IN RE: the Termination of the Parent-Child Relationship of B.M. (Minor Child); and J.M. (Father) (2025)

MEMORANDUM DECISION

Case Summary

[1] J.M. (Father) appeals the trial court's termination of his parental rights to B.M. (Child). On appeal, Father does not challenge the sufficiency of the evidence supporting the trial court's termination order. Instead, Father argues the trial court violated his due process rights under federal and state constitutions by impermissibly shifting the burden of proof to him to prove the reasons for Child's placement outside the home would be remedied.

[2] Father failed to challenge the trial court's findings or conclusions that the continuation of the parent-child relationship posed a threat to Child's well-being. Thus, he waived any argument that the Indiana Department of Child Services (DCS) failed to prove that allegation by clear and convincing evidence. While this wavier provides an independent basis for affirmance, we also address Father's due process argument in light of his fundamental constitutional rights at stake. Father's due process rights were not violated, as the trial court did not impermissibly shift the burden of proof to him. We affirm.

Facts and Procedural History

[3] Father and T.R. (Mother) (collectively, Parents) are the parents of Child, born in 2020.¹ Parents first became involved with DCS in August 2022, when DCS received a report alleging Child was a victim of neglect and physical abuse. The allegation was based on an incident where the police were dispatched to Parents’ home after Father attempted to strike Mother but hit Child instead, leaving a “small red mark” on Child. Tr. Vol. II p. 79. DCS initiated an investigation; Family Case Manager (FCM) Emily Werner assessed and substantiated the allegations.

[4] DCS created multiple safety plans for Mother, which included “calling law enforcement to the home if an argument started between” Parents and having a sober caregiver in the home. Id. at 80. Mother did not adhere to the safety plans and told DCS staff she could not keep Father out of the home.

[5] On August 15, 2022, the State charged Father with Level 6 felony unlawful possession of a syringe in Washington County under Cause Number 88D01-2208-F6-648 (Case 648). In September, the State charged Father with Level 6 felony domestic battery on a person less than fourteen years old under Cause Number 47D01-2209-F6-1166 (Case 1166).

[6] On September 22, FCM Werner visited Mother's home unannounced. The FCM observed a “sober support [caregiver] was not present [in the home], and [Mother] was impaired[.]” Id. at 81. Father was also present, and he was arrested because the “residue of methamphetamine” was “found on him[.]” Id. The State charged Father with Level 6 felony possession of methamphetamine and Class A misdemeanor invasion of privacy under Cause Number 47D01-2209-F6-1259 (Case 1259). Child was removed from Parents’ care and placed with Child's maternal grandmother (Maternal Grandmother).² Child never returned to either parent's care.

[7] On September 26, DCS filed its petition alleging Child was a child in need of services (CHINS), based on domestic violence, Father's arrest for possession of methamphetamine, and Parents’ drug use.

[8] In November, Father pleaded guilty to the domestic battery charge in Case 1166. The trial court sentenced Father to 900 days in the Indiana Department of Correction (DOC) with 770 days suspended to probation. The trial court also issued a no-contact order between Father and Child, effective for one year. Father also pleaded guilty to possession of methamphetamine in Case 1259 and was sentenced to 800 days in the DOC with 800 days suspended to probation. The sentences under the two cause numbers were to be served consecutively.

[9] On December 2, the trial court adjudicated Child a CHINS. At that time, Father was incarcerated in the Washington County Jail attendant to Case 648. On December 5, Father pleaded guilty to Level 6 felony unlawful possession of a syringe in that case; he was sentenced to 365 days in the Washington County Jail, with 335 days suspended to probation, to be served concurrent with his probation under Case 1166 (the domestic battery case). Father was thereafter released from the Washington County Jail.

[10] On December 28, Father was charged under Cause Number 47D01-2212-F6-1730 (Case 1730) with committing ten offenses – nine involving Mother as the victim – allegedly occurring between December 19 and 24. The offenses included eight Level 6 felonies, two misdemeanors, and an habitual offender enhancement that stemmed from a domestic violence incident where Father allegedly strangled Mother and committed invasion of privacy. Father was arrested on January 3, 2023, and held in the Lawrence County Jail; Father has remained incarcerated ever since.³ A protective order was entered on behalf of Mother after the strangling incident. On January 5, on the basis of these new charges, the State filed petitions to revoke Father's suspended sentences in Cases 1259 and 1166.

[11] On January 9, the trial court held the dispositional hearing for the CHINS matter. On March 7, a dispositional order was entered, requiring Father to, among other things: maintain weekly contact with the DCS FCM; keep all appointments with service providers, DCS, or the court appointed special advocate (CASA); enroll and participate in recommended programs and services; maintain suitable, safe, and stable housing and household necessities; secure and maintain a legal source of income; not use illegal substances or consume any alcohol; obey the law; complete parenting, substance abuse, and psychological assessments and follow all recommendations stemming therefrom; submit to random drug screens; comply with the terms of any existing probation order; participate in and successfully complete a domestic violence assessment and program; and attend scheduled visits with Child. Child's permanency plan was for reunification.

[12] FCM Cortney Knight began working with Father in February 2023, when Father was incarcerated in the Lawrence County Jail. FCM Knight had just graduated from her training program. Initially, FCM Knight was unaware that fatherhood engagement services were available to Father at the jail. Once the service was offered, Father participated; FCM Knight did not know how much of the program Father completed.

[13] Meanwhile, the CHINS court held review and permanency hearings between May 2023 and July 2024. The court found Father was able to participate in fatherhood engagement services, but his ability to participate in other services was limited. In December 2023, Child's permanency plan for reunification was modified to a plan for adoption.

[14] On February 28, 2024, DCS filed a petition for the involuntary termination of Father's relationship with Child. The termination hearing took place on May 6 and August 16. At that time, Father – who had been in custody since January 2023 – was incarcerated at the Branchville Correctional Facility and serving two years of a seven-year prison sentence, with four years suspended to probation and one year of good time credit. Upon Father's release from prison, Father would serve 1,460 days on probation and be required to complete certain programs.

[15] Evidence of Father's extensive criminal history was presented. In 2013, Father was convicted of Class D felony possession of a controlled substance; in 2017, Father was convicted of Level 6 felony possession of methamphetamine. Father also had a history of violating probation by committing new crimes while on probation. When Father was asked on cross-examination about his “history of violating probation” and “violating protective order[s],” Father testified: “I'm over this lifestyle[.] I'm getting older, and ․ I've got grandbabies now․ I'm tired of being locked up, and I just want to be a better person for the remaining time that I have in my life․ I'm just trying to be a better role model for my son.” Id. at 72.

[16] Father was unable to participate in most of his court-ordered services due to incarceration but, while at the Branchville Correction Facility, was able to participate in the Recovery While Incarcerated (RWI) drug rehabilitation program, work toward obtaining his general education diploma (GED), and attend church. Father testified the RWI program was a six-month-long program, and he had completed a little over half of the program. He told the trial court that once he completed the program, he could seek a modification of his remaining sentence.

[17] Father also testified he was “taking ․ advantage of everything that [he could] while ․ incarcerated.” Id. at 53. He told the trial court he was on the waiting list to participate in the anger management class and the “in and out dad program[.]” Id. at 54. Father was unable to participate in a domestic violence class because the correctional facility did not offer one.

[18] Father's incarceration also prevented him from providing stable housing for Child, providing Child with household necessities, and obtaining employment and a legal source of income. However, Father testified that, after his release, he planned to “continue [to] better” himself, “get[ ] a good job [and his] own place,” and continue to recover from his substance abuse issues. Id. at 55. He told the trial court he planned to reside with his two brothers until he could “get on [his] feet.” Id. at 56.

[19] While incarcerated, Father did not visit with Child. The correctional facility offered video calls, but Father did not ask FCM Knight to facilitate any calls between him and Child. Father did not send any cards or letters to Child and did not attempt to contact Child. Father testified it cost money to contact individuals from prison, either by mail or phone, and he did not have enough money in his prison account “to be able to do anything” after funds were withdrawn to pay for hygiene products and back child support owed for his older children. Id. at 103.

[20] Evidence showed Child was removed from Parents’ care and placed with Maternal Grandmother in September 2022, where he has since remained. Maternal Grandmother testified when Child was first placed with her, he “had a few issues with ․ hitting, ․ not being nice to his friends[, and] not listening to the teacher.” Id. at 43. After working with a therapist, Maternal Grandmother observed a “big improvement” in Child's behavior. Id. at 44. She told the court Child was “doing much better at school[,] ․ sharing[,] ․ not hitting his friends[, and] listening better to the teachers.” Id. She testified Child was “doing just fine” academically. Id. She also testified she planned to adopt Child if Father's parental rights were terminated. Father told the trial court, “[Maternal Grandmother] is a really loving person. [S]he's a really good grandmother․ My son is in a really loving home right now.” Id. at 73.

[21] FCM Knight told the trial court that, because Father was incarcerated, he was only able to participate in the fatherhood engagement services. When asked on direct examination about Father's ability to parent Child, the FCM testified she was concerned about Father's long period of incarceration; his release date was around “February 2026.” Id. at 28.

[22] As for Father's relationship with Child, the FCM testified because it had been “so long since [Child had] seen [Father, Child] knows who [Father] is but ․ doesn't have a relationship with him.” Id. at 29. FCM Knight told the trial court Child had bonded with Maternal Grandmother, and Maternal Grandmother wanted to adopt Child. The FCM testified Child was currently in a “safe, stable environment” and she had seen “so much improvement” in Child. Id. at 89.

[23] Mary Barber, Child's home-based therapist, testified she provided Child with individual therapy between December 2022 and April 2023. She stated when she first began working with Child, Child “had very bad temper tantrums[.]” Id. at 94. She referred Child to a behavior specialist. Barber testified that, after working with the behavior specialist, Child “seem[ed] to be doing much better and his behaviors seem[ed] to be under control a lot better than ․ when [Barber]” last worked with Child. Id. at 95.

[24] CASA Amber Green began working with Child in January 2024. When asked if she ever considered recommending returning Child to Father's care, she told the trial court, “No. I have not.” Id. at 98. She testified: “The reasons [for Child's removal from Father's care] have not been remedied. [F]or one, [Father] is still incarcerated [and will remain incarcerated] for about another year.” Id. CASA Green added: “[Father's] ․ criminal history is concerning [as well as the] reasons that led to the case opening with [Child] being injured.” Id. She further testified that “even if [Father] were to get out of prison, ․ he would still be on probation and has not always adhered to the terms of his probation previously.” Id.

[25] CASA Green believed it was in Child's best interests to be adopted by Maternal Grandmother. She testified Child was “almost four” and had been removed from Parents’ care for “over half of his life. [H]e is extremely bonded with grandmother․ [I]t would be detrimental to [Child] and his behavior and his mental health to be uprooted from the situation that he's in right now.” Id. at 99.

[26] On September 27, 2024, the trial court issued its order terminating the parent-child relationship between Father and Child. The trial court found Child had been removed from Father for at least six months under a dispositional decree and had been under the supervision of DCS for at least fifteen of the last twenty-two months, there is a reasonable probability the conditions that resulted in Child's removal or the reasons for placement outside Father's home will not be remedied, continuation of the parent-child relationship poses a threat to Child's well-being, termination of Father's parental rights is in Child's best interests, and there is a satisfactory plan for Child's care and treatment, which is adoption. Father now appeals.

Discussion and Decision

[27] We recognize “[a] parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). “[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore “termination is intended as a last resort, available only when all other reasonable efforts have failed.” Id.

[28] “We have long had a highly deferential standard of review in cases involving the termination of parental rights.” In re C.A., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014).

In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate 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.

In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 609 n.2 (Ind. Ct. App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.

[29] A petition to terminate a parent-child relationship must allege, among other things:

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

(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2) (2019).⁴ DCS must prove each element by “clear and convincing evidence.” R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2 (1997). If the trial court finds the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (2012).

Father has failed to establish that the trial court impermissibly shifted the burden of proof to Father to prove the reasons for Child's placement outside the home would be remedied, thus Father's due process rights were not violated.

[30] Father argues the trial court violated his due process rights by impermissibly shifting the burden of proof to him “to prove that the reasons for [Child's] placement outside the home would change[.]” Appellant's Br. p. 11. According to Father, this amounted to a violation of his due process rights under both the federal and state constitutions.⁵

[31] We observe, however, the trial court found that clear and convincing evidence also established that the continuation of the parent-child relationship posed a threat to Child's well-being. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive and, thus, requires the trial court to find only one of the requirements of the subsection by clear and convincing evidence. See In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied. “Standing alone, the finding that the parent-child relationship posed a threat to the well-being of [Child] satisfies the requirement listed in subsection (B). Id. In other words, we need not reach Father's argument related to Indiana Code Section 31-35-2-4(b)(2)(B)(i) (reasons will not be remedied). Because Father did not challenge this finding, we could affirm on this basis alone. However, in light of Father's constitutional right to raise his child, we choose to address his argument that the trial court violated his due process rights by impermissibly shifting the burden of proof to Father to prove the reasons for Child's placement outside the home would change.

[32] “Due process has never been defined, but the phrase embodies a requirement of ‘fundamental fairness.’ ” In re D.P., 27 N.E.3d 1162, 1166 (Ind. Ct. App. 2015) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). The United States Supreme Court has stated, “ ‘[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The process due in a termination of parental rights proceeding turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. Both the State and Father have substantial interests affected by the proceeding, so we focus on the risk of error created by DCS's actions and the trial court's actions.

[33] To support his due process argument and demonstrate the trial court impermissibly shifted the burden of proof to Father, Father turns our attention to Findings 48 through 52, 82, 83, and 88, which read as follows:

48. Father did not ask for increased parenting time with [Child], or video calls from DCS.

49. Father has not sent cards to [Child], nor made attempts to contact him.

50. When Father met with FCM Knight monthly to discuss the case, the topic of Father seeing [Child] or contacting him was not mentioned.

51. While there was a no contact order between Father and [Child] at the initiation of the CHINS proceeding, no party presented evidence Father was prevented from contacting [Child] for the duration of the CHINS proceeding.

52. A review of the record in the CHINS proceeding indicates no party presented evidence on the issue of Father's parenting time; DCS did not initiate Father's visitation and Father did not request it at any hearing.

* * * * *

82. There is insufficient evidence to determine if there is a reasonable probability the reasons for removal of [Child] from Father are likely to be remedied. Father asserts he wants to change his life and make better choices than those that led to his incarceration. The Court cannot predict whether this will occur or not, but Father has an extensive criminal history and history of law violations that cannot be ignored.

83. Notwithstanding there is a reasonable probability that the reasons for [Child's] continued placement outside the home of the parents will not be remedied. Father is still incarcerated, has years of probation to serve upon his release, has a longstanding history of violating probation, and has not completed any course to prevent domestic battery in the future. Furthermore, there is no evidence he completed any parenting skills course although he engaged in Fatherhood Engagement services at one point.

* * * * *

88. Father asserts he does not want to give up on [Child]; however, he met for months with FCM Knight to review the CHINS proceeding and the topic of visitation, communication, or phone calls with [Child] was never pursued by any party.2

Footnote 2 in Finding 88 reads:

2As explained above in a finding of fact, without this Court doing an independent investigation which it will not do, it is unclear how long the No Contact Order remains in effect in the criminal matter wherein [Child] was the victim of domestic violence perpetrated by Father. However, it could have been a legal possibility the No Contact Order could have been modified to allow Father contact with [Child].

Appealed Order pp. 5, 8-9 (emphases added).

[34] Father does not challenge these findings of fact as unsupported by the evidence. Instead, Father argues the findings: “are either vague and speculative”; “improperly shift the burden to [F]ather to prove that [the] conditions [that led to Child's removal and placement outside the home] will change”; and “demonstrate a clear expectation that [Father] – not DCS – take affirmative steps toward reunification.” Appellant's Br. p. 15. According to Father, the “trial court's attempt to shift [the burden of proof] improperly allocates the risk of an erroneous deprivation of his parental rights[.]” Id. at 16. We disagree.

[35] We acknowledge that Finding 82's language appears to shift the burden to Father. The finding states there is “insufficient evidence to determine if there is a reasonable probability the reasons for removal ․ are likely to be remedied.” Appealed Order p. 8. This language facially inverts the statutory standard, which requires DCS to prove conditions “will not be remedied” rather than requiring Father to prove they “are likely to be remedied.” When a trial court uses language that directly contradicts the statutory burden allocation, we must carefully examine whether this error infected the court's analysis.

[36] However, reading the trial court's findings as a whole, we conclude the trial court properly understood and applied the statutory burden. Finding 83 immediately follows Finding 82 and correctly states the statutory standard: “there is a reasonable probability that the reasons for [Child's] continued placement outside the home of the parents will not be remedied.” Id. The trial court then identified specific evidence supporting this conclusion: Father's continued incarceration, years of probation upon release, longstanding history of violating probation, and failure to complete domestic battery prevention courses. This analysis demonstrates the court understood DCS bore the burden of proving non-remedy.

[37] Moreover, the trial court's other findings show it evaluated whether DCS met its burden rather than whether Father disproved DCS's case. The court found that Father remained incarcerated with a projected release date of February 2026, must serve 1,460 days of probation upon release, has an extensive criminal history including multiple probation violations, and was unable to provide housing, income, or maintain contact with Child. These findings focus on what DCS proved about Father's circumstances, not what Father failed to prove about future changes.

[38] Regarding Father's lack of contact with Child, we note the evidence showed Father could not afford prison communication costs after paying for necessities and child support. While the trial court's findings note Father's lack of contact, we do not read these findings as improperly penalizing indigence. Rather, the findings reflect the unfortunate reality that Child, now almost four years old, has lived with Maternal Grandmother for over half his life and has no meaningful relationship with Father. The lack of contact is relevant to Child's best interests and the threat to Child's well-being from disrupting his current placement, not as evidence that Father failed to meet a burden he did not bear.

[39] We conclude that while Finding 82 contains problematic language that appears to invert the statutory standard, this error did not infect the trial court's overall analysis or violate Father's due process rights. Reading the trial court's findings as a whole, we conclude the trial court properly understood and applied the statutory burden. The trial court's findings, read as a whole, demonstrate it properly required DCS to prove by clear and convincing evidence that the conditions leading to removal would not be remedied. Any error in Finding 82's phrasing was harmless in light of the court's correct application of burden throughout the remainder of its analysis.

[40] We find no error and affirm the termination of Father's parental rights to Child.

[41] Affirmed.

FOOTNOTES

1.   Mother does not participate in this appeal. She signed a consent to the adoption of Child, and the trial court dismissed her from the termination proceedings in September 2024. Mother has two other children, K.K. and C.K. (collectively, the Siblings). Father is not the Siblings’ biological father, and the Siblings do not participate in this appeal. Facts pertaining to Mother will be included insofar as they are relevant to Father's appeal.

2.   The Siblings were also placed with Maternal Grandmother.

3.   Father was initially incarcerated in the Lawrence County Jail from January 3 through December 29, 2023, and then transferred to the Branchville Correctional Facility.

4.   Our legislature made significant changes to Indiana Code Section 31-35-2-4, which became effective March 11, 2024. DCS filed its petition to terminate Father's parental rights to Child in February 2024, under the prior version of the statute.

5.   “[W]e will employ the same methodology when analyzing a claimed [denial-of-procedural-due process] violation of the Due Course of Law Clause of Art. I, § 12 [of the Indiana Constitution], as the [United States] Supreme Court [h]as used to analyze claimed violations of the [federal] Due Process Clause.” Doe v. O'Connor, 790 N.E.2d 985, 988 (Ind. 2003) (citation omitted).

Scheele, Judge.

Judges May and Weissmann concur. May, J., and Weissmann, J., concur.