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

MEMORANDUM DECISION

[1] W.E.R. Jr. (“Father”) appeals the involuntary termination of his parental rights to his son, E.C. (“Child”). Father first argues the trial court erroneously adopted two findings of fact that had been entered in other orders during the child in need of services (“CHINS”) proceedings, during which our statutes impose a lower burden of proof on the State's evidence. Father next argues the trial court's remaining findings do not support its conclusion that there is a reasonable probability that the conditions resulting in Child's removal and continued placement outside Father's care would not be remedied.

[2] At the time of the final hearing, Father was incarcerated awaiting trial on a pending charge, did not have his own housing, had not participated in services to address his substance use disorder, and had not ever met Child. Although the trial court erred by adopting two findings from the CHINS court, the trial court's order contained a multitude of other findings that supported its challenged conclusion and its termination of Father's rights. We accordingly affirm.

Facts and Procedural History

[3] M.R.C. (“Mother”) gave birth to Child in July 2024, while Father was incarcerated. Child was born premature and experienced withdrawal symptoms. After spending a few months in the hospital, Child was released into the custody of relatives, where he had remained. The court declared Child to be a CHINS on October 15, 2024, and thereafter entered a dispositional order regarding both Mother and Father. Mother executed a consent to Child's adoption in October 2024, not long before her death in April 2025. Visitation through Facetime was arranged, but Father did not attend, so his visitation was suspended. DCS filed a petition to terminate Father's parental rights.

[4] The trial court held a final hearing on December 9, 2025. DCS's exhibits, including the CHINS court's review and permanency orders, were admitted without objection. The family case manager and the court appointed special advocate each recommended termination and adoption as in Child's best interests. At the time of the final hearing, Father had not met Child, he was incarcerated on a pending felony charge of failure to return to lawful detention, and he had not completed treatment for his admitted substance use disorder. Father acknowledged that he did not have housing suitable for Child and that he did not know when he would be able to care for Child.

[5] On March 25, 2026, the court entered findings of fact and conclusions of law terminating Father's parental rights. The court concluded that there is a reasonable probability the conditions resulting in Child's removal or continued placement outside the home will not be remedied, that termination is in Child's best interests, and that DCS has a satisfactory plan of adoption for Child's care.

Discussion and Decision

[6] To terminate a parent-child relationship, DCS must prove, by clear and convincing evidence, that there is a satisfactory plan for the child's care and treatment, that termination is in the child's best interests, and the existence of one or more of the circumstances described in Indiana Code section 31-35-2-4(d) (2024). Ind. Code § 31-35-2-4(c) (2024). DCS alleged, and the trial court found, the circumstance described in subsection (d)(3) – a reasonable probability that the conditions resulting in Child's removal or the reasons for his continued placement outside Father's home would not be remedied. Ind. Code § 31-35-2-4(d)(3) (2024).

[7] When reviewing the termination of parental rights, we do not reweigh the evidence or judge the credibility of witnesses, and we consider only the evidence and the reasonable inferences most favorable to the judgment. In re J.W., 259 N.E.3d 1039, 1043 (Ind. Ct. App. 2025), trans. denied. Where, as here, the trial court has entered findings of fact and conclusions of law, we apply a two-tiered standard of review: we first determine whether the evidence supports the findings, and then whether the findings support the judgment. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “We will set aside the trial court's judgment only if it is clearly erroneous.” Id. “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.” In re W.H., 254 N.E.3d 549, 554 (Ind. Ct. App. 2025) (quoting Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019)).

1. The Challenged Findings

[8] Father challenges two of the trial court's findings, Findings 21 and 22, each of which recites a finding from another order entered during the underlying CHINS proceeding. Finding 21 states:

At the Periodic Review Hearing on February 25, 2025, the CHINS court found and this Court adopts as proven by clear and convincing evidence that:

“[Parents] have not complied with the child's case plan. Father has not started his home-based case work and has not been screening ․ Father has never participated in virtual visitation.”

(App. Vol. II at 8.) Finding 22 states:

At the Permanency Hearing on July 23, 2025, the CHINS court found and this Court adopts as proven by clear and convincing evidence that:

“[Father] has partially complied with the child's case plan. [Father] has engaged in random screening. From November 8, 2024, through May 30, 2025, [Father] had 121 missed calls, 28 total random tests, and 25 total unforgiven missed tests. [Father] has missed an additional 17 screens and has had 7 unforgiven tests from May 30, 2025, to present. [Father] missed two screens in June of 2025. [Father] tested positive for methamphetamine and amphetamine on June 13, 2025, and June 24, 2025. [Father] has not engaged in recommended services from the substance use disorder assessment. [Father] was recommended to complete individual therapy and EOP outpatient substance use group therapy. [Father] has not completed his intake for his fatherhood engagement. [Father] no showed the first appointment. [Father] has not completed a parenting assessment.”

(Id.)

[9] Father argues the trial court erred by “adopt[ing] as proven by clear and convincing evidence” (id.) findings from an earlier proceeding in which the burden of proof had been preponderance of the evidence, because ‘preponderance of the evidence’ is a lower burden of proof than ‘clear and convincing evidence.’ (See Corrected Br. of Appellant at 12) (“The standard of proof in a CHINS case in [sic] clearly less than the burden in a termination case.”). Because “a finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence[,]” Ind. Code § 31-34-12-2, while a CHINS finding “must be based upon a preponderance of the evidence[,]” Ind. Code § 31-34-12-3, we agree with Father.

[10] In 1982, the United States Supreme Court held the burden of proof for termination of parental rights must be “at least clear and convincing evidence[.]” Van Hoosier v. Grant Cnty. Dept. of Pub. Welfare, 443 N.E.2d 350, 351 (Ind. Ct. App. 1982) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Soon thereafter, a parent, Van Hoosier, appealed the termination of her parental rights, which had been granted while Indiana's statute still contained a “preponderance of the evidence” standard. Id. (citing Ind. Code § 31-6-7-13 (1981)). The trial court's order did not clarify which burden it had applied to the evidence when making its findings of fact, and due to the date of the trial court's order, we presumed the trial court used the preponderance standard. Id. We held:

The findings can be affirmed applying our appellate standard of review. However, in doing so we would be determining that the evidence was clear and convincing. The weight to be given the evidence is properly a function of the trial court. While we might find the evidence sufficient under the standard of proof to support the findings of the trial court, the trier of fact may not have the same opinion of the evidence having been on the bench as it was presented. Therefore, we must remand for the trial court's consideration of the evidence under the higher standard of proof under Santosky.

Id.

[11] Just as we could not affirm the findings in Van Hoosier under a higher burden of proof, a termination court cannot adopt a CHINS court's findings as having been proven by a higher burden of proof. That is especially true when, as with Finding 22 herein, the CHINS finding had been entered by a different trial court judge because the judge adopting the finding had not heard the evidence underlying the finding. Nor do we believe it is appropriate for a trial court judge to adopt his own earlier finding, as with Finding 21 herein, when a full year had passed since the earlier order was entered and the new order does not indicate the trial court reviewed the evidence underlying the original order to make a new finding under the higher burden of proof required for termination of parental rights. Accordingly, the trial court herein erred by adopting CHINS findings under the higher burden of proof required for termination of parental rights.

[12] Nevertheless, the trial court's erroneous entry of these two findings is harmless in light of the numerous other findings that Father does not challenge. See, e.g., Wells v. Wells, 230 N.E.3d 954, 960 (Ind. Ct. App. 2024) (holding any error in finding did not require reversal where challenged finding was surplusage). Regarding Father's involvement, the trial court found:

11. At the time of birth and removal the child's father was not known to the Department.

12. The Department learned who the alleged father was and filed it [sic] Amended Petition alleging [Father] to be the father on September 9, 2024, about 2 months after birth.

13. On September 20, 2024, [Father] was offered supervised visitation with [Child] upon the child's release from the hospital.

14. Father admitted the allegations in the Petition and a dispositional order was entered on November 18, 2024.

15. Paternity was established on February 5, 2025.

16. Father failed to appear for his Dispositional Hearing on November 13, 2024, the February 5, 2025 Review Hearing, and the July 23, 2025 Permanency Hearing.

17. Father's visits were suspended at the February 5, 2025 Review Hearing, although he had not yet visited the child.

18. Father also failed to appear at the family team meeting to discuss permanency options on April 14, 2025.

19. Regarding the dispositional orders, Father has failed to comply with or to provide documentation of independent compliance with many of the orders including to:

a. Contact the Family Case Manager every week;

b. Notify the FCM within five days of any change of address, employment or telephone number;

c. Keep all appointments with service providers, DCS, or CASA;

d. Maintain suitable, safe and stable housing for himself and his child;

e. Secure and maintain a legal and stable source of income adequate to support himself and his child;

f. Ensure the child is properly clothed, fed, and supervised[;]

g. Obey the law.

20. Further, [Father] has failed to comply with or to provide documentation of independent compliance with other, more specific stability improvement programming, including that to:

a. Complete a substance abuse assessment and follow to completion all treatment recommendations (although he completed the assessment he did not complete the recommended individual counseling and EOP);

b. Meet all personal medical and mental health needs in a timely and complete manner;

c. Complete Fatherhood Engagement programming (did not complete the intake).

* * * * *

23. [Father] has an extensive criminal history, both before and during the CHINS case, including convictions for:

a. Unlawful Possession of a Syringe, a Level 6 Felony, under cause 48C03-2406-F6-1841;

b. Escape, a Level 6 Felony, in cause 48C01-2011-F6-2620;

c. Unlawful Possession of a Syringe, a Level 6 Felony, under cause 80C01-2008-F6-609;

d. Possession of Methamphetamine and Possession of a Paraphernalia under cause 48C01-2007-F6-1722;

e. Failure to Return, a Class D Felony, in cause 48C01-1801-F6-167;

f. Possession of Methamphetamine and Possession of a Syringe, both Level 6 Felonies, in cause 48C01-1710-F6-2528;

g. Domestic Battery, a class C Misdemeanor, in cause 48H02-1608-CM-2246;

h. Failure to Return, a Class D Felony, in cause 48C06-1312-FC-02361;

i. Possession of Methamphetamine, a Class D Felony, under cause 48C06-1204-FD-640;

j. Fraud on a Financial Institution, a Class C Felony, in cause 48D01-0809-FC-242

24. Father has a pending felony case, Failure to Return, a Level 6 Felony, in cause 48C03-2508-F6-2258, upon which probable cause was found on August 14, 2025.

(App. Vol. II at 7-8.) Moreover, as a summary of the circumstances, the court found:

35. Since the child's detention, Father has made little progress, let alone substantial progress, toward reunification with [Child].

36. Father has been in and out of jail, has not participated in some and has had minimal participation in other services while at liberty, has never met the child or attempted to exercise visitation, and has not appeared for the majority of CHINS hearings.

37. There is no evidence that Father has consistent employment or other resources with which to support himself and meet the child's basic needs.

38. It is a harm, albeit a beneficent one, for a child to dangle in the child welfare system, and that harm increases with elongation of the time during which a child is caught up in the system awaiting permanency.

39. The Court finds that Father has not shown an ability to safely parent this child now or in the near future.

40. This Court is unwilling to send [Child] to [Father's] care, even were he currently at liberty, when he has not exhibited that he has followed through with virtually any of the CHINS court's orders to bring about reunification.

41. The Court notes that Father has been down the court intervention road before (having had a chance to participate in Drug Court and having previously completed the Recovery While Incarcerated program at the Department of Corrections [sic]), has engaged in some or all of offered/ordered services on those occasions, and then reverted to living in a manner that would have required a child to be placed outside of Father's home to ensure a child's safety.

(Id. at 9.) Father does not allege that any of these findings are not supported by clear and convincing evidence and, as we discuss in more detail below, these other findings overwhelmingly support the trial court's conclusion that the conditions keeping Child from Father's custody were not likely to be remedied. Accordingly, the trial court's erroneous adoption of the two challenged findings was harmless. See Ind. Appellate Rule 66 (Errors in a trial court's order will not justify reversal when the probable impact of the error “is sufficiently minor so as not to affect the substantial rights of the parties.”).

2. Reasonable Probability Conditions Will Not Be Remedied

[13] Father challenges the trial court's conclusion that there is a reasonable probability the conditions resulting in Child's removal and continued placement outside the home will not be remedied. In reviewing that conclusion, we engage in a two-step analysis. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we identify the conditions that led to the child's removal and continued placement outside the home. Id. Second, we determine whether there is a reasonable probability those conditions will not be remedied. Id. The statute is not limited to the initial basis for the child's removal; it also reaches the bases for the child's continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013).

[14] Father first argues that the conditions that led to removal were attributable solely to Mother and that he may not be charged with her shortcomings. For a parent who did not have custody at the time of removal, the court considers the conditions attributable to that parent. In re V.A., 51 N.E.3d 1140, 1146 (Ind. 2016). The condition underlying both Child's removal and his continued placement outside the home was the absence of a stable, sober caregiver, and the findings we quoted in detail above tie that condition to Father's own conduct: he was incarcerated when Child was born, was reincarcerated at the time of the final hearing awaiting trial for failing to return to work release, relapsed on methamphetamine, never obtained housing or a stable income, did not complete substance abuse counseling, did not complete a parenting assessment, and never met Child. Those conditions are attributable to Father, and we accordingly reject his argument that the conditions were solely attributable to Mother.

[15] Father next argues that DCS did not prove a nexus between his fitness as a parent and his failure to complete services, his substance abuse, and his criminal history, and therefore, those deficiencies cannot support the conclusion that the circumstances leading to Child's removal and continued placement outside the home are not likely to be remedied. When determining whether conditions will be remedied, the trial court judges the parent's fitness “at the time of the termination proceeding, taking into consideration evidence of changed conditions[,]” and “must consider a parent's habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152. A court may weigh a parent's history of conduct “more heavily” than improvements made shortly before termination. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). The court may consider the parent's criminal history, substance abuse, and lack of adequate housing and employment, as well as the services DCS offered and the parent's response to them. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The findings here establish a nexus. Father's admitted substance use disorder is the condition the services were designed to address, and his failure to complete those services, his relapse, his lack of housing, and his inability to say when he could parent Child bear directly on his present fitness as a parent. The record also reflects a habitual pattern: Father has a lengthy history of drug-related offenses and repeated failures to return to lawful detention, and he acknowledged a years-long struggle with addiction and a relapse after a period of sobriety.

[16] Finally, Father relies on In re G.Y., 904 N.E.2d 1257 (Ind. 2009) (reversing termination of incarcerated parent's rights), reh'g denied, and In re J.M., 908 N.E.2d 191 (Ind. 2009) (affirming denial of termination of rights of incarcerated parents), for the proposition that incarceration does not justify termination. Our Supreme Court has held that “incarceration is an insufficient basis for terminating parental rights,” K.E. v. Ind. Dept. of Child Servs., 39 N.E.3d 641, 643, (Ind. 2015), and that a court must instead consider whether other evidence, coupled with the incarceration, demonstrates by clear and convincing evidence a reasonable probability that the parent will not remedy the conditions that led to removal, id. at 648. In In re J.M., the parents had completed services while incarcerated and were nearing release, such that their ability to establish a stable home could be assessed “within a relatively quick period of time” without prejudicing the child's need for permanency. 908 N.E.2d at 195. Father is differently situated. He did not engage in the offered services, provided no timeline within which he could assume Child's care, and had never met Child. The trial court's decision accordingly did not rest on Father's incarceration alone; it had before it his admitted and unaddressed substance use disorder, his relapse, his lack of housing, and his failure to engage in services, coupled with his incarceration. Those circumstances more than adequately support the trial court's conclusion that Father was unlikely to remedy the conditions that led to Child remaining out of Father's care and custody.

Conclusion

[17] The error in the two challenged findings is harmless in light of the plethora of unchallenged findings, and those unchallenged findings about Father's circumstances support the trial court's conclusion that there is a reasonable probability the conditions resulting in Child's removal and continued placement outside the home will not be remedied. We accordingly affirm the termination of Father's parental rights.

[18] Affirmed.

May, Judge.

Tavitas, C.J., and Vaidik, J., concur.