In the Matter of the Termination of the Parent-Child Relationship, Ki.H., K.H., and Kr.H. (Minor Children) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be
Nov 18 2020, 9:16 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle Sheff INDIANA DEPARTMENT OF
Sheff Law Office CHILD SERVICES
Indianapolis, Indiana Curtis T. Hill, Jr.
Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
CHILD ADVOCATES, INC.
Janice Mandla Mattingly
Janice Mandla Mattingly, P.C.
Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 18, 2020
of the Parent-Child Relationship, Court of Appeals Case No.
Ki.H., K.H., and Kr.H. (Minor 20A-JT-263
Children), Appeal from the Marion Superior
and Court
The Honorable Mark A. Jones,
K.D.H. (Father), Judge
Appellant-Respondent, The Honorable Peter Haughan,
Magistrate

Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 1 of 20
 v. Trial Court Cause Nos.
49D15-1809-JT-1145
49D15-1809-JT-1146
Indiana Department of Child 49D15-1809-JT-1147
Services,
Appellee-Petitioner,

and

Child Advocates, Inc.

Appellee-Guardian ad Litem.

Brown, Judge.

K.D.H. (“Father”) appeals the involuntary termination of his parental rights to

his children, Ki.H., K.H., and Kr.H. 1 We affirm.

Facts and Procedural History

Father’s several children include Ki.H. who was born on June 23, 2015, and

K.H. and Kr.H. (the “Twins,” and with Ki.H., the “Children”), who were born

on September 23, 2017. The Twins were removed from their parents’ care on

the day they were born, and on September 26, 2017, Ki.H. was removed and

the Indiana Department of Child Services (“DCS”) filed a petition alleging the

Children were children in need of services (“CHINS”) and that their mother

tested positive for codeine, morphine, and heroin during pregnancy. Also on

1
The children’s mother signed consents to adoption and was dismissed from the termination case on August
26, 2019, and she died on or about September 5, 2019.

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September 26, 2017, the court held an initial hearing at which Father was

present, appointed counsel for Father upon request, and ordered supervised

parenting time. Upon the Twins’s release from the hospital, the court approved

a placement in either kinship, relative, or foster care for the Children.

On January 10, 2018, the court held a hearing at which Father was not present,

Father’s counsel waived factfinding, and the court entered CHINS

adjudications with respect to the Children upon admission by their mother. On

February 7, 2018, the court entered a dispositional decree; awarded DCS

wardship of the Children; authorized increased parenting time up to and

including temporary trial visitation upon positive recommendation from the

guardian ad litem, DCS, and service providers; ordered Father to participate in

drug screens; and indicated that, if he had ten consecutive, clean, random drug

screens, he would no longer be required to screen. At a permanency hearing at

which counsel represented Father, who was not present, the court made a

finding that Father was incarcerated and changed the permanency plan to

adoption.

On September 27, 2018, DCS filed a petition to terminate Father’s parental

rights, and a TPR Summons And Notice of Hearing indicates Father was

served in October 2018 at the Henderson County Detention Center in

Henderson, Kentucky. On October 12, 2018, the court issued an order which

continued the initial hearing and appointed Child Advocates, Inc., as guardian

ad litem for the Children. The order indicates that it was “RECOMMENDED

BY:” Magistrate Larry E. Bradley. Appellant’s Appendix Volume II at 79. The

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court’s order from the continued initial hearing on November 9, 2018, which

was also “[r]ecommended by” Magistrate Bradley, indicates “Ryan Gardner”

appeared as a “GAL Attorney” and the court set the matter for pre-trial

conference and appointed a public defender for Father. Id. at 110-112 (some

capitalization omitted).

On February 20, 2019, DCS filed a motion to transport Father from the

Henderson County Detention Center, or alternatively to allow him to

participate by telephone or videoconference in the termination trial. An order

recommended by Magistrate Bradley denied the motion to transport Father but

allowed him to appear by videoconference. In response to DCS’s filing of a

second motion to transport, the court issued an order on July 2, 2019, which

denied the motion to transport but allowed appearance by videoconference and

was approved and ordered by “Ryan K. Gardner, Judge.” Id. at 156.

On July 25, 2019, Larry E. Bradley filed, as a volunteer attorney, an E-Filing

Limited Appearance form for Child Advocates, Inc. On July 29, 2019, the

court continued the trial set for that day in an order which noted that: “Ms.

Berg[, Father’s counsel,] is requesting Mr. Bradley, GAL Attorney, withdraw

from the case as there is conflict.” Id. at 163. The same day, Child Advocates

filed a Motion to Withdraw Appearance requesting to remove volunteer

attorney Bradley, which the court granted.

Magistrate Peter Haughan of the Juvenile Division of the Marion Superior

Court presided over Father’s termination hearing which was held on September

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26, 2019, October 31, 2019, and November 6, 2019. The court issued a set of

three orders, with each corresponding to a certain half-day hearing. The court’s

November 6, 2019 order was “APPROVED & ORDERED BY:” Judge Pro

Tempore Ryan K. Gardner, whereas Judge Mark A. Jones of the Juvenile

Division of the Marion Superior Court had approved and ordered the previous

half-day hearings. Id. at 205.

On January 5, 2020, the court issued its “Order Terminating the Parent-Child

Relationship Between the Parent, [Father], and the Children,” which was

signed by Magistrate Haughan and Judge Jones. The court found that a

November 4, 2013 order 2 had terminated the parent-child relationship between

Father and his two older children, born in 2003 and 2004; CHINS petitions had

been filed with respect to the older children in 2011 based on lack of

appropriate supervision by their mother; Father was incarcerated and his ability

or willingness to parent had not been demonstrated and the children were later

found to be in need of services; Father was released from prison around July of

2012 but failed to contact DCS until attending a CHINS hearing in late

November of 2012 and; the dispositional order was modified to provide home

based services which Father failed to complete. The order observed that Father

was convicted in July 2013 of Assisting a Criminal, anticipated being released

2
The November 4, 2013 order recommended by Magistrate Bradley states that Ryan Gardner
appeared as counsel for Child Advocates, Inc..

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on April 15, 2014, and had a criminal record at twenty-five years of age

consisting of five felony convictions and two misdemeanor convictions.

The January 2020 termination order further found that, since the termination of

Father’s parental rights regarding his older children, he has had at least one

felony conviction in 2015 for which the court issued five warrants ordering that

he be taken into custody and, subsequent to the conviction, found him to have

violated the terms of his sentence or probation and ordered his incarceration;

one felony charge and several misdemeanor charges in 2017; and two felony

charges and misdemeanor charges in 2018. The order found that, as Father

served the sentence associated with the 2015 conviction, he received two

probation violations resulting in further incarceration, and that, at the time of

the court’s termination order, he still faced outstanding warrants in the

proceedings related to the 2017 and 2018 charges. It indicated Father testified

at a fact-finding hearing that he was incarcerated in a United States penitentiary

in Kentucky, where he had been since April 2018 because of a conviction of the

federal offense of possession of a firearm; he received a sixty-month federal

sentence, still had two years of incarceration to serve, and would then be moved

to a halfway house to engage in work and rehabilitative programs; he has not

seen the Children in person since he became incarcerated but communicated

via computer tablet with the younger children and via telephone with Ki.H.;

and that the inmates are frequently on lockdown, so Father has not been able to

engage in any programs or communicate with the Children.

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The court further found that, prior to his incarceration, Father’s parenting time

remained supervised and the Children were never placed in his care and that

the Twins were placed shortly after birth with Father’s uncle and his uncle’s

partner, have special medical conditions, and have behaviors that can escalate

quickly into tantrums. It found that the Father’s uncle and his uncle’s partner

both take them to their doctor appointments, their home is the only home the

Twins have ever known, and they provided for the needs and are willing to

adopt them if Father’s parental rights were terminated. It indicated the Twins

were loved and well-cared for and Father’s uncle was concerned with Father’s

sobriety and believed he needed help.

Based upon the testimony of Family Case Manager Patrick Wilburn (“FCM

Wilburn”), the court found that Father had been incarcerated throughout most

of the pendency of the Children’s CHINS cases and did not successfully

complete random drug screens, the Children have never been placed with

Father and he did not want placement of them, he did not want to complete

random drug screens or the Father’s Engagement program, and he does not

have the ability or willingness to provide the Children with a safe and stable

permanent home or provide for their short-term and long-term needs. It stated

FCM Wilburn believed the conditions that led to the removal and retention of

the Children from Father’s care and custody have not been remedied; the

continuation of the parent-child relationship is a threat to the well-being of the

Children; and it is in the best interests of the Children that Fathers’ parental

rights be terminated. Furthermore, based upon the testimony of guardian ad

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litem Ed Walker (“GAL Walker”), it found that Father reported to GAL

Walker in October 2017 that he did not want to be considered for placement of

the Children, but that he would participate in the services of substance abuse

evaluation and treatment, random drug screens, and the Father’s Engagement

program; the referrals for these services were made on Father’s behalf; and

Father did not engage in these services. It indicated GAL Walker was never

able to recommend that Father have unsupervised parenting time due to his

decision not to participate in services and his subsequent incarceration and that

GAL Walker, who visited the Children many times, believed it is in the

Children’s best interests that Father’s parental rights be terminated and the

Children be adopted by their current respective caregivers.

The order then found the conditions that led to the Children’s removal –

Father’s criminal behavior and the accompanying incarceration, problems with

alcohol and/or substance abuse, and lack of ability or willingness to parent the

Children – had not been remedied. In finding that it was highly probable that

these conditions would not be remedied, even if Father was given additional

time to remedy the conditions, the court stated: the Children’s CHINS cases

have been open for over two years; Father continues to engage in criminal

behavior that results in his incarceration he is currently serving a federal

sentence and will not be released for at least two years; he has state charges

pending; Father has not engaged in any services that could assist him to remedy

these conditions; from the beginning of the CHINS cases, Father has done

nothing to demonstrate that he has the ability or willingness to parent the

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Children and to provide them with a safe and stable home; and there is a

substantial probability that future neglect or deprivation will occur because of

his failure to remedy the conditions. The court found a reasonable probability

that the continuation of the parent-child relationship between Father and the

Children poses a threat to their well-being and that DCS had shown by clear

and convincing evidence that termination of the parent-child relationship

between Father and the Children is in the best interests of the Children.

Discussion

The United States Supreme Court “has ‘recognized on numerous occasions that

the relationship between parent and child is constitutionally protected,’ and that

‘[t]he fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not

been model parents or have lost temporary custody of their child to the State.’”

In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013) (internal quotations

omitted) (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549 (1978);

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388 (1982)). However, these

protected parental rights are not absolute and must be subordinated to the

children’s interests to maintain the parent-child relationship. Bester v. Lake

County Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus,

“[p]arental rights may be terminated when the parents are unable or unwilling

to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004)).

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When reviewing the termination of parental rights, 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. See 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. Reviewing whether the evidence “clearly and convincingly”

supports the findings, or the findings “clearly and convincingly” support the

judgment, is not a license to reweigh the evidence. Id. Our review must give

due regard to the trial court’s opportunity to judge the credibility of the

witnesses firsthand and not set aside its findings or judgment unless clearly

erroneous. 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.

The involuntary termination statute is written in the disjunctive and requires

proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

In order to terminate a parent-child relationship, DCS is required to allege and

prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for

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 placement outside the home of the parents will not be
remedied.

(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 31-35-2-4(b)(2). 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).

We first address Father’s argument that Indiana Code § 31-35-2-4 is

unconstitutional on its face and as applied because it lacks a requirement that

DCS “first provide services to attempt reunification of the parent and child

during the CHINS proceedings prior to moving to termination of parental rights

– services required by DCS procedural manuals,” and, in “failing to require

DCS to perform its published procedures uniformly prior to moving for

termination,” it creates the conditions for similarly situated parents to be treated

unequally. Appellant’s Brief at 45-46. He contends DCS failed to comply with

its own manuals regarding services, the FCM never attempted to provide him

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with services before recommending termination of his parental rights, and DCS

should have reassessed “the best way to provide services to assist” him and the

Children. Id. at 49. DCS maintains that Father raises this challenge for the first

time on appeal, and because he had the chance to raise it during the termination

factfinding but failed to do so, he should be deemed to have forfeited review of

whether Indiana Code § 31-35-2-4 is constitutional. See Appellee DCS’s Brief at

43 (“Dissimilar to waiver, ‘which involves the intentional relinquishment or

abandonment of a known right, “forfeiture is the failure to make the timely

assertion of a right[.]”’”) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d

49, 54 (Ind. 2013)).

“Challenges to the constitutionality of a civil statute may be waived if they

could have been raised to the trial court but the appellant failed to do so.” In re

R.S., 774 N.E.2d 927, 929 (Ind. Ct. App. 2002), trans. denied. Our review of the

record reveals that Father did not raise the issue of the constitutionality of

Indiana Code § 31-35-2-4 before the trial court. Accordingly, we find he has

waived the issue. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (citing

Plank., 981 N.E.2d at 53 (“Declining to review an issue not properly preserved

for review is essentially a cardinal princip[le] of sound judicial administration.”

(internal quotation omitted))).

Waiver notwithstanding, the record reveals that the services provided Father

were not insufficient under the circumstances and that he was not deprived of

due process. To the extent Father relies on In re T.W., in that case this Court

examined the requirements of due process in the context of termination

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proceedings and stated it was led to “one conclusion: for a parent’s due process

rights to be protected in the context of termination proceedings, DCS must have

made reasonable efforts to preserve and/or reunify the family unit in the

CHINS case,” that “[w]hat constitutes ‘reasonable efforts’ will vary by case,”

and that “does not necessarily always mean that services must be provided to

the parents.” 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied. The

record reveals Father spoke with GAL Walker at a October 2017 child and

family team meeting where he shared that “he didn’t think that services would

be beneficial to him at that time, and at that time, um, chose not to or said he

wasn’t going to participate in services.” Transcript Volume II at 40. It also

reveals that, although he was eventually offered and began certain services

through the Father’s Engagement program, he did not complete those services.

Furthermore, Father did not engage in drug screens, which the court ordered in

its dispositional decree in the CHINS case, before being incarcerated. In light

of the record, reversal based on the application of Indiana Code § 31-35-2-4 in

this case is not warranted, and we cannot say that Father’s due process rights

were violated. See In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009)

(observing that the absence of services was due to the father's incarceration and

that he did not point to any evidence that he specifically requested visitation or

other services, and holding that the inability to provide services did not amount

to a denial of due process).

Turning to Father’s argument that attorneys/judicial officers Gardner and

Bradley’s vacillating roles as attorneys and judicial officers violated conflicts of

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interest concerns for attorneys and impartiality requirements for judicial officers

to such an extent that he was “deprived . . . of the most basic concepts of

fundamental fairness in court proceedings and tainted the process in a manner

that requires reversal for new proceedings,” Appellant’s Brief at 35, we initially

observe that the Indiana Code of Judicial Conduct provides that a “judge shall

disqualify himself . . . in any proceeding in which the judge’s impartiality might

reasonably be questioned . . . .” Ind. Judicial Conduct Rule 2.11(A). Rule 2.11

lists several specific instances requiring recusal, including cases where the judge

has “served as a lawyer in the matter in controversy . . . . ” Id. at (A)(6). The

Comment to Rule 2.11 notes that a judge’s obligation not to hear or decide

matters under the Rule “applies regardless of whether a motion to disqualify is

filed.” Jud. Cond. R. 2.11 cmt. [2]. To the extent that Father argues specific

violations of the Code of Judicial Conduct, 3 this Court rejected the argument

that the Code of Judicial Conduct supplies a freestanding mechanism for relief,

see Mathews v. State, 64 N.E.3d 1250, 1254 (Ind. Ct. App. 2016), trans. denied,

and

held that the obligations in the Code of Judicial Conduct are
enforced by the individual judge against himself in the first

3
We note Father also points to Indiana Professional Conduct Rule 1.12, which is titled “Former Judge,
Arbitrator, Mediator or Other Third-Party Neutral” and provides that a “lawyer shall not represent anyone in
connection with a matter in which the lawyer participated personally and substantially as a judge or other
adjudicative officer, arbitrator, mediator or other third-party neutral, or law clerk to such a person, unless all
parties to the proceeding give informed consent, confirmed in writing.” While Bradley did file an appearance
on July 29, 2019, as a volunteer attorney on behalf of Child Advocates, the guardian ad litem, he filed a
motion to withdraw on the same day, and his appearance was withdrawn upon the realization he had been
previously involved in the case.

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 instance, and in the last instance by disciplinary actions of the
Indiana Supreme Court. We also held that allowing an
independent action under the Code of Judicial Conduct would
allow litigants, trial courts, and this Court to usurp the exclusive
supervisory authority of the Indiana Supreme Court over judicial
conduct.

Abney v. State, 79 N.E.3d 942, 951 (internal citations removed) (citing Mathews,

64 N.E.3d at 1255). Even if we were to undertake independent review of the

circumstances in light of the requirements of the Code of Judicial Conduct, we

cannot say that Father would prevail. See Mathews, 64 N.E.3d at 1256 (holding

the defendant would not prevail even if we conducted an independent review in

light of the Code of Judicial Conduct). Unlike in Bloomington Magazine, Inc. v.

Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012), on which Father relies and in which

this Court found that there was the appearance of impropriety because one of

the attorneys served as chairman of the judge’s recent election campaign and

the trial court abused its discretion in denying a motion to recuse herself, see

L.G. v. S.L., 88 N.E.3d 1069, 1071 (Ind. 2018) (discussing Bloomington), the

record does not support that Magistrate Haughan, who conducted the

termination of parental rights trial, or Judge Jones, as the second judicial officer

who signed the termination order were influenced by the actions of either

attorneys/judicial officers Bradley and Gardner. Cf. Bloomington, 961 N.E.2d at

64 (noting that the mere appearance of bias and partiality may require recusal if

an “objective person, knowledgeable of all the circumstances, would have a

rational basis for doubting the judge’s impartiality.” (citing Patterson v. State, 926

N.E.2d 90, 94 (Ind. Ct. App. 2010)). And, despite then-Magistrate Bradley and

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then-Attorney Gardner’s involvements in a 2018 initial hearing, and then-Judge

Pro Tempore Gardner’s approval of a November 2019 order summarizing the

half-day events of the termination hearing date; and, while then-Magistrate

Bradley and then-judicial officer Gardner 4 may have signed separate pre-trial

orders in 2019 that denied motions to transport and directed video conferencing

or telephonic appearances for Father who was incarcerated, we do not find that

Father has overcome the presumption against personal bias or prejudice. See

L.G. v. S.L., 88 N.E.3d at 1073 (“Adverse rulings and findings by a trial judge

are not sufficient reason to believe the judge has a personal bias or prejudice. . .

. The law presumes that a judge is unbiased and unprejudiced. To overcome

this presumption, the moving party must establish that the judge has personal

prejudice for or against a party. Such bias or prejudice exists only where there

is an undisputed claim or the judge has expressed an opinion on the merits of

the controversy before him.” (internal citations removed)). 5

We next turn to Father’s argument that the termination order is not supported

by clear and convincing evidence. As noted, the involuntary termination

statute is written in the disjunctive and requires proof of only one of the

4
Although the July 2, 2019 order indicated “Judge” below the approval signature line, we note that Indiana’s
Directory of Courts & Clerks lists Ryan Gardner as a Magistrate. See DIRECTORY OF COURTS & CLERKS IN
INDIANA 28, https://www.in.gov/judiciary/files/court-directory.pdf (last accessed November 5, 2020). See
also COURTS & CLERKS OFFICES, Courts.IN.Gov., https://www.in.gov/judiciary/2794.htm (last accessed
November 5, 2020).
5
While the misconduct here did not deprive Father of due process, we admonish against the practice of
appearing as an attorney and a judicial officer in the same case and underscore the importance of monitoring
against such conflicts.

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circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). In determining whether

the conditions that resulted in a 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

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. Where there are only temporary improvements

and the pattern of conduct shows no overall progress, the court might

reasonably find that under the circumstances the problematic situation will not

improve. Id. While incarceration alone cannot serve as a basis for termination
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of parental rights, it is well-settled that a trial court may evaluate the parent’s

habitual patterns of conduct to assess the likelihood that the child or children

could experience future neglect or deprivation; and give considerable weight to

the parent’s history of incarceration and the effects upon the child or children.

See A.D.S. v. Ind. Dep’t of Child Services, 987 N.E.2d 1150, 1157 (Ind. Ct. App.

2013) (holding that the parent’s habitual patterns of conduct should be evaluated

to determine the probability of future neglect or deprivation of the child, that

DCS is not required to prove a parent has no possibility of changing; and that

DCS need only establish a reasonable probability that no change will occur),

trans. denied.

To the extent Father does not challenge certain 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.

The record reveals Father’s pattern of continued involvement with law

enforcement. In Indiana, he received at least one felony conviction in 2015;

one felony charge in 2017 and several misdemeanor charges; and two felony

charges in 2018, among other misdemeanor charges. As he served the sentence

associated with the 2015 conviction, Father received two probation violations

resulting in further incarceration, and at the time of the court’s termination

order he still faced outstanding warrants in the proceedings related to the 2017

and 2018 charges. Furthermore, as of the fact-finding hearing, Father was

incarcerated in a United States penitentiary in Kentucky, where he had been

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since April 2018 because of a conviction of the federal offense of possession of a

firearm. He testified during the fact-finding hearing that he still had two

additional years of incarceration to serve and would then be moved to a half-

way house to engage in work and rehabilitative programs. FCM Wilburn

testified that the Children need permanency and a safe and stable home

environment, both of which Father was unable to provide, and that the reason

the Children were removed had not been remedied, because they “need to be

taken care of and he’s unable to do that at this time.” Transcript Volume II at

30. The court found that the Children have never been placed with Father;

Father did not want placement of them; he did not want to complete the

services which had been ordered for him or those referred for him; and he does

not have the ability or willingness to provide the Children with a safe and stable

permanent home or provide for their short-term and long-term needs. In light

of the unchallenged findings and evidence set forth above and in the record, we

cannot say the trial court clearly erred in finding that a reasonable probability

exists that the conditions resulting in the Children’s removal or the reasons for

their placement outside Father’s care will not be remedied.

In determining the best interests of a child, the trial court is required to look

beyond the factors identified by DCS and to the totality of the evidence.

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

App. 2003). In so doing, the court must subordinate the interests of the parent

to those of the child. Id. The court need not wait until a child is irreversibly

harmed before terminating the parent-child relationship. Id. Moreover, the

Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 19 of 20
recommendations by both the 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 a child’s best interests. A.D.S., 987 N.E.2d at 1158-1159.

Both FCM Wilburn and GAL Walker testified that termination of the

relationship between Father and the Children was in their best interests. Based

on the testimony, as well as the totality of the evidence as set forth in the record

and termination order, we conclude that clear and convincing evidence

supports the trial court’s determination that termination is in the Children’s best

interests.

Affirmed.

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 20 of 20