In the Termination of the Parent-Child Relationship of K.D. (Minor Child) and K.H. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 27 2018, 9:00 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle Curtis T. Hill, Jr.
Thomasson, Thomasson, Long & Attorney General
Guthrie, P.C.
David E. Corey
Columbus, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- March 27, 2018
Child Relationship of: Court of Appeals Case No.
03A04-1709-JT-2135
K.D. (Minor Child)
Appeal from the Bartholomew
and Circuit Court
K.H. (Father), The Honorable Heather Mollo,
Appellant-Respondent, Magistrate
The Honorable Kelly Benjamin,
v. Judge
Trial Court Cause No.
Indiana Department of Child 03C01-1701-JT-587
Services,
Appellee-Petitioner

Vaidik, Chief Judge.

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 Case Summary
[1] K.H. (“Father”) appeals the termination of his parental rights to his son.

Finding no error, we affirm.

Facts and Procedural History
[2] Father and J.D. (“Mother”) are the parents of K.D. (“Child”), who was born

February 1, 2016.1 Mother has another child, W.H., who was born in October

2001. On the day of Child’s birth, the Indiana Department of Child Services

(DCS) received a report that Mother was addicted to opiates and

benzodiazepines during her pregnancy with Child, Child showed signs of

withdrawal after birth (and was in the NICU receiving treatment for

withdrawal), and Father had been arrested two days earlier and charged with

attempted murder and battery by means of a deadly weapon for shooting two

people (W.H., age fourteen, was present during the shootings) and was in the

Bartholomew County Jail. Based on these allegations, DCS requested an

emergency order to remove Child from Mother, which the juvenile court

granted on February 4. After being discharged from the hospital, Child was

placed with K.B., Mother’s cousin. When Child was placed with K.B., he had

a “high level of need,” “was still going through withdrawals,” and “could not

1
Mother signed a consent for Child to be adopted and, as such, is not a party to this appeal.

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 soothe himself.” Appellant’s App. Vol. II p. 10. Child has been with K.B. ever

since.

[3] On February 8, DCS filed a petition alleging that Child was in need of services

(CHINS) based on the same allegations. A fact-finding hearing was held in

April, and Mother and Father, who was still in jail, admitted that Child was a

CHINS. In particular, Father agreed (1) that he was unavailable to care for

Child due to his incarceration and (2) that the circumstances outlined in the

CHINS petition (including that he was facing charges for shooting two people

and that W.H. was present during the shootings) were “concerning for the

safety of his son.” Ex. 6. The juvenile court adjudicated Child a CHINS. The

parties reached an agreement as to services, and the court issued a dispositional

decree that specified Father would, among other things, participate in

Fatherhood Engagement and follow all recommendations and keep DCS

informed about his criminal case. Id. The permanency plan at the time was

reunification.

[4] A guardian ad litem (GAL) was appointed in July. At an October status

hearing, evidence was presented that Child was receiving occupational therapy

through First Steps, was progressing well with K.B., was meeting all

developmental milestones, and was “content” and “happy.” Ex. 8. A

representative from Fatherhood Engagement reported that Father was “very

engaged” in the program and had asked about having visits with Child at the

Bartholomew County Jail. Id. The GAL testified, however, that it would be

“best” to postpone any visits between Father and Child until Father’s criminal

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 case was resolved and it was known “how soon he might be free from

confinement.” Id. The GAL reasoned that Child was approximately eight

months old and was “moving into a stage where bonds are strongly formed.”

Id. Accordingly, to introduce someone unknown to Child, without the

opportunity for regular contact, “could prove unsettling and confusing” to

Child. Id. The juvenile court agreed with the GAL and withheld visitation

until there was “a clearer understanding of [Father’s] long-term living

arrangements.” Id. The court scheduled a permanency hearing for January

2017 and appointed counsel for Father.

[5] In the meantime, Father, represented by counsel, moved for visitation with

Child, and a hearing was held on December 6. At that time, there was the

potential that Father “could be incarcerated for a significant period of time.”

Ex. 9. DCS talked to Captain Martoccia at the Bartholomew County Jail, who

said that visitation between inmates and small children was “discouraged” and

that visitation was by video conference only (no personal contact). DCS

opposed visitation, because it was unknown how Child would react to a new,

strange environment. Accordingly, DCS recommended “postponing

discussions regarding visitation . . . until [Father] has resolved his criminal

matters and there is an identified release date.” Id. The GAL concurred with

DCS and added that Child “is very attached to his placement, and is very

[leery] of new places and people.” Id. Furthermore, the GAL was concerned

that Child would “not feel safe or secure in the jail environment.” Id. The

GAL also recommended postponing visits until the length of Father’s

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 incarceration was known. In short, the GAL did not believe that “the benefit to

the father these visits would provide, is worth the risk to the child.” Id.

Moreover, K.B. was unwilling to take Child to the jail to visit Father. The

juvenile court, acknowledging that Father could be incarcerated “for a

significant period of time,” denied Father’s request to visit Child. Id. The court

reasoned that Child was not familiar with Father and that there was uncertainty

regarding the length of Father’s sentence.

[6] About a week later, on December 14, Father pled guilty to two counts of Level

5 felony battery by means of a deadly weapon. He was later sentenced to three

years in prison on each count, to be served consecutively, for a total of six

years.

[7] The permanency hearing was held in January 2017. Evidence was presented

regarding the resolution of Father’s criminal case, including that his earliest

possible release date was July 2020.2 Evidence was also presented that Child,

who at that time had been with K.B. for eleven months, was “healthy and

happy,” progressing well, and “very bonded” to her. Ex. 10. In addition,

Mother had signed a consent for K.B. to adopt Child. The permanency plan

was changed to adoption.

2
DOC’s Offender Search shows that Father’s projected release date is now January 2020. See
http://www.in.gov/apps/indcorrection/ofs/ofs (last visited Mar. 15, 2018).

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[8] On January 31, DCS filed a petition to terminate Father’s parental rights to

Child. Two weeks later, Father was transferred from the Bartholomew County

Jail to the Department of Correction (Branchville Correctional Facility) to serve

his sentence.

[9] An evidentiary hearing was held in May. Several witnesses testified, including

Mother, a former girlfriend of Father, Father’s caseworker at Branchville

Correctional Facility, K.B., the DCS family case manager, and the GAL.

[10] Mother testified about her three-year relationship with Father. Specifically, she

testified that Father had physically and mentally abused her, including

“pull[ing]” her down a flight of stairs, holding a gun to her head, and choking

her when she was eight months pregnant with Child. Tr. Vol. II p. 12. Mother

opined that K.B. should adopt Child:

I believe [Child] should stay where he’s at. [Child] goes to
therapy with [K.B.], he is very well taken care of. She pays for
day care, she does all the doctor’s visits and . . . she has a
relationship with my son, and so does the family.

Id. at 13.

[11] M.H., Father’s former girlfriend, testified about her eighteen-month

relationship with him. Specifically, M.H. “ha[s] a child with him,” E.H., who

was five years old at the time of the hearing. Id. at 33. M.H. said that Father

had “very little” contact with E.H., including “none” in the last three years. Id.

at 34. M.H. described her relationship with Father as “[r]ocky” and testified

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 about an incident in June 2012 where Father was arrested for choking her. Id.

at 33. M.H. said that Father had a “drinking problem” and a “marijuana

substance issue.” Id. at 34.

[12] Father’s caseworker from Branchville Correctional Facility testified about the

DOC programs available to him. According to the caseworker, Father was

only enrolled in a literacy program at the time. Because Father did not have a

GED or an 8th grade reading level, he was ineligible for most programs that

awarded time cuts. Nevertheless, Father had requested to enroll in Inside Out

Dads (which teaches parenting skills), but he had not yet received confirmation.

[13] K.B. testified that Child was “doing very well” since he had been placed with

her. Id. at 48. Child no longer had symptoms of withdrawal and was doing

occupational therapy with First Steps. Although Child had an eating/sensory

disorder, K.B. was taking him to see “numerous doctors.” Id.

[14] K.B. also testified about Father’s efforts to stay informed about Child. When

Father was in the Bartholomew County Jail, K.B. “opened up a phone

account” and put money in it so that Father could call her about Child. Id. at

50. K.B. also sent Father letters and photos of Child (which he then

inexplicably sent to M.H., who has no relation to Child). K.B. said that Father

called her “a few times,” and although Father would “sometimes” ask about

Child, he “very quickly want[ed] to turn the conversation [to Mother].” Id. at

51. That is, Father wanted to know “what [Mother] was doing” and “who she

was running with.” Id. at 53. K.B. said that Father had sent her “two letters.”

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 Id. at 52. In one of the letters, Father said that he wanted his family to be

involved with Child, which K.B. agreed to. However, he never asked about

Child’s health in either letter. K.B. testified that she did not hear anything from

Father between October 2016 and April 2017. When asked if she had concerns

about Child being placed with Father, K.B. answered:

[Father] has not shown that he is truly, I mean I paid money, I
didn’t have to do that, for a card for him to call to check on
[Child], on his condition and how he was doing, and he was so
concerned about his family being involved, and I have not heard
from his family except through a Facebook from his mother in
Trinidad, a few times.

Id. at 55. K.B. was also concerned about Father’s “drug[]” use, that Child did

not know Father, that Father had a “temper,” that Father did not have a

relationship with his other child, and that Father was in prison for a violent

crime. Id. at 55-56.

[15] The DCS family case manager testified that Father started participating in

Fatherhood Engagement in August 2016 when he was in the Bartholomew

County Jail; however, that program was no longer available when he was

transferred to the DOC in February 2017. The family case manager testified

about other programs that were available to Father when he was in the

Bartholomew County Jail, such as Providing Opportunities for Parental Success

(POPS), Bible study, Celebrate Recovery, and AA/NA meetings; however,

Father did not take advantage of any of them. When asked if Father had ever

asked her how Child was doing, the family case manager responded:

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 There have been several conversations with [Father] where he
will ask in general, how [Child] is doing, but never really
specifics regarding his recovery from a surgery, or specifics
related to how [Child], whether or not [Child] is meeting his
developmental milestones.

Id. at 60. And when asked if she had any concerns if Child was placed with

Father, the family case manager said:

[Child] does not know any other parent, other than [K.B.] and
[her boyfriend]. He is very clearly bonded with them. He looks
to them for comfort and love. By placing [Child] in a home with
a complete stranger, after being raised for four years, essentially
five years with [K.B.] and [her boyfriend], it would be very
confusing for [Child], very traumatizing. And due to the fact that
[Father’s] been incarcerated since [Child’s] birth, we’re not sure
what Father’s level of need is. The Department is aware that he
is incarcerated for a very violent crime, that he has a son that,
prior to [Child], that he was not really involved in his care nor his
life, that he’s been physically violent in front of another child, as
witnessed by the Department’s involvement, and that he’s been
physically aggressive with two girlfriends.

Id. at 61. The family case manager stressed that placing Child with Father

could be harmful:

Based on the reason, again for the Department’s involvement
with [Father] shooting the two people in front of another child . .
. and initially [Father] was facing Attempted Murder charges.
He ple[d] down to his current charges, it has been noted that
[Father] has a history of being physically violent towards women
in past relationships. . . . [Child] does not know [Father], he’s a
complete stranger to him. And again, [Child] is very physically,
visibly bonded with [his] current placement, and taking him

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 away from [K.B.] and [her boyfriend] would be, again very
traumatizing for him.

Id. at 62. Accordingly, the family case manager said that the plan for Child was

adoption.

[16] Finally, the GAL testified that Child had made “[t]remendous progress” since

being placed with K.B. and had overcome “many of the effects . . . of the

substances that he was exposed to while in the womb.” Id. at 67. When asked

if the case should be kept open until 2020, when Father was set to be released

from prison, the GAL responded:

[Father] is only connected with this child biologically. This
child, I can tell by my visits and my observations, of his
interactions with the foster family, he considers, even at this
young age of fifteen months, [K.B.] to be his mother and her
[boyfriend] to be his father. It is my opinion that to delay
permanency for this child and delay adoption, would be cruel to
the child. It would be emotionally cruel to re-unite him, after the
age, which would be four or older. And I think because of the
criminal history that we are dealing with in terms of [Father],
and the lack of stability that we’re dealing with in his home, that
this reunification would be potentially dangerous to [the child].

Id. at 67-68. Accordingly, the GAL testified that it was in Child’s best interests

for Father’s parental rights to be terminated and for K.B. to adopt Child.

[17] After the hearing, the juvenile court issued an order in August 2017 granting

DCS’s petition, reaching the following conclusions under the termination

statute, Indiana Code section 31-35-2-4: (1) Child has been removed from

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 Father for at least six months under a dispositional decree; (2) there is a

reasonable probability that the conditions that resulted in Child’s removal will

not be remedied and3 that continuation of the parent-child relationship poses a

threat to the well-being of Child; (3) termination is in the best interests of Child;

and (4) the plan of adoption for Child is satisfactory.

[18] Father now appeals.

Discussion and Decision
[19] In a termination case, the juvenile court must make conclusions regarding the

allegations in the termination petition, and it must enter findings of fact in

support of those conclusions. Ind. Code § 31-35-2-8(c). When the losing party

appeals, the role of the appellate court is to determine whether the evidence

supports the findings and whether the findings support the conclusions. In re

R.S., 56 N.E.3d 625, 628 (Ind. 2016). We will set aside a termination judgment

only if it is clearly erroneous. Id.

[20] Here, Father does not challenge the juvenile court’s first and last conclusions:

that Child has been removed from him for at least six months under a

dispositional decree and that the plan of adoption is satisfactory. Therefore, we

3
The juvenile court’s termination order uses “or,” but it is clear from the termination hearing that the court
meant “and.” See Tr. Vol. II p. 84.

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 need only decide whether the juvenile court’s findings4 support its conclusions

that there is a reasonable probability that the conditions that resulted in Child’s

removal will not be remedied and that termination is in the best interests of

Child. We hold that they do.5

[21] The juvenile court engages in a two-step analysis to determine whether the

conditions that led to the child’s placement outside the home will not be

remedied. First, the court ascertains what conditions led to the child’s

4
Father challenges some of the juvenile court’s fifty-three findings. First, Father challenges Finding No. 20
and a portion of Finding No. 29, which note that Father “may” be facing deportation to Trinidad. Even
disregarding Father’s immigration status, we find that the unchallenged findings are sufficient to support the
termination of his parental rights.
Second, Father challenges a portion of Finding No. 35, which states that M.H. “had a child with [F]ather.”
Father argues that there is no evidence that “paternity of that child was ever established.” Appellant’s Br. p.
25. It is true that paternity was not established at the time of the hearing. However, M.H. testified that
Father was E.H.’s father, that E.H. had Father’s last name, that she and Father were together when E.H. was
born, and that she encouraged contact between them but Father had “very little” contact with E.H.,
including “none” in the last three years. Based on this evidence, the court acted within its discretion in
finding that Father was E.H.’s father.
Third, Father challenges Finding No. 30: “Putting aside Father’s unavailability due to incarceration, he does
pose a safety risk to the Child. The recent criminal convictions warrant further understanding as to how and
why Father shot two people and did so in the presence of Mother’s older daughter, who was fourteen years
old at the time.” However, Father himself admitted during the CHINS proceeding that the fact that he shot
two people in the presence of fourteen-year-old W.H. was “concerning for the safety of [Child].” Ex. 6. The
evidence supports this finding.
Finally, Father appears to argue that the court’s findings are insufficient because there is no “clear
connection” to the “judgment.” Appellant’s Br. p. 12. We find that court’s findings sufficiently support its
conclusions. See I.C. 31-35-2-8(c) (“The court shall enter findings of fact that support the entry of the
conclusions . . . .”).
5
Because we affirm the juvenile court’s conclusion that there is a reasonable probability that the conditions
that resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is
a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of
Child. See In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010) (“We first observe that [Indiana Code] section 31-35-
2-4(b)(2)(B) is written in the disjunctive. Thus DCS was required to prove by clear and convincing evidence
only one of the two requirements of subsection (B).”).

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 placement outside the home. Second, the court determines whether there is a

reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.

Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these

decisions, the court must consider a parent’s habitual pattern of conduct to

determine whether there is a substantial probability of future neglect or

deprivation. Id.

[22] Here, the conditions that led to Child’s placement and retention with K.B. were

(as admitted by Father himself at the CHINS fact-finding hearing): (1) Father’s

unavailability due to his incarceration and (2) the fact that he shot two people in

the presence of fourteen-year-old W.H. was “concerning for the safety of

[Child].” Ex. 6; see also Tr. Vol. II p. 28 (DCS assessment worker: “Father

admitted to me that he had shot two people, so that was very concerning . . .

[i]n regards to how he would be able to keep his son safe.”). Although Father’s

incarceration will end in 2020, at which point he will be available to parent, the

fact remains that he shot two people in the presence of a child. This makes his

parenting skills highly questionable, especially considering that Father was not

involved in the life of his other son, was more concerned about Mother than

Child when he was in jail, and did not ask K.B. or the family case manager

about Child’s health (Findings 21, 22, and 45). As to whether there is a

reasonable probability that these conditions will not be remedied, as the

juvenile court found, Father has a “history of domestic violence perpetrated . . .

in other intimate relationships,” including choking M.H., putting a gun to

Mother’s head, and choking Mother when she was eight months pregnant with

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 Child (Findings 31, 33, and 36). Given Father’s lack of interest in Child and

propensity for violence, the juvenile court did not err when it concluded that

there is a reasonable probability that the conditions that resulted in Child’s

removal will not be remedied.

[23] In determining whether termination of parental rights is in the best interests of a

child, the juvenile court is required to look at the totality of the evidence. In re

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. 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 court need not wait

until the child is irreversibly harmed such that his physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. Id. 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, the testimony of a child’s

guardian ad litem regarding the child’s need for permanency supports a finding

that termination is in the child’s best interests. McBride v. Monroe Cty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

[24] DCS presented evidence that Father’s rights should be terminated because of

Child’s need for permanency. Two days before Child was born, Father shot

two people in the presence of another child and has been incarcerated ever

since. Following Child’s release from the hospital, Child was placed with a

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 relative, K.B., with whom Child has bonded and made “tremendous

developmental strides.” Appellant’s App. Vol. II p. 10 (Finding 47). While

Father was in the Bartholomew County Jail, K.B. put money in an account so

that Father could call her about Child. Father called her a “few” times, but he

was more concerned about who Mother was running around with than he was

with Child’s health and progress. K.B. also sent Father photos of Child, but

Father inexplicably sent them to M.H. instead of keeping them for himself.

Father sent K.B. two letters, but, as the juvenile court found, they were

“accusatory” and “did not inquire as to the Child’s health condition.” Id. at 8

(Finding 22). In addition, K.B. did not hear anything from Father between

October 2016 and April 2017. In short, Father showed a low level of interest in

Child when he should have been doing everything in his power to show his

dedication to obtaining reunification with Child. For this reason, the GAL

testified that Father was only connected to Child “biologically” and that it was

in Child’s best interests for Father’s parental rights to be terminated and for

K.B. to adopt Child.

[25] Nevertheless, Father claims he is similar to the father in K.E. v. Indiana

Department of Child Services, 39 N.E.3d 641 (Ind. 2015). In that case, the father

was incarcerated for drug offenses when his child was born, and there was

“seemingly nothing else that [the father] could have been doing to demonstrate

his dedication to obtaining reunification” with his child: the father had

completed twelve programs while incarcerated (the majority of which were

voluntary and did not result in sentence reduction), a family member regularly

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 brought his child to visit him in prison, and he spoke to his child every night on

the phone. Id. at 649. Our Supreme Court overturned the termination of the

father’s parental rights. Setting aside the fact that Father is in prison for

shooting two people in the presence of a child, there is substantially more that

Father could have done while incarcerated to demonstrate his dedication to

obtaining reunification with Child. This includes, at a bare minimum, regularly

keeping apprised of Child’s health and progress. The juvenile court did not err

in concluding that termination is in Child’s best interests.6

[26] Affirmed.

May, J., and Altice, J., concur.

6
Father also argues that DCS refused to let him visit Child and that this was a violation of Indiana Code
section 31-34-21-5.5, which requires DCS to make reasonable efforts to preserve and reunify families during
CHINS cases. We first note that during the CHINS case here, the parties came to an agreement regarding
services, and those services did not include visitation. See Ex. 6 (“The court now proceeds to a Dispositional
Hearing. The parties have reached an agreement as to the necessary services in these matters.”). Moreover,
the failure to provide services in a CHINS proceeding (here, visitation) is unavailable for review during an
appeal following the termination of parental rights. See In re G.M., 71 N.E.3d 898, 906 (Ind. Ct. App. 2017).
If Father wanted to appeal this issue, he should have done so earlier. After the juvenile court entered the
dispositional order, Father moved for visitation with Child, and the court denied his request. Indiana Code
section 31-34-23-1 allows a parent to move to modify a dispositional decree, which is essentially what Father
did when he requested visitation with Child. Father, however, did not appeal the court’s denial of his
motion.

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