Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 1 of 23

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Devon M. Sharpe

Madison, Indiana

Lisa Manning

Danville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Termination of the 

Parent-Child Relationship of:

D.W. (Minor Child)

and

A.H. (Mother) & D.W.(Father),

Appellants-Respondents,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

October 28, 2020

Court of Appeals Case No.

20A-JT-875

Appeal from the Jefferson Circuit 

Court

The Honorable Donald J. Mote, 

Judge

The Honorable Carl H. Taul, 

Special Judge

Trial Court Cause No.

39C01-1907-JT-12

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 2 of 23

Case Summary

[1] A.H. (Mother) and D.W. (Father) separately appeal from the involuntary 

termination of their parental rights to their minor son. On appeal, Mother and 

Father both argue that the trial court erred in denying their oral motion to 

dismiss the termination petition. Mother separately argues that the trial court 

abused its discretion in admitting evidence of her drug test results under Ind. 

Evidence Rule 803(b), the business records exception to the hearsay rule. 

Father separately argues that the evidence is insufficient to support the trial 

court’s termination order as to him.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father are the biological parents of Do.W. (Child), born April 2, 

2018. On September 12, 2018, Mother had a “mental health crisis” while she 

and Child were at a local store. Transcript Vol. II at 43. Mother refused 

treatment. DCS checked Mother’s home and deemed it suitable and safe, so 

DCS did not intervene further. The next day, Mother was in the parking lot of 

the apartment building where she was staying and was incoherent and acting 

erratically, believing that someone was trying to kill her and Child. After 

determining that there was no such threat to Mother and Child’s safety, officers 

transported Mother to the hospital where Mother admitted to using 

methamphetamine. She was later admitted to Bloomington Meadows for 

psychiatric treatment. At the time, Father was incarcerated on a bestiality 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 3 of 23

conviction. Because there were no suitable, able, and willing caregivers, DCS 

placed Child in foster care, where he has remained.

[4] On September 14, 2018, DCS filed a child in need of services (CHINS) petition. 

Mother failed to appear for the CHINS factfinding hearing, and Child was 

adjudicated a CHINS on November 15, 2018. At a subsequent factfinding 

hearing on December 6, 2018, Father admitted Child was a CHINS. The court 

entered a dispositional order on December 13, 2018. Mother and Father were 

ordered to maintain contact with the family case manager (FCM), maintain 

stable, safe, and suitable housing, secure and maintain a legal source of income, 

complete a parenting assessment and follow all recommendations, complete a 

psychological evaluation and follow all recommendations, participate in 

recommended home-based services, and attend supervised visits with Child. 

Mother was additionally ordered to submit to a substance abuse assessment and

random drug screens.

[5] After Child was removed from Mother’s care, DCS arranged for supervised 

visitation. Mother visited Child one time, on October 10, 2018. At some point 

thereafter, Mother was arrested. After her release from jail in January 2019, 

Mother fell off DCS’s radar. DCS contacted family and friends and used an 

investigator but was unable to locate Mother, who was apparently bouncing 

between houses and living on the streets until July 1, 2019, when she was again 

arrested. While incarcerated, DCS did not offer services to Mother. 
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[6] During the time when Mother’s whereabouts were unknown, DCS briefly 

worked with Father after he was released from incarceration in February 2019. 

Father completed a psychological evaluation with Peter Davies, a therapist at 

Centerstone. Davies found Father to be “responsive [and] engaged” and “open 

and honest.” Id. at 56, 59. Father informed Davies about his criminal history

and violent behavior, explaining that he “head-butted a person” during an 

altercation and would get into fights in jail. Id. at 59. Father also told Davies 

about his conviction for bestiality, but, according to Davies, Father denied 

engaging in the behavior underlying such conviction. Father also shared with 

Davies that he was “pleased with his ability as a fighter and showed no remorse 

for the – the damage that he caused other people.” Id. Based on the 

information provided by Father, Davies found Father to suffer from

intermittent explosive disorder and adjustment disorder. Father did not 

participate in follow-up services with Davies to address his anger issues. 

[7] During the six weeks Father was not incarcerated, he started participating in the 

Father Engagement Program (FEP). In the beginning, Father expressed 

“disgruntled emotions with DCS and the system.” Id. at 72. It took several 

sessions for Father to shift his focus to the purpose of the FEP. Just prior to the 

TPR hearing, Father “really made some headway” by “not talking . . . so much 

about the issues . . . but moving on with some of the more important aspects of 

Fatherhood Engagement.” Id. Father did express concern about his ability to 

parent Child. 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 5 of 23

[8] Additionally, when Father was not incarcerated, DCS arranged for Father to 

have supervised visits with Child. Father attended four out of six visits in 

March and April 2019. According to Keri Little, the visitation supervisor, 

Father was not prepared for visits and it took fifteen to twenty minutes for 

Child to warm up to Father. In Little’s assessment, there was no bond between 

Father and Child, and Father seemed more interested in taking pictures of 

Child rather than interacting with Child. Little testified that there was “no 

affection” between Child and Father. Id. at 81.

[9] After his release in February 2019, Father lived with family members and

obtained employment, although it was “off and on.” Id. at 42. He was not 

always able to provide “legitimate paystubs and things of that nature for the 

employment.” Id. 

[10] In April 2019, Father was arrested for driving under the influence and resisting 

law enforcement. Due to his incarceration, visits with Child were suspended. 

Father, however, continued to participate in the FEP on a weekly basis while 

incarcerated. A.J. Mistry, Father’s FEP case manager, testified that Father was 

doing well in the program and making progress. Father remained incarcerated 

for the duration of the proceedings. 

[11] At a permanency hearing on June 6, 2019, DCS requested that the plan for 

Child be changed from reunification to adoption. The court found that Father 

had partially complied with the case plan and that Mother could not be located, 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 6 of 23

had not complied with the case plan, and had not participated in services. The 

court approved DCS’s request.

[12] On July 10, 2019, DCS filed a petition to terminate Mother’s and Father’s 

parental rights to Child (TPR Petition). The court held an initial hearing on 

August 29, 2019, at which Father1 appeared but Mother did not. A second 

initial hearing was held on November 21, 2019, at which Mother, who had 

been located and was in custody, appeared. The court held a factfinding 

hearing on the TPR Petition on January 24, 2020. 

[13] At the start of the hearing, Father moved to dismiss the TPR Petition on the 

basis of “House Bill 1432.” Transcript Vol. II at 24. Father explained:

It was effective July the 1st of 2019 regarding parental 

incarceration, but it provides that a [CHINS] case must include a 

discussion and services and treatment to be available for the 

incarcerated parent at the facility where the person is 

incarcerated, and the parent or – and child must be afforded 

some kind of visitation opportunities unless it’s not in the child’s 

best interest and also requires that the CHINS disposition decree 

provide some kind of opportunity for the – a meaningful role for 

the parent in the child’s life, that there must be a plan to include 

the incarcerated parent.

Id. Father asked the court to “keep that in mind and take that into 

consideration during the testimony . . . in this termination trial and then 

1 Father was still incarcerated.
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consider that [] in your deliberation.” Id. at 25. Mother joined in Father’s 

motion to dismiss, explaining that it would be beneficial for Mother to wait for 

the outcome of a bond reduction hearing scheduled for the following month

before moving forward with the TPR hearing. The court took the motion under 

advisement before the presentation of evidence began. Father again moved to 

dismiss the TPR petition during his closing argument, and Mother joined in the 

motion. Father asked for the dismissal so that “the child should not be – his 

father should not have his parental rights terminated from the child.” Id. at 

109. In support of the motion to dismiss, Mother requested “that she be given a 

chance to reunite with her child.” Id. at 110. 

[14] During the hearing, FCM Lydia Stepp testified without objection that Mother 

had a history of incarceration related to methamphetamine and that Mother 

tested positive for methamphetamine during the CHINS proceedings. DCS 

then introduced Exhibit D, copies of the results of drug tests administered to 

Mother, as business records of Forensic Fluids. Mother objected to the 

admission of such evidence, asserting that DCS had not laid a proper 

foundation to qualify the documents as business records under Evid. R. 803(6). 

Acknowledging a split in Court of Appeals decisions,2 DCS argued that such 

2 Compare In re L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019) (holding drug test results inadmissible as business 

records), trans. not sought, with In re J.B., 144 N.E.3d 763 (Ind. Ct. App. 2020) (holding drug test results 

qualify as business records), trans. not sought, and In re A.B., 133 N.E.3d 754 (Ind. Ct. App. 2019) (holding 

drug test results admissible as business records), trans. granted.
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went to the weight of the evidence, not its admissibility. The court “receive[d] 

the exhibit pending review” of the conflicting case law. Transcript Vol. II at 36.

[15] In addition to testifying about DCS’s involvement with Mother and Father, 

FCM Stepp testified that Child had been in the same foster home throughout 

the proceedings, is bonded with his foster family, and is a “happy kid.” Id. at 

38. FCM Stepp did not believe that affording Mother and Father more time 

would be beneficial given their repeated incarcerations and failure to participate 

or complete services when not incarcerated. FCM Stepp further testified that 

she spoke with Mother about participating in services upon her release from her 

recent incarceration and Mother “wanted no part of it. She said she did not 

want to do therapy. She did not want the home-based case work. She wanted 

nothing.” Id. at 49. In fact, Mother did not contact DCS after she was 

released. Father remains incarcerated with no definite date for his release. 

FCM Stepp supported DCS’s plan of Child’s adoption by his foster family. 

[16] At the termination factfinding hearing, Mother testified that she and Child 

became homeless shortly after Father was incarcerated. Mother explained that 

she thought someone was drugging Child, that there was wiring on her car that 

was not there when she bought it, and that she was being followed and felt like 

someone was “going to try and harm [her] son, kill him, and have [her] blamed 

for it.” Id. at 92. Mother also admitted that she had tested positive for 

methamphetamine when her son was not in her care. 
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[17] On February 14, 2020, the court entered its order with the following relevant 

findings:

15. Continuation of the parent/child relationship between 

Father and the Child is not in the Child’s best interests. The 

Child has little to no established bond or relationship with Father 

due to Father’s lengthy, ongoing, and repeated absences from the 

Child’s life caused by Father’s inability to obey the law and keep 

himself out of jail and the underlying factors behind Father’s 

actions and incarcerations are unlikely to be resolved in a 

reasonable period of time. Following the Child’s removal on 

September 13, 2018, Father only visited the Child four times. 

These visits occurred over a span of roughly a month, beginning 

upon Father’s release from incarceration as a result of his 

conviction for bestiality . . . and ceased due to Father’s 

subsequent re-incarceration for operating a vehicle after forfeiting 

his license for life and resisting law enforcement. . . . Further, 

Father’s criminal history consists of varying crimes centering [on]

rage and impulse control problems which . . . represent 

significant, ongoing barriers to Father’s ability to adequately and 

appropriately parent the Child that are unlikely to be resolved 

within a reasonable amount of time, if ever. Taking this together 

with the fact that the Child’s foster placement being ready, 

willing, and able to adopt, continuation of Father’s relationship 

with the Child is not in the Child’s best interest.

16. Continuation of the parent/child relationship between 

Mother and the Child is not in the Child’s best interests. Mother 

has little to no established bond or relationship with the Child. 

Following the September 13, 2018 removal of the Child, Mother 

has not visited with the Child due to not only her repeated 

incarcerations for operating a vehicle while intoxicated, 

disorderly conduct, residential entry, possession of 

methamphetamine, and escape but also due to her extended 

absences as a result of her being missing and maintaining near 

zero contact with DCS throughout the life of the case while not 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 10 of 23

incarcerated. . . . Supporting documentation detailing Mother’s 

positive drug screens for methamphetamine and cocaine were 

provisionally entered into evidence and made a part of the record 

as Petitioner’s Exhibit D. Mother subsequently testified to 

having submitted to drug screens and admitted to having used 

methamphetamine. The original reason the underlying CHINS 

cause was initiated concerned Mother’s erratic and paranoid 

behavior from having been under the influence of illegal 

substances and no evidence was presented that even suggests that 

Mother is willing or able to remedy those original reasons for 

removal in a reasonable period of time. Taking this together with 

the fact that the Child’s foster placement being ready, willing, 

and able to adopt, continuation of Mother’s relationship with the 

Child is not in the Child’s best interest.

17. Termination of Mother and Father’s parental rights is in the 

Child’s best interests. The Child’s foster placement is ready, 

willing, and able to adopt the Child. The Child is extremely well 

bonded to his foster placement and taking this together with the 

fact neither Mother nor Father have or appea[r] able to remedy 

the issues in this matter within a reasonable period of time it is in 

the Child’s best interest to terminate both Mother and Father’s 

parental rights in order to allow the Child’s foster placement to 

adopt the Child and achieve the necessary permanency the Child 

deserves.

* * *

20. Based on the totality of the evidence and testimony 

presented, the DCS request for termination of both Mother and 

Father’s parental rights is based on numerous factors and not 

solely based on one or both parents’ incidents of incarceration.

Joint Appendix of Parents Vol. 2 at 50-51. The court then concluded DCS had 

proven by clear and convincing evidence that:
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a) The [C]hild was removed from the parents on September 13, 

2018, and has continued to remain continuously removed for 

more than 6 months since the Dispositional Decree was 

issued on December 13, 2018;

b) The [C]hild has been removed from the parents and has been 

under the supervision of DCS for at least fifteen (15) months 

of the most recent twenty-two (22) months, beginning on the 

date the child was first removed as a result of being alleged to 

be a CHINS on September 13, 2018.

c) There is a reasonable probability that the conditions that 

resulted in the [Child’s] removal and the reasons for 

placement outside the home of the parents – namely, the 

inability and/or unwillingness of [F]ather to provide adequate 

and necessary care and custody of the child – will not be 

remedied;

d) There is a reasonable probability that, given the lack of any 

involvement or bond with [M]other and the minimal 

involvement or bond with [F]ather coupled with his strong 

bond with pre-adoptive foster placement, the continuation of 

the parent-child relationship poses a threat to the well-being of 

the [C]hild;

e) Termination of the parent-child relationship is in the best 

interest of the [C]hild;

f) The proposal made by DCS for the [Child] to be adopted by 

the present foster placement is a satisfactory plan for the care 

and treatment of the [Child.]
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Id. at 53-54. The court therefore terminated Mother’s and Father’s parental 

rights to Child. Mother and Father now appeal. Additional facts will be 

provided as necessary.

Discussion & Decision

1. Motion to Dismiss

[18] Mother and Father argue3 that the court erred in denying their motion to 

dismiss the TPR Petition. They assert that DCS’s failure to provide them with

services while they were incarcerated “deprived [them] of [their] substantive 

due process right to raise [Child] and also deprived [them] of [their] procedural 

due process right to fair proceedings.”4

 Brief of Appellant Mother at 14; Brief of 

Appellant Father at 12.

[19] As a preliminary matter, we note that in order to properly preserve an issue for 

appeal, a party must, at a minimum, “show that it gave the trial court a bona 

fide opportunity to pass upon the merits of the claim before seeking an opinion 

on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). At the 

start of the termination hearing, Father moved to dismiss asking the court to 

“consider the House Bill 1432” and its requirement that an incarcerated parent 

3 Although Mother and Father filed separate briefs, the first argument presented in both briefs is essentially 

verbatim.

4 Mother and Father include in their argument that DCS’s failure to provide reasonable services to the other

also “impacted” their respective due process rights because “[e]nforcing or denying the constitutional rights 

of one parent necessarily impacts the other parent.” Brief of Appellant Mother at 14; Brief of Appellant Father at 

12, 13.
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be afforded some type of visitation and an opportunity to maintain a 

meaningful role in a child’s life. Transcript Vol. II at 24.5

 Mother joined in the 

motion, noting that she had a bond reduction hearing the following month and 

wanted to postpone the termination proceedings pending the outcome of that 

hearing. Mother and Father did not further expound upon their argument and 

did not even hint that they were alleging a violation of constitutional rights. See 

McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. 

App. 2003) (noting the law is well established that a party on appeal may waive 

a constitutional claim). Indeed, they argue for the first time on appeal that 

DCS’s failure to provide them with services and arrange for visitation with 

Child while they were incarcerated violated their due process rights. Mother 

and Father have therefore waived this issue for our review. See In re K.S., 750 

N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (determining that mother waived her 

due process claim by raising it for the first time on appeal). 

[20] Waiver notwithstanding, Mother and Father have not established a violation of 

their due process rights. When the State seeks to terminate parental rights, “it 

must do so in a manner that meets the requirements of due process.” In re J.K., 

30 N.E.3d 695, 699 (Ind. 2015) (quoting In re G.P., 4 N.E.3d 1158, 1165 (Ind. 

2014)). Procedural due process addresses the right to a fair proceeding, and 

5 The trial court took the motion to dismiss “under advisement pending presentation of evidence in this 

matter.” Transcript Vol. II at 25. The court officially denied the oral motion on February 19, 2020, reasoning, 

“Neither parent has maintained a meaningful role in the life of the child.” Joint Appendix of Parents Vol. 2 at 

56. This was five days after the court entered its ordering terminating parental rights. 
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substantive due process involves a parent’s right to raise his or her child(ren). In 

re T.W., 135 N.E.3d 607, 613 (Ind. Ct. App. 2019), trans. denied. In the context 

of termination proceedings, a parent’s due process rights include that DCS 

“must have made reasonable efforts to preserve and/or reunify the family unit.” 

Id. at 615. “What constitutes ‘reasonable efforts’ will vary by case, and . . . it 

does not necessarily always mean that services must be provided to the 

parents.” Id.

[21] Procedural due process requires that a litigant be provided “the opportunity to 

be heard at a meaningful time and in a meaningful manner.” In re K.D., 962 

N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 

(1976)). In both CHINS and termination cases, “the process due . . . turns on

balancing three Mathews factors: (1) the private interests affected by the 

proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) 

the countervailing governmental interest supporting use of the challenged 

procedure.” Id. Both a parent’s interest in maintaining his or her parental 

rights and the State’s countervailing interests in protecting the welfare of 

children are substantial. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Thus, 

when faced with a denial of due process claim in a CHINS or termination 

proceeding, the focus is most often on the risk of error created by the State’s 

actions. Id. at 918.

[22] Substantive due process “bars certain arbitrary, wrongful government actions

regardless of the fairness of the procedures used to implement them.” City of 

Bloomington Bd. of Zoning Appeal v. UJ-Eighty Corp., 141 N.E.3d 869, 875 (Ind. 
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Ct. App. 2020); see also G.B. v. Dearborn Cnty. Div. of Family & Children, 754 

N.E.2d 1027, 1032-33 (Ind. Ct. App. 2001), trans. denied. In setting forth a 

claim for a violation of substantive due process, a party must show either that 

the law infringes upon a fundamental right or liberties deeply rooted in our 

nation’s history or that the law does not bear a substantial relation to 

permissible state objectives.” City of Bloomington, 141 N.E.3d at 875. 

[23] In support of their argument, Mother and Father cite I.C. § 31-34-15-4(7), 

which provides that a child’s case plan in a CHINS proceeding must include “a 

description and discussion” of “the services and treatment available to the 

parent at the facility at which the parent is incarcerated” and “how the parent 

and the child may be afforded visitation opportunities, unless visitation with the 

parent is not in the best interests of the child.” Id. 

[24] We first note that this statutory provision concerns only the form and contents 

of a case plan; it does not require DCS to offer services and/or visitation to 

incarcerated parents. In other words, the statute does not confer a right to such 

services for incarcerated parents. Indeed, a plain reading of the statute makes 

clear that such is not intended to be of constitutional dimension. Further, the 

specific subsection upon which Mother and Father rely, was not in effect when 

the case plan for Child was developed. It became effective July 1, 2019, after 

the permanency plan changed to adoption and nine days before the TPR 

Petition in this case was filed. Thus, at the time the case plan for Child was 

developed, there was no requirement that the case plan include a discussion of 

treatments and/or services available to incarcerated parents. 
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[25] Mother and Father also argue that they were not provided all reasonable 

services to reunify them with Child and that such failure violated their due 

process rights. In support of this argument, Mother and Father direct us to 

several cases. In Matter of F.A., 148 N.E.3d 353 (Ind. Ct. App. 2020), one of the 

cases cited by them, DCS had moved to dismiss the CHINS case in January 

2019 because the children were living with the parents and were doing well and 

were happy, the home was in good shape, and the date for reunification and 

closing of the case was March 15, 2019. Then, after an altercation between the 

mother and one of the children, DCS immediately moved to terminate parental 

rights without attempting to address the issue with services. The parents’ rights 

were terminated, and they appealed. This court reversed the termination order, 

holding that, under the circumstances, DCS had not made all reasonable efforts 

to reunify the parents with the children following the altercation. Id. at 359.

[26] In T.W., DCS made several service referrals for the father. When he showed up 

for his first visit, he learned that DCS cancelled his visits without informing 

him. At the TPR factfinding hearing, the FCM explained that DCS suddenly 

cancelled the father’s visits when it realized that due to his extensive 

incarceration, he did not have a prior relationship with the child. The father 

was also referred for drug screens, but the FCM did not make a reasonable 

effort to advise him of such. The father also requested help with transition to 

life following his release from incarceration, but the FCM made no referral to 

assist him. Two weeks before he was to begin work release after a probation 

violation, DCS filed for termination of the father’s parental rights. His rights 
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were terminated, and he appealed. This court reversed, holding that, 

considering the totality of the situation, “DCS wholly failed to make reasonable 

efforts to preserve” the parent-child relationship and that “the insufficient 

process employed in the CHINS case created a risk of erroneous filing of a 

petition to terminate Father’s parental rights to Child, in violation of Father’s 

due process rights.” T.W., 135 N.E.3d at 618.

[27] We find the cases cited by Mother and Father distinguishable from the 

circumstances of this case. Here, DCS made numerous referrals for Mother. 

Mother visited with Child one time shortly after he was removed and she did 

not participate in any other services. Mother did not stay in touch with DCS,

and DCS attempted to locate her by contacting family and friends and through 

the services of a private investigator, but to no avail. Finally, Mother indicated 

to FCM Stepp that she was not interested in participating in services upon her 

release from jail and indeed, did not contact DCS when she was released. 

Mother’s own actions and omissions kept her from participating in services.

[28] With regard to Father, DCS made several referrals and, after his release from 

incarceration, Father participated in services, visiting with Child on four 

occasions and participating in an evaluation as well as the FEP program. 

Father’s participation with supervised visitation and his ability to participate in 

follow-up counseling services were hindered when Father was arrested on new 

charges within two months of his release. After his most recent arrest, Father 

did, however, continue to participate weekly in the FEP program while 

incarcerated. The crux of Father’s argument is that his due process rights were 
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violated because DCS did not arrange for continued visitation with Child while 

he was in jail, thereby hampering his ability to maintain a bond with Child. As 

noted above, the visitation supervisor testified that there was no bond between 

Father and Child, that Father showed no affection toward Child, and that he 

was not interested in engaging with Child during his visits. Further, contrary to 

Father’s claim, DCS was not required to provide him with visitation with Child 

while he was incarcerated. Considering the totality of the circumstances, it was

Father’s criminal conduct, not the process employed by DCS, that interfered

with Father’s ability to participate and complete services. Mother and Father 

were provided with all the procedure and process to which they were entitled.

2. Mother – Admission of Evidence

[29] Mother argues that the trial court abused its discretion in admitting her drug test 

results, over her objection, as certified business records under Evid. R. 803(6).6

 

As noted in footnote 2 above, there was a split of authority regarding whether 

drug test results qualify as business records. On October 15, 2020, our Supreme 

Court resolved the conflict, holding that drug test results were sufficiently 

reliable to be admitted under Evid. R. 803(6), the business records exception to 

the hearsay rule. See In re A.B., 20S-JT-63, 2020, ___ N.E.3d ___ WL 6065769

(Ind. Oct. 15, 2020). Mother’s drug test results were therefore admissible. 

6 The court provisionally admitted DCS’s Exhibit D, which consisted of Mother’s drug test results, pending 

its review of conflicting case law. In its ordering terminating parental rights, the court noted that such 

evidence was “provisionally” admitted, but then found that Mother admitted to submitting to drug screens 

and to using methamphetamine. Joint Appendix of Parents Vol. 2 at 51.
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3. Father – Sufficiency of the Evidence

[30] When reviewing the termination of parental rights, we will not reweigh the 

evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628 

(Ind. 2016). Instead, we consider only the evidence and reasonable inferences 

most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 

2004), trans. denied. In deference to the trial court’s unique position to assess the 

evidence, we will set aside its judgment terminating a parent-child relationship 

only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 

1999), trans. denied. In light of the applicable clear and convincing evidence 

standard, we review to determine whether the evidence clearly and 

convincingly supports the findings and whether the findings clearly and 

convincingly support the judgment. In re R.S., 56 N.E.3d at 628.

[31] We recognize that the traditional right of parents to “establish a home and raise 

their children is protected by the Fourteenth Amendment of the United States 

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. 

Although parental rights are of constitutional dimension, the law provides for 

the termination of these rights when parents are unable or unwilling to meet 

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 

2008). In addition, a court must subordinate the interests of the parents to those 

of the child when evaluating the circumstances surrounding the termination. In 

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating 

parental rights is not to punish the parents, but to protect their children. Id.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 20 of 23

[32] Before an involuntary termination of parental rights may occur in Indiana, DCS 

is required to allege and prove by clear and convincing evidence, among other 

things, that one 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[.]

Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS must also prove 

by clear and convincing evidence that termination is in the best interests of the 

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

I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2. Father challenges the court’s 

conclusions as to I.C. § 31-35-2-4(b)(2)(B)(i) and (ii) and the court’s conclusion 

that termination was in the best interests of Child. We begin with the former. 

Conditions Not Remedied

[33] I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive and, thus, requires the trial 

court to find only one of the three requirements of the subsection by clear and 

convincing evidence. See In re L.S., 717 N.E.2d at 209. Here, we will focus our 

review on the trial court’s determination that there is a reasonable probability 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 21 of 23

that the conditions that resulted in the child’s removal and/or continued 

placement outside Father’s home will not be remedied.

In making such a determination, the court must judge a parent’s 

fitness to care for his or her child at the time of the termination 

hearing, taking into consideration evidence of changed 

conditions. Due to the permanent effect of termination, the trial 

court also must evaluate the parent’s habitual patterns of conduct 

to determine the probability of future neglect or deprivation of 

the child. 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 

A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. A 

court may properly consider evidence of a parent’s prior criminal 

history, drug and alcohol abuse, history of neglect, failure to 

provide support, and lack of adequate housing and employment. 

Moreover, a trial court “can reasonably consider the services 

offered by the [DCS] to the parent and the parent’s response to 

those services.” [McBride, 798 N.E.2d at 199]. In addition, 

“[w]here 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.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 

2005).

In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (some citations omitted).

[34] In challenging the sufficiency of the evidence regarding whether he is likely to 

remedy the conditions leading to removal, Father disputes only the court’s 

finding that he did not have a bond with Child. As set out above, however, 

Father visited with Child only four times and the supervisor testified that Father 

and Child did not appear to have a bond and that “there was no affection” 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 22 of 23

between them. Transcript Vol. II at 81. Father did not come prepared to the 

visits and was not focused on engaging with Child. Father has been 

incarcerated for most of the Child’s young life and there is no definitive timeline 

for his release. The court’s findings regarding Father’s explosive disorder,

criminal history, and continued incarcerations further support its determination 

that there is a reasonable probability that the circumstances giving rise to 

Child’s removal, i.e., Father’s inability to care for Child, will not be remedied 

“within a reasonable amount of time, if ever.” Joint Appendix of Appellants Vol. 2

at 50. 

Best Interests

[35] Father also challenges the court’s conclusion that termination of his parental 

rights is in the best interests of Child. In making this best-interests 

determination, the trial court is required to look beyond the factors identified by 

DCS and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 

(Ind. Ct. App. 2013). The court must subordinate the interest of the parent to 

those of the child and need not wait until a child is irreversibly harmed before 

terminating the parent-child relationship. McBride, 798 N.E.2d at 199. Our 

Supreme Court has explained that “[p]ermanency is a central consideration in 

determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 

(Ind. 2009). “Moreover, we have previously held that the recommendations of 

the case manager and court-appointed 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 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-875 | October 28, 2020 Page 23 of 23

termination is in the child’s best interests.” In re. J.S., 906 N.E.2d 226, 236 

(Ind. Ct. App. 2009).

[36] Child was removed when he was just five months old because Father was 

incarcerated when Mother suffered a “mental health crisis” and could not care 

for Child. Transcript Vol. II at 43. It has been just over two years since Child’s 

removal and Father has been incarcerated for all but approximately six weeks of 

that time. As found by the court, Father’s continued incarceration and lack of 

accountability for his actions “represent significant, ongoing barriers to [his] 

ability to adequately and appropriately parent the Child.” Joint Appendix of 

Appellants Vol. 2 at 50. Child is thriving and happy in his foster placement and 

DCS’s plan is for Child to be adopted by his foster family. The FCM testified 

that termination was in Child’s best interests because it afforded Child 

permanency. The trial court agreed. The record supports the trial court’s 

determination in this regard. Father has not shown that the trial court erred in 

determining that termination was in Child’s best interests.

[37] Judgment affirmed. 

Riley, J. and May, J., concur.