MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                          FILED
regarded as precedent or cited before any                                           Aug 25 2020, 8:46 am

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
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Catherine Brizzi
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         August 25, 2020
Child Relationship of T.H.                                Court of Appeals Case No.
(Minor Child), and                                        20A-JT-710
L.H. (Father),                                            Appeal from the Floyd Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable J. Terrence Cody,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               22C01-1908-JT-477
Services,
Appellee-Petitioner.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020          Page 1 of 13
[1]   L.H. (“Father”) appeals the involuntary termination of his parental rights to his

      child, T.H. We affirm.


                                        Facts and Procedural History

[2]   C.H. (“Mother”) gave birth to A.K. on April 16, 2010, to S.K. on October 22,

      2013, and to B.H. on February 17, 2015. 1 In 2015, the Indiana Department of

      Child Services (“DCS”) filed a petition alleging that Father had burned S.K.

      and that the children were in need of services. 2 On January 10, 2017, T.H. was

      born to Mother and Father.


[3]   On March 9, 2017, DCS filed a verified petition alleging T.H. to be a child in

      need of services (“CHINS”). DCS alleged that it received a report on March 8,

      2017, that T.H. was a victim of neglect and that Mother stated she was

      overwhelmed, depressed, had not eaten in three days, had suicidal thoughts,

      and was trying to find someone to watch the child so she could be admitted to

      Wellstone. DCS claimed Father was T.H.’s father but that paternity had not

      been established and his address was unknown. On March 9, 2017, the court




      1
        Father is not the father of these children. The court held a consolidated termination hearing regarding the
      termination of Father’s parental rights to T.H. under cause number 22C01-1908-JT-477, Mother’s parental
      rights to A.K. under cause number 22C01-1908-JT-478, Mother’s parental rights to S.K. under cause number
      22C01-1908-JT-479, and Br.H.’s parental rights to B.H. under cause number 22C01-1908-JT-480.
      2
        Family Case Manager Brieanna Magerl testified that DCS discovered Father “was the person who
      perpetrated that physical abuse by dipping [S.K.’s] hand in some sort of boiling water,” and “[w]e had clear
      and – more than clear and convincing evidence and testimonies that witnessed this incident that led to the
      substantiation of physical abuse.” Transcript Volume II at 171. Father testified he was never charged with a
      crime in relation to the incident.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020                   Page 2 of 13
      entered an Emergency Custody Order authorizing DCS to take T.H. into

      protective custody.


[4]   On March 13, 2017, Mother entered an admission. On April 6, 2017, the court

      entered an order adjudicating T.H. as a CHINS. At some point during the

      CHINS case, a DNA test revealed Father was T.H.’s father, and he entered the

      case in March 2018. 3 The court held a factfinding hearing on June 8, 2018, and

      a dispositional hearing on July 12, 2018. Father did not attend these hearings

      and was on vacation in Florida.


[5]   On August 14, 2018, the court entered an order noting that Father had not

      appeared for the hearing and adjudicating T.H. to be a CHINS. On August 20,

      2018, the court entered a dispositional order which required Father to contact

      the family case manager every week, notify the family case manager of any

      changes in address, maintain suitable, safe, and stable housing, secure and

      maintain a legal and stable source of income, refrain from using any illegal

      controlled substances, complete a parenting assessment and all

      recommendations developed as a result of the assessment, submit to random

      drug screens, and attend all scheduled visitations.


[6]   On August 1, 2019, DCS filed a verified petition for the involuntary

      termination of the parent-child relationship. On August 12, 2019, the court




      3
       When asked whether he was “at all involved in [T.H.’s] life before those DNA results came back,” Father
      answered: “No.” Transcript Volume III at 173.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020                Page 3 of 13
      held a hearing, Father appeared, and the court entered a denial on his behalf

      and appointed a public defender to represent him.


[7]   On January 30 and February 3, 2020, the court held a factfinding hearing. DCS

      presented the testimony of Mother; Debbie Mefford, the director of Floyd

      County CASA; Family Case Manager Brieanna Magerl (“FCM Magerl”); and

      Court Appointed Special Advocate Cathy Higgins (“CASA Higgins”). Father

      testified that he has another biological child, Z.W., whom he sees “[a]t least

      once every eight months.” Transcript Volume III at 144. He stated that he

      started using marijuana to control his seizures and is allergic to antipsychotics,

      depressants, and anticonvulsants. He testified that he had a prescription for

      medical marijuana when he was living in Colorado Springs but would not

      disclose the identity of the person who prescribed it to him. He testified that he

      has a prescription for a medication but he did not know the name of the

      medication and has never taken it. With respect to T.H., he stated that he

      “missed some visits because off and on with the job sites” and had shingles. Id.

      at 159. When asked why he stopped visits with T.H., he answered: “I stopped

      going to visits because I felt discouraged.” Id. at 174. On redirect

      examination, he testified that the last visit he missed prior to the visits being

      terminated was due to having shingles.


[8]   On April 9, 2020, the court entered an order terminating Father’s parental

      rights. The court found:


              35. On January 10, 2018, Father began fatherhood engagement
              through Family Time.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 4 of 13
        36. On August 10, 2019, fatherhood engagement services were
        closed out due to Father’s non-compliance and non-attendance.

        37. On August 15, 2018, Father was referred for supervised
        visitation through Ireland Home Based Services.

        38. On September 20, 2019, Father’s referral with Ireland Home
        Based Services was closed due to non-compliance.

        39. A second referral was made to Ireland Home Based Services
        for Father to begin supervised visitation.

        40. Father’s last visit with Child took place on October 18, 2019.
        Father has not sought reinstatement of his visitation.

        41. Father has an untreated seizure disorder for which he does
        not take prescribed medication.

        42. Father has consistently tested positive for THC throughout
        the pendency of the CHINS case.

        43. Mother and Father have not been referred for unsupervised
        visitation throughout the entire pendency of the CHINS case.

        44. Mother and Father have not provided for Child’s physical
        care or sought placement of Child for the entire pendency of the
        CHINS case.

        45. Mother and Father have not provided financial support for
        the Child since the CHINS case was opened on March 9, 2017.

        46. Child has never returned to the care and custody of Mother
        or Father during the pendency of the CHINS case.

        47. Child has been removed from the care and custody of
        Mother and Father since March 8, 2017, which represents the
        last 1,058 days.

                                              *****



Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 5 of 13
        49. Father has failed to fully complete any recommended
        services, including fatherhood engagement as well as a substance
        abuse assessment offered by DCS.

                                              *****

        51. Father was inconsistent in his supervised visitation.

        52. Mother currently resides with a registered sex offender who
        is not the Child’s father, which poses a danger to the Child if
        returned to Mother’s home.

                                              *****

        54. From October 18, 2019 until present, Father made no efforts
        to visit with Child.

                                              *****

        58. DCS made reasonable efforts to finalize the former
        permanency plan of Reunification without Mother or Father
        making appropriate progress or indicating a willingness to
        reunify with their child.

                                              *****

        64. CASA Higgins noted Mother and Father’s failure to
        complete recommended services since removal of the child, as
        well as Mother and Father’s failure to fulfill their parental
        obligations and responsibilities as to Child, and the Child’s
        strong, loving bond with [the] pre-adoptive foster parents.

                                              *****

        69. Mother and Father were unable and unwilling to provide for
        Child’s reasonable needs throughout the pendency of the CHINS
        Case.

                                              *****



Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 6 of 13
              71. Father stated his plan for care of the child, being that he has
              a room prepared for the Child’s return. However, Father could
              not demonstrate his ability to effectively parent the Child.


      Appellant’s Appendix Volume II at 68-71. The court concluded there was a

      reasonable probability that the conditions resulting in the child’s removal and

      continued placement outside the home would not be remedied, there was a

      reasonable probability that continuation of the parent-child relationship posed a

      threat to the well-being of the child, termination of the parent-child relationship

      was in the child’s best interest, and there was a satisfactory plan for care and

      treatment of the child.


                                                   Discussion

[9]   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 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.
      Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 7 of 13
       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).


[10]   A finding in a proceeding to terminate parental rights must be based upon clear

       and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the

       evidence or determine the credibility of witnesses but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our

       review to two steps: whether the evidence clearly and convincingly supports the

       findings, and then whether the findings clearly and convincingly support the

       judgment. Id. We give due regard to the trial court’s opportunity to judge the

       credibility of the witnesses firsthand. Id. “Because a case that seems close on a

       ‘dry record’ may have been much more clear-cut in person, we must be careful

       not to substitute our judgment for the trial court when reviewing the sufficiency

       of the evidence.” Id. at 640. 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).


[11]   Father argues that the trial court’s findings rely on his historical failures and not

       on his ability to parent at the time of the termination hearing. Father points to

       Findings 36, 38, 40-46, 49, 51, 54, 58, 64, and 69, and asserts that none of them

       focus on his ability to parent T.H. at the time of the termination hearing. He

       also argues that the fact that T.H. is in a better home cannot form the basis for a

       termination.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 8 of 13
[12]   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.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 9 of 13
[13]   To the extent Father does not challenge the court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[14]   FCM Magerl testified that Father “participated in fatherhood engagement

       through Family Time, but has not been consistent in doing that since about July

       of 2019, and then completely stopped engaging in October of 2019.” Transcript

       Volume II at 126. When asked if he was currently engaged in any services, she

       answered in the negative. She testified he was required to complete

       approximately 100 drug screens, completed only twenty-four screens, and tested

       positive for THC twenty-one times. She stated Father participated in

       supervised visitation through Family Time but began canceling visits or failing

       to show and the referral was eventually closed in the beginning of 2019. She

       testified that visitation resumed through Ireland and Father missed about half of

       those visits. When asked why DCS had never been able to recommend

       unsupervised visits for Father, she answered: “He has not alleviated the safety

       concerns that led to DCS involvement in regards to him. He has not

       participated in the services required to alleviate those concerns.” Id. at 132.

       She stated Father became “very combative verbally towards our fatherhood

       engagement worker, and then he stopped meeting with her.” Id. at 163. She

       testified he moved several times during the prior year that she had the case, she

       had not had an address for him for the past five or six months, she did not have

       any information as to his current housing situation, and he informed her in


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 10 of 13
August 2019 that he was living with his mother in Louisville, Kentucky, but did

not provide an exact address. When asked what concerns with Father had not

been alleviated, she answered:


        There are the – the mental health concerns, the outbursts that
        have happened in front of the licensed professionals. But as far
        as the children go, other than the THC being a concern, there
        was an untreated seizure disorder and – as well as the reason for
        the children’s removal in 2018, November of 2018 was – let me
        pull that up really quick because it does pertain to [Father]. We
        received a report in November of 2000 – sorry, I said ’18, but ’15
        – November 17th of 2015, that [S.K.] had blisters on his hand and
        that it looked as though his hand had been burned.

        Upon further investigation, DCS did discover that – and through
        several interviews, DCS did discover that [Father] was the person
        who perpetrated that physical abuse by dipping [S.K.’s] hand in
        some sort of boiling water, whether it be in a cup or in a pot. But
        due to the markings and the markings of the burn being a straight
        line right above the wrist, it did indicate that the hand was held
        down because there were some splash burns. And we do receive
        training on that type of abuse. And that was something that was
        never discussed. Whenever I tried to discuss it with him, I did
        receive the response of “I didn’t do that.”


Id. at 170-171. She also testified: “We had clear and – more than clear and

convincing evidence and testimonies that witnessed this incident that had led to

the substantiation of physical abuse. And it was something that was denied

over and over again once we tried to discuss it. And in this profession, if

something – if we can’t have a conversation about it, it can’t be fixed.” Id. at

171.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 11 of 13
[15]   She testified Father had not remedied any of the conditions that led to T.H.’s

       removal. When asked why, she answered:


               I do know that he has been evicted within the past six months, so
               he does not have appropriate or stable housing. He’s moved
               several times in the year that I’ve had the case. He consistently
               tests positive and does not comply with any treatment, though
               the referrals were there. And he has not visited with [T.H.] since
               October of 2019 in order to maintain that parent-and-child bond.


       Id. at 136. When asked if she believed Father should be given more time to

       parent T.H., she answered in the negative.


[16]   During cross-examination, DCS’s counsel asked Father: “And currently, to this

       date, you’re not engaging in any services. Is that correct to say?” Transcript

       Volume III at 175. Father answered: “Currently, right now.” Id. 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 T.H.’s removal or the reasons for

       placement outside Father’s care will not be remedied.


[17]   To the extent Father challenges the trial court’s finding that termination of the

       parent-child relationship is in the best interest of T.H., we note that 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). 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
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 12 of 13
       terminating the parent-child relationship. Id. Moreover, the 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. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.


[18]   When asked what factors determine the best interest of a child, FCM Magerl

       answered in part that “we try to look at all aspects of a case whenever we’re

       making a decision that regards a child’s permanency.” Transcript Volume II at

       138. When asked if she believed Father should be given more time to parent

       T.H., she answered in the negative. She also testified that it was DCS’s

       position to terminate Father’s parental rights. When asked if it was her position

       that the parent-child relationship between Father and T.H. should be

       terminated, CASA Higgins answered affirmatively. When asked if termination

       of the parent-child relationship would be in the children’s best interest, she

       answered: “It absolutely would be in the children’s best interests.” Transcript

       Volume III at 17. Based on the totality of the evidence, we conclude the trial

       court’s determination that termination is in the child’s best interests is

       supported by clear and convincing evidence.


[19]   For the foregoing reasons, we affirm the trial court.


[20]   Affirmed.


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

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-710 | August 25, 2020   Page 13 of 13
