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

MEMORANDUM DECISION

[1] S.H. (“Father”) appeals the involuntary termination of his parental rights to his minor child K.H. (“Child”). We affirm.

Facts and Procedural History

[2] Father and R.H. (“Mother”)¹ are the parents of Child who was born in August 2020. Between July 2021 and October 2022, Child was the subject of a child in need of services (“CHINS”) proceeding that ended with reunification. In July 2022, Father was convicted of possession of a destructive device as a level 5 felony under cause number 22D01-2108-F5-1425 (“Cause No. 1425”) and placed on probation for 1,095 days. On May 30, 2023, Child was removed from Father's and Mother's care due to allegations of abuse and/or neglect. The Indiana Department of Child Services (“DCS”) filed a CHINS petition on May 31, 2023, alleging that Child was a CHINS due to Father's and Mother's illegal drug use, concerns with the condition and safety of the home, and allegations of domestic violence between Father and Mother in the presence of Child. In July 2023, the State charged Father with three drug-related felonies and three misdemeanors under cause number 10C03-2307-F6-749. The State also filed a notice of probation violation in Cause No. 1425, and Father's probation was extended by sixty days. Father was incarcerated on July 3, 2023.

[3] The court held a hearing on August 24, 2023. Father appeared in custody. Based on Father's and Mother's admissions, the court adjudicated Child a CHINS. Father was released from incarceration on September 13, 2023. After a dispositional hearing that was held on October 12, 2023, the court entered a dispositional decree ordering both Father and Mother to participate in reunification services. Among other things, the court ordered Father to: maintain contact with DCS; participate in recommended services and keep all appointments with service providers; maintain suitable, safe, and stable housing; secure and maintain a legal and stable source of income; refrain from illegal drug use; complete a parenting assessment and follow any recommendations; complete a substance abuse assessment and follow any recommendations; submit to random drug screens within one hour of request; complete a psychological evaluation and follow any recommendations; meet all personal medical and mental health needs; not commit acts of domestic violence; and attend all scheduled visitations with Child.

[4] On January 19 and 23, 2024, the State filed another notice of probation violation and petition to revoke probation in Cause No. 1425 alleging that Father admitted to relapsing on heroin and methamphetamine. Father became incarcerated on January 29, 2024. On June 24, 2024, DCS filed a verified petition to terminate Father's parental rights. On August 6, 2024, the court revoked Father's probation in Cause No. 1425 and ordered him to execute 760 days of his previously suspended sentence. Father was released from incarceration on March 18, 2025.

[5] On May 5, 2025, just nine days before the scheduled factfinding hearing, Father pled guilty to two misdemeanor drug-related offenses under cause number 10C03-2307-F6-749. The court held a termination factfinding hearing on May 14, 2025. Father did not appear for the hearing even though he had notice of the hearing and was no longer incarcerated.² Counsel appeared on his behalf. Counsel acknowledged that the last time he had contact with Father was during Father's incarceration, that a previous factfinding date had been continued to give Father “an opportunity to engage in reunification services” while not incarcerated, and that he “had no contact” with Father since his release from incarceration. Transcript Volume II at 19. DCS presented the testimony of Family Case Manager Harli Brown (“FCM Brown”). The Court Appointed Special Advocate Carrie Faith (“CASA Faith”) also testified. Father presented no witnesses.

[6] FCM Brown testified that she had been working with the family for just over two years. She stated that Father had been released from incarceration “since March 18th” and that she “did not hear anything from him. He has not attempted to come to the office, contact the office, or contact [her] as he was instructed to.” Id. at 21-22. She stated that Father and Mother are bad influences on each other as far as substance abuse, and that anytime they are together they end up “using, and oftentimes that does lead to domestic violence as well.” Id. at 24. She noted that Mother's “withdrawal from services and engagement align with [Father's] release date from custody.” Id. She explained that, during the pendency of the CHINS proceedings, Father had gone in and out of jail and prison, and other than “small stints” at sobriety, he always went back to using, violating probation, and then landing himself back in prison. Id. at 25. FCM Brown stated that termination of Father's parental rights and adoption by Child's current placement was in Child's best interests.

[7] CASA Faith testified that she had “been on this case since it opened in June of ’23.” Id. at 38. When asked if Father had been incarcerated for “the entirety of this case,” she responded, “No, he's been in and out.” Id. at 39. When asked if during “the times he was not incarcerated” Father was “participating and compliant with dispositional orders and recommendations by the team,” she responded, “No, he was not ․ he was very inconsistent with any kind of services.” Id. CASA Faith stated that Child was very bonded to his placement family, and that she believed it would be detrimental to Child to be removed from his foster home. She opined that termination of Father's parental rights was in Child's best interests.

[8] On May 22, 2025, the court entered its findings of fact, conclusions thereon, and order terminating Father's parental rights. Specifically, the court concluded that there was a reasonable probability that the conditions that resulted in Child's removal or continued placement outside Father's care would not be remedied; Father failed to substantially comply with Child's dispositional decree for a period of at least twelve months following Child's removal; termination of Father's parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion and Decision

[9] Father challenges the termination of his parental rights. Regarding petitions seeking the termination of parental rights, Ind. Code § 31-35-2-4 provides in pertinent part that DCS must allege as follows:

(c) A petition filed under subsection (a) must allege:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:[3]

* * * * *

(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.

[10] If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640. To the extent Father does not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[11] Father challenges the sufficiency of the evidence supporting the trial court's conclusion that there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside his care will not be remedied. In determining whether the conditions that resulted in Child's removal will not be remedied, we engage in a two-step analysis. See E.M, 4 N.E.3d at 642-643. First, we identify the conditions that led to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. In the second step, the trial court must judge a parent's fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. Id. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id.

[12] The record reveals that Child was removed from Father's care due to substance abuse, unsafe home conditions, and domestic violence. During the pendency of the CHINS proceedings, Father was incarcerated for a considerable period of time. However, DCS presented evidence that when Father was not incarcerated, he failed to maintain contact with DCS or participate in ordered services. The record further reveals that Father continued to abuse illegal substances and engage in criminal behavior when not incarcerated. It is well established that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (citation omitted).

[13] Father specifically challenges Finding Number 11 which states that “Mother and Father both sporadically engaged in offered services and ultimately made little progress.” Appellant's Appendix Volume II at 17. He asserts that his incarceration was a “barrier” to his participation in services because he was incarcerated for 414 days, “or approximately 71% of the 580 days he was under CHINS disposition.” Appellant's Brief at 14 n.2. Be that as it may, as noted above, the evidence established that even when not incarcerated, Father failed to participate in services. We cannot say that Finding Number 11 is clearly erroneous.⁴

[14] Father also challenges Conclusions Numbers 8, 10, and 11 that each deal with Father's and Mother's failure to address their substance abuse issues or maintain sobriety, with the court in one of those conclusions referring to Father's “refusal or failure to undergo substance abuse treatment.” Appellant's Appendix Volume II at 23. Father points to his completion of two substance rehabilitation programs, Avenues and Tru Healing, as an indication that the court's conclusions are clearly erroneous. However, the evidence supports those conclusions as far as Father's failure to maintain sobriety and his history of unsuccessful treatment. We cannot say that reversal is warranted due to any surplusage or minor errors in those conclusions.

[15] Similarly, Father's challenge to Conclusions 13 and 14, which refer to Father's “complete” failure to bring himself into compliance with the dispositional order or to make “significant and consistent progress,” fails. Id. There is ample evidence in the record supporting these conclusions. In light of the multiple unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding that there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside Father's care will not be remedied.

[16] Father also challenges the trial court's conclusion that termination of his parental rights is in Child's best interests. In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parents to those of the children. Id. The court need not wait until children are irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the children's best interests. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.

[17] FCM Brown opined that termination of Father's parental rights was in Child's best interests. She stated that she had been working with the family for a “little bit over two years,” that Father had been “in and out of” prison, and “in between those times when he is out,” other than “small stints at sobriety,” he had gone back to “actively using.” Transcript Volume II at 25. She further stated that Father's probation violations and criminal behavior continue to be a factor in his failure to be “available to [Child] to help with that caregiving role.” Id. Similarly, CASA Faith opined that termination of Father's parental rights was in Child's best interests. She emphasized that even when Father was not incarcerated, “he was very inconsistent with any kind of services.” Id. at 39. She noted that Child had been in the same placement for almost two years, that he was very bonded with his placement, and that he “views them as his family.” Id. at 41.

[18] In light of the evidence set forth above and in the record outlining Father's historical inability to provide safety and stability to Child and to remedy the conditions resulting in removal, we cannot say the trial court clearly erred in finding that termination of Father's parental rights was in Child's best interests.

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

[20] Affirmed.

FOOTNOTES

1.   Mother's parental rights were also terminated but she does not participate in this appeal.

2.   Mother also failed to appear for the hearing but was represented by counsel.

3.   Although Ind. Code § 31-35-2-4(d) contains multiple items DCS may allege in a petition to terminate a parent-child relationship, in this case we find the dispositive allegation made by DCS is contained in subsection (3).

4.   Although Father cites to K.E. v. Indiana Dep't of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), for the proposition that “incarceration alone is an ‘insufficient basis for termination parental rights,’ ” Father concedes that the “trial court cites factors other than [his] incarceration as the basis for termination.” Appellant's Brief at 14, 16.

Brown, Judge.

Felix, J., and Scheele, J., concur.