MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be Nov 18 2020, 9:16 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Danielle Sheff INDIANA DEPARTMENT OF Sheff Law Office CHILD SERVICES Indianapolis, Indiana Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
ATTORNEY FOR APPELLEE CHILD ADVOCATES, INC. Janice Mandla Mattingly Janice Mandla Mattingly, P.C. Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA In the Matter of the Termination November 18, 2020 of the Parent-Child Relationship, Court of Appeals Case No. Ki.H., K.H., and Kr.H. (Minor 20A-JT-263 Children), Appeal from the Marion Superior and Court The Honorable Mark A. Jones, K.D.H. (Father), Judge Appellant-Respondent, The Honorable Peter Haughan, Magistrate
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 1 of 20 v. Trial Court Cause Nos. 49D15-1809-JT-1145 49D15-1809-JT-1146 Indiana Department of Child 49D15-1809-JT-1147 Services, Appellee-Petitioner,
and
Child Advocates, Inc.
Appellee-Guardian ad Litem.
Brown, Judge.
K.D.H. (“Father”) appeals the involuntary termination of his parental rights to
his children, Ki.H., K.H., and Kr.H. 1 We affirm.
Facts and Procedural History
Father’s several children include Ki.H. who was born on June 23, 2015, and
K.H. and Kr.H. (the “Twins,” and with Ki.H., the “Children”), who were born
on September 23, 2017. The Twins were removed from their parents’ care on
the day they were born, and on September 26, 2017, Ki.H. was removed and
the Indiana Department of Child Services (“DCS”) filed a petition alleging the
Children were children in need of services (“CHINS”) and that their mother
tested positive for codeine, morphine, and heroin during pregnancy. Also on
1 The children’s mother signed consents to adoption and was dismissed from the termination case on August 26, 2019, and she died on or about September 5, 2019.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 2 of 20 September 26, 2017, the court held an initial hearing at which Father was
present, appointed counsel for Father upon request, and ordered supervised
parenting time. Upon the Twins’s release from the hospital, the court approved
a placement in either kinship, relative, or foster care for the Children.
On January 10, 2018, the court held a hearing at which Father was not present,
Father’s counsel waived factfinding, and the court entered CHINS
adjudications with respect to the Children upon admission by their mother. On
February 7, 2018, the court entered a dispositional decree; awarded DCS
wardship of the Children; authorized increased parenting time up to and
including temporary trial visitation upon positive recommendation from the
guardian ad litem, DCS, and service providers; ordered Father to participate in
drug screens; and indicated that, if he had ten consecutive, clean, random drug
screens, he would no longer be required to screen. At a permanency hearing at
which counsel represented Father, who was not present, the court made a
finding that Father was incarcerated and changed the permanency plan to
adoption.
On September 27, 2018, DCS filed a petition to terminate Father’s parental
rights, and a TPR Summons And Notice of Hearing indicates Father was
served in October 2018 at the Henderson County Detention Center in
Henderson, Kentucky. On October 12, 2018, the court issued an order which
continued the initial hearing and appointed Child Advocates, Inc., as guardian
ad litem for the Children. The order indicates that it was “RECOMMENDED
BY:” Magistrate Larry E. Bradley. Appellant’s Appendix Volume II at 79. The
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 3 of 20 court’s order from the continued initial hearing on November 9, 2018, which
was also “[r]ecommended by” Magistrate Bradley, indicates “Ryan Gardner”
appeared as a “GAL Attorney” and the court set the matter for pre-trial
conference and appointed a public defender for Father. Id. at 110-112 (some
capitalization omitted).
On February 20, 2019, DCS filed a motion to transport Father from the
Henderson County Detention Center, or alternatively to allow him to
participate by telephone or videoconference in the termination trial. An order
recommended by Magistrate Bradley denied the motion to transport Father but
allowed him to appear by videoconference. In response to DCS’s filing of a
second motion to transport, the court issued an order on July 2, 2019, which
denied the motion to transport but allowed appearance by videoconference and
was approved and ordered by “Ryan K. Gardner, Judge.” Id. at 156.
On July 25, 2019, Larry E. Bradley filed, as a volunteer attorney, an E-Filing
Limited Appearance form for Child Advocates, Inc. On July 29, 2019, the
court continued the trial set for that day in an order which noted that: “Ms.
Berg[, Father’s counsel,] is requesting Mr. Bradley, GAL Attorney, withdraw
from the case as there is conflict.” Id. at 163. The same day, Child Advocates
filed a Motion to Withdraw Appearance requesting to remove volunteer
attorney Bradley, which the court granted.
Magistrate Peter Haughan of the Juvenile Division of the Marion Superior
Court presided over Father’s termination hearing which was held on September
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 4 of 20 26, 2019, October 31, 2019, and November 6, 2019. The court issued a set of
three orders, with each corresponding to a certain half-day hearing. The court’s
November 6, 2019 order was “APPROVED & ORDERED BY:” Judge Pro
Tempore Ryan K. Gardner, whereas Judge Mark A. Jones of the Juvenile
Division of the Marion Superior Court had approved and ordered the previous
half-day hearings. Id. at 205.
On January 5, 2020, the court issued its “Order Terminating the Parent-Child
Relationship Between the Parent, [Father], and the Children,” which was
signed by Magistrate Haughan and Judge Jones. The court found that a
November 4, 2013 order 2 had terminated the parent-child relationship between
Father and his two older children, born in 2003 and 2004; CHINS petitions had
been filed with respect to the older children in 2011 based on lack of
appropriate supervision by their mother; Father was incarcerated and his ability
or willingness to parent had not been demonstrated and the children were later
found to be in need of services; Father was released from prison around July of
2012 but failed to contact DCS until attending a CHINS hearing in late
November of 2012 and; the dispositional order was modified to provide home
based services which Father failed to complete. The order observed that Father
was convicted in July 2013 of Assisting a Criminal, anticipated being released
2 The November 4, 2013 order recommended by Magistrate Bradley states that Ryan Gardner appeared as counsel for Child Advocates, Inc..
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 5 of 20 on April 15, 2014, and had a criminal record at twenty-five years of age
consisting of five felony convictions and two misdemeanor convictions.
The January 2020 termination order further found that, since the termination of
Father’s parental rights regarding his older children, he has had at least one
felony conviction in 2015 for which the court issued five warrants ordering that
he be taken into custody and, subsequent to the conviction, found him to have
violated the terms of his sentence or probation and ordered his incarceration;
one felony charge and several misdemeanor charges in 2017; and two felony
charges and misdemeanor charges in 2018. The order found that, as Father
served the sentence associated with the 2015 conviction, he received two
probation violations resulting in further incarceration, and that, at the time of
the court’s termination order, he still faced outstanding warrants in the
proceedings related to the 2017 and 2018 charges. It indicated Father testified
at a fact-finding hearing that he was incarcerated in a United States penitentiary
in Kentucky, where he had been since April 2018 because of a conviction of the
federal offense of possession of a firearm; he received a sixty-month federal
sentence, still had two years of incarceration to serve, and would then be moved
to a halfway house to engage in work and rehabilitative programs; he has not
seen the Children in person since he became incarcerated but communicated
via computer tablet with the younger children and via telephone with Ki.H.;
and that the inmates are frequently on lockdown, so Father has not been able to
engage in any programs or communicate with the Children.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 6 of 20 The court further found that, prior to his incarceration, Father’s parenting time
remained supervised and the Children were never placed in his care and that
the Twins were placed shortly after birth with Father’s uncle and his uncle’s
partner, have special medical conditions, and have behaviors that can escalate
quickly into tantrums. It found that the Father’s uncle and his uncle’s partner
both take them to their doctor appointments, their home is the only home the
Twins have ever known, and they provided for the needs and are willing to
adopt them if Father’s parental rights were terminated. It indicated the Twins
were loved and well-cared for and Father’s uncle was concerned with Father’s
sobriety and believed he needed help.
Based upon the testimony of Family Case Manager Patrick Wilburn (“FCM
Wilburn”), the court found that Father had been incarcerated throughout most
of the pendency of the Children’s CHINS cases and did not successfully
complete random drug screens, the Children have never been placed with
Father and he did not want placement of them, he did not want to complete
random drug screens or the Father’s Engagement program, and he does not
have the ability or willingness to provide the Children with a safe and stable
permanent home or provide for their short-term and long-term needs. It stated
FCM Wilburn believed the conditions that led to the removal and retention of
the Children from Father’s care and custody have not been remedied; the
continuation of the parent-child relationship is a threat to the well-being of the
Children; and it is in the best interests of the Children that Fathers’ parental
rights be terminated. Furthermore, based upon the testimony of guardian ad
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 7 of 20 litem Ed Walker (“GAL Walker”), it found that Father reported to GAL
Walker in October 2017 that he did not want to be considered for placement of
the Children, but that he would participate in the services of substance abuse
evaluation and treatment, random drug screens, and the Father’s Engagement
program; the referrals for these services were made on Father’s behalf; and
Father did not engage in these services. It indicated GAL Walker was never
able to recommend that Father have unsupervised parenting time due to his
decision not to participate in services and his subsequent incarceration and that
GAL Walker, who visited the Children many times, believed it is in the
Children’s best interests that Father’s parental rights be terminated and the
Children be adopted by their current respective caregivers.
The order then found the conditions that led to the Children’s removal –
Father’s criminal behavior and the accompanying incarceration, problems with
alcohol and/or substance abuse, and lack of ability or willingness to parent the
Children – had not been remedied. In finding that it was highly probable that
these conditions would not be remedied, even if Father was given additional
time to remedy the conditions, the court stated: the Children’s CHINS cases
have been open for over two years; Father continues to engage in criminal
behavior that results in his incarceration he is currently serving a federal
sentence and will not be released for at least two years; he has state charges
pending; Father has not engaged in any services that could assist him to remedy
these conditions; from the beginning of the CHINS cases, Father has done
nothing to demonstrate that he has the ability or willingness to parent the
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 8 of 20 Children and to provide them with a safe and stable home; and there is a
substantial probability that future neglect or deprivation will occur because of
his failure to remedy the conditions. The court found a reasonable probability
that the continuation of the parent-child relationship between Father and the
Children poses a threat to their well-being and that DCS had shown by clear
and convincing evidence that termination of the parent-child relationship
between Father and the Children is in the best interests of the Children.
Discussion
The United States Supreme Court “has ‘recognized on numerous occasions that
the relationship between parent and child is constitutionally protected,’ and that
‘[t]he fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State.’”
In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013) (internal quotations
omitted) (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549 (1978);
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388 (1982)). However, these
protected parental rights are not absolute and must be subordinated to the
children’s interests to maintain the parent-child relationship. Bester v. Lake
County Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus,
“[p]arental rights may be terminated when the parents are unable or unwilling
to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004)).
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 9 of 20 When reviewing the termination of parental rights, we do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. See In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine
our review to two steps: whether the evidence clearly and convincingly supports
the findings, and then whether the findings clearly and convincingly support the
judgment. Id. Reviewing whether the evidence “clearly and convincingly”
supports the findings, or the findings “clearly and convincingly” support the
judgment, is not a license to reweigh the evidence. Id. Our review must give
due regard to the trial court’s opportunity to judge the credibility of the
witnesses firsthand and not set aside its findings or judgment unless clearly
erroneous. Id. “Because a case that seems close on a ‘dry record’ may have
been much more clear-cut in person, we must be careful not to substitute our
judgment for the trial court when reviewing the sufficiency of the evidence.” Id.
at 640.
The involuntary termination statute is written in the disjunctive and requires
proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
In order to terminate a parent-child relationship, DCS is required to allege and
prove, 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
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 10 of 20 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
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
We first address Father’s argument that Indiana Code § 31-35-2-4 is
unconstitutional on its face and as applied because it lacks a requirement that
DCS “first provide services to attempt reunification of the parent and child
during the CHINS proceedings prior to moving to termination of parental rights
– services required by DCS procedural manuals,” and, in “failing to require
DCS to perform its published procedures uniformly prior to moving for
termination,” it creates the conditions for similarly situated parents to be treated
unequally. Appellant’s Brief at 45-46. He contends DCS failed to comply with
its own manuals regarding services, the FCM never attempted to provide him
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 11 of 20 with services before recommending termination of his parental rights, and DCS
should have reassessed “the best way to provide services to assist” him and the
Children. Id. at 49. DCS maintains that Father raises this challenge for the first
time on appeal, and because he had the chance to raise it during the termination
factfinding but failed to do so, he should be deemed to have forfeited review of
whether Indiana Code § 31-35-2-4 is constitutional. See Appellee DCS’s Brief at
43 (“Dissimilar to waiver, ‘which involves the intentional relinquishment or
abandonment of a known right, “forfeiture is the failure to make the timely
assertion of a right[.]”’”) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d
49, 54 (Ind. 2013)).
“Challenges to the constitutionality of a civil statute may be waived if they
could have been raised to the trial court but the appellant failed to do so.” In re
R.S., 774 N.E.2d 927, 929 (Ind. Ct. App. 2002), trans. denied. Our review of the
record reveals that Father did not raise the issue of the constitutionality of
Indiana Code § 31-35-2-4 before the trial court. Accordingly, we find he has
waived the issue. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (citing
Plank., 981 N.E.2d at 53 (“Declining to review an issue not properly preserved
for review is essentially a cardinal princip[le] of sound judicial administration.”
(internal quotation omitted))).
Waiver notwithstanding, the record reveals that the services provided Father
were not insufficient under the circumstances and that he was not deprived of
due process. To the extent Father relies on In re T.W., in that case this Court
examined the requirements of due process in the context of termination
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 12 of 20 proceedings and stated it was led to “one conclusion: for a parent’s due process
rights to be protected in the context of termination proceedings, DCS must have
made reasonable efforts to preserve and/or reunify the family unit in the
CHINS case,” that “[w]hat constitutes ‘reasonable efforts’ will vary by case,”
and that “does not necessarily always mean that services must be provided to
the parents.” 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied. The
record reveals Father spoke with GAL Walker at a October 2017 child and
family team meeting where he shared that “he didn’t think that services would
be beneficial to him at that time, and at that time, um, chose not to or said he
wasn’t going to participate in services.” Transcript Volume II at 40. It also
reveals that, although he was eventually offered and began certain services
through the Father’s Engagement program, he did not complete those services.
Furthermore, Father did not engage in drug screens, which the court ordered in
its dispositional decree in the CHINS case, before being incarcerated. In light
of the record, reversal based on the application of Indiana Code § 31-35-2-4 in
this case is not warranted, and we cannot say that Father’s due process rights
were violated. See In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009)
(observing that the absence of services was due to the father's incarceration and
that he did not point to any evidence that he specifically requested visitation or
other services, and holding that the inability to provide services did not amount
to a denial of due process).
Turning to Father’s argument that attorneys/judicial officers Gardner and
Bradley’s vacillating roles as attorneys and judicial officers violated conflicts of
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 13 of 20 interest concerns for attorneys and impartiality requirements for judicial officers
to such an extent that he was “deprived . . . of the most basic concepts of
fundamental fairness in court proceedings and tainted the process in a manner
that requires reversal for new proceedings,” Appellant’s Brief at 35, we initially
observe that the Indiana Code of Judicial Conduct provides that a “judge shall
disqualify himself . . . in any proceeding in which the judge’s impartiality might
reasonably be questioned . . . .” Ind. Judicial Conduct Rule 2.11(A). Rule 2.11
lists several specific instances requiring recusal, including cases where the judge
has “served as a lawyer in the matter in controversy . . . . ” Id. at (A)(6). The
Comment to Rule 2.11 notes that a judge’s obligation not to hear or decide
matters under the Rule “applies regardless of whether a motion to disqualify is
filed.” Jud. Cond. R. 2.11 cmt. [2]. To the extent that Father argues specific
violations of the Code of Judicial Conduct, 3 this Court rejected the argument
that the Code of Judicial Conduct supplies a freestanding mechanism for relief,
see Mathews v. State, 64 N.E.3d 1250, 1254 (Ind. Ct. App. 2016), trans. denied,
held that the obligations in the Code of Judicial Conduct are enforced by the individual judge against himself in the first
3 We note Father also points to Indiana Professional Conduct Rule 1.12, which is titled “Former Judge, Arbitrator, Mediator or Other Third-Party Neutral” and provides that a “lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, mediator or other third-party neutral, or law clerk to such a person, unless all parties to the proceeding give informed consent, confirmed in writing.” While Bradley did file an appearance on July 29, 2019, as a volunteer attorney on behalf of Child Advocates, the guardian ad litem, he filed a motion to withdraw on the same day, and his appearance was withdrawn upon the realization he had been previously involved in the case.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 14 of 20 instance, and in the last instance by disciplinary actions of the Indiana Supreme Court. We also held that allowing an independent action under the Code of Judicial Conduct would allow litigants, trial courts, and this Court to usurp the exclusive supervisory authority of the Indiana Supreme Court over judicial conduct.
Abney v. State, 79 N.E.3d 942, 951 (internal citations removed) (citing Mathews,
64 N.E.3d at 1255). Even if we were to undertake independent review of the
circumstances in light of the requirements of the Code of Judicial Conduct, we
cannot say that Father would prevail. See Mathews, 64 N.E.3d at 1256 (holding
the defendant would not prevail even if we conducted an independent review in
light of the Code of Judicial Conduct). Unlike in Bloomington Magazine, Inc. v.
Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012), on which Father relies and in which
this Court found that there was the appearance of impropriety because one of
the attorneys served as chairman of the judge’s recent election campaign and
the trial court abused its discretion in denying a motion to recuse herself, see
L.G. v. S.L., 88 N.E.3d 1069, 1071 (Ind. 2018) (discussing Bloomington), the
record does not support that Magistrate Haughan, who conducted the
termination of parental rights trial, or Judge Jones, as the second judicial officer
who signed the termination order were influenced by the actions of either
attorneys/judicial officers Bradley and Gardner. Cf. Bloomington, 961 N.E.2d at
64 (noting that the mere appearance of bias and partiality may require recusal if
an “objective person, knowledgeable of all the circumstances, would have a
rational basis for doubting the judge’s impartiality.” (citing Patterson v. State, 926
N.E.2d 90, 94 (Ind. Ct. App. 2010)). And, despite then-Magistrate Bradley and
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 15 of 20 then-Attorney Gardner’s involvements in a 2018 initial hearing, and then-Judge
Pro Tempore Gardner’s approval of a November 2019 order summarizing the
half-day events of the termination hearing date; and, while then-Magistrate
Bradley and then-judicial officer Gardner 4 may have signed separate pre-trial
orders in 2019 that denied motions to transport and directed video conferencing
or telephonic appearances for Father who was incarcerated, we do not find that
Father has overcome the presumption against personal bias or prejudice. See
L.G. v. S.L., 88 N.E.3d at 1073 (“Adverse rulings and findings by a trial judge
are not sufficient reason to believe the judge has a personal bias or prejudice. . .
. The law presumes that a judge is unbiased and unprejudiced. To overcome
this presumption, the moving party must establish that the judge has personal
prejudice for or against a party. Such bias or prejudice exists only where there
is an undisputed claim or the judge has expressed an opinion on the merits of
the controversy before him.” (internal citations removed)). 5
We next turn to Father’s argument that the termination order is not supported
by clear and convincing evidence. As noted, the involuntary termination
statute is written in the disjunctive and requires proof of only one of the
4 Although the July 2, 2019 order indicated “Judge” below the approval signature line, we note that Indiana’s Directory of Courts & Clerks lists Ryan Gardner as a Magistrate. See DIRECTORY OF COURTS & CLERKS IN INDIANA 28, https://www.in.gov/judiciary/files/court-directory.pdf (last accessed November 5, 2020). See also COURTS & CLERKS OFFICES, Courts.IN.Gov., https://www.in.gov/judiciary/2794.htm (last accessed November 5, 2020). 5 While the misconduct here did not deprive Father of due process, we admonish against the practice of appearing as an attorney and a judicial officer in the same case and underscore the importance of monitoring against such conflicts.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 16 of 20 circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). In determining whether
the conditions that resulted in a child’s removal will not be remedied, we
engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643. First, we identify
the conditions that led to removal, and second, we determine whether there is a
reasonable probability that those conditions will not be remedied. Id. at 643. In
the second step, the trial court must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions, balancing a parent’s recent improvements against habitual patterns
of conduct to determine whether there is a substantial probability of future
neglect or deprivation. Id. We entrust that delicate balance to the trial court,
which has discretion to weigh a parent’s prior history more heavily than efforts
made only shortly before termination. Id. Requiring trial courts to give due
regard to changed conditions does not preclude them from finding that a
parent’s past behavior is the best predictor of future behavior. Id. The statute
does not simply focus on the initial basis for a child’s removal for purposes of
determining whether a parent’s rights should be terminated, but also those bases
resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d
385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent’s
drug abuse, history of neglect, failure to provide support, lack of adequate
housing and employment, and the services offered by DCS and the parent’s
response to those services. Id. 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. Id. While incarceration alone cannot serve as a basis for termination Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 17 of 20 of parental rights, it is well-settled that a trial court may evaluate the parent’s
habitual patterns of conduct to assess the likelihood that the child or children
could experience future neglect or deprivation; and give considerable weight to
the parent’s history of incarceration and the effects upon the child or children.
See A.D.S. v. Ind. Dep’t of Child Services, 987 N.E.2d 1150, 1157 (Ind. Ct. App.
2013) (holding that the parent’s habitual patterns of conduct should be evaluated
to determine the probability of future neglect or deprivation of the child, that
DCS is not required to prove a parent has no possibility of changing; and that
DCS need only establish a reasonable probability that no change will occur),
trans. denied.
To the extent Father does not challenge certain findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
The record reveals Father’s pattern of continued involvement with law
enforcement. In Indiana, he received at least one felony conviction in 2015;
one felony charge in 2017 and several misdemeanor charges; and two felony
charges in 2018, among other misdemeanor charges. As he served the sentence
associated with the 2015 conviction, Father received two probation violations
resulting in further incarceration, and at the time of the court’s termination
order he still faced outstanding warrants in the proceedings related to the 2017
and 2018 charges. Furthermore, as of the fact-finding hearing, Father was
incarcerated in a United States penitentiary in Kentucky, where he had been
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 18 of 20 since April 2018 because of a conviction of the federal offense of possession of a
firearm. He testified during the fact-finding hearing that he still had two
additional years of incarceration to serve and would then be moved to a half-
way house to engage in work and rehabilitative programs. FCM Wilburn
testified that the Children need permanency and a safe and stable home
environment, both of which Father was unable to provide, and that the reason
the Children were removed had not been remedied, because they “need to be
taken care of and he’s unable to do that at this time.” Transcript Volume II at
30. The court found that the Children have never been placed with Father;
Father did not want placement of them; he did not want to complete the
services which had been ordered for him or those referred for him; and he does
not have the ability or willingness to provide the Children with a safe and stable
permanent home or provide for their short-term and long-term needs. In light
of the unchallenged findings and evidence set forth above and in the record, we
cannot say the trial court clearly erred in finding that a reasonable probability
exists that the conditions resulting in the Children’s removal or the reasons for
their placement outside Father’s care will not be remedied.
In determining the best interests of a child, the trial court is required to look
beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the child. Id. The court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship. Id. Moreover, the
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 19 of 20 recommendations by both the case manager and child advocate to terminate
parental rights, in addition to evidence that the conditions resulting in removal
will not be remedied, is sufficient to show by clear and convincing evidence that
termination is in a child’s best interests. A.D.S., 987 N.E.2d at 1158-1159.
Both FCM Wilburn and GAL Walker testified that termination of the
relationship between Father and the Children was in their best interests. Based
on the testimony, as well as the totality of the evidence as set forth in the record
and termination order, we conclude that clear and convincing evidence
supports the trial court’s determination that termination is in the Children’s best
interests.
Affirmed.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 20 of 20