Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

TRENNA S. PARKER ROBERT J. HENKE

Parker & Maguire Law Firm, P.C. DCS Central Administration

Noblesville, Indiana

PATRICK M. RHODES

Indiana Department of Child Services

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN RE THE INVOLUNTARY TERMINATION )

OF THE PARENT-CHILD RELATIONSHIP OF )

E.M., G.M., AND L.M.: )

)

B.M., )

)

Appellant-Respondent, )

)

vs. ) No. 29A02-1301-JT-64

)

THE INDIANA DEPARTMENT OF CHILD )

SERVICES, )

)

Appellee-Petitioner. )

)

APPEAL FROM THE HAMILTON CIRCUIT COURT

The Honorable Paul A. Felix, Judge

The Honorable Todd L. Ruetz, Master Commissioner

Cause No. 29C01-1112-JT-1794

Cause No. 29C01-1112-JT-1795

Cause No. 29C01-1112-JT-1796

August 30, 2013
2

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Father appeals the involuntary termination of his parental rights to his children, E.M., 

L.M., and G.M. (collectively, the Children). He challenges the sufficiency of the evidence 

supporting the juvenile court’s judgment.

We affirm.1

Father and Mother are the biological parents of E.M., L.M, and G.M.2 Mother and 

Father were married and living with the Children in Noblesville, Indiana when the Hamilton 

County Department of Child Services (DCS) became involved with the family in February 

2010. At the time, the family was living in a home owned by Father’s parents, who paid the 

expenses associated with the home and did not charge rent. Father was unemployed and the 

primary caregiver of the children, and Mother traveled out of the state for her job.

On or about February 5, 2010, DCS investigated a report of abuse and/or neglect 

regarding the Children. Upon entering the home, investigators found the home “filthy, with 

the kitchen covered in trash, no visible counter tops, trash and dirty diapers overflowing a 

garbage can, caked food on the kitchen table and also no clear space on the table, and feces 

smeared in multiple places in the home.” Appendix at 54. Further, nearly two-year-old G.M. 

had a flat spot on his head, displayed little emotion or interactive or verbal skills, and was not 

 

1

 We note that Mother has filed a separate appeal regarding the termination of her parental rights under 

appellate cause number 29A02-1301-JT-89. The State has apparently prepared one brief to be filed in both 

appeals. Unfortunately, the State chose to cite to only Mother’s appendix and not Father’s throughout its brief. 

This has hampered our review, as only Father’s appendix is before us in this appeal.

2

 The Children were born in January 2005, April 2006, and April 2008, respectively.
3

walking yet. The children were also asking investigators for food. As a result of conditions 

discovered in the home, the Children were immediately detained by DCS.3

On February 8, CHINS petitions were filed alleging that the conditions of the home 

were unsafe, unsanitary, and unsatisfactory for the health and well-being of each child. The 

Children were placed in foster care following a detention hearing. At the fact-finding 

hearing on June 28, 2010, Mother and Father stipulated to facts establishing the Children to 

be CHINS. That same day, the court proceeded to disposition in which the court ordered the 

parents to participate in a plan of care to ensure a safe and stable home, including adequate 

supervision, care, food, and shelter. In addition to the Children remaining in foster care, the 

dispositional order provided that Mother and Father were to: maintain routine contact with 

DCS, the GAL, and other service providers, notify DCS and the GAL of any change in living 

situation, obtain/maintain housing and source of support or income sufficient for the care and 

safety of the Children, and participate in and successfully complete home-based therapy, a 

psychological assessment (for Father), comply with any terms of probation, and participate in 

visitation with the Children as arranged by DCS. The parents were subsequently provided 

with intensive services in an effort to reunify the family.

On August 4, 2010, DCS initiated the first trial home visit (THV) in which the 

Children were returned to the care of Mother and Father. The THV did not last two months. 

On October 1, 2010, the Children were detained by DCS because the family had been evicted 

 

3

 On March 23, 2010, the State filed criminal charges against Father relating to the findings of this 

investigation. Father was charged with three counts of class D felony neglect of a dependent. He pleaded 

guilty to one count of neglect on October 26, 2010 and was subsequently sentenced to 730 days incarceration 

suspended to probation.
4

from their home. The detention order, issued October 4, provided in part: 

[Father] has not adequately participated in supporting or supervising [the 

Children], nor in assisting [Mother], to enable the children and mother to 

remain in the family home. Additionally, the mother and father have been 

ejected from the family home by the landlords of that property, father’s own 

parents, causing a lack of housing and a disruption in the schooling of the 

children as well. 

Exhibits, Petitioner’s Exhibit 26. The Children were placed in foster care until Mother could 

secure financing sufficient to obtain housing for herself and the Children.

A second THV commenced in November 2010 in Mother’s new residence. 

Permanency hearings were held the following December and June. Both parents failed to 

appear in person. Following the first such permanency hearing, the court found Mother in 

compliance with the case plan and the dispositional order but not Father. He had failed to 

participate in home-based therapy, failed to maintain housing or source of support or income, 

and had not completed a psychological evaluation.

By the time of the June 2011 permanency hearing, Father had moved back in with the 

family. In its June permanency order, the court found Mother in compliance with the case 

plan. The court noted, however, that Mother had reported to service providers that she was 

experiencing daily hallucinations. The court found that although Father was currently in 

compliance with the case plan, he had only partially completed his psychological evaluation. 

The court further indicated concern that Father was overseeing the Children while Mother 

worked: “[Father] has previously been convicted of criminal offenses [sic] relating to child 

neglect, has left the family home for extended periods in the past, and has expressed a lack of 

commitment to remaining in the family home.” Exhibits, Petitioner’s Exhibit 27. In its 
5

order, the court admonished the parents that they “must demonstrate continued ability to 

provide appropriate care and supervision over the children as support services are reduced, in 

order to maintain physical custody of the children in their home.” Id. 

At the time of the June hearing, the stated plan of DCS, the GAL, and other service 

providers was to gradually reduce services, which had been provided for approximately 

sixteen months. It was felt that Mother and Father were demonstrating dependence on the 

service providers, which could not continue indefinitely. The planned reduction in services 

was designed to determine whether the parents could independently maintain the Children in 

their home and fulfill parental obligations. Mother and Father were made aware of the 

planned reduction of services on multiple occasions.

Just over two months later, on August 19, 2011, the Children were removed from the 

parental home for a third time. This occurred after an impromptu visit by a service provider 

on August 18, who returned again the following day with law enforcement. The service 

provider discovered that food in the home was extremely scarce, parents had allowed their 

food-stamp eligibility to lapse and had not notified or requested help from service providers, 

and at least one child was complaining of being hungry. Mother and Father failed to appear 

in person at the detention hearing held on August 24. In its third set of detention orders, the 

court found probable cause to believe:

[The Children’s] mother and father have failed to provide adequate food and 

supervision, as well as [] failed to provide a safe and stable home for the 

children. The mother has not adequately addressed her own mental health 

issues, including having active hallucinations observed by engaged service 

providers. The [Children’s] parents did not notify DCS, the GAL, or service 

providers that they did not have sufficient food on or about 8/18/11 or 8/19/11, 
6

and indicated that they were going to sell house-hold items such as lamps 

and/or furniture to get money for food.... [Parents] also did not have enough 

money to pay their rent for the month of August, jeopardizing the ability to 

provide housing the [Children]. 

Exhibits, Petitioner’s Exhibit 28. The children were returned to the foster family with whom 

they had been placed after their first removal.

On October 6, November 28, and December 5, 2011, an extended and contested 

permanency hearing was conducted. At the conclusion of the hearing, the court found that 

Mother and Father were not in compliance with the case plan. The court found in part:

The [parents have] demonstrated a history of being unable to obtain or 

maintain housing or source of support or income sufficient for the safe and 

appropriate upbringing of the [Children]. The family has a demonstrated 

history of marital instability, including the father’s seeking relationships 

outside the marriage while in charge of the supervision of the [Children], 

leading to failures in such supervision. This instability has also contributed to 

the family having to move homes on multiple occasions, and lead to the 

inability of this Court to determine what the family unit structure will be at any 

given time during this extended CHINS case.

On or about 8/18/11, the third removal in this case was required because 

the biological parents had either been unwilling or unable to ensure an 

adequate supply of food for the children in their care....

The biological mother has had a running history of mental health 

instability. This has manifested itself in active hallucinations.... [She] has 

failed to stay current on her mental health medication during the CHINS case, 

and has relied on the biological father, when he has been part of the family unit 

structure, to provide supervision despite his own observed limitations. The 

Court has specifically observed that the biological father has had difficulty 

remaining awake during the permanency proceedings concluded on this date.

* * *

The biological parents have also been inconsistent and/or delinquent in 

participating in supervised visitation sessions since the third removal on 

8/19/11. This has included missed visitation sessions and cancelled sessions 

because the parents have not been able to arrange transportation to attend such 

sessions.

Exhibits, Petitioner’s Exhibit 29. 
7

In sum, the court found that Mother and Father had been provided with twenty-one 

months of intensive reunification services geared to improve their parenting skills and to 

enable them to independently and appropriately provide for and raise their children. Despite 

these extended services, parents had failed two THVs, and neither of them had attained the 

ability to fulfill their parental obligations. Accordingly, the court approved a change in the 

permanency plan from reunification to termination of the parent-child relationship. 

Reunification services were suspended, although visitation was permitted to continue. On 

December 29, 2011, DCS filed petitions for involuntary termination of the parent-child 

relationship between Mother and Father and each of the Children.

Upon the recommendation of the GAL, DCS received court authorization in the 

CHINS proceeding to suspend visitation on February 22, 2012, pending a hearing on March 

26, 2012. Although they had begun visiting more often after the permanency plan was 

changed to termination, the parents were now “unduly churning up the emotions of the 

children causing significant adverse and negative reactions by the children after the visitation 

had ended.” Exhibits, Petitioner’s Exhibit 31. Father and Mother both failed to appear in 

person at the March 26 hearing, where the GAL and the Family Case Manager (FCM) 

testified that it would be in the Children’s best interest to terminate visits. The court ordered 

the continued suspension of visitation. The court also granted the GAL’s request for preadoptive counseling for the Children and mental health assessments to address the emotional 

wellbeing of the Children in conjunction with their contact with Mother and Father. In the 

event that either of these services revealed that visitation would be in the Children’s best 
8

interest, the court indicated that DCS or any party could request a hearing regarding 

visitation.

On April 16, 2012, the court held an initial hearing in the termination case. Father 

appeared in the custody of the Hamilton County Sheriff’s Department, as he had been 

charged with false informing and had been recently arrested for failing to appear in that 

matter.4 On May 21, 2012, a permanency plan was held in the underlying CHINS case. The 

court found that neither parent was in compliance with the case plan at that time. The 

permanency plan remained termination.

On October 29, 2012, the evidentiary hearing in the termination case commenced. 

Mother and Father appeared approximately one hour and twenty minutes late. The hearing 

concluded on a second day, November 19, 2012. In addition to many of the facts as set out 

above, the current FCM testified that Mother and Father had not maintained contact with her 

during the pendency of the termination proceedings. Based only on what she learned at the 

last permanency hearing, the FCM believed Mother and Father were living apart and that 

Father was living with his boss. The FCM explained that after two and one-half years, 

neither Mother nor Father had demonstrated the ability to maintain housing or employment. 

On the other hand, the foster family with whom the Children had been placed for a 

combined twenty months were amply providing for the Children’s social, emotional, 

physical, and economic needs. The Children were bonded with the foster family and were 

 

4

 Father pleaded guilty to class B misdemeanor false informing on May 3, 2012 and was sentenced to time 

served (58 days) and fined. Father’s conviction also resulted in his probation being revoked in the child 

neglect case. 
9

thriving. In the FCM’s opinion, termination was in the Children’s best interest. Further, the 

Children’s foster parents expressed a clear desire to adopt them. 

Additionally, the GAL testified with respect to Father that she had no way to contact 

him. She believed that as of October 1, he was working about two days a week at El Taco 

King and did not have a permanent residence. Further, Mother was in the process of being 

evicted from her current apartment. Ultimately, the GAL testified that in her opinion it was 

in the Children’s best interest to become permanent members of their foster family and for 

Mother and Father’s parental rights to be terminated.

During her testimony, Mother acknowledged that she had held seven short-term jobs 

during the CHINS proceedings and lived in multiple residences. In fact, between the final 

two hearing dates, Mother had been evicted from her apartment and was temporarily living 

with her father. 

Father’s own testimony, at age forty, reveals much about his lack of ability to care and 

provide for the Children. He acknowledged that he had never paid support for the Children 

and that during the CHINS and termination proceedings he did not work until May 2012. 

Beginning in May, he worked part-time at El Taco King for about five months and then 

began working at a nightclub in October. On the last day of the termination hearing in 

November, Father indicated that he currently lived in a shelter and had no means to provide 

for his children. He testified, “I’m trying to get back on my feet where I can and once I get 

on my feet, I’d like to, whatever my first check is I’d like to give it to my wife so I can be 

supportive.” Transcript at 277. Finally, Father indicated that he wanted Mother to have 
10

custody of the Children.

On January 4, 2013, the juvenile court issued findings of fact, conclusions of law, and 

judgment terminating the parent-child relationship between each child and Mother and 

Father. Father now appeals, challenging the sufficiency of the evidence.

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

or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258 (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 the court’s judgment terminating a parent-child relationship 

only if it is clearly erroneous. In re L.S., 717 N.E.2d 204 (Ind. Ct. App. 1999), trans. denied. 

Thus, if the evidence and inferences support the juvenile court’s decision, we must affirm. 

Id.

Here, the juvenile court made detailed findings in its orders terminating Mother and 

Father’s parental rights to the Children. Where the juvenile court enters specific findings of 

fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. 

Office of Family & Children, 839 N.E.2d 143 (Ind. 2005). First, we determine whether the 

evidence supports the findings, and second we determine 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). A judgment is clearly erroneous only if the findings do not support the juvenile 

court’s conclusions or the conclusions do not support the judgment thereon. Quillen v. 
11

Quillen, 671 N.E.2d 98. 

We recognize that 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. Although parental rights are of 

a constitutional dimension, the law provides for the termination of these rights when parents 

are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144 

(Ind. Ct. App. 2008). A juvenile court must subordinate the interests of the parents to those 

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

N.E.2d 832 (Ind. Ct. App. 2001).

Before an involuntary termination of parental rights may occur in Indiana, the State is 

required to 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.

(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 local office or probation department for at least fifteen 

(15) months of the most recent twenty-two (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 parentchild 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;
12

(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 Ann. § 31-35-2-4(b)(2) (West, Westlaw current with all 2013 legislation). The 

State’s burden of proof for establishing these allegations in termination cases “is one of 

‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting 

Ind. Code Ann. § 31-37-14-2 (West, Westlaw current with all 2013 legislation)). “[I]f the 

court finds that the allegations in a petition described in section 4 of this chapter are true, the 

court shall terminate the parent-child relationship.” I.C. § 31-35-2-8 (West, Westlaw current 

with all 2013 legislation)(emphasis supplied).

Here, Father challenges the trial court’s findings only with regard to I.C. § 31-35-2-

4(b)(2)(B) and (C). In other words, he does not challenge whether the Children have been 

removed for a sufficient period of time or whether there is a satisfactory plan for their care 

and treatment.

With respect to subsection (b)(2)(B) of the termination statute cited above, we first 

note that the State needed to establish only one of the three requirements of that subsection 

by clear and convincing evidence before the juvenile court could terminate parental rights. 

See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the juvenile court found that the 

State presented sufficient evidence to satisfy two of those requirements, namely, that there is 

a reasonable probability the conditions resulting in the Children’s removal or continued 

placement outside Mother and Father’s care will not be remedied and that the continuation of 

the parent-child relationship poses a threat to the Children’s well-being. See I.C. § 31-35-2-

4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of subsection (b)(2)(B)(i) with 
13

respect to Father—that is, whether there was sufficient evidence to establish a reasonable 

probability that the conditions resulting in removal or continued placement outside Father’s 

care will not be remedied.5

In making such a determination, a juvenile court must judge a parent’s fitness to care 

for his or her child at the time of the termination hearing, taking into consideration evidence 

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

court must also evaluate the parent’s habitual patterns of conduct to determine whether there 

is a substantial probability of future neglect or deprivation of the child. In re M.M., 733 

N.E.2d 6 (Ind. Ct. App. 2000). Similarly, courts may consider evidence of a parent’s prior 

criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and 

lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family & 

Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. The court may also consider 

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

evidence of whether conditions will be remedied. Id. 

Father’s argument in this regard is that the State failed to prove by clear and 

convincing evidence that “the original reason for removal, that being that the home was 

unsanitary and that the children were hungry, would not be remedied.” Appellant’s Brief at 

22. He further argues, “no one visited his home, that the Family were [sic] going to the store 

as soon as the service providers left [at the time of the third removal] and that he was not 

 

5 Accordingly, we need not address Father’s arguments with respect to the juvenile court’s finding that there 

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

well-being. 
14

given the opportunity to have the children in his home after the second or third removal.” Id. 

We remind Father that we will not reweigh the evidence or judge the credibility of 

witnesses on appeal. Moreover, this court has previously explained that the language of 

Indiana’s termination statute makes clear that “it is not just the basis for the initial removal of 

the child that may be considered for purposes of determining whether a parent’s rights should 

be terminated, but also those bases resulting in the continued placement outside of the 

home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

The facts as set forth in detail above reveal that the reasons for continued placement 

outside of the home encompassed a complete lack of stability beyond simply cleanliness of 

the home and provision of food. Throughout the lengthy CHINS case, Father did not support 

his children, barely worked, did not maintain stable housing, and did not remain in regular 

contact with the FCM or the GAL. He also failed to attend a number of hearings and, 

according to the juvenile court, had trouble staying awake during permanency hearings. 

Moreover, Father was convicted of neglect of a dependent related to the conditions found 

during the first removal and violated his probation when he committed another criminal 

offense in early 2012, for which he was also convicted. Finally, Father’s own testimony from 

the final day of the termination hearing reveals that he was unfit to care for the Children at 

the time. As set forth above, he had only been employed for a short time and was living in a 

shelter. Father claimed he needed more time to get back on his feet. He, however, had 

already been afforded extensive reunification services and more than two years to do so. In 

that time, he made no significant progress. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. 
15

App. 2005) (where a “pattern of conduct shows no overall progress, the court might 

reasonably find that under the circumstances, the problematic situation will not improve”). 

The facts favorable to the judgment clearly and convincingly support the juvenile court’s 

conclusion that there was a reasonable probability that the reasons for the Children’s removal 

and continued placement outside Father’s home will not be remedied. 

We now turn to Father’s claim that the State failed to establish that termination is in 

the best interest of the Children, as required by I.C. § 31-35-2-4(b)(2)(C). In this regard, 

Father argues:

[T]he evidence before the trial court shows that despite being convicted of 

Neglect of a Dependent, Father was employed and had a place to live. The 

evidence showed that he consistently attended visitation with the minor 

children where he fed the children. That there is a strong emotional bond 

between himself and the children and that DCS never provided a report from a 

mental health profession [sic] that the children did not suffer from the loss of 

their contact with the parents. [sic]

Appellant’s Brief at 24.

While the evidence presented below certainly established a bond between Father and 

his children, the remainder of Father’s version of the evidence finds no support in the record. 

As already discussed, Father himself acknowledged that he had only been employed a short 

time, was living in a shelter, and was not yet on his feet and able to support the Children, 

whom he wanted returned to Mother’s custody, not his. At no time did Father contend that 

he was in a position to have the care and custody of the Children in his own home, which at 

the time of the termination hearing was a shelter. Moreover, he does not indicate why DCS 

would have been required to provide a report from a mental health professional regarding the 
16

effect on the Children of loss of contact with their biological parents. 

Both the FCM and the GAL testified that termination was in the Children’s best 

interest. The evidence establishes that the Children have developed a strong bond with their 

long-term foster family, have received needed therapy, nurturing, and education, and have 

been thriving under their care. The foster parents wish to adopt the Children and continue to 

give them the stability and security they deserve. 

This court will reverse a termination of parental rights “only upon a showing of ‘clear 

error’– that which leaves us with a definite and firm conviction that a mistake has been 

made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v. Blackford 

Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error 

here

Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.