Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016 Page 1 of 8

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 APPELLANT

Donald E. Hamilton

Fortville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

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 B.W. (Child) and J.W. 

(Father);

J.W. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

May 6, 2016

Court of Appeals Case No.

30A01-1510-JT-1652

Appeal from the Hancock Superior 

Court

The Honorable Terry K. Snow, 

Judge

Trial Court Cause No.

30D01-1503-JT-51
Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016 Page 2 of 8

May, Judge.

[1] J.W. (Father) appeals the termination of his parental rights to his daughter 

B.W. (Child). As there was ample evidence to support the termination, we 

affirm. 

Facts1 and Procedural History

[2] Child was born in May 2012. The Department of Child Services (DCS) became 

involved with the family about three months later2 when it investigated a report 

Child had bruises and scratches on her face. Father and Child’s mother did not 

provide a reasonable explanation for the scratches and bruises. Child was 

removed from the home and placed with her maternal grandparents. In 

December 2012, Child was adjudicated a Child in Need of Services (CHINS), 

but in the same adjudication Child was ordered to be re-introduced into the 

parents’ home. 

[3] Child was removed from the home again a week later. A skeletal survey 

revealed Child had suffered three fractures in her legs and possibly two more in 

her arms. The injuries occurred when Child was in the parents’ care and a 

 

1

 Father does not appear to challenge any of the trial court’s findings of fact. Therefore, they stand as 

proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the 

findings of the trial court, they must be accepted as correct.”); McMaster v. McMaster, 681 N.E.2d 744, 747 

(Ind. Ct. App. 1997) (when father did not challenge specific findings, court accepted them as true). 

2

 In July 2012, before DCS was involved, police responded to a domestic violence report at the family 

residence. Father pled guilty to domestic battery. His probation related to that conviction was revoked after 

Father violated the terms. 
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doctor testified they were non-accidental, inflicted injuries. Child was again 

placed with her grandparents. Father and Mother were charged with two 

counts of battery and two counts of neglect of a dependent. Both entered guilty 

pleas to one count of neglect of a dependent and were placed in Community 

Corrections. 

[4] In January 2013, DCS was granted wardship. Child was never returned to the 

parents. In January 2014, DCS petitioned for termination of both parents’ 

parental rights, and in September 2014, the trial court denied the petition. It did 

not enter findings of fact or conclusions of law; its Order stated only that DCS 

had not proven by clear and convincing evidence that there was a reasonable 

probability that the conditions that resulted in Child’s removal would not be 

remedied or that there was a reasonable probability that continuing the parentchild relationship would pose a threat to Child’s well-being. 

[5] In February 2014, Father was moved from work release to home detention. 

The more visitation Father had with Child, “the more inconsistent Father was 

in his attention to the Child.” (App. at 11.) In February 2015, Father tested 

positive for alcohol and was placed back on work release, where he is 

continuing to serve his sentence for neglect of a dependent. His earliest 

expected release date is June 2016. 

[6] In March 2015, DCS again petitioned for termination of parental rights. The 

trial court took judicial notice of the 2014 hearings. In September 2015, it 

terminated the parental rights of both parents. In its order, the trial court noted 
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that throughout the CHINS case, Father was unable to demonstrate he could

“consistently and appropriately parent and provide for Child on a full-time 

basis,” despite the services DCS offered. (Id. at 12.) It noted evidence that 

adoption was in Child’s best interests, based in part on the injuries to Child 

while in Father and Mother’s care, the parents’ history of domestic violence, 

Father’s violations while in Community Corrections, and “Father’s lack of 

recognizing safety concerns for the Child.” (Id.) 

Discussion and Decision

[7] Father’s allegation of error appears premised on the fact that the trial court 

granted DCS’s petition to terminate Father’s parental rights in 2015 after 

denying a termination petition in 2014. He argues there was not enough of a 

change in circumstances between the two decisions3 to permit the grant of the 

second petition. Father offers no explanation or citation to authority to support 

his apparent premise that a showing of such changed circumstances is required, 

 

3

 Father also appears to argue the evidence before the trial court was not sufficiently “clear and convincing” 

to permit termination. (Br. of Appellant at 7.) He notes “peculiarities,” (id. at 8), in the CHINS proceedings 

and that the CHINS proceedings lasted over three years, but offers no argument that those things affected the 

weight of the evidence. 

 In his brief, Father says a DFC Family Support Specialist testified “[F]ather posed no appreciable risk to his 

daughter’s well-being.” (Br. of Appellant at 9.) There is no such testimony on the page of the transcript to 

which Father directs us. Father also says he had progressed so far before DCS filed its second petition to 

terminate his parental rights that “he was allowed unsupervised visits with his daughter.” (Id.) The 

testimony on the page to which Father directs us was the Family Support Specialist’s answer “yes” to the 

question whether Father’s supervised parenting time was increased during the duration of the case “until it 

got to partially unsupervised parenting time.” (Tr. at 371) (emphasis added). 

We acknowledge the evidence to which Father directs us in support of his argument, but there was evidence 

to support the trial court’s findings to the contrary, and we may not reweigh it. See, e.g., In re D.D., 804 

N.E.2d 258, 265 (Ind. Ct. App. 2004) (we will not, on appeal, reweigh evidence or judge credibility of 

witnesses), trans. denied. 
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but assuming arguendo it is, there was evidence to support the trial court’s 

Order.

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

B.G., and J.K., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh 

evidence or judge 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’s rights only if it is clearly erroneous. In re L.S., 

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 

sub nom In re Swope, 534 U.S. 1161 (2002). And see In re Paternity of J.A.C., 734 

N.E.2d 1057, 1059-60 (Ind. Ct. App. 2000) (noting “the particularly broad 

discretion entrusted to trial courts in family matters”). 

[9] When a judgment contains 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, 147 (Ind. 2005). We determine first whether the 

evidence supports the findings and second 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. 
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[10] “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. But a trial court 

must subordinate the interests of the parents to those of the child 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.

[11] To terminate a parent-child relationship, the State 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.

(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:
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(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) (2012). The State 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. If the court finds the allegations in the petition are 

true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8 

(2012). 

[12] In its findings, the court recounted the events that preceded the first petition to 

terminate Father’s parental rights, then noted that in February 2015, Father 

tested positive for alcohol and was arrested for that Community Corrections 

violation. Father’s earliest release date is June of 2016. It noted neither parent 

had been able to demonstrate the ability to “consistently and appropriately 

parent and provide for the Child on a full-time basis” and that had been the case 

“throughout the length of the CHINS case.” (App. at 12.) The court expressed 

its concern that no new information had come forward after the first 

termination hearing to explain the child’s injuries while in the Parents’ care, 
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and “the Court had hoped that the parents could get their lives organized to 

benefit their daughter and prevent further state action. Again, this did not 

occur.” (Id. at 16.) There was ample evidence to support the termination of 

Father’s parental rights. 

Conclusion

[13] As the trial court’s findings and conclusions supported its order terminating 

Father’s parental rights, we affirm. 

[14] Affirmed. 

Baker, J., and Brown, J., concur.