she was abusing.

37. Mother has expressed to Ms. Trancoso a desire to not be an 

addict.

38. Father has expressed to Ms. Trancoso that he does not like 

the "position" he is in currently.

39. Ms. Trancoso has not seen Child or his parents since 

February, 2017.

40. Patrice Mabry is employed as a Family Case Manager 

(FCM) for the DCS, and was assigned to Jo.B.’s and Ja.B[.]’s 

CHlNS cases.

....

42. At some point during Child’s CHINS case, FCM Mabry was 

assigned to that case as well.

 

2 We have replaced references to the parties’ names where appropriate.
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....

44. Both Mother and Father admitted to FCM Mabry that they 

had substance abuse issues.

....

46. On some date that was not disclosed, FCM Mabry took 

Father to Tara Treatment Center, for inpatient treatment. Father 

was not admitted into the treatment program due to not having 

his diabetes condition under control.

....

52. Tom Pennington is an addictions counselor for Meridian 

Services.

53. Mr. Pennington interacted with Mother through the 

attempted provision of “IOP” or intensive outpatient therapy.

54. IOP sessions are held three (3) times per week; three (3) 

hours per session.

55. Mother was involved in Mr. Pennington’s services from 

December, 2016 through February, 2017.

56. In December, 2016, Mother attended one (1) appointment 

with Mr. Pennington, where they discussed her substance abuse 

issues, and where they determined that she should start action

IOP sessions after the first of the year.

57. During IOP sessions in January, 2017, Mother was 

somewhat resistant to the program, but warmed up to it and 

participated well in sessions.

58. During the January sessions, Mother admitted that she was 
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using marijuana, xanax, and opiates.

59. In February, 2017, Mother’s attendance at IOP sessions 

dropped off. Mr. Pennington called Mother to encourage her 

attendance, but she stopped attending.

60. In August, 2017, Mother attended three (3) or four (4) 

sessions of IOP, but has not attended since then.

61. Mother has not completed the IOP program.

62. At a hearing held on January 23, 2017, Mother admitted that 

she had used heroin between November 4 and December 27, 

2016.

63. At the same hearing, Father admitted that he had used 

heroin, marijuana, and cocaine between November 9 and 

December 19, 2016. He also admitted that he had failed to 

attend substance abuse therapy at Meridian Health Services, and 

had failed to visit Child six (6) times in November 2016.

64. Based upon the admissions described above, the Court 

concluded that Mother and Father were both in contempt of 

Court for not complying with the Dispositional Order.

65. Jessica Bell is a Behavioral Clinician for Meridian Services.

66. Ms. Bell was assigned to provide services for Mother in 

January, 2017, and served as Mother’s “case manager.”

67. Ms. Bell worked with Mother to help her identify "triggers" 

to her drug use/abuse. She also worked with Mother to help her 

find coping skills to prevent drug use/abuse.

68. At some time during Ms. Bell’s involvement as case 

manager, Mother told her that she had been abusing suboxone 
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and marijuana.

69. Mother did not attend all of her appointments with Ms. Bell.

70. Mother was engaged and motivated during the appointments 

she did attend.

7|. Prior to this trial, the last time Mother attended an 

appointment with Ms. Bell was toward the end of August, 2017.

....

78. Jeremy Bane is a home-based services case manager for 

Wernle Family and Children Treatment.

79. In late June, 2017, Mr. Bane received a referral from the 

DCS to provide supervised parenting time/visitation services for 

Mother and Father.

....

85. Mr. Bane has observed Mother and Father to be compliant, 

to communicate well, and to be nurturing and caring toward 

Child. He has observed the parents to select age appropriate

activities for their child.

86. Mr. Bane has had no concerns about how the parenting time 

sessions have gone.

87. Mr. Bane tries to encourage the parents to work on their 

rehabilitation needs. and even took Father to the Richmond State 

Hospital on September 25, 2017 in an effort to enter into a rehab 

program at that facility. Following a drug screen in the 

admission process, Father was not admitted into the State 

Hospital program.

88. If parental rights are terminated, the DCS plans for Child to 
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be adopted by his aunt, ... with whom he has been placed since 

shortly after his birth.

....

94. Despite the existence of a child support order, [Child’s aunt]

has not received any child support payments from Mother or 

Father to assist her in caring for Child.

95. Mother has been unemployed since 2015.

96. Mother has three (3) children.

97. None of Mother’s children lives with her at this time. Child 

is placed with a relative. Ja.B. and Jo.B. live with their father.

98. Father is thirty-two (32) years old.

99. Father has two (2) children, including Child.

100. Neither of Father’s children lives with him.

Based upon these findings. the Court concludes that the DCS has 

sustained the Petition by clear and convincing evidence; more 

specifically that:

....

2. Child has been removed from both parents, for at least six (6) 

months, under the Dispositional Order in his Child in Need of 

Services (CHINS) case....

3. Child was removed from his parents’ care shortly after birth. 

and has continuously remained outside of their care since then, 

because both parents were abusing drugs that necessarily 

impaired their ability to care for their child. There remains a 

greater than reasonable probability that the parents’ respective 
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addictions to drugs, and continued abuse of drugs, are not likely 

to be remedied.

4. Ending the relationship between Child and his parents, and 

providing for a stable and sober parent or parents is the best 

course of action for this child and termination of parental rights is 

in Child’s best interest.

5. There is a satisfactory plan for Child’s care and treatment, that 

plan being adoption.

IT IS THEREFORE ORDERED that the parent-child 

relationship [between Parents and Child] is hereby terminated ....

Appealed Order at 3-7 (citation to exhibit omitted). Parents now appeal.

Discussion and Decision

[5] “Parental rights are of a constitutional dimension, but the law provides for the 

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

their parental responsibilities.” In re D.P., 27 N.E.3d 1162, 1165 (Ind. Ct. App. 

2015). “The purpose of terminating parental rights is not to punish parents, but 

to protect their children.” Id. “The involuntary termination of parental rights is 

the most extreme sanction a court can impose on a parent because termination 

severs all rights of that parent to his or her children.” In re R.A., 19 N.E.3d 313, 

321 (Ind. Ct. App. 2014), trans. denied (2015). “For this reason, termination is 

intended as a last resort, available only when all other reasonable efforts have 

failed.” Id.
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[6] A petition for the involuntary termination of parental rights must allege in 

pertinent part:

(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.

....

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

(i) There is a reasonable probability that the conditions 

that resulted in the child’s removal or the reasons for 

placement outside the home of the parents will not be 

remedied.

(ii) There is a reasonable probability that the continuation 

of the parent-child relationship poses a threat to the wellbeing of the child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;

(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) (emphasis added). DCS must prove “each and 

every element” by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 

1261 (Ind. 2009); Ind. Code § 31-37-14-2. If the trial court finds that the 
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allegations in the petition are true, the court shall terminate the parent-child 

relationship. Ind. Code § 31-35-2-8(a).

[7] “Our standard of review is highly deferential in cases concerning the 

termination of parental rights.” D.P., 27 N.E.3d at 1165.

We neither reweigh evidence nor assess witness credibility. We 

consider only the evidence and reasonable inferences favorable to 

the trial court’s judgment. Where the trial court enters findings 

of fact and conclusions thereon, we apply a two-tiered standard 

of review: we first determine whether the evidence supports the 

findings and then determine whether the findings support the 

judgment. In deference to the trial 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.

C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014) 

(citations omitted). “A judgment is clearly erroneous if the findings do not 

support the trial court’s conclusions or the conclusions do not support the 

judgment.” In re W.M.L., 82 N.E.3d 361, 367 (Ind. Ct. App. 2017).

[8] Parents contend that the trial court clearly erred in concluding that there is a 

reasonable probability that the conditions that resulted in Child’s removal will 

not be remedied3 and that termination is in Child’s best interests. They also 

 

3 As stated above, the trial court concluded that there was a “greater than reasonable probability” that the 

conditions that resulted in Child’s removal will not be remedied. Appealed Order at 7. We take this to mean 

that DCS surpassed its statutory burden. We express no opinion on this assessment.
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claim that their due process rights were violated by being called as witnesses by 

DCS at the factfinding hearing.

Section 1 – The trial court’s order is not clearly erroneous.

[9] To determine whether the conditions that resulted in a child’s removal will not 

be remedied, the trial court engages in a two-step analysis. In re A.W., 62 

N.E.3d 1267, 1273 (Ind. Ct. App. 2016). “The court first identifies the 

conditions that led to removal and then determines whether there is a 

reasonable probability that those conditions will not be remedied.” Id. “The 

second step requires trial courts to judge a parent’s fitness at the time of the 

termination proceeding, taking into consideration evidence of changed 

conditions, and balancing any recent improvements against habitual patterns of 

conduct to determine whether there is a substantial probability of future neglect 

or deprivation.” Id. (quotation marks omitted). “Trial courts have discretion to 

weigh a parent’s prior history more heavily than efforts made only shortly 

before termination, and the court may find that a parent’s past behavior is the 

best predictor of her future behavior.” Id. The trial court may consider services 

offered by DCS and the parent’s response to those services as evidence of 

whether conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987 

N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. “Where there are only 

temporary improvements and the pattern of conduct shows no overall progress, 

the court might reasonably find that under the circumstances, the problematic 

situation will not improve.” In re Involuntary Termination of Parent Child 

Relationship of A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not 
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required to provide evidence ruling out all possibilities of change; rather, it need 

only establish that there is a reasonable probability that the parent’s behavior 

will not change.” A.D.S., 987 N.E.2d at 1157 (quotation marks omitted).

[10] In determining what is in a child’s best interests, the trial court is required to 

look to the totality of the evidence. In re A.G., 45 N.E.3d 471, 479 (Ind. Ct. 

App. 2015), trans. denied (2016). In so doing, the court must subordinate the 

interests of the parents to those of the child. Id. “The court need not wait until 

the child is irreversibly harmed before terminating the parent-child 

relationship.” Id.

[11] Parents challenge only eight of the trial court’s one hundred findings (numbers 

36, 37, 38, 44, 46, 58, 62, and 63), claiming that they are insufficiently specific 

to support the court’s conclusions that there is a reasonable probability that the 

conditions that resulted in Child’s removal, i.e., Parents’ addiction to and abuse 

of drugs, will not be remedied and that termination is in Child’s best interests.4 

They assert that “[w]hat was offered at the fact finding hearing was a general 

framework of some substance abuse, but it was unclear when drugs were used, 

over what time period, and whether substance abuse remained a problem at the 

time of the fact finding hearing.” Appellants’ Br. at 15-16.

[12] We disagree. Parents do not specifically challenge the CASA’s testimony 

regarding Mother’s admission to a six-year history of drug addiction. During 

 

4 We treat Parents’ best interests argument as coextensive with their remedied conditions argument.
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the CHINS proceedings involving Child and his half siblings, which started in 

March 2016, Parents admitted to using (and/or testing positive for using) 

heroin, cocaine, meth, marijuana, Xanax, and opiates up to and including 

January 2017. Parents admitted to having a substance abuse problem in 

September 2016 and only sporadically attended court-ordered substance abuse 

therapy and treatment. Mother stopped attending sessions two months before 

the October 2017 factfinding hearing, and a drug screen prevented Father from 

enrolling in a rehabilitation program less than three weeks before the hearing. 

Based on the trial court’s findings and the reasonable inferences to be drawn 

therefrom, we cannot say that the trial court clearly erred in concluding that 

there is a reasonable probability that the conditions that resulted in Child’s 

removal will not be remedied and that termination is in Child’s best interests.

Section 2 – Parents’ due process rights were not violated as a 

result of being called as witnesses by DCS.

[13] When DCS called Parents as witnesses during its case in chief, they objected on 

the basis that they would be asked incriminating questions regarding drug use 

and other matters. The trial court overruled the objections and noted that 

Parents’ counsel could object to such questions on Fifth Amendment grounds, 

which counsel did.5 The trial court sustained those objections and stated that it 

would decline to draw negative inferences from Parents’ refusal to testify. Cf. 

 

5

See U.S. CONST., amend. V (“No person ... shall be compelled in any criminal case to be a witness against 

himself, nor be deprived of life, liberty, or property, without due process of law ....”).
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Hardiman v. Cozmanoff, 4 N.E.3d 1148, 1152 (Ind. 2014) (noting that Fifth 

Amendment protects individual against being involuntarily called as witness 

against himself in criminal prosecution but “‘does not forbid adverse inferences 

against parties to civil actions when they refuse to testify in response to 

probative evidence offered against them.’”) (quoting Baxter v. Palmigiano, 425 

U.S. 308, 318 (1976)).

[14] On appeal, Parents argue that the termination order should be reversed because 

the trial court’s overruling of their objections to being called as witnesses

violated their due process rights. DCS argues, and we agree, that reversal is not 

required because Parents cannot demonstrate harm resulting from any alleged 

due process violation, given that the trial court declined to draw negative 

inferences from their refusal to answer certain questions on Fifth Amendment 

grounds. See Ind. Appellate Rule 66(A) (“No error or defect in any ruling or 

order or in anything done or omitted by the trial court or by any of the parties is 

ground for granting relief or reversal on appeal where its probable impact, in 
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light of all the evidence in the case, is sufficiently minor so as not to affect the 

substantial rights of the parties.”). Therefore, we affirm.6

[15] Affirmed.

Bailey, J., and Brown, J., concur.

 

6 We reject Parents’ argument that “procedural due process should afford parents like Mother and Father the 

ability to not be called as witnesses against themselves, pursuant to the rights enshrined in the Fifth 

Amendment as incorporated to the states by the Fourteenth Amendment.” Appellants’ Br. at 28. This 

argument is based on the faulty premise that termination proceedings are quasi-criminal in nature. Cf. In re 

E.D., 902 N.E.2d 316, 322 (Ind. Ct. App. 2009) (“The due process safeguards afforded a defendant in a 

criminal trial are not applicable to a parent in a civil termination proceeding. Indeed, our Indiana Supreme 

Court has recognized that ‘criminal prosecutions and termination proceedings are substantially different in 

focus. The resolution of a civil juvenile [termination] proceeding focuses on the best interests of the child, 

not on guilt or innocence as in a criminal proceeding.’”) (alteration in E.D.) (quoting Baker v. Marion Cty. 

Office of Family & Children, 810 N.E.2d 1035, 1039 (Ind. 2004)), trans. denied.