IN RE: The Termination of the Parent-Child Relationship of M.B. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] In this consolidated appeal, A.H. (“Mother”) and J.C. (“Father”) each appeal the termination of the parent-child relationship with their son, M.H. (“M.H.”). Mother also appeals the termination of the parent-child relationships with her sons, K.D. (“K.D.”), M.M.H. (“M.M.H.”), and M.B. (“M.B.”) (collectively with M.H. (“the children”)).¹ Mother argues that the trial court's orders terminating her parental relationships with the children are clearly erroneous, and Father argues that the trial court's order terminating his parental relationship with M.H. is clearly erroneous. Concluding that the trial court's orders terminating Mother's parental relationship with the children are not clearly erroneous but that the trial court's order terminating Father's parental relationship with M.H. is clearly erroneous, we affirm in part and reverse in part the trial court's judgments.

[2] We affirm in part and reverse in part.

Issues

1. Whether the trial court's orders terminating Mother's parental relationships with the children are clearly erroneous.

2. Whether the trial court's order terminating Father's parental relationship with M.H. is clearly erroneous.

Facts

[3] At the outset, we note that this Court granted the Department of Child Services’ (“DCS”) motion to consolidate Mother's appeal and Father's appeal. However, because Mother has three additional children with three other fathers and because Mother and Father never co-parented M.H., the facts of the Mother's appeal are not relevant to Father's appeal and vice versa. Therefore, we separately set out the relevant facts for each parent.

1. Facts Relevant to Mother's Appeal

[4] Mother is the parent of K.D., who was born in April 2016; M.M.H., who was born in April 2019; M.H., who was born in February 2020; and M.B., who was born in June 2021. In the fall of 2022, Mother and the children lived together in Lafayette.

[5] In October 2022, law enforcement officers knocked on Mother's front door to speak to Mother about threats that she had allegedly made to her neighbors. Mother, who was at home with the children, was “fairly calm” when she opened the door. (Tr. Vol. 3 at 51). However, she “[a]ccelerated quickly to anger and a denial that she had ever threatened anyone[.]” (Tr. Vol. 3 at 51). Mother, who was screaming and yelling, threatened the neighbors and kicked a full-length mirror, causing glass to shatter everywhere in the living room. A law enforcement officer arrested Mother, who subsequently refused to tell the officer the names and ages of the children. Because there was no adult in Mother's home to care for the children following Mother's arrest, a law enforcement officer contacted DCS.

[6] Shortly thereafter, a DCS assessment case manager (“the assessment case manager”) arrived at the scene. While the assessment case manager was talking to a law enforcement officer, six-year-old K.D. noticed the officer's gun and told the officer that Mother also had a gun. K.D. then walked over to a playpen that was filled with plush toys and removed a loaded 9mm handgun from under the toys. The law enforcement officer quickly disarmed K.D.

[7] The officer also noticed that the home was infested with cockroaches, and the odor in the home was so bad that it almost caused the officer to vomit. The assessment case manager, who noticed that there was mold in the closet, took the children into custody because “there ․ was not ․ a safe and sober caregiver or environment at the time.” (Tr. Vol. 2 at 102).

[8] Three days later, DCS filed a petition alleging that the children were children in need of services (“CHINS”). Following a hearing in December 2022, the trial court adjudicated the children to be CHINS. The trial court's order specifically noted that Mother had “not voluntarily accepted services offered by DCS to address anger issues and parenting education.” (Ex. Vol. 6 at 30). In addition, the trial court's order noted that Mother had pending charges for Level 5 felony intimidation, Level 6 felony criminal recklessness, Class B misdemeanor disorderly conduct, and four counts of Level 6 felony neglect of a dependent. These charges resulted from Mother's actions in October 2022 as set forth above.

[9] In January 2023, the trial court issued a CHINS dispositional order that required Mother to: (1) complete a clinical interview; (2) complete a parenting assessment; (3) complete a substance use assessment; (4) participate in home-based case management services; (5) submit to drug screens; and (6) attend visits with the children.

[10] Two months later, following a March 2023 review hearing, the trial court issued an order, which revealed that Mother had substantially complied with the dispositional order by participating in virtual visits with the children, individual therapy, and the Abuse Awareness and Accountability program. However, Mother had not completed a clinical interview or a substance use assessment, and she was homeless and unemployed.

[11] In June 2023, Mother pleaded guilty to Level 6 felony criminal recklessness and one count of Level 6 felony neglect of a dependent, and the State dismissed the remaining counts. The trial court sentenced Mother to 730 days in the county jail, with 714 days suspended to probation.

[12] One month later, following a July 2023 review hearing, the trial court issued an order, which revealed that Mother had been inconsistent with services and had “trouble maintaining her behavior with providers and ha[d] made threats to DCS and other team members.” (Ex. Vol. 6 at 111). The trial court's order further revealed that Mother had not been able to progress in her parenting time because of her unstable and threatening behavior.

[13] Mother tested positive for methamphetamine in December 2023. Also, in December 2023, Mother's therapist discharged her from therapy for noncompliance after Mother had missed eight therapy sessions. One month later, in January 2024, Mother again tested positive for methamphetamine. Further, following a January 2024 review hearing, the trial court issued an order, which revealed that Mother had not been consistently participating in services.

[14] Also, in January 2024, the State filed a petition to revoke Mother's probation. The revocation petition alleged that Mother had tested positive for methamphetamine in November 2023, December 2023, and January 2024. In addition, in January 2024, DCS filed petitions to terminate Mother's parental relationships with the children.

[15] In March 2024, the trial court found that Mother had violated the terms and conditions of her probation and revoked it. The trial court ordered Mother to serve one year in the county jail to be served through community corrections on home detention.

[16] The trial court heard the facts as set forth above during a two-day termination hearing in April 2024 and June 2024. On May 9, 2024, between the first and second day of the hearing, Mother tested positive for fentanyl. Eleven days later, on May 20, 2024, Mother tested positive for methamphetamine.

[17] During the second day of the hearing in June 2024, DCS family case manager Caitlin Dunn (“FCM Dunn”) testified that the conditions that had led to the children's removal had not been remedied because Mother had failed to successfully complete services. FCM Dunn further testified that she was concerned about Mother's ability to safely parent the children. In addition, FCM Dunn testified that Mother, who had never progressed to unsupervised visits with the children, had been attending supervised virtual visits with the children once a week for twenty to forty-five minutes. According to FCM Dunn, when she had asked Mother if she wanted to add virtual visits with the children, Mother had responded that “was not something that she ․ wanted or needed.” (Tr. Vol. 2 at 245). FCM Dunn also testified that termination of Mother's parental relationships with the children was in the children's best interests. In addition, FCM Dunn testified that eight-year-old K.D., five-year-old M.M.H., four-year-old M.H., and three-year-old M.B. had been out of Mother's home for nearly two years and that they deserved permanency. According to FCM Dunn, the plan for the children was adoption.

[18] CASA Dr. Alan London (“CASA London”), who is a medical doctor, testified that at a DCS meeting in March 2024, Mother had “got[ten] very angry and [had] basically said if [she lost her] kids, [she was] gonna find [everyone] involved and [she was] gonna make [them] pay for [that].” (Tr. Vol. 3 at 37). According to CASA London, he had felt so threatened by Mother's comments that he had suggested that future DCS meetings be held in the courthouse where there was a metal detector. CASA London further testified that the termination of Mother's parental relationships with the children was in the children's best interests.

[19] Mother testified that she did not have a substance abuse problem and that she did not remember the last time that she had used a controlled substance. Mother further testified that she was on house arrest until September 2024. When DCS asked Mother “why should the court let you keep your parental rights[,]” Mother responded, “I can't explain it. But I don't feel like my rights should be taken.” (Tr. Vol. 2 at 211).

[20] In October 2024, the trial court issued orders terminating Mother's parental relationships with the children. The trial court specifically found, in relevant part, that there was a reasonable probability that the conditions that had resulted in the children's removal would not be remedied and that termination was in the children's best interests.

2. Facts Relevant to Father's Appeal

[21] Mother and Father are the parents of M.H., who was born in February 2020. DCS removed M.H. from Mother's home following Mother's arrest in October 2022. Also, in October 2022, DCS filed a petition alleging that M.H. was a CHINS. The petition provided that M.H.’s father was unknown.

[22] At some point following M.H.’s removal from Mother and the filing of the CHINS petition, Mother advised Father, who lived in Virginia and who had only recently learned that M.H. was possibly his son, that DCS had removed M.H. from her home. A January 30, 2023 order reveals that Mother had also provided Father's name to DCS as M.H.’s potential father and that DCS “was investigating.” (Ex. Vol. 6 at 30). When Father learned that M.H. was possibly his son, Father contacted DCS Family Case Manager Margaret Tully (“FCM Tully”), who had been assigned to M.H.’s case, and left her several messages. When FCM Tully took nearly a month to respond to Father's attempts to contact her, Father moved to Chicago to stay with his mother (“paternal grandmother”) so that he would be closer to Indiana. Father subsequently came to Indiana to take a paternity test.

[23] In March 2023, after the paternity test had confirmed that Father is M.H.’s father, Father asked FCM Tully to allow him to participate in services in Illinois and to place M.H. in paternal grandmother's home in Chicago. At that time, Father did not have a home in Illinois and was staying with paternal grandmother. FCM Tully told Father that she would need to apply for an Interstate Compact on Placement for Children (“ICPC”) and that the application would need to be approved before M.H. could be placed in Illinois.

[24] In April 2023, DCS filed an amended CHINS petition that included Father. At a hearing, Father admitted that M.H. was a CHINS. In May 2023, the trial court ordered Father to: (1) complete a parenting assessment; (2) participate in parenting education; (3) submit to drug screens; and (4) not consume or possess any legend drug or controlled substance. The trial court's order further provided that Father's parenting time with M.H. could begin “upon a urine drug screen being collected from parent[ ] with a negative result for methamphetamine and/or fentanyl. Parenting time may occur thereafter and may continue so long as he[ ] submits to all requested drug screens and refrains from using or testing positive for methamphetamine and/or fentanyl.” (Ex. Vol. 6 at 44). In addition, the trial court's order provided that DCS should “ensure parenting time occurs no less than one (1) time per week under the conditions noted above.” (Ex. Vol. 6 at 44).

[25] In July 2023, Father, who believed that FCM Tully “lacked effective communication[,]” moved to Indiana to facilitate communication with DCS, attend weekly visits with M.H., and participate in services. (Tr. Vol. 2 at 180). Father found employment in Indiana and lived with friends. In July 2023, CASA London completed a report, which stated that Father had “moved back to Lafayette in hopes of gaining custody of his son. [Father] has a good, full-time job and has attended recommended services. He is living with a roommate and has a girlfriend, both of whom are being evaluated in terms of being in the same household as [M.H.]” (Ex. Vol. 8 at 74).

[26] During the pendency of the CHINS proceedings and after Father had moved to Indiana, he began attending weekly visits with M.H. Father established enough of a bond with M.H. that therapeutic visits progressed to one to three-hour supervised visits in the community. During the visits, Father and M.H. played games, colored, and visited the library, parks, and restaurants. The visitation supervisor had no concerns about M.H.’s safety during the visits. Father also participated in home-based case management services. During the pendency of the proceedings, Father's drug tests were frequently positive for THC.

[27] In September 2023, six months after telling Father that M.H. could not be placed in Illinois until she applied for an ICPC, FCM Tully applied for the ICPC. The ICPC was approved in December 2023. However, in January 2024, before M.H. could be placed in Illinois, and after Mother had tested positive for methamphetamine, DCS filed petitions to terminate Mother's parental relationships with her four children, Father's parental relationship with M.H., and the fathers of Mother's other children's parental relationships with their respective children.

[28] At a February 2024 initial hearing on the termination petition, the trial court found that DCS had failed to properly serve Father. The trial court ordered DCS to obtain a signed acknowledgement of summons and an advisement of rights from Father and to submit it to the trial court. In addition, the trial court appointed counsel for Father.

[29] In April 2024, DCS filed a motion to dismiss the termination petition because Mother was “trying to reengage in services since being released from the Tippecanoe County Jail.” (Father's App. Vol. 2 at 20). Also, in April 2024, the trial court held another hearing. Father was not present at the hearing, and the trial court again found inadequate service on Father. Father's counsel appeared at the hearing. The trial court addressed DCS’ motion to dismiss and asked each parent's counsel to address the parent's position on the motion. Father's counsel responded that because Father had not been served, counsel did not believe that the trial court could proceed on any matter involving Father. After hearing the parties’ positions, the trial court denied DCS’ motion to dismiss the termination petition and stated that it was going to begin the termination hearing. When Father's counsel asked the trial court if it was proceeding as to Father, the trial court responded that it could not because Father had not been served. The trial court further told Father's counsel that it would “have to set an initial hearing for [Father] and ․ serve him[.]” (Tr. Vol. 2 at 15). After hearing testimony from three witnesses, the trial court continued the termination hearing until June 2024.

[30] In May 2024, following an incident with his girlfriend, the State charged Father with Level 6 felony confinement, Level 6 felony strangulation, Class A misdemeanor criminal trespass, Class A misdemeanor domestic battery, and Class A misdemeanor interference with the reporting of a crime. Three days later, apparently following another incident, the State charged Father with Level 6 felony confinement, Class A misdemeanor interference with the reporting of a crime, Class A misdemeanor domestic battery, and Class A misdemeanor criminal trespass. The State filed all charges under the same cause number. Father was incarcerated in the county jail while the charges were pending.

[31] In June 2024, Father attended the second day of the termination hearing. At the beginning of the hearing, the trial court conducted Father's initial hearing. Father waived a formal reading of the petition and an advisement of his rights. He did not mention or object to the trial court's denial of DCS’ motion to dismiss the termination proceedings.

[32] During the termination hearing, FCM Dunn testified primarily about Mother and the reasons that DCS recommended terminating Mother's parental rights. In addition, FCM Dunn testified that the fathers of K.D. and M.B. had not participated in services, visited K.D. and M.B., or maintained communication with DCS. M.M.H.’s father remained unknown. Regarding Father, FCM Dunn testified that the only concern that she had about Father's ability to parent M.H. was that Father was incarcerated. According to FCM Dunn, if Father were to be released from jail, she would want him to demonstrate his ability to parent M.H. by submitting drug screens clean from methamphetamine and fentanyl, increasing the frequency of his visits with M.H., and obtaining housing and employment. In addition, FCM Dunn testified that termination of the parental relationships was in the best interests of the children. She did not give individual recommendations for each child. Further, FCM Dunn testified that the children had been out of Mother's home for two years and deserved permanency. FCM Dunn also testified that the plan for M.H. was to place him with paternal grandmother on an approved ICPC in Illinois.

[33] During cross-examination, FCM Dunn acknowledged that Father had been excluded from the beginning of the CHINS proceedings in October 2022 because he had not yet been identified as M.H.’s Father. FCM Dunn further acknowledged that the trial court had not entered a CHINS dispositional order for Father until more than six months later in May 2023 and that DCS had filed the termination petition just eight months after Father had begun to participate in services and attend visits with M.H. In addition, FCM Dunn testified that Father had been substantially compliant with services.

[34] CASA London also testified primarily about Mother and the reasons that the termination of her parental rights was in the children's best interests. In addition, CASA London testified about each of the children. When asked if the termination of Father's parental rights was in M.H.’s best interests, CASA London responded, “yes.” (Tr. Vol. 3 at 45). When asked the reason, CASA London responded as follows:

He's incarcerated. He doesn't have a stable home. Um, when I met him, he was living with a friend looking to get his own place, steady job, doing great. And then the visits started, those went well. Then I just, we all discovered there's a grandmother involved, and I met her, and um, he wants to be very much involved in his son's life, but he wants [paternal grandmother] to have the placement and the guardianship or whatever it becomes. So, yes to termination, but I guess, with an asterisk. I don't know [how] else to say it.

(Tr. Vol. 3 at 45). CASA London further testified that if M.H. lived with paternal grandmother and Father moved into the house, M.H. would be safe residing in the same home with Father.

[35] In addition, an HGCF case manager (“the HGCF case manager”) testified that Father had initially told her that he did not want to engage in services because he did not want to give the impression that he wanted to have custody of M.H. According to the HGCF case manager, Father had told her that he wanted paternal grandmother to have custody of M.H.

[36] Father testified and denied telling the HGCF case manager that he was not intending to reunify with M.H. Father specifically explained as follows:

․ I told [her] I was not trying to transition in, back into Indiana. I had just moved out ․ here just to establish paternity because the previous FCM [Tully] was not in contact with me uh, was not effectively in contact with me as I thought she should be. And when she, when I reached out to her initially I was in Virginia․ And it took almost a month before she responded to me. So, knowing that I might have a potential son in custody, I took it upon myself to come back into Indiana to speed things up because of her lack of communication.

(Tr. Vol. 2 at 174-75). According to Father, once he had gotten the results of the paternity test, he had asked for M.H. to be placed with him in Illinois. When asked if he was attempting to reunify with M.H., Father responded, “Yes.” (Tr. Vol. 2 at 175). Father further testified that because he was incarcerated, he “would ask for a legal guardianship to [paternal grandmother], just so that [he] could still ․ assume [his] parental duties once [he was] released.” (Tr. Vol. 2 at 175). In addition, Father testified that his criminal trial was scheduled to begin just two months later in August 2024.

[37] Father also read to the trial court a statement that he had personally prepared while he was incarcerated. The statement specifically provides, in relevant part, as follows:

․ When [M.H.] was removed from his mother's care, I was barely made aware of his existence, however I was available to parent if given the chance. When the CHINS petition was filed, my ability to parent had not been demonstrated because I never had the opportunity to be a father. I clearly stated to family case manager [Tully] that I could provide for [M.H.]’s custody, education, support, health, shelter and all of his basic needs in Illinois where I reside with my mother. Paternity was established before the 6 month dispositional decree and efforts for family preservation should continue because, because [M.H.] was never removed from my care. Despite my past faults and failures before today, I participated in all DCS case plan services, showing that the conditions that resulted in his removal will be remedied given reasonable time․ DCS has been notified of my incarceration, and I request any services if needed or that I could benefit from so progress reports can be sent, such as sending cards and short letters to [M.H.] to keep our relationship healthy and strong․ Termination of parental rights seems particularly harsh given that I have shown great interest in making a parental relationship and taken strides toward that end. I'm more than willing to continue to participate in parenting and personal improvement programs and services․ It bears repeating that termination is intended as a last resort available only when all other reasonable efforts have failed. Terminating a fit person's relationship with his children fails to advance the state's parent interest and gravely and irreparably harms families․ I sincerely and respectfully request the court to grant [paternal grandmother] legal guardianship and likewise, allow me a sufficient time period following my release to demonstrate my willingness and ability to assume my parental duties․

(Tr. Vol. 2 at 190-95).

[38] At the end of the hearing, the trial court asked the parties if they had any closing remarks. DCS responded, in relevant part, as follows:

․ [A]s to [Father], there is ․ an interesting argument as to whether or not ․ he should be ․ allowed to engage or continue his parental rights and continue ․ exercising as the father of ․ his son[, M.H.]. However, ․ [Father] throughout the entirety of this case has, while he's wanted to be involved in his child's life, he's always wanted [paternal grandmother] to be the one taking over the responsibility, either as a guardian or, or adopting the child. And, and so at this point in time, I think although there may be some, some arguments both ways, because [Father]’s ․ situation is that he doesn't want to be the, the primary caregiver, that we simply give him what he's asked for.

(Tr. Vol. 3 at 60).

[39] In addition, Father's counsel responded, in relevant part, as follows:

Sometimes in cases where a child's removed from a mother, we push a father aside and we focus primarily on reunification with the mother. And sometimes, when there are multiple fathers, we tend to kind of lump them together. We view them as a group. And it seems like both of those things have happened to my client in this case. DCS has simply not proven their case today regarding my client, [Father]. He's incarcerated right now, but it's on recent and pending criminal charges that are set for trial in less than 2 months.

(Tr. Vol. 3 at 62).

[40] In August 2024, the trial court in Father's criminal case granted the State's motion to dismiss all charges against Father.² That trial court subsequently issued an order granting automatic expungement of Father's charges pursuant to Indiana Code § 35-38-9-1(b).

[41] In October 2024, the trial court issued an order terminating Father's parental relationship with M.H. In its order, the trial court specifically found that: (1) at the outset of the CHINS case, Father advised a service provider that he did not want to participate in services because he did not want to give the impression that he wanted custody of M.H.; (2) throughout the CHINS case, Father regularly used marijuana; (3) at the time of the termination hearing, Father was incarcerated with pending legal charges; and (4) Father acknowledged that it would be in M.H.’s best interests for paternal grandmother to serve as M.H.’s guardian or adopt M.H. These findings led the trial court to conclude that there was a reasonable probability that the conditions that had resulted in M.H.’s removal would not be remedied and that termination of Father's parental rights was in M.H.’s best interests.

[42] Mother and Father each appeal.

Decision

[43] Mother argues that the trial court's orders terminating her parental relationships with the children are clearly erroneous, and Father argues that the trial court's order terminating his parental relationship with M.H. is clearly erroneous. We disagree with Mother and agree with Father.

[44] We recognize that “[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 Involuntary Termination of the Parent-Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016) (cleaned up). “[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), reh'g denied. 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.

[45] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. R.S., 56 N.E.3d at 628. We consider only the evidence and any reasonable inferences to be drawn therefrom that support the judgment and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013).

[46] Where, as here, “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.” Id. at 1229. 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. Id. at 1229-30.

[47] Before an involuntary termination of parental rights may occur, 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 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).³ DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1230.

[48] Here, Mother specifically argues that the trial court's orders terminating her parental relationships with the children are clearly erroneous because DCS failed to prove by clear and convincing evidence that the termination of Mother's parental relationships with the children was in the children's best interests. Father specifically argues that “the trial court's finding of termination being in MH's best interests is not supported by the findings.” (Father's Br. 15).

[49] In determining whether a termination of parental rights is in the best interests of a child, the trial court is required to look at the totality of the evidence. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the interests of the parent to those of the child involved. Id. Termination of the parent-child relationship is proper where the child's emotional and physical development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court need not wait until the child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. K.T.K., 989 N.E.2d at 1235.

[50] In addition, a child's need for permanency is a central consideration in determining the child's best interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009), reh'g denied. Further, this Court has previously held that the recommendations of the service providers to terminate parental rights, in addition to evidence that there was a reasonable probability that the conditions that had resulted in the children's removal would not be remedied, is sufficient to show clear and convincing evidence that termination is in the children's best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

1. Mother's Appeal

[51] Regarding Mother's appeal, our review of the totality of the evidence reveals that during the nearly two-year pendency of the CHINS proceedings, Mother failed to successfully complete services, violated the terms and conditions of her probation, repeatedly threatened service providers, and tested positive for methamphetamine. Indeed, between the first day of the termination hearing in April 2024 and the second day of the hearing in June 2024, Mother tested positive for both methamphetamine and fentanyl. In addition, Mother, who never progressed beyond supervised visits with the children, stated that she did not need or want to increase her supervised virtual visits with them.

[52] We further note that FCM Dunn and CASA London both testified that termination was in the children's best interests. In addition, the trial court concluded that DCS had proved by clear and convincing evidence that there was a reasonable probability that the conditions that had resulted in the children's removal would not be remedied, and Mother does not challenge this conclusion. Lastly, we note that at the time of the termination hearing, eight-year-old K.D., five-year-old M.M.H., four-year-old M.H., and three-year-old M.B. had been out of Mother's home for nearly two years.

[53] The totality of this evidence supports the trial court's conclusion that DCS proved by clear and convincing evidence that the termination of Mother's parental rights was in the children's best interests. Accordingly, we conclude that the trial court's judgments terminating Mother's parental relationships with the children are not clearly erroneous.

2. Father's Appeal

[54] We now turn to Father's argument that the trial court's findings do not support its conclusion that the termination of Father's parental rights was in M.H.’s best interests. We agree with Father that DCS did not present clear and convincing evidence to support this conclusion. We reach this result after examining the following four reasons that the trial court gave for concluding that the termination of Father's parental relationship was in M.H.’s best interests: (1) at the outset of the CHINS case, Father advised a service provider that he did not want to participate in services because he did not want to give the impression that he wanted custody of M.H.; (2) throughout the CHINS case, Father regularly used marijuana; (3) at the time of the termination hearing, Father was incarcerated with pending legal charges; and (4) Father acknowledged that it would be in M.H.’s best interests for paternal grandmother to serve as M.H.’s guardian or adopt M.H. See G.Y., 904 N.E.2d 1262-65 (analyzing each of the reasons that the trial court gave for concluding that the termination of Mother's parental rights was in her child's best interests, concluding that each of those reasons was not sufficiently strong, either alone or in conjunction with the trial court's other reasons, to warrant a conclusion by clear and convincing evidence that the termination of Mother's parental rights was in her child's best interest, and reversing the termination of Mother's parental relationship with her child).

[55] We begin with the trial court's finding that at the outset of the CHINS case, Father advised a service provider that he did not want to participate in services because he did not want to give the impression that he wanted custody of M.H. We note that although the HGCF case manager testified that Father had made this statement to her, Father denied making it. The trial court, as the judge of witness credibility, could properly determine that Father had made this statement to the service provider. See R.S., 56 N.E.3d at 628. However, Father's actions belie his words.

[56] Specifically, our review of the record reveals that as soon as Father learned that M.H. was possibly his son, Father contacted FCM Tully several times and left messages. When FCM Tully took nearly a month to respond to Father, he moved to Chicago to stay with paternal grandmother so that he would be closer to M.H. After a paternity test had confirmed that Father is M.H.’s father, Father asked FCM Tully to allow him to participate in services in Illinois and to place M.H. in paternal grandmother's home in Chicago where Father was staying. FCM Tully told Father that she would need to apply for an ICPC and that the application would need to be approved before M.H. could be placed in Illinois.

[57] In July 2023, Father, who believed that FCM Tully was not communicating effectively with him, moved to Indiana to facilitate communication with DCS, attend weekly visits with M.H., and participate in the services set forth in the May 2023 CHINS dispositional order. Father found employment in Indiana and lived with friends. He began attending weekly visits with M.H. and established enough of a bond with M.H. that therapeutic visits progressed to one to three-hour supervised visits in the community. During the visits, Father and M.H. played games, colored, and visited the library, parks, and restaurants. The visitation supervisor had no concerns about M.H.’s safety during the visits. Father also participated in home-based case management services. Father participated in these services for nearly a year until he was arrested and incarcerated in May 2024. Because Father's actions belie his words, we do not find Father's statement to the service provider to be a sufficiently strong reason, either alone or in conjunction with the trial court's other findings, to warrant a conclusion by clear and convincing evidence that the termination of Father's parental rights was in M.H.’s best interests.

[58] We next review the trial court's finding that termination was in M.H.’s best interests because Father had regularly used marijuana during the pendency of the CHINS proceedings. Our review of the record reveals that the May 2023 CHINS dispositional order provided that Father's parenting time could begin so long as Father's drug test results were negative for methamphetamine and/or fentanyl. The order further provided that Father's visits with M.H. could continue so long as Father submitted drug screens and refrained from using or testing positive for methamphetamine and fentanyl. In addition, at the termination hearing, FCM Dunn testified that if Father were to be released from jail, she would want him to demonstrate his ability to parent M.H. by submitting drug screens that were clean from methamphetamine and fentanyl. Neither the CHINS dispositional order nor FCM Dunn's testimony mentioned any consequences for drug screens that were positive for THC. Further, our review of the record reveals no evidence that either the trial court or any service provider told Father that THC-positive drug tests would result in the termination of Father's visits with M.H. Indeed, Father's visits with M.H. continued despite Father's THC-positive drug tests. If a THC-positive drug test did not lead to termination of Father's visits with M.H., such positive drug tests simply do not support a termination of Father's parental relationship with M.H. Accordingly, we find that Father's use of THC during the pendency of the CHINS proceedings was not a sufficiently strong reason, either alone or in conjunction with the trial court's other findings, to warrant a conclusion by clear and convincing evidence that termination of Father's parental rights was in M.H.’s best interests. See Ad.M v. Indiana Department of Child Services, 103 N.E.3d 709, 713-714 (Ind. Ct. App. 2018) (holding that evidence of one parent's use of marijuana, without more, does not demonstrate that a child has been seriously endangered in a CHINS proceeding).

[59] We next review the trial court's finding that termination was in M.H.’s best interests because Father was incarcerated on pending charges at the time of the second day of the termination hearing. Our Indiana Supreme Court has clearly stated that “incarceration is an insufficient basis for terminating parental rights.” K.E. v. Indiana Department of Child Services, 39 N.E.3d 641, 643 (Ind. 2015). Here, at the time of the second day of the termination hearing in June 2024, Father had been incarcerated on pending charges for one month and was awaiting an August 2024 trial. Thus, there was no certainty that Father would be convicted of the charges and spend additional time in jail or prison. Indeed, the charges against Father were dismissed in August 2024, before the trial court issued its termination order in October 2024.

[60] We further note that, in his statement to the trial court, Father requested services from which he could benefit while incarcerated and suggested that he could send cards and short letters to M.H. to maintain their bond. In light of Father's participation in services before his incarceration, including his regular visits with M.H., it is reasonable to conclude that Father would continue to participate in services while incarcerated and would maintain contact with M.H. See K.E., 39 N.E.3d at 648-49 (reversing the trial court's termination order where the incarcerated father, who had two years left on a ten-year sentence imposed for convictions for dealing in methamphetamine, neglect of a dependent, and maintaining a common nuisance, made substantial efforts towards bettering his life by participating in programs targeting parenting skills, life skills, and substance abuse and maintaining regular contact with his children). We do not find Father's one-month incarceration on pending charges to be a sufficiently strong reason, either alone, or in conjunction with the trial court's other findings, to warrant a conclusion by clear and convincing evidence that the termination of Father's parental relationship was in M.H.’s best interests.

[61] Lastly, we review the trial court's finding that termination was in M.H.’s best interests because Father acknowledged that it would be in M.H.’s best interests for paternal grandmother to serve as M.H.’s guardian or adopt M.H. However, our review of the record reveals that, at the termination hearing, Father testified he would like for paternal grandmother to be appointed as M.H.’s legal guardian until Father was released from incarceration and could assume his parental duties. Likewise, in his prepared statement, Father asked the trial court to appoint paternal grandmother as M.H.’s legal guardian and to allow him a sufficient time period following his release from incarceration to demonstrate his ability to assume his parental duties. It is clear from Father's testimony and statement that Father simply wanted paternal grandmother to assume temporarily legal guardianship of M.H. It is also clear that Father wanted to assume his parental relationship with M.H. after he was released from incarceration. At no time did Father acknowledge that it would be in M.H.’s best interests for paternal grandmother to either serve as M.H.’s permanent legal guardian or adopt M.H. In addition, we note that DCS’ plan for M.H. was placement with paternal grandmother with “the hope that he would be adopted by his paternal grandparents.” Tr. Vol. 3 at 6. Further, CASA London supported this plan and indicated M.H. would be safe in paternal grandmother's home with Father also residing there. Despite the availability of these other placement options, the record does not disclose—and the trial court's termination order does not discuss—why termination of Father's rights serves M.H.’s best interests over one of these permanency options. Cf. In re R.S., 56 N.E.3d 625, 630 (Ind. 2016) (holding that DCS failed to prove termination was in child's best interests by noting that “when a child is in relative placement, and the permanency plan is adoption into the home where the child has lived for years already, prolonging the adoption is unlikely to have an effect upon the child.”). Accordingly, we conclude that this finding was not a sufficiently strong reason, either alone, or in conjunction with the trial court's other findings, to warrant a conclusion by clear and convincing evidence that termination of Father's parental rights was in M.H.’s best interests.

[62] Further, we acknowledge, as set forth in our analysis of Mother's issue, that this Court has previously held that the recommendations of the service providers to terminate parental rights, in addition to evidence that there was a reasonable probability that the conditions that had resulted in the children's removal would not be remedied, is sufficient to show clear and convincing evidence that termination is in the children's best interests. See In re J.S., 906 N.E.2d at 236. We also acknowledge that FCM Dunn and CASA London testified that termination was in M.H.’s best interests. However, our review of the record reveals that FCM Dunn testified primarily about Mother and the reasons that DCS recommended terminating Mother's parental rights. Further, FCM Dunn testified that the termination of the parental relationships was in the best interests of the children. Although she did not give individualized recommendations for each child, she did testify that the only concern that she had about Father's ability to parent M.H. was that Father was incarcerated. Likewise, CASA London testified that the termination of Father's parental relationship with M.H. was in M.H.’s best interests because Father was incarcerated. Because incarceration alone is not a valid basis for terminating parental rights, see K.E., 39 N.E.3d at 643, incarceration is also not a valid sole basis for concluding that the termination of Father's parental relationship was in M.H.’s best interests. Accordingly, the recommendations of these service providers do not provide a valid basis for the trial court's conclusion that termination was in M.H.’s best interests.

[63] In addition, Father has challenged the trial court's conclusion that there was a reasonable probability that the conditions that had resulted in M.H.’s removal would not be remedied, and we find no evidence supporting this statutory subsection. “Upon review of whether the conditions that resulted in removal will be remedied, [we] engage[ ] in a two-step analysis.” K.E., 39 N.E.3d at 647. First, we identify the conditions that lead to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step of the analysis requires judgment of the parent's fitness at the time of the termination hearing, taking into consideration evidence of changed conditions. Id. Changed conditions are balanced against habitual patterns of conduct to determine whether there is a substantial probability of future neglect. Id. The services offered to the parent and the parent's response to those services can also be evidence demonstrating that conditions will be remedied. Id.

[64] Here, the reason for M.H.’s removal as to Father was that Father lived in Virginia and did not know that M.H. was his son. However, after a paternity test confirmed that Father was M.H.’s father, Father moved to Chicago and then Lafayette, Indiana to facilitate communication with DCS, attend weekly visits with M.H., and participate in services. During the pendency of the CHINS proceedings, Father obtained housing and employment in Lafayette and participated in services, including regular visits with M.H. This evidence is simply not sufficient to show that there was a reasonable probability that the conditions that had resulted in M.H.’s removal would not be remedied.

[65] Lastly, we acknowledge that a child's need for permanency is a central consideration in determining a child's best interests. See G.Y., 904 N.E.2d at 1265. However, our Indiana Supreme Court has explained that “a child's need for immediate permanency is not reason enough to terminate parental rights where the parent has an established relationship with his/her child and has taken positive steps in accordance with a Parent Participation Plan towards reunification.” In re V.A., 51 N.E.3d 1140, 1152 (Ind. 2016) (explaining that the goal of permanency might best be served by allowing the child to remain with her foster family while DCS pursued the goal of reunification with the child's father and reversing the trial court's termination of the father's parental relationship with the child.). See also G.Y., 904 N.E.2d at 1265–66 (declining to find the “need for immediate permanency through adoption to be a sufficiently strong reason, either alone or in conjunction with the court's other reasons, to warrant a conclusion by clear and convincing evidence that termination of [incarcerated] Mother's parental rights [was in child's] best interests”).

[66] Here, we note that, at the time of the termination hearing, M.H. had been removed from Mother for nearly two years. However, FCM Dunn acknowledged that Father had been excluded from the beginning of the CHINS proceedings in October 2022 because he had not yet been identified as M.H.’s Father. FCM Dunn further acknowledged that the trial court had not entered a CHINS dispositional order for Father until more than six months later in May 2023 and that DCS had filed the termination petition just eight months after Father had begun to participate in services and attend visits with M.H. Under these circumstances, where Father had established a relationship with M.H. and had taken positive steps in accordance with the 2023 CHINS dispositional order, we conclude that the goal of permanency might best have been served by placing M.H. with paternal grandmother while DCS pursued the goal of reunifying M.H. with Father. Stated differently, we decline to find that the need for immediate permanency warranted a conclusion by clear and convincing evidence that the termination of Father's parental rights was in M.H.’s best interests.

[67] Based on the foregoing, we conclude that the trial court's order terminating Father's parental relationship with M.H. is clearly erroneous. Accordingly, we reverse the trial court's judgment terminating Father's parental relationship with M.H.⁴ Our reversal does not impact the underlying CHINS proceeding, and the orders entered in that proceeding remain in effect. See K.E., 39 N.E.3d at 652.

[68] Affirmed in part and reversed in part.

[69] I concur fully in the opinion as to Mother. But I respectfully concur in result as to the decision regarding Father.

[70] I concur only in result because I disagree with the majority's sua sponte consideration of events that occurred after the factfinding hearing. The trial court's order terminating Father's parental rights noted as one reason supporting termination that Father was incarcerated on pending charges at the time of the factfinding hearing. The majority takes judicial notice of Father's criminal case and notes that after the factfinding hearing, Father's criminal charges were dismissed and ultimately expunged. Slip op. at 17–18, ¶ 40. The majority then relies in part on that judicially noticed fact in determining the trial court's termination order is clearly erroneous.

[71] The majority finds it significant that Father's charges were dismissed before the trial court issued its termination order. See id. at 27, ¶ 59. But at the time the factfinding hearing concluded, Father's criminal case had not been resolved, and he was incarcerated awaiting trial. That was the evidence before the trial court and the circumstance on which witnesses based their testimony about M.H.’s best interests. And the trial court appropriately made its decision based only on that evidence.⁵ I am concerned that in specifically pointing out the timing, the opinion implies the trial court should have engaged in an extrajudicial inquiry to ascertain what, if anything, had happened with Father's criminal case before issuing its order. Yes, a court may take judicial notice of records of courts of this state at any stage of the proceedings but doing so after the close of evidence raises a host of issues, not least of which is that Indiana Evidence Rule 201(e) requires a party be given an opportunity to be heard about the propriety of taking judicial notice. It is unclear how this portion of the rule is to be fulfilled where an appellate court sua sponte takes judicial notice of a post-hearing change in circumstance.

[72] Our role as a reviewing court is not to reweigh the evidence that was before the trial court in determining whether the evidence supports the trial court's findings but to consider only the evidence and reasonable inferences most favorable to the judgment. See In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Abiding by that standard of review when evaluating the trial court's judgment means we do not consider evidence that does not support the judgment, let alone evidence that was not even before the trial court.

[73] That said, I concur in the result reached by the majority that termination of Father's parental rights should be reversed. DCS filed its petition to terminate Father's rights only eight months after Father had the opportunity to begin participating in the CHINS case. Father had not yet had an initial hearing when the termination hearing began. Adding to that problem, Father was not present on that date, and service of notice of the hearing on Father could not be confirmed. So evidence taken on the first day of the termination hearing was not applicable to Father. That includes M.H.’s therapist's testimony that termination of parental rights was in M.H.’s best interest because he needs consistency and stability. Evidence taken on the second day of the hearing as to Father was thin. CASA London testified M.H. and Father could safely reside together in paternal grandmother's home and observed termination of Father's parental rights was in M.H.’s best interests “with an asterisk.” Tr. Vol. 3 at 45. Because of this bare-bones evidence coupled with DCS’ failure to show why termination was a better permanency plan than other available permanency options, see slip op. at 28-29, ¶ 61, I agree Father's parental rights should not have been terminated at this time.

FOOTNOTES

1.   The trial court also terminated K.D.’s father's parental relationship with K.D. and M.B.’s father's parental relationship with M.B. Neither father is participating in this appeal. M.M.H.’s father is unknown.

2.   We take judicial notice of Father's criminal case. Indiana Rule of Evidence 201 permits courts to take judicial notice of certain material, including facts “accurately and readily determined from sources whose accuracy cannot reasonably questioned.” In addition, Rule 201 “permits courts to take judicial notice of records of a court of this state.” Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016) (cleaned up). Further, this Court has interpreted Evidence Rule 201 to “allow courts to judicially notice records beyond those in the cases before them.” Mitchell v. State, 946 N.E.2d 640, 644 (Ind. Ct. App. 2011), reh'g denied, trans. denied. In other words, records of any Indiana court are appropriate for judicial notice. Id.

3.   We note that the legislature amended Indiana Code § 31-35-2-4 during the 2024 legislative session, and the amendment became effective March 11, 2024. In that 2024 amendment, the relevant statutory provisions of subsection (b) cited above appear in subsection (d). Because the amendment took effect after DCS filed the petitions to terminate Mother's and Father's parental rights, the amendment does not apply to this case. Additionally, we note that the legislature further amended Indiana Code § 31-35-2-4 during the 2025 legislative session, and that amendment became effective July 1, 2025. The 2025 amendment likewise does not apply to this case.

4.   Father also argues that “[t]he trial court denied [him] due process when it heard evidence and argument and subsequently denied DCS's motion to dismiss [the termination proceedings] without service on Father[ ]” and that the trial court abused its discretion when it denied DCS’ motion to dismiss the termination proceedings. (Father's Br. 14). Because we reverse the trial court's termination of Father's parental relationship with M.H., we need not address these issues.

5.   Father mentions in a footnote in his appellate brief that the records for his criminal case “are no longer accessible on Mycase,” but does not mention the outcome or ask this Court to consider it. Appellant's Br. at 12. Moreover, Father did not ask the trial court to take judicial notice of his changed circumstance.

Pyle, Judge.

Bradford, J., concurs. Kenworthy, J., concurs in part and concurs in result in part, with separate opinion.