IN RE: the Involuntary Termination of the Parent-Child Relationship of A.J. (Minor Child) (2025)

MEMORANDUM DECISION

Case Summary

[1] R.J. (“Father”) challenges the termination of his parental rights to his daughter, A.J. (“Child”). He argues the Department of Child Services (“DCS”) did not present clear and convincing evidence of the required elements to support the trial court's decision. We affirm.

Facts and Procedural History

[2] Child was born in August 2021 to Father and L.W. (“Mother”).¹ For about a year after Child's birth, the family lived together. When Father and Mother broke up, Child resided with Mother and Father exercised parenting time. DCS removed Child from Mother's care on March 14, 2023, due to Mother's “potential substance abuse” and inability “to provide and properly care” for Child. Tr. Vol. 2 at 55. Child was placed with maternal relatives. DCS did not place Child with Father because it was at first unable to locate him and then discovered he had recently been incarcerated for a Level 6 felony operating a vehicle while intoxicated (“OWI”) conviction.²

[3] At a pretrial conference in April, Father admitted Child was a child in need of services (“CHINS”) because he was incarcerated and unable to care for Child. Father agreed to undergo a substance use assessment and comply with any resulting recommendations, and Father and DCS agreed to begin in-person supervised visitation. At a scheduled fact-finding hearing in May, Mother also admitted to the allegations of the CHINS petition and the trial court adjudicated Child a CHINS.

[4] Father participated in “substance abuse counseling or treatment of some sort” and parenting education while he was incarcerated. Id. at 34. When Father was released in September 2023, he was placed on electronic home monitoring. Father was initially resistant to services because he was not the “offending parent” but in December, Father completed a substance use assessment for DCS. The assessment recommended he engage in Alcoholics Anonymous, substance use classes, and therapy. Id. at 57. Father told the substance use assessor he last used alcohol in March 2023 and was staying sober. See id. at 70. He led DCS to believe the same, telling DCS he was sober and did not need to screen for DCS because he was being screened in his criminal case. However, Father did not allow DCS access to the results of those screens. Father participated in therapy and a twelve-step program recommended after the assessment.

[5] Father saw Child for supervised visitation up to twenty hours per week while he was on electronic home monitoring. Child's Guardian ad Litem (“GAL”) testified Father was “very engaged” in visitation and no safety concerns were noted by visit supervisors. Id. at 25. But as Child “was spending more and more time with [Father], more and more behavior problems seemed to come about.” Id. Child's therapist described behaviors such as emotional outbursts, instances of dysregulation, and self-harm. The GAL testified, “A two year old needs a lot of structure in their life. And they need a lot of routine. And this was just not going well for [Child].” Id. at 27.

[6] Father last visited with Child on March 27, 2024. Around that time, DCS learned Father had consumed alcohol almost immediately upon his release from incarceration in September and had eight positive screens for alcohol while on electronic home monitoring, including on a day he had visitation with Child. Ultimately, Father's probation in his criminal case was revoked because of the positive screens, and he was returned to jail and then transferred to work release. Father's visitation with Child was suspended as of April 15, “[d]ue to incarceration as well as ․ concerns for substance use taking place potentially during, after, or while visitation was taking place.” Id. at 59. Child's behavioral issues “decreased dramatically” after visitations were suspended. Id. at 27.

[7] On July 15, Child's permanency plan in the CHINS case was changed from reunification or appointment of a guardian to adoption. DCS filed a petition seeking termination of Father's parental rights on July 19.

[8] At the time of the factfinding hearing in October, Father was still residing at a work release facility. His earliest release date was February 2025. Although the referral for therapy remained open, Father had not participated in therapy through DCS since April due to his incarceration. Father said he was doing services through work release but provided no documentation of it to DCS. Visitation with Child had not resumed, in part because visitation would have to be at a county facility and Child did not respond well to new environments. Child continued to reside in family placement and was doing well. Child's therapist and the GAL believed removing her from that placement would be harmful to her psychological and emotional wellbeing.

[9] Both the family case manager (“FCM”) and GAL were concerned about Father's long history of alcohol use and that he maintained sobriety only when he was incarcerated. Father's 2021 OWI case—to which he pleaded guilty shortly before the CHINS case was initiated—was his seventh OWI case since 2005. In that time, he was incarcerated at least twice. Father completed substance use counseling and treatment programs while incarcerated, including AA and intensive outpatient treatment (“IOP”), but he resumed using alcohol each time he was released.

[10] The FCM noted Father could not properly parent Child at the time of the factfinding hearing because of his detention in work release. Further, given Father's pattern of alcohol use, DCS could not ensure he would be a sober caregiver for Child when he was released. The FCM did not believe there was a reasonable probability Father would remedy the reasons Child remained outside his care, and thought he posed a threat to her wellbeing because of his many previous OWI charges. The GAL did not believe Father was able or willing to remedy the conditions that kept Child out of his care “because his arrest[s] for driving under the influence of alcohol go back more than ten years ․, so that would tell me that his alcohol addiction is more than a decade old and in this last year he was not able to turn it around despite wanting to get custody of [Child].” Id. at 30. Both the FCM and GAL stated termination was in Child's best interests.

[11] Father testified he had completed extensive outpatient substance abuse group treatment (“EOP”) while on work release and had recently reached six months of sobriety. Id. at 80. Since completing EOP, he was going to AA meetings up to three times a week and was involved in relapse prevention programming. Father acknowledged he previously participated in AA and two IOP programs but continued using alcohol after being released from incarceration:

Q: [W]hen you were in jail knowing there was an open DCS case, you're saying that wasn't enough for you to want to truly do the work you needed to do to stay sober?

A: I mean I agree with you. I mean, yeah, definitely.

Q: And you were seeing [Child] 20 hours a week, right, when you were out?

A: Some weeks, yes.

Q: [F]or all intents and purposes, it looked like reunification with you was going to be the plan given [Mother's] incarceration, right?

A: Yeah. Yes.

Q: And yet that wasn't enough for you to not want to drink?

A: I can't argue with you.

Id. at 121. But Father said it would be different this time because “I've taken it seriously.” Id. at 100.

[12] The trial court issued its Findings of Fact, Conclusions Thereon, and Judgment Terminating the Parent-Child Relationship on November 1, 2024.

Standard of Review

[13] Parents have a constitutionally protected right to establish a home and raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, “this right is not absolute.” In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied. “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Id. at 45–46.

[14] To terminate a parent's rights to a child, DCS must allege that there is a satisfactory plan for the care and treatment of the child, and that termination of the parent-child relationship is in the child's best interests. Ind. Code § 31-35-2-4(c)(2), (3) (2024). DCS must also prove the existence of one or more of the following circumstances warranting termination:

(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.

I.C. § 31-35-2-4(c)(1), (d).³

[15] If the trial court finds the allegations of a termination petition have been proven by clear and convincing evidence, the court “shall” terminate the parent-child relationship and “shall enter findings of fact” supporting that conclusion. I.C. § 31-35-2-8(a), (c); see also I.C. § 31-37-14-2 (burden of proof). We apply a two-tiered standard of review to a termination decision: first, we determine whether the evidence supports the findings and second, whether the findings support the trial court's judgment. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). We do not reweigh the evidence but consider only the evidence and reasonable inferences most favorable to the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016). And we do not judge witness credibility for ourselves, instead giving due regard to the trial court's unique opportunity to judge the credibility of witnesses firsthand. Id. We will set aside the trial court's judgment only if it is clearly erroneous. Id.

Clear and convincing evidence supports the trial court's termination decision.

[16] The trial court made factual findings and determined DCS proved: (1) there was a satisfactory plan for the care and treatment of Child, (2) termination was in Child's best interests, (3) there is a reasonable probability the continuation of the parent-child relationship between Father and Child poses a threat to the well-being of Child, and (4) there is a reasonable probability the conditions that resulted in Child's removal from and continued placement outside Father's care and custody will not be remedied. See Appellant's App. Vol. 2 at 11.

[17] Father claims the trial court's ultimate determinations regarding continuation of the parent-child relationship, remediation of conditions, and Child's best interests are clearly erroneous.⁴

[18] Father does not challenge any of the trial court's factual findings. When findings of fact are unchallenged, we accept them as true. In re C.C., 153 N.E.3d 340, 348 (Ind. Ct. App. 2020), trans. denied. Here, the trial court's factual findings include: Father has been unable to reunify with Child since her removal from Mother's custody in March 2023; Father did not have meaningful participation in services during the CHINS proceedings; visitation with Father had a negative impact on Child's behaviors; Child's behaviors improved after visitation was suspended; Father had eight positive screens for alcohol while on electronic home monitoring; Father tested positive for alcohol on a day he visited with Child; Father was placed in a work release facility because of the positive screens and was still there at the time of the factfinding hearing; Father has participated in various treatment programs and AA in the past but still struggles with sobriety; Child's therapist is concerned for Child's emotional well-being if she is removed from the family placement; and the FCM and GAL believe it is in Child's best interest to terminate Father's parental rights.

Continuation of the Relationship

[19] To evaluate whether continuation of the parent-child relationship poses a threat to the child, a trial court should judge a parent's fitness to care for his or her child at the time of the termination proceedings, taking into consideration evidence of changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). But the court can also “consider a parent's habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Id. Termination is proper “[w]hen the evidence shows that the emotional and physical development of a child in need of services is threatened[.]” In re C.A., 15 N.E.3d 85, 94 (Ind. Ct. App. 2014) (citation omitted). The trial court need not wait to terminate the parent-child relationship until a child is irreversibly harmed such that her “physical, mental, and social development is permanently impaired[.]” In re A.B., 887 N.E.2d 158, 167 (Ind. Ct. App. 2008).

[20] During the time Father had visitation with Child, Child exhibited behaviors such as “hitting her head on the floor, trying to pull out her hair, [and] smacking her head when she's frustrated.” Tr. Vol. 2 at 10; see also id. at 45–46 (Child's placement saying after visitation with Father started, Child began to have multiple tantrums, night terrors, and would harm herself by “bash[ing] her head” against her crib rails “until she had a goose egg” and scrape her arms with her fingernails).⁵ Those behaviors improved “a little bit” through therapy but “substantial[ly] improved” after visits with Father stopped. Id. at 47–48.

[21] In addition, Father has a lengthy criminal record related to his use of alcohol, which caused concerns for Child's safety. The GAL explained that Father “has these convictions ․ spanning approximately a decade. And so I don't see much hope that he's going to change that behavior so I can't think that [Child] is going to be very safe in his care.” Id. at 31. Father testified he had been sober for six months and was taking his substance use treatment to heart this time, but the trial court was free to give more weight to his habitual patterns of conduct. Father told DCS he was sober while he was on electronic home monitoring and visiting with Child when in fact he was not: he tested positive for alcohol eight times, including once on a day he had visitation. And for the most recent six months during which Father claimed sobriety, he was in a work release facility where he was given a portable breath test every time he returned to the facility. Even accepting that Father's recent efforts are genuine, his history suggests he has difficulty staying sober when he is living on his own.

[22] Finally, Father would be in work release until February 2025—almost two years after Child was placed with her maternal relatives and nearly one year after Child last visited with Father. Both Child's therapist and the GAL believed Child would be harmed by being removed from their care and returned to Father's custody. The therapist explained:

When it comes to the relationships that [Child] has created, not only with the [placement] but also with the fellow children in the household, there would be a lot of confusion for her regarding why she is not currently with those individuals. It would be difficult for her to maybe create further relationships in life because of that instance of creating a relationship and then having it taken away.

Id. at 20. The GAL said, “[I]t would traumatize her, to be honest.” Id. at 41.

[23] The evidence and unchallenged factual findings support the trial court's determination that continuation of the parent-child relationship poses a threat to Child's well-being.⁶

Best Interests

[24] Father also asserts the trial court's determination that termination is in Child's best interests is clearly erroneous. When deciding whether termination is in a child's best interests, courts look to the totality of the evidence and “must subordinate the interests of the parents to those of the children.” In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005), trans. denied. A child's need for permanency is a central consideration, and they “cannot wait indefinitely for their parents to work toward preservation or reunification[.]” In re E.M., 4 N.E.3d 636, 648 (Ind. 2014). Recommendations of the FCM or GAL, in addition to evidence that continuation of the relationship poses a threat to the child's well-being, are enough to show by clear and convincing evidence that termination is in the child's best interests. See In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied.

[25] Here, the FCM and GAL both testified termination was in Child's best interests. The testimony of these service providers, as well as the other evidence discussed above, supports the trial court's conclusion that termination was in Child's best interests.

Conclusion

[26] The trial court's decision to terminate Father's parental rights to Child was not clearly erroneous.

[27] Affirmed.

FOOTNOTES

1.   Mother voluntarily terminated her parental rights to A.J. and does not participate in this appeal.

2.   Father was charged in November 2021 with four counts and pleaded guilty in March 2023 to one count of operating a vehicle while intoxicated endangering a person while having a prior conviction within seven years.

3.   There are twelve total circumstances that may be alleged in a petition to terminate parental rights. See I.C. § 31-35-2-4(d)(1)–(12). DCS alleged five of those circumstances applied here. See Appellant's App. Vol. 2 at 35–36 (alleging circumstances (2), (3), (4), (6), and (7)). We have quoted only those circumstances the trial court determined were proven. See id. at 10 (trial court's order finding circumstances (3) and (4)).

4.   Father does not challenge the trial court's determination that DCS proved it has a satisfactory plan for Child's care and treatment.

5.   Child exhibited these behaviors at the start of the CHINS case while Father was incarcerated but Child was visiting with Mother. After visitation with Mother ended because Mother was incarcerated, these behaviors improved but “started to escalate again after her visits started with [Father].” Id. at 46.

6.   Father also argues DCS failed to prove there was a reasonable probability the conditions that resulted in Child's removal or reasons for placement outside Father's home will not be remedied. Although the termination statute has been amended, the requirement to allege and prove circumstances warranting termination is still written in the disjunctive. See generally In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010) (noting element of previous version of the statute requiring DCS to prove there is a reasonable probability conditions will not be remedied or continuation of the relationship threatens the child's well-being requires DCS to prove only one of those two requirements). Accordingly, the requirement for DCS to allege “the existence of one (1) or more of the circumstances described in subsection (d)” means the trial court must find DCS proved only one of those circumstances by clear and convincing evidence to terminate parental rights. I.C. § 31-35-2-4(c)(1) (emphasis added); In re J.W., No. 24A-JT-2943, at *3 (Ind. Ct. App. May 1, 2025) (deciding under current version of statute, DCS is only required to prove one of the subsection (d) circumstances warranting termination). Because there is sufficient evidence to support the trial court's conclusion regarding continuation of the parent-child relationship, we do not also address whether there is a reasonable probability the reasons for Child's placement outside Father's home will not be remedied.

Kenworthy, Judge.

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