Court of Appeals of Indiana | Memorandum Decision 49A02-1507-JT-951 | March 3, 2016 Page 1 of 7

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

Jill M. Acklin

McGrath, LLC

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

Z.S. (Minor Child)

 and

M.S. (Mother),

Appellant-Repondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

March 3, 2016

Court of Appeals Case No.

49A02-1507-JT-951

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Larry E. Bradley, 

Magistrate

Trial Court Cause No.

49D09-1502-JT-55
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-JT-951 | March 3, 2016 Page 2 of 7

Baker, Judge.

[1] M.S. (Mother) appeals the judgment of the juvenile court terminating her 

parental rights as to her son, Z.S. (Child). Finding that the juvenile court’s 

judgment is supported by sufficient evidence, we affirm.

Facts

[2] Child was born on January 14, 2013. He was diagnosed with isovaleric 

acidemia and septo-optic dysplasia.1 As a result of these conditions, Child 

suffers a serious visual impairment and could suffer seizures, coma, or death if 

he is not closely monitored and kept to a strict, prescribed diet. On January 24, 

2013, after only a few days in Mother’s care, Child had become gravely ill, 

forcing Mother to return him to the hospital where he was kept in an intensive 

care unit. Hospital staff determined that Child could not be fed by mouth and 

that Mother would need to be trained to prepare a formula that Child could 

ingest through a tube in his nose. 

[3] On February 21, 2013, the Indiana Department of Child Services (DCS) 

removed Child from Mother’s care and filed a petition in the juvenile court 

alleging that Child was a child in need of services (CHINS). The juvenile court 

held a fact-finding hearing on June 3, 2013, and soon thereafter issued an order 

 

1 The record indicates that isovaleric acidemia is a genetic condition that makes it hard for Child’s body to 

break down proteins and that septo-optic dysplasia is a condition characterized by underdevelopment of the 

optic nerve and abnormal formation of structures along the midline of the brain. Appellee’s Br. p. 8 n.4-5. 
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adjudicating Child a CHINS. On July 8, 2013, the juvenile court held a 

dispositional hearing at which Mother failed to appear but was represented by 

counsel. The juvenile court ordered Mother to participate in home-based 

counseling, follow all directions from medical professionals, attend all medical 

appointments, give all medication to Child as prescribed, and meet with a home 

health care nurse. 

[4] On February 3, 2015, DCS filed a verified petition for the involuntary 

termination of Mother’s parental rights as to Child. The juvenile court held an 

evidentiary hearing on July 2, 2015, at which Mother again failed to appear but 

was represented by counsel. On July 7, 2015, the juvenile court entered an 

order terminating Mother’s parental rights as to Child.2 The juvenile court 

noted that two attempts had been made to train Mother to meet Child’s needs 

but that Mother had failed to demonstrate a level of proficiency that would 

allow doctors to believe it was safe for Child to be alone in her care. The 

juvenile court also noted that Mother had attended only one of Child’s medical 

appointments in the one-and-a-half years that Child had been out of her care, 

she had not completed home-based counseling, she lacked suitable housing, and

she had periodically stated that she wished for Child to be adopted. Mother 

now appeals.

 

2

Shortly before Mother’s parental rights were terminated, the juvenile court issued an order terminating the 

parental rights of Child’s alleged father. The alleged father does not appeal this decision. 
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Discussion and Decision

[5] When reviewing a juvenile court’s decision to terminate parental rights, we do 

not reweigh the evidence or judge the credibility of the witnesses. K.T.K. v. Ind. 

Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We consider only the 

evidence and the reasonable inferences drawn therefrom that support the 

judgment. Id. Where a trial court has entered findings of fact and conclusions 

of law, we consider whether the evidence clearly and convincingly supports the 

findings and whether the findings clearly and convincingly support the 

judgment. Id. at 1230. 

[6] Our termination statute requires that a petition to terminate a parent’s parental 

rights must allege, among other things:

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

(i) There is a reasonable probability that the conditions 

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

placement outside the home of the parents will not 

be remedied.

(ii) There is a reasonable probability that the 

continuation of the parent-child relationship poses a 

threat to the well-being of the child.

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

adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and
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(D) that there is a satisfactory plan for the care and treatment 

of the child.

Ind. Code § 31-35-2-4. DCS bears the burden of proving these allegations by 

clear and convincing evidence. Ind. Code § 31-37-14-2. 

[7] Mother argues that the juvenile court’s conclusion that termination is in Child’s 

best interests is clearly erroneous. She points to the juvenile court’s finding that 

Termination would allow [Child] to be adopted by his incredible 

caretakers who will provide him with a safe and loving 

environment where all his needs will be met and where he will 

continue to progress. 

Appellant’s App. p. 10-11. Mother argues that this statement “runs afoul of the 

principle that the termination decision must not be made based upon the 

superiority of available alternatives.” Appellant’s Br. p. 8 (quotations omitted). 

[8] Mother is correct to note this Court’s holding that “[t]he rights of parents to 

raise their children should not be terminated solely because there is a better 

home available for the children.” In re V.A., 632 N.E.2d 752, 756 (Ind. Ct. 

App. 1994). We went on to note that “[i]t is the inadequacy of parental custody 

and not the superiority of an available alternative that determines whether 

parental rights should be terminated.” Id. 

[9] It cannot be said that the termination at issue here was based solely on the 

superiority of an available alternative. DCS presented ample evidence that 

Child’s needs would not be met if he were to remain in Mother’s care regardless 
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of any alternative. Child’s medical conditions require his caretaker to be 

familiar with special techniques. Mother was given multiple opportunities to 

learn these techniques but she failed to demonstrate proficiency and, on at least 

one occasion, got upset and left. Appellant’s App. p. 10. Furthermore, Mother 

did not follow the instructions given to her by the juvenile court. She attended 

only one of Child’s medical appointments and failed to complete home-based 

counseling. Mother’s failure to visit Child regularly resulted in her foregoing an 

additional opportunity to receive this training from a home health care nurse. 

In fact, Mother only visited Child four or five times in the two years since his 

removal. From this, the juvenile court could conclude that Mother had little 

interest in learning the techniques necessary to provide Child with the care he 

requires and that Child’s needs would go unmet were he to remain in Mother’s 

care. Given the severity of Child’s medical conditions, his very survival may be 

threatened were he not to receive constant and proper care. Under these 

circumstances, the juvenile court was certainly within its discretion to conclude 

that termination was in his best interests.3

 

3

In In re S.D., 2 N.E.3d 1283 (Ind. 2014), a juvenile court determined that a child was a CHINS, in part 

because the child’s mother had failed to complete home-care medical training which would allow her to 

properly care for the child. Our Supreme Court reversed that determination, observing that the mother’s 

failure to complete the home-care medical training appeared “as much a product of DCS’s intervention as it is 

a sign of her need for that intervention.” Id. at 1289 (emphases original). The Court concluded that mother’s 

child was only one step away from coming home from the hospital and there was no evidence that Mother 

could not have completed the necessary training if given a little more time. Id. The case before us now is 

plainly distinguishable in that, here, DCS has given Mother multiple opportunities to complete the required 

training, and her failure to complete it was not attributable to DCS or a simple lack of time, but rather to a 

lack of initiative and effort on Mother’s part. 
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[10] The judgment of the juvenile court is affirmed.

Bradford, J., and Pyle, J., concur.