ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark Small                                                 Robert J. Henke
Indianapolis, Indiana                                      Rachael Armstrong
                                                           Dana J. Phillips
                                                           Indiana Department of Child Services
                                                           Indianapolis, Indiana


______________________________________________________________________________
                                                                              FILED
                                             In the
                                                                           Oct 05 2010, 10:13 am



                              Indiana Supreme Court                                CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court

                             _________________________________

                                     No. 62S01-1003-JV-148

IN THE MATTER OF THE INVOLUNTARY
TERMINATION OF PARENT-CHILD
RELATIONSHIP OF I.A.,

                 AND

J.H. (FATHER),
                                                           Appellant (Respondent below),

                                                v.

INDIANA DEPARTMENT OF CHILD SERVICES,
                                                       Appellee (Petitioner below).
                             _________________________________

                   Appeal from the Perry Circuit Court, No. 62C01-0802-JT-00033
                              The Honorable M. Lucy Goffinet, Judge
                              _________________________________

       On Petition To Transfer from the Indiana Court of Appeals, No. 62A01-0905-JV-252
                            _________________________________

                                         October 5, 2010

Rucker, Justice.
                                           Case Summary


        The trial court terminated Father‟s parental rights on the grounds that (1) the reason for
his child‟s placement outside of Father‟s home will not be remedied; and (2) the continuation of
the parent-child relationship poses a threat to the well-being of the child. Concluding that the
evidence does not clearly and convincingly demonstrate that Father‟s parental rights should be
terminated, we reverse the judgment of the trial court.


                                   Facts and Procedural History


        On February 18, 2006, a son, I.A. (sometimes referred to as “Child”) was born out of
wedlock to D.A. (“Mother”) and J.H. (“Father”). Child was one of Mother‟s seven children then
ranging in age from birth to fourteen years old. Sometime within a few months following
Child‟s birth, Mother told Father that I.A. was his son.


        The Perry County Department of Child Services (“DCS”) became involved with Mother
and her children in February 2006 due to allegations of lack of supervision, educational and
medical neglect, and Mother‟s drug use. On December 21, 2006, DCS received a report that
unknown to Mother, two of her younger children were discovered by police playing in the
parking lot of a motel unsupervised and two of her older children had travelled to a nearby town
alone. The children were thus removed from Mother‟s care based on a lack of supervision and
on January 4, 2007, DCS filed individual petitions alleging each child was a child in need of
services (“CHINS”). With respect to I.A., noting “[a]ddress [u]nknown,” DCS named Father as
a party to the petition. Ex. Tr. (Exhibit B).1 After a hearing held on March 30, 2007, at which
both Mother and Father appeared pro se, the trial court entered an order granting the CHINS
petition. The order included a case plan for reunification that provided in relevant part, “[t]he
mother shall participate in the Perry County Department of Child Services‟ CHINS Drug Court.
. . . The mother shall participate in supervised visits with the child. The mother shall continue to
participate with parent-aide services. The mother shall obtain and maintain employment. The


1
 We use Ex. Tr. to refer to the Volume of Exhibits. The pages therein are unnumbered. Tr. refers to the
Transcript of Evidence.


                                                   2
mother shall complete a parenting skills assessment and follow any and all recommendations of
the assessment. The mother shall attend and participate in individual counseling to address
issues of domestic violence, neglect and abuse, and any other areas that are deemed appropriate
and necessary.” Ex. Tr. (Exhibit J). With respect to Father, the trial court‟s order declared,
“[t]he father waives his right to be represented by counsel. The father admits that the child is a
child in need of services.” Id. The trial court‟s order was entered April 12, 2007.


       After a review hearing held on July 12, 2007, at which both Mother and Father appeared,
the trial court entered an order finding among other things, “mother and child shall continue to
participate in the case plan.” Ex. Tr. (Exhibit K). No findings were entered with respect to
Father. Father later testified that during the summer of 2007, he initially was allowed limited
visitation with Child, however visitation was discontinued in September 2007, apparently
because paternity had not yet been established. On February 12, 2008, DCS filed a petition to
terminate both Mother‟s and Father‟s parental rights. In May 2008 Father sought paternity
testing and filed a petition to establish paternity of Child which the trial court granted on
September 30, 2008.      From July 11, 2008 through January 29, 2009, Father was allowed
supervised visitation with Child.


       At a review hearing held November 25, 2008, at which Father appeared but Mother did
not, the trial court entered several findings including, “Mother has not complied with the case
plan. Father has complied with the case plan. 2 Mother has not enhanced her ability to fulfill
parental obligations. Father has enhanced his ability to fulfill parental obligations. Mother does
not visit regularly with the child.     Father visits regularly with the child.       Mother is not
cooperating with the DCS. Father is cooperating with the DCS.” Ex. Tr. (Exhibit R).


       After a hearing conducted approximately three months later, on February 17, 2009, the
trial court entered an order granting DCS‟ petitions to terminate the parental rights of Father with




2
  The record does not reveal that a case plan was ever entered with respect to Father. As discussed in
further detail below there was apparently an informal adjustment whereby Father was provided a parent
aide in conjunction with supervised visits with Child.


                                                  3
respect to I.A. and the parental rights of Mother regarding six of her seven children.3 The order
involving I.A. provided in pertinent part:

                a.      The child has been removed from his parents for at least six
                        (6) months under a dispositional decree of the Perry Circuit
                        Court, dated April 12, 2007 . . . .

                b.      The child has been removed from his parents and has been
                        under the supervision of a county Office of Family and
                        Children for at least fifteen (15) of the last twenty-two (22)
                        months.

                c.      There is a reasonable probability that:

                        1. The conditions that resulted in the child‟s removal or the
                        reasons for the placement outside the parent‟s home will
                        not be remedied in that:
                        i. The Father, [J.H.], has not bonded with the child after six
                        (6) months of Parent-Aid[e] services.
                        ii. The Father, [J.H.], needs lots of direction regarding
                        simple tasks relating to the care of the child.
                        iii. Evidence presented from the Parent-Aid[e] caseworker
                        that there has been no progress in the relationship between
                        the father and the child in six (6) months of services.
                        iv. The Mother, [D.A.], has not visited the child since July,
                        2008.
                        v. The Mother, [D.A.], has continued, repeated drug use.
                        vi. The Mother, [D.A.], has demonstrated a lack of
                        supervision of the children.
                        vii. The Mother, [D.A.], was terminated from the Perry
                        County CHINS Drug Court.
                        viii. The Mother, [D.A.], left Stepping Stones Drug
                        Recovery Program before completion of the program.
                        ix. The Mother, [D.A.], failed to cooperate with Parent-
                        Aid[e].
                        x. The Mother, [D.A.], failed to cooperate with her
                        Department of Child Services caseworker.
                        xi. The Mother, [D.A.], has failed to cooperate with any
                        services offered to her by the Perry County Department of
                        Child Services . . . .



3
 On motion of the DCS the trial court dismissed the Petition to Terminate Parental Rights with respect to
Mother‟s oldest child, A.S., who was seventeen years of age at the time of the termination hearing and
objected to being adopted. Tr. at 7.


                                                   4
                       2. Continuation of the parent-child relationship poses a
                       threat to the well-being of the child in that the mother,
                       [D.A.], continues to abuse illegal substances, lacks
                       supervision of the children and has not remedied any of the
                       causes for removal in the underlying CHINS proceeding.
                       The father, [J.H.], has not bonded with the child.

                d.     Termination is in the best interest of the child in that the
                       child is in a stable environment. The child needs
                       permanency.

Appellant‟s App. at 10-11. Father appealed, and in a memorandum decision the Court of
Appeals affirmed. See J.H. v. Ind. Dep‟t of Child Servs., No. 62A01-0905-JV-252 (Ind. Ct.
App. Dec. 10, 2009). Having previously granted transfer, we now reverse the judgment of the
trial court.4


                                      Standard of Review


        When reviewing the termination of parental rights, we do not reweigh the evidence or
judge witness credibility. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005).     We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We must also give “due regard” to the trial court's unique
opportunity to judge the credibility of the witnesses. Indiana Trial Rule 52(A). Here, the trial
court entered findings of fact and conclusions thereon in granting DCS‟ petition to terminate
Father‟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 two-tiered standard of review. First,
we determine whether the evidence supports the findings, and second we determine whether the
findings support the judgment. Page v. Greene County Dep‟t of Welfare, 564 N.E.2d 956, 959
(Ind. Ct. App. 1991). We will set aside the trial court‟s judgment only if it is clearly erroneous.
In re 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.” In re
R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


4
  Our determination in this regard applies to Father only. Mother did not contest the trial court‟s
judgment and is not a party to this appeal.


                                                5
       Trial Rule 52(A) provides that “the court on appeal shall not set aside the findings or
judgment unless clearly erroneous.” In implementing this directive, however, it is appropriate to
take into consideration the express statutory requirement that “[a] finding in a proceeding to
terminate parental rights must be based upon clear and convincing evidence.” Ind. Code § 31-
37-14-2. To construe harmoniously the requirements of the statute and Rule 52(A), we hold that
to determine whether a judgment terminating parental rights is clearly erroneous, we review the
trial court's judgment to determine whether the evidence clearly and convincingly supports the
findings and the findings clearly and convincingly support the judgment.


                                             Discussion
                                                     I.


       The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children. Meyer v. Neb., 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.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Indeed
the parent-child relationship is “one of the most valued relationships in our culture.” Neal v.
DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003) (quoting Tillotson
v. Clay County Dep‟t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002), trans.
denied).   We recognize of course that parental interests are not absolute and must be
subordinated to the child‟s interests when determining the proper disposition of a petition to
terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans.
denied. Thus, “[p]arental rights may be terminated when the parents are unable or unwilling to
meet their parental responsibilities.” Id. at 265.


       Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate a parent-child
relationship involving a child in need of services 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


                                                     6
                   a description of the court‟s finding, the date of the finding, and
                   the manner in which the finding was made; or
                   (iii) 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:
                   (i) the conditions that resulted in the child‟s removal or the
                   reasons for placement outside the home of the parents will not
                   be remedied; or
                   (ii) the continuation of the parent-child relationship poses a
                   threat to the well-being 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.

DCS bears the burden of proving these allegations by clear and convincing evidence. Bester,
839 N.E.2d at 148.


                                                 II.


       Father challenges the sufficiency of the evidence supporting the trial court‟s judgment
with regard to Indiana Code sections 31-35-2-4(b)(2)(B) and (C). We first observe that section
31-35-2-4(b)(2)(B) is written in the disjunctive. Thus DCS was required to prove by clear and
convincing evidence only one of the two requirements of subsection (B). See Bester, 839 N.E.2d
at 148 n.5 (“Having found a reasonable probability that the conditions precipitating the
[children‟s] removal would not be remedied, the trial court was not required to find also that the
continuation of the parent-child relationship posed a threat to the [children], since the statute
only requires finding one or the other.”) (quoting In re W.B., 772 N.E.2d 522, 531 n.2 (Ind. Ct.
App. 2002) (alteration in original)). In this case however the trial court found that both prongs of
Indiana Code section 31-35-2-4(b)(2)(B) were satisfied. We therefore examine each in turn.




                                                  7
A. Remediation of Condition


       In order to terminate the parent child relationship DCS must show by clear and
convincing evidence that 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.” Ind. Code § 31-35-2-4(b)(2)(B)(i). The record shows that I.A. was removed from
the home of his parents5 because of the lack of parental supervision: two of Mother‟s younger
children were discovered by police playing in the parking lot of a motel unsupervised and two of
Mother‟s older children had travelled to a nearby town alone. However at the time I.A. was
removed, Mother and Father were not residing in the same household. Instead I.A. was living
with Mother and in her sole custody and care. Thus the conditions that resulted in I.A.‟s removal
– lack of parental supervision – cannot be attributed to Father. “To hold [Father] liable for the
conditions that resulted in [Child‟s] removal would be to hold [Father] liable for the actions of
[Mother].” In re B.D.J., 728 N.E.2d. 195, 201 (Ind. Ct. App. 2000) (noting that conditions for
removal from Mother‟s home could not be attributed to Father who was not residing with Mother
at time children were removed).       Therefore, the inquiry in this case is whether there is a
reasonable probability that the reason for placement outside the home of the parents will not be
remedied.


       In order to determine whether the conditions which led to the placement of I.A. outside
the home of Father are not likely to be remedied, the trial court must first determine what
conditions led to DCS placing and then retaining I.A. in foster care rather than placing him with
Father. See In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997) (noting that when the child
is not in the custody of the parent, the focus of the termination inquiry is what conditions led to
DCS retention of the custody of the child). Second, the trial court must determine whether there
is a reasonable probability that those conditions will not be remedied. Id. In this case the trial
court addressed the second requirement, but not the first. That is to say, although the trial court‟s


5
  See Tipton v. Marion County Dep‟t. of Pub. Welfare, 629 N.E.2d 1262, 1266 (Ind. Ct. App. 1994)
(holding that although the father did not have physical custody of his children at the time they were
removed, the children were nonetheless effectively removed from both their parents when they were
removed from the physical custody of the mother and placed in another home pursuant to the
dispositional decree).


                                                 8
termination order sets forth why placement outside of Father‟s home will not be remedied,
namely: Father had not bonded with I.A. after six (6) months of Parent-Aide services; Father
needed considerable direction regarding simple tasks relating to I.A.‟s care; and there had been
no progress in the relationship between Father and I.A. despite six (6) months of services; the
trial court‟s order does not indicate the conditions that led DCS to place I.A. in foster care or the
reasons I.A. remained in foster care rather than being placed with Father. In essence, the factors
identified by the trial court as conditions that will not be remedied are relevant only if those
conditions were factors in DCS‟ decision to place I.A. in foster care in the first place. Not only
is the trial court‟s order terminating Father‟s parental rights silent on this point, but also the
record before us is silent. Instead, in the several review hearings conducted in this case the trial
court‟s order simply reflects that I.A. was either placed in foster care or remained in foster care. 6


        Because there is nothing before us indicating the conditions that led DCS to place I.A. in
foster care and to continue I.A.‟s out-of-home placement rather than place him with Father, DCS
has failed to demonstrate by clear and convincing evidence that there is a reasonable probability
that the reasons for placement outside the home of the parents will not be remedied. See Ind.
Code § 31-35-2-4(b)(2)(B)(i). Thus, the trial court‟s termination of Father‟s parental rights
cannot be sustained on this ground.

B.      Continuation of the Parent-Child Relationship

        As an alternative ground for terminating Father‟s parental rights the trial court
determined that because Father had “not bonded” with I.A., the continuation of the parent-child

6
   See, e.g., Order on Review Hearing dated July 17, 2007, “Wardship shall continue and the above
captioned child [I.A.] shall continue to be placed with [D.] and [D.G.], foster parents.” Ex. Tr. (Exhibit
K); Order on Review Hearing dated September 14, 2007, “The above captioned children, [J.A.], [K.A.],
[I.A.], and [L.T.] shall remain in their current placement with [D.] and [D.G.], foster parents.” Ex. Tr.
(Exhibit M); Order on Permanency Hearing dated December 12, 2007, “Wardship shall continue and the
child [I.A.] shall continue in the current placement of [D.] and [D.G.].” Ex. Tr. (Exhibit N); Order on
Review Hearing dated January 31, 2008, “The above captioned child [I.A.] shall be removed from his
present foster home and placed in the home of [M.] and [J.R.], foster parents.” Ex. Tr. (Exhibit O); Order
on Review Hearing dated June 2, 2008 “The above captioned child [I.A.] shall remain in current
placement.” Ex. Tr. (Exhibit P); Order on Periodic Case Review dated December 2, 2008, “The cause of
the child‟s out-of-home placement has not been alleviated. . . . [W]ardship should continue and the
present placement is appropriate,” Ex. Tr. (Exhibit R).



                                                    9
relationship posed a threat to the child‟s well-being. See Ind. Code § 31-35-2-4(b)(2)(B)(ii).
The record shows that although Father attended the initial CHINS hearing, as well as several
review hearings, he did not seek genetic testing or file a petition to establish paternity until
sometime in April 2008. After a June test result revealed that Father was the natural parent of
I.A., DCS granted Father visitation with I.A. beginning July 11, 2008. Initially, the visits were
conducted for an hour to an hour and a half, one day a week outside of Father‟s home. Tr. at 46.
Thereafter the visits were increased to twice a week and were conducted at Father‟s residence.
Id. at 46-47. All of the visits were supervised by a parent aide employed by the Lincoln Hills
Development Corporation – a social services agency. And Father never cancelled or missed a
single visit.


        Leanne Halford was the parent aide7 that supervised the visits between Father and I.A.
With respect to the issue of bonding Halford testified:

                They were real uncomfortable with each other so that‟s been our
                main focus is try to get them to bond as a father and a child should.
                Still to this day at visits [Father] doesn‟t show excitement when
                [I.A.] arrives. It‟s just kind of take him in, get the coat off, go in,
                have a snack. [Father] still chooses not to have dinner with [I.A.].
                Instead, it‟s me [and Father], sitting watching [I.A.] eat, which is
                kind of not the best circumstance for the child. I have encouraged
                [Father] to eat with him just because that‟s a bonding issue as well
                and interacting at the dinner table.

Tr. at 66-67. Halford continued stating:

                [I.A.], still after all this time doesn‟t refer to [Father] as daddy. It‟s
                just I feel like the child, he just knows he goes there, visits for a
                couple hours, two times a week. He leaves, and then there‟s no –
                like I said, when we arrive there‟s no hugging or kissing. There‟s
                no [„]I miss you, what have you been doing.[‟] None of that goes
                on . . . .

Tr. at 72.

7
  Halford testified that the parent aide responsibilities included offering “services with parenting, child
development, safety, housekeeping, any other concern clients may have. If they need further education
we help them with that. We reach out to the community. Do anything that – personal issues they are
having, we address those with them and help them the best that we can, or we refer them on to other
services if we cannot help them personally.” Tr. at 63


                                                    10
          We first observe that by concluding Father had not bonded with I.A., the trial court and
DCS apparently are referring to what they perceive as insufficient emotional attachment and
interaction between Father and Child. The record certainly demonstrates that Father‟s parenting
skills are lacking. But a case plan for reunification was never developed for Father indicating
what was expected of him. And thus, other than parent aide, no services were provided to assist
Father in developing effective parenting skills. It is of course true that “the provision of family
services is not a requisite element of our parental rights termination statute.” In re E.E., 736
N.E.2d 791, 796 (Ind. Ct. App. 2000). But there is nothing in this record demonstrating that the
exercise of visitation twice a week for an hour and a half over a six month period with a two-
year-old child is sufficient time under the circumstances to establish a bond. Second, and more
importantly, other than answering “[y]es, I do” to the general question “Do you believe that
continuation of the parent-child relationship poses a threat to the wellbeing of these children,”
Tr. at 49, the DCS case manager testifying on the matter does not explain why this is so with
respect to Father and I.A. By contrast we see little harm in extending the CHINS wardship until
such time as Father has a chance to prove himself a fit parent for his child.


          In sum, DCS has failed to prove by clear and convincing evidence that there is a
reasonable probability that by continuing the parent-child relationship, the emotional or physical
well-being of I.A. is thereby threatened. See Egly v. Blackford County Dep‟t of Pub. Welfare,
592 N.E.2d 1232, 1233, 1234 (Ind. 1992) (noting that clear and convincing evidence need not
reveal that “the continued custody of the parents is wholly inadequate for the child‟s very
survival,” rather, it is sufficient to show that “the child‟s emotional and physical development are
threatened” by the respondent parent‟s custody). The involuntary termination of parental rights
is the most extreme sanction a court can impose on a parent because termination severs all rights
of a parent to his or her children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.     Therefore, termination is intended as a last resort, available only when all other
reasonable efforts have failed. Id. We are not convinced that all other reasonable efforts have
been employed in this case to unite this father and son.




                                                 11
                                              Conclusion


        DCS has not proven by clear and convincing evidence that there is a reasonable
probability that the reasons for Child‟s placement outside of Father‟s home will not be remedied
or that the continuation of the parent-child relationship between Father and Child poses a threat
to the well-being of the child.8 We therefore reverse the judgment of the trial court terminating
Father‟s parental rights.


Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with separate opinion.




8
  Having made this determination we need not address Father‟s additional contention that DCS failed to
prove that termination of his parental rights is in the child‟s best interests. See Moore v. Jasper County
Dep‟t. of Child Servs., 894 N.E.2d 218, 229 n.7 (Ind. Ct. App. 2008) (declaring that Department of Child
Services must prove each element of I.C. § 31-35-2-4(b) by clear and convincing evidence in order to
terminate a parent-child relationship).


                                                   12
Boehm, Justice, dissenting.

       I respectfully dissent. I recognize that termination of parental rights presents an intrusion
by the courts into constitutionally protected interests of the parent.           And protection of
constitutional rights may require enhanced appellate scrutiny. See Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 498–504 (1984). The role of the appellate courts,
however, is somewhat different in some termination cases than it is in determining whether the
record supports a finding of actual malice in a defamation case. The ultimate issues in this case
are the likelihood that the conditions leading to the child‟s removal will not be remedied, and
whether continuation of the parental relationship poses a threat to the child. In my view, neither
of these is susceptible to the rigorous analysis we seek to apply in determining whether more
precise statutory elements are met, or whether the evidence is sufficient to establish a historical
fact such as whether the traffic light was red or green.

       The statute calls for both of these determinations critical to a termination proceeding in
language that appears in the same form as language setting out the elements of a crime or tort.
But the determinations the trial court is called upon to make in a termination proceeding turn on
questions such as the degree of confidence we have that the parent will in fact maintain a decent
home for the child and the reliability of assurances that a straighter path has been found. These
determinations call on the trial court to make not only an evaluation of credibility of witnesses,
but also an evaluation of the reliability of their assurances as to various assertions and promises.
Resolution of these questions often is more in the nature of predictions of future events, not
findings as to what has already occurred. As such, an accurate and detailed rationale for a
termination is more difficult to write with precision and frequently, as in this case, ultimately
turns significantly on what the gut of the finder of fact is telling him or her. Such a finding is not
as readily reviewed by an appellate court because it cannot easily be picked apart into its
components, and is therefore less susceptible to the analysis an appellate court usually
undertakes.   Factual determinations are reviewed under the deferential “clearly erroneous”
standard. The standard of review in termination cases, however, is all over the map. See James
W. Paulsen, Family Law: Parent and Child, 51 S.M.U. L. Rev. 1087, 1124–26 & ns.282–86
(1998) (noting the wide range of the standard of review by appellate courts in various
jurisdictions, from de novo to abuse of discretion). Because of the unusual nature of termination
determinations, I would give even wider deference to the trial judge‟s conclusion as to what is in
the best interests of the child, and whether the conditions are likely to improve.

       Of course, some challenges to terminations are based on failure to comply with
procedural requirements. These are readily reviewed as any other procedural error. But when,
as here, the issue is the sufficiency of the trial court‟s findings as to the ultimate substantive
requirements for a termination my lack of confidence in appellate review leads me to defer to the
trial court in all but the obvious miscarriage.

       On this record, I believe the trial court could have concluded that although the father
never directly contributed to the reasons for placing the child in foster, he lacked the ability to
provide proper parenting and care for the child both immediately and in the future. As we
recently reiterated, in ruling on a termination petition, the parents‟ interests must be subordinated
to the child‟s. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).

       In sum, I would not disrupt this child‟s current placement based on failure of the trial
court to articulate its reasoning in sufficient detail. In recent years, for good reason, we and most
states have taken legislative and administrative steps to avoid prolonged and repeated disruptions
in a child‟s placement. This also favors leaving in place an order that may be on the edge of
acceptability but where future review is unlikely to result in a different outcome. I would accept
as sufficient the trial court‟s ultimate findings that continuation of the parental relationship
presents a threat to the child‟s well-being and there is a reasonable probability that the conditions
leading to placement outside the home will not be remedied.




                                                  2
