In the Termination of the Parent-Child Relationship of: Sh.J. (Minor Child), and J.R. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] J.R. (“Father”) appeals the involuntary termination of his parental rights to his minor child, Sh.J. (“Child”). We affirm.

Facts and Procedural History

[2] Father and S.J. (“Mother,” and together with Father, “Parents”) are the parents of Child who was born in August 2022. On August 25, 2022, the Department of Child Services (“DCS”) filed a petition alleging Child was born exposed to illicit substances and was a child in need of services (“CHINS”). On November 10, 2022, the court entered an order finding that Mother admitted that: Father was Child's alleged father but paternity had not been established; she did not seek prenatal care during her pregnancy; she used methamphetamine and THC throughout her pregnancy; she tested positive for THC and amphetamine on the day of Child's birth; she and Father use methamphetamine and THC and had a long history of substance abuse; she and Father could not provide adequate food, clothing, shelter, education, medical care, or supervision; and there was a history of domestic violence between Father and her. The court observed that Child was placed in relative care with an aunt.

[3] On December 13, 2022, the court entered an order finding that Father admitted that he and Mother use methamphetamine and THC and have a long history of substance abuse; he and Mother could not provide adequate food, clothing, shelter, education, medical care, or supervision; they did not have any supplies for a newborn baby; they had not returned to the home where they were living prior to Child's birth; and the family required the coercive intervention of the court to receive care, treatment, and rehabilitation designed to ensure safety, permanency, and stability. The court ordered Father to work with the prosecutor to establish paternity.

[4] Also in December 2022, the court entered a dispositional order which required Father to contact the family case manager every week; notify the family case manager of any arrest, criminal charges, and changes in his address within five days; participate in programs recommended by the family case manager or other service provider; keep all appointments with any service provider; maintain suitable, safe, and stable housing; secure and maintain a legal and stable source of income; diligently work with the prosecutor to establish paternity; not use any illegal controlled substances; obey the law; complete a parenting assessment and all recommendations; complete a substance abuse assessment and follow all treatments; submit to random drug screens; meet all personal medical and mental health needs in a timely and complete manner; attend all scheduled visitations with Child; and participate in case management and individual counseling. On October 30, 2023, the court entered an order approving a permanency plan of adoption.

[5] On December 8, 2023, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Parents and Child. On April 25, 2024, the court held a hearing at which Father testified that he was incarcerated and awaiting trial out of Wayne County. He acknowledged that he did not notify Family Case Manager Tammy Cline (“FCM Cline”) of being arrested when he was charged in Wayne County. When asked about the last time he was able to visit with Child, he indicated he did not “know the exact dates,” and, prior to his current incarceration, he “was too heavily on drugs” and “didn't want [Child] to really see what [he] was into.” Transcript Volume II at 6. He indicated that he was not engaged in a substance abuse rehabilitation program “but [he] would love to.” Id. at 7. On cross-examination by his own counsel, Father testified that he had been sober for seven months and would like to receive services. He also indicated that he was arrested on Child's first birthday. In response to a question by Mother's counsel, Father indicated that he was not offered any services since he had been incarcerated.

[6] DCS also presented the testimony of FCM Cline and Father's sister who had cared for Child since her birth. The court also admitted a certified record from Wayne County of the pending charges against Father.¹

[7] On July 2, 2024, the court entered an order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Parents’ care would not be remedied; termination of Parents’ parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

[8] Father argues that there is no showing that there is a reasonable probability that the conditions resulting in Child's removal will not be remedied.² He asserts that incarceration is an insufficient basis for terminating parental rights. He contends the family case manager testified that he appeared interested in substance abuse counseling, that he participated in some visits, and that she did not offer him any services following his August 2023 incarceration. He asserts that he has started the process of turning his life around. Without specific citation to statutory law, he asserts that “DCS did not fulfill its obligation as it is required by Indiana Code.” Appellant's Brief at 26.

[9] To the extent Father asserts that DCS failed to provide services, as a matter of statutory elements, DCS is not required to provide parents with services prior to seeking termination of the parent-child relationship. DCS is required to make reasonable efforts to reunify parents and children during CHINS proceedings, but that requirement “is not a requisite element of our parental rights termination statute, and a failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). And a parent may not sit idly by without asserting a need or desire for services and then successfully argue that he was denied services to assist him with his parenting. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).

[10] The record reveals that FCM Cline testified that she spoke with Father about “substance abuse counseling and in-patient” and he “seemed interested, but never was a follow through.” Transcript Volume II at 12. She also testified that Father participated in team meetings “way before” Child's first birthday in August 2023, “then they just stopped,” and she “couldn't get him, anymore, to come.” Id. at 25. She also indicated that two or three months passed before she learned of Father's incarceration. Under these circumstances, we cannot say Father’ due process rights were violated.

[11] At the time of the petition, Ind. Code § 31-35-2-4(b)(2) required DCS 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 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.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)).³ 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).

[12] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. 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. 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. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. 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.

[13] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. 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 prior criminal history, 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.

[14] “Indiana courts have upheld parental rights of incarcerated parents who still had a year or more to serve before possible release,” and the Indiana Supreme Court has “not established a bright-line rule for when release must occur to maintain parental rights.” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 648 (Ind. 2015). “Because the release date alone is not determinative, we consider whether other evidence, coupled with this consideration, demonstrates by clear and convincing evidence a reasonable probability that [an incarcerated parent] would be unable to remedy the conditions for removal.” Id. We have previously recognized that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (citation omitted), trans. denied. To the extent Father does not challenge the court's 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.

[15] The trial court found:

16. [Father] did minimally engage with the DCS at times, submitting to drug screens for which he tested positive for illicit substances. [Father] did not ever engage in any substance abuse rehabilitation services despite FCM Cline's encouragement to do so. [Father] did not ever engage in any other services referred to by his case manager.

17. [Father] was only minimally engaging with visitation prior to his most recent incarceration. His sister ․ who is the placement for [Child], testified that while he did well with the Child when he saw her, he was inconsistent and infrequent with his visits.

18. When [Father] was arrested during the pendency of the TPR case he did not notify his case manager as directed by the Dispositional Order.

19. During the pendency of this case, [Parents] failed to provide the DCS with evidence that they could provide a safe and stable home environment for the child. At this time, Mother's whereabouts are still unknown to the DCS and Father is incarcerated.

20. Throughout the underlying CHINS case, [Parents] have failed to consistently engage in the services requisite for reunification under the Court's Dispositional Decree. Father continued to abuse and test positive for illicit substances and has been charged with new criminal offenses.

Appellant's Appendix Volume II at 51-52.

[16] FCM Cline testified that she spoke with Father “a couple of times where [she] did actually see him” and talked about “substance abuse counseling and in-patient.” Transcript Volume II at 12. She stated that Father “seemed interested, but never was a follow through.” Id. She testified that Father participated in drug screening every time that she saw him, but the screens were positive for methamphetamine and fentanyl. She also stated that Father never contacted her to let her know he had been arrested. She indicated that, despite Father's need for drug treatment, he had not engaged in any such treatment. When asked if Father, “even when he was not incarcerated, he did not demonstrate a history of sobriety,” she answered, “Never.” Id. at 17. When asked if allowing more time for Parents to comply and achieve sobriety and for Father to be released would be in Child's best interest, she answered in the negative because “it's been nineteen months and there hasn't been any progress at all towards that.” Id. Upon cross-examination, FCM Cline indicated that two or three months passed before she learned of Father's incarceration. Father's counsel asked FCM Cline, “We don't know, at this point – you don't know, at this point, when [Father's] gonna be, um, released from incarceration, right, is that fair?” Id. at 22. FCM Cline answered affirmatively. During questioning by Father's counsel, Father's sister testified that she did not “know how long [Father was] gonna be incarcerated or anything.” Id. at 33.

[17] Upon questioning by the Director of Children's Advocates of Randolph County, FCM Cline indicated that Father participated in team meetings “way before” Child's first birthday, “then they just stopped,” and she “couldn't get him, anymore, to come.” Id. at 25. When asked if she was “able to mark off any of the things on the Dispositional Orders that the parents had completed,” she answered in the negative. Id. at 26.

[18] In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in Child's removal and the reasons for placement outside Father's care will not be remedied.⁴

[19] For the foregoing reasons, we affirm the trial court's termination order.

[20] Affirmed.

FOOTNOTES

1.   The charging information from Wayne County alleged that Father committed two counts of resisting law enforcement as level 6 felonies and striking a law enforcement animal as a class A misdemeanor related to alleged conduct occurring on or about October 13, 2023.

2.   To the extent Father argues that there was no showing that the continuation of the parent-child relationship posed a threat to the well-being of Child, we note that the trial court did not make such a finding. With respect to Father's argument that “Indiana Code § 31-35-2-4(b)(2)(B)(iii) requires the State to file a petition stating and to prove the child has, on two (2) separate occasions, been adjudicated a child in need of services” and “[t]his did not happen,” we cannot say reversal is warranted. Appellant's Brief at 27. DCS asserts that it never pled that allegation in its termination petition. Moreover, we note that Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive.

3.   Although the trial court's termination order was entered on July 2, 2024, after the effective date of the amended statute, DCS filed the termination petition prior to the effective date. Father cites the prior version of the statute that we refer to above and he makes no suggestion that the amended version applies to this case. Further, we note that Ind. Code § 31-35-2-4 was amended March 11, 2024, to provide in part:(c) A petition filed under subsection (a) must allege:(1) the existence of one (1) or more of the circumstances described in subsection (d);(2) that there is a satisfactory plan for care and treatment of the child; and(3) that termination of the parent-child relationship is in the child's best interests.(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:* * * * *(3) 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.(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child. ․

4.   To the extent Father cites In re K.E., 39 N.E.3d 641 (Ind. 2015), we find that case distinguishable. There, the father “made extensive efforts to better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a bond with both of his children.” 39 N.E.3d at 643-644. The Court observed “there is seemingly nothing else that Father could have been doing to demonstrate his dedication to obtaining reunification.” Id. at 649. Unlike in K.E., where Father was incarcerated at the time of the child's birth, id. at 644, Father was not incarcerated for a portion of time after Child's birth and failed to obtain substance abuse treatment prior to his incarceration.Father does not challenge the trial court's conclusion that termination of his parental rights is in Child's best interests or that there is a satisfactory plan for the care and treatment of Child. Accordingly, we do not address those conclusions.

Brown, Judge.

Judges Mathias and Kenworthy concur. Mathias, J., and Kenworthy, J., concur.