R.R. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] R.R. (“Father”) appeals the involuntary termination of his parental rights to B.R. (“Child”). The parties present three issues, which we restate as:

1. Whether we should grant Father's request for us to take judicial notice of criminal proceedings subsequent to the termination fact-finding hearings and the trial court's order terminating Father's parental rights;

2. Whether the evidence supports:

1.1 Findings 13(b) and 13(g), regarding Father's participation in services and the alleviation of the cause for Child's out of home placement as of the February 5, 2024, permanency order;

1.2 Findings 17(e) and 17(l), concerning Father's participation in services and housing and employment status; and

1.3 Findings 13(d) and 17(m), about Father's visitation with Child; and

3. Whether the trial court's findings support its conclusion that termination of Father's parental rights was in Child's best interests.

We affirm.

Facts and Procedural History

[2] D.H. (“Mother”)¹ and Father are the parents of Child, born September 2018. Prior to the Department of Child Services’ (“DCS”) involvement, Child lived with Mother. On March 22, 2023, DCS received a report from police that Mother and Father had physically assaulted one another and that Child was possibly injured during that altercation.

[3] DCS Family Case Manager Maria Williams (“FCM Williams”) was assigned to the investigation. When she spoke with Mother on March 23, 2023, FCM Williams observed a “large bruise and bite mark on the back of [Mother's] upper left arm and a large bruise on the back of her lower left arm.” (Ex. Vol. I at 24.) Mother indicated they were from the assault the previous evening. The report provided to DCS from the police indicated that Mother was holding Child while physically fighting with Father, though Mother later told FCM Williams that Child was not in the room during the altercation.

[4] Mother indicated to FCM Williams that she and Father had a history of domestic violence. Mother also admitted she smoked marijuana. Father could not be located and had an active warrant for his arrest because of the domestic violence incident. FCM Williams noted that Father's criminal history included three convictions of domestic battery, including one in 2022 that was committed in the presence of a child. DCS allowed Child to remain in Mother's care because Mother was willing to participate in services and to “file a protective order.” (Id.)

[5] In April 2023, DCS filed a petition to adjudicate Child as a Child in Need of Services (“CHINS”) based on domestic violence and drug use in the home. Father did not appear at the April 18, 2023, initial hearing on the matter during which Mother requested counsel and DCS “orally request[ed] [Father] be defaulted.” (Id. at 8.) The trial court continued the hearing until April 24, 2023, “to establish a factual basis to default [Father].” (Id.) Father did not attend the April 24, 2023, hearing. The trial court did not enter a default for Father.

[6] In May 2023, DCS asked the trial court to remove Child from Mother's care because she did not take him to an appointment “to ensure his his [sic] physical health” following the March 22, 2023, domestic violence incident; was non-compliant with services; and could not be located. (Id. at 59.) Father did not attend the hearing regarding Child's removal from Mother's care. Based on DCS's allegations, the trial court removed Child from Mother's care and placed him with his maternal grandfather.

[7] In May 2023, police arrested Father on a warrant stemming from an incident in January 2022 in which Mother was the alleged victim. He was subsequently charged with Class A misdemeanor domestic battery ² and Level 5 felony domestic battery ³ for the January 2022 incident. Father was initially released on bond, but his bond was revoked in June 2023 based on two additional charges for domestic battery in which Mother was the alleged victim in November 2022 and March 2023. Father remained incarcerated for the remainder of the proceedings.

[8] In July 2023, Father filed a motion asking the trial court to grant him in-person visitation with Child at the jail. The trial court granted Father “one supervised visit per week by a service provider for 30 minutes.” (Id. at 107.) In August 2023, the trial court removed Child from maternal grandfather's care because maternal grandfather tested positive for methamphetamine. Child was placed in foster care, where he has remained.

[9] On August 25, 2023, the trial court held a fact-finding hearing on DCS's CHINS petition. On the same day, the trial court issued its order adjudicating Child as a CHINS based on domestic violence in the home, Father's inability to care for Child due to Father's incarceration, Mother's substance abuse issues, and Mother's continued contact with Father despite the existence of a no-contact order. In September 2023, Father began supervised visits with Child at the jail. Also in September 2023, the trial court held its dispositional hearing. In November 2023, the trial court issued its dispositional order directing Father to, among other things, complete parenting and substance abuse assessments and follow all recommendations; obtain and maintain stable housing and employment; refrain from domestic violence; and participate in supervised visitation with Child.

[10] During his supervised visitations with Child, Father visited with Child for thirty minutes via “a phone with some glass between them” and there was “no physical touch for visits.” (Tr. Vol. II at 115.) During these visits Father asked Child about his school performance, his emotions regarding the CHINS case, and behavior at school. Father “[kept Child] on topic and engaged in the conversation” and told Child “that he loved him and missed him.” (Id.) Father regularly attended visits with Child but not all of Father's scheduled visits could occur because of issues related to jail administration and visitation room availability.

[11] In early 2024, Father began participating in the “Life After Meth” program (the “LAM Program”), which is provided by the Knox County Jail and is intended to “help maintain sobriety and help [him] succeed as an individual outside [of jail] as well as while [he is] currently incarcerated.” (Id. at 36.) As part of the LAM Program, while incarcerated, Father completed an anger management class and attended group therapy sessions about addressing trauma and resolving conflict. Father also regularly attended Narcotics Anonymous meetings and participated in a Bible study group.

[12] In October 2024, Child began refusing to visit Father. FCM Rachal Monroy encouraged Child to visit Father but she could not “force him in [her] vehicle” to take him to visits. (Id. at 116.) When speaking with the Court Appointed Special Advocate Cathy Beamon (“CASA Beamon”) about Father, Child would “crawl under the table or try to run away ․ [or would] just start[ ] karate chopping the chair next to us or kicking something[.]” (Id. at 97.) Child also told CASA Beason that “my dad hit my mom a lot[.]” (Id.)

[13] On November 25, 2024, DCS filed a petition to terminate Father's parental rights. The trial court held fact-finding hearings on the matter on February 5, 2025, and May 12, 2025. During those hearings, FCM Monroy and CASA Beamon confirmed Father's attendance in several programs while in jail but were concerned about the indefinite nature of Father's incarceration. CASA Beamon and FCM Monroy testified regarding Child's refusal to visit Father. CASA Beamon reported Child visited with Father in March 2025, but it was “a struggle getting him to that visit also.” (Id. at 110.) FCM Monroy and CASA Beason both told the trial court that termination of Father's parental rights was in Child's best interests because Father was unable to care for Child and Child was doing well in his foster placement.

[14] On August 22, 2025, three months after the termination fact-finding hearing, Father entered into a plea agreement regarding his pending criminal charges, for which he had been incarcerated for almost the entirety of these proceedings. As part of the plea agreement, Father pled guilty to Level 6 felony domestic battery stemming from the January 2022 incident. In exchange, the State dismissed the remaining charges and agreed to a four-year sentence suspended to supervised probation. Father did not petition the trial court to consider this additional evidence before it entered its termination order.

[15] On September 5, 2025, the trial court issued its order terminating Father's parental rights to Child based on his failure to complete all services ordered by the trial court; his failure to obtain housing and employment; and his continued incarceration with an indefinite release date. On September 9, 2025, the criminal court issued an order approving Father's plea agreement. On October 14, 2025, the criminal court sentenced Father to four years, which the criminal court suspended to supervised probation with credit for time served.

Discussion and Decision

[16] Father challenges the termination of his parental rights to Child. “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” In re A.L., 223 N.E.3d 1126, 1137 (Ind. Ct. App. 2023), trans. denied. However, a juvenile court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. “If ‘parents are unable or unwilling to meet their parental responsibilities,’ termination of parental rights is appropriate.” Id. (quoting Bester v. Lake Cnty. Ofc. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). The termination of the parent-child relationship is “an ‘extreme measure’ and should only be utilized as a ‘last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.’ ” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Ofc. of Fam. & Child., 841 N.E.2d 615, 623 (Ind. Ct. App. 2006), trans. denied).

[17] To terminate a parent-child relationship in Indiana, DCS must allege and prove “one (1) or more” of the circumstances listed in Indiana Code section 31-35-2-4(d). Ind. Code § 31-35-2-4(c) (2024). Such circumstances include:

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

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

Ind. Code § 31-35-2-4(d) (2024). In addition, DCS must prove that termination is in the child's best interests, Ind. Code § 31-35-2-4(c)(3) (2024), and that there exists a satisfactory plan for the child's care following termination. Ind. Code § 31-35-2-4(c)(2) (2024). DCS must provide clear and convincing proof of these allegations at the termination hearing. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019), trans. denied. “[I]f the State fails to prove any one of these statutory elements, then it is not entitled to a judgment terminating parental rights.” In re K.E., 162 N.E.3d 565, 569 (Ind. Ct. App. 2021) (quoting In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2019)), trans. denied. Because parents have a constitutionally protected right to establish a home and raise their child, the State “must strictly comply” with the statutory requirements for terminating parental rights. In re Q.M., 974 N.E.2d 1021, 1024 (Ind. Ct. App. 2012) (quoting Platz v. Elkhart Cnty. Dep't of Pub. Welfare, 631 N.E.2d 16, 18 (Ind. Ct. App. 1994)).

1. Judicial Notice

[18] As noted above, Father entered into a plea agreement to resolve his pending criminal charges three months after the final termination fact-finding hearing, but before the trial court entered its order terminating his parental rights. The criminal court did not issue its order accepting that plea agreement until September 9, 2025, which was four days after the trial court's order terminating Father's parental rights. In October 2025, the criminal court sentenced Father to four years suspended to supervised probation with credit for time served. On December 13, 2025, Father filed a supplemental appendix with the Appellate Courts Clerk that included his plea agreement and sentencing order for the criminal cases pending at the time of the fact-finding hearing.

[19] In his brief, Father argues we should take judicial notice of his plea agreement regarding the criminal cases pending at the time of the trial court's fact-finding hearing. DCS argues we are not permitted to do so because Father did not present the additional evidence to the trial court and thus those subsequent proceedings are not properly in the record before us. In Banks v. Banks, we noted that “Indiana Evidence Rule 201(f) does provide that ‘[j]udicial notice may be taken at any stage of the proceeding,’ which includes appeals” but “judicial notice may not be used on appeal to fill evidentiary gaps in the trial record.” 980 N.E.2d 423, 426 (Ind. Ct. App. 2012), trans. denied.

[20] Indiana Appellate Rule 27 states, in relevant part, “the Record on Appeal shall consist of the Clerk's Record and all proceedings before the trial court[.]” Further, it is well-established that “we do not consider on appeal any evidence that was not presented to the trial court.” Haggarty v. Haggarty, 176 N.E.3d 234, 239 n.1 (Ind. Ct. App. 2021). Father did not enter his plea agreement until three months after the trial court's fact-finding hearing, and the criminal court did not enter its order accepting the plea agreement until four days after the trial court's order terminating Father's parental rights. Thus, that evidence was not before the trial court and we are unable to consider it on appeal. See id. (appellate court may not consider evidence that was not first presented to the trial court).

2. Challenged Findings

[21] Father argues some the trial court's findings are not supported by the evidence. When reviewing a trial court's termination of parental rights,

we do not reweigh the evidence or judge witness credibility. We consider only the evidence and reasonable inferences that are most favorable to the judgment and give due regard to the trial court's unique opportunity to judge the credibility of the witnesses. We will set aside the trial court's judgment only if it is clearly erroneous.

In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016) (internal quotations and citations omitted). When “the trial court has made findings of fact and conclusions of law, we apply a two-tiered standard of review: ‘we must first determine whether the evidence supports the findings and second, whether the findings support the judgment.’ ” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) (quoting In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)). “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” In re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind. Ct. App. 2000). “We accept unchallenged findings as true.” Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019).

[22] The trial court made several unchallenged findings including:

17. At the time of fact-finding herein the following circumstances existed:

* * * * *

f. Father was not incarcerated at the time the CHINS case was opened but failed to attend hearings or participate in services.

g. Father was arrested on May 9, 2023, and remains incarcerated for an unknown length of time.

h. Father has three (3) pending felony cases involving domestic violence wherein Mother was the alleged victim, and the allegations indicate [Child] was present during the altercations. Father was convicted previously of Domestic Battery on Mother.

i. The DCS has offered Father services during his incarceration.

j. Father has been working on the LAM program while incarcerated and plans to live in the LAM house when he is released.

k. [Father] has historically had difficulty maintaining sobriety.

* * * * *

n. [Father] has not filed to request custody of [Child].

o. [Father] cannot provide for [Child's] needs.

p. [Mother], though previously defaulted, testified at the [fact-finding hearing] that she is the victim in all of Father's pending cases and that [Child] was present.

* * * * *

r. CASA testified [Child] has been involved in several DCS cases, including informal adjustments and CHINS cases.

* * * * *

t. CASA testified that [Child] stated “my Dad hit my Mom a lot” and that he does not want to visit with Father, despite encouragement from CASA.

(App. Vol. II at 55-57.)

2.1 Findings 13(b) and 13(g)

[23] First, Father challenges two parts of Finding 13:

13. On or about February 5, 2024, a permanency hearing was held in the underlying CHINS case and the Court adopted the concurrent plan of reunification and adoption. The following facts from the CHINS court order are found as facts for purposes of this termination proceeding:

* * * * *

b. [Father] has not complied with [Child's] case plan.

* * * * *

g. The cause of [Child's] out-of-home placement or supervision has not been alleviated.

(Id. at 54-55.) Father argues these findings are not supported by the evidence. He directs us to testimony by FCM Monroy and CASA Beamon at the fact-finding hearing regarding Father's willingness to participate in services while incarcerated and his projected ability to care for Child if he were not incarcerated.

[24] At the time of the fact-finding hearing, Father was incarcerated with no scheduled release date. He had been charged with multiple counts of domestic battery for three separate incidents during which he allegedly battered Mother. He did not have housing or employment. While he had completed some services with the goal of reunification with Child, he had not fully complied with the trial court's dispositional order. In addition, Father had not progressed to unsupervised visits. Father's arguments are invitations for us to reweigh the evidence, which we cannot do. See, e.g., In re V.A., 51 N.E.3d at 1143 (appellate court cannot reweigh evidence or judge the credibility of witnesses).

2.2 Findings 17(e) and 17(l)

[25] Next Father challenges two parts of Finding 17. First, Finding 17(e) states, “Father has substantially failed to participate in any services in order to reunify with [Child].” (App. Vol. II at 56.) Regarding Finding 17(e), Father contends he “did the best he could to improve himself and participate in services in spite of being incarcerated.” (Father's Br. at 18.) He then lists multiple programs he participated in while incarcerated such as the LAM Program and group therapy. He also notes that he was involved in a Bible study and attended Narcotics Anonymous meetings. While it is admirable that Father seemed to be on a good path, he was unable to complete services as ordered by the trial court, such as a parenting class or individual therapy, because of his incarceration. Father was also unable to demonstrate to the trial court that he could obey the law or refrain from engaging in domestic violence against Mother because he was incarcerated for three alleged domestic violence incidents involving Mother. During the events leading to the final charge, Father allegedly hit and bit Mother while she was holding Child. Additionally, Father was unable to prove he could maintain sobriety outside of incarceration. Father's argument is an invitation for us to reweigh the evidence, which we cannot do. See, e.g., In re V.A., 51 N.E.3d at 1143 (appellate court cannot reweigh evidence or judge the credibility of witnesses).

[26] Father also challenges the portion of Finding 17(l) that states, “Father does not have his own housing or employment.” (App. Vol. II at 56.) Father contends the evidence does not support this finding because he testified at the fact-finding hearing that he had “a job offering for Gemtron, well, Schotts, the Schotts side.” (Tr. Vol. II at 55-56.) During the fact-finding hearing, Father indicated that he planned to enter the LAM Program's residential treatment facility following his incarceration. He acknowledged that Child could not live with him at that facility. Father did not give the trial court his plan for housing with Child following his release from the residential treatment facility. Father's indefinite plan for future employment and housing, while still incarcerated, does not provide a plan for the stability required for any child. Therefore, we conclude Father's argument is an invitation for us to reweigh the evidence, which we cannot do. See, e.g., In re V.A., 51 N.E.3d at 1143 (appellate court cannot reweigh evidence or judge the credibility of witnesses).

2.3 Findings 13(d) and 17(m)

[27] Finally, Father argues Finding 13(d) and Finding 17(m), both concerning his visitation with Child, are not supported by the evidence. Finding 13(d) states that, as of the February 5, 2024, permanency hearing, “Father has not visited [Child].” (App. Vol. II at 55.) Finding 17(m), concerning Father's status as of the fact-finding hearings, states “Father has not had contact or visits with [Child] since March 2025 due to his incarceration.” (Id. at 56.) Father argues these findings are not supported by the evidence because, while Child had refused to see him for some time, DCS never identified Father's incarceration as Child's reason not to visit Father. Father also notes that when Child would see him, they visited regularly. He points to testimony of FCM Monroy and CASA Beamon, who both testified that Father was always appropriate while visiting with Child.

[28] DCS concedes this finding is not supported by the evidence. The evidence supports Father's argument that his lack of visitation with Child was not directly related to his incarceration and he visited appropriately with Child when able to. However, an erroneous finding could “be cause for reversal if it were the ‘sole support for any conclusion of law necessary to sustain the judgment of the court.’ ” In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (quoting Riehle v. Moore, 601 NE.2d 365, 369 (Ind. Ct. App. 1992)), trans. denied. Here, the trial court entered several findings regarding Father's incarceration, his failure to complete certain services, and his lack of housing and employment. The erroneous findings regarding his visitation with Child do not constitute the sole support for the trial court's termination of parental rights and thus is harmless surplusage. See, e.g., id. at 20 (erroneous finding is “merely harmless surplusage” when it does not prejudice parent and thus “is not grounds for reversal”).

3. Child's Best Interests

[29] Father argues the trial court's findings do not support its conclusion that termination was in Child's best interest because “[t]here is every reason to believe Father will remain sober, refrain from committing domestic violence or other criminal acts, and be able to meet all of [Child's] needs.” (Father's Br. at 22.) Our standard of review regarding whether the termination of a parent's parental rights is in a Child's best interests is well-settled:

[I]n determining whether termination of parental rights is in the best interests of a child, the court is required to look at the totality of the evidence. In doing so, the court must subordinate the interests of the parents to those of the children involved. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Moreover, the testimony of service providers may support a finding that termination is in the child's best interests.

Z.B. v. Indiana Dept. of Child Servs., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018) (internal citations omitted), trans. denied.

[30] However, as we noted above, Father had been incarcerated for most of the CHINS proceedings and all of the termination proceedings; was incarcerated at the time of the fact-finding hearing; had not completed many of the court-ordered services because of his incarceration; did not have suitable housing or employment; had an unknown release date from incarceration; and Child did not want to visit with him. Father had never had custody of Child, nor had he pursued custody during the proceedings. In addition, FCM Monroy and CASA Beamon both testified termination of Father's parental rights to Child was in Child's best interests.

[31] Father is essentially asking us to provide him additional time to complete the steps needed to reunify with Child. However, we cannot allow Child to “ ‘languish, forgotten, in custodial limbo for long periods of time without permanency[.]’ ” Matter of E.S., 253 N.E.3d 1153, 1158 (Ind. Ct. App. 2025) (quoting Baker v. Marion Co., Ofc. of Family & Children, 810 N.E.2d 1035, 1041 n.4 (Ind. 2004)). Father was given two years to complete services to reunify with Child and he had done little to meet that goal at the time of the fact-finding hearing. Based thereon, we hold the trial court's findings support its conclusion that the termination of Father's parental rights to Child was in Child's best interests. See, e.g., J.W., 259 N.E.3d 1039, 1047 (Ind. Ct. App. 2025) (“A parent's historical inability to provide a suitable environment along with the parent's current inability to do the same supports a finding that termination of parental rights is in the best interests of the [child]”) (quoting Lang v. Starke Cnty. Off. of Fam. & Child., 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied), trans. denied.

Conclusion

[32] We cannot take judicial notice of facts that occurred after the trial court entered its final judgment. Findings 13(b), 13(g), 17(e), and 17(l), concerning Father's participation in services and failure to obtain suitable housing and steady employment are supported by the evidence. While Findings 13(d) and 17(m), concerning Father's visitation with Child, are not supported the evidence, they are harmless surplusage because there existed sufficient findings to support the trial court's termination of Father's parental rights to Child. Finally, the trial court's findings supported its conclusion that termination was in Child's best interests. Accordingly, we affirm the trial court's termination of Father's parental rights to Child.

[33] Affirmed.

FOOTNOTES

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

2.   Ind. Code § 35-42-2-1.3(a).

3.   Ind. Code § 35-42-2-1.3(c).

May, Judge.

Mathias, J., and Felix, J., concur.