Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019 Page 1 of 15

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.

ATTORNEY FOR APPELLANT

Justin R. Wall

Huntington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of:

Ky.H. and Ka.H. (Minor 

Children), 

and

C. H. (Father),

Appellant-Respondent, 

v. 

The Indiana Department of Child 

Services, 

Appellee-Petitioner. 

February 28, 2019

Court of Appeals Case No.

18A-JT-2716 

Appeal from the Huntington 

Circuit Court

The Honorable Robert R. 

McCallen, III, Special Judge

Trial Court Cause Nos. 

35C01-1711-JT-10 & 35C01-1711-

JT-11 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2716 | February 28, 2019 Page 2 of 15

Riley, Judge. 

STATEMENT OF THE CASE

[1] Appellant-Respondent, C.H. (Father), appeals the termination of his parental 

rights to his minor children, Ky.H. and Ka.H. (collectively, Children).

[2] We affirm.

ISSUE

[3] Father raises one issue on appeal, which we restate as: Whether the Indiana 

Department of Child Services (DCS) presented clear and convincing evidence 

to support the trial court’s termination of Father’s parental rights.

FACTS AND PROCEDURAL HISTORY

[4] Father and K.H. (Mother)1 are the natural parents to Ky.H., born on September 

29, 2008, and Ka.H., born on December 27, 2011. On October 30, 2015, DCS 

received a report alleging that Mother had neglected the Children. The report 

indicated that the house was in a filthy condition with trash and dirt all over, 

with no sheets on the beds, and curtains ripped off the walls. It was also 

claimed that Mother was addicted to methadone, and had recently lost her 

employment. 

1 Mother passed away on August 29, 2016 from taking an overdose of heroin that was supplied to her by 

Father. Facts pertaining to Mother will be included in so far as these are relevant for the current proceedings. 
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[5] On November 5, 2015, Family Case Manager Julie Hobbs (FCM Hobbs)

unsuccessfully attempted to speak with Mother at her home and by phone. The 

following day, FCM Hobbs returned to the residence where she spoke with 

Mother. The home was clean, but the carpets were heavily stained and soiled. 

Mother denied using illegal substances and volunteered to submit to a drug test. 

[6] Mother’s drug test indicated a positive result for Adderall in excess of the 

maximum therapeutic level for that medicine. FCM Hobbs returned to 

Mother’s residence on November 18, 2015, but Mother was not home, nor did 

she answer her phone. On November 23, 2015, FCM Hobbs again visited 

Mother’s house. This time, Mother answered the door. The home was dirty 

and cluttered. FCM Hobbs discussed with Mother the condition of the home

and Ky.H.’s issues of playing with her feces. Mother submitted to another drug 

test, and tested positive for cocaine. 

[7] On November 25, 2015, DCS obtained an order to remove the Children from 

Mother’s care. However, before DCS could detain the Children, Mother fled 

with the Children to Florida. Eventually, Mother and the Children were 

located in Florida and returned to Indiana. On December 4, 2015, the Children 

were formally removed from Parents’ care and placed with Maternal 

Grandparents. On December 8, 2015, DCS filed a Child in Need of Services 

(CHINS) petition for each Child. With respect to Father, the petitions alleged 

that Father first tested positive for cocaine on December 7, 2015 and had since 

also tested positive for marijuana. On February 12, 2016, the trial court issued 

an order, adjudicating both Children as CHINS and finding:
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Father had random contact with the [Children] prior to DCS’s 

involvement in this matter. Father tested positive for illegal 

drugs on three different occasions and had not visited with his 

[C]hildren as a result of his drug use since this matter has 

opened. Father failed to appear for today’s proceeding and has 

had no contact with DCS since December 2015.

(Appellant’s App. Vol. II, p. 92). 

[8] On March 17, 2016, after a dispositional hearing, the trial court entered a 

dispositional decree ordering Father to participate in services, including, in part, 

a substance abuse evaluation, random drug screens, supervised visitation with 

the Children, and a parenting assessment. Father was also ordered to follow all 

recommendations resulting from his evaluation and assessment. After the 

disposition was entered, Father completed a substance abuse evaluation. Of the 

32 recommended individual therapy sessions, Father completed 17. Father 

attended supervised visitation with his Children from around September 2016 

through March 2017 and has not visited the Children since. Other than taking 

“one or two” drug screens in June 2017, Father stopped participating in services 

in March 2017 because he had a warrant out for his arrest and “did not want to 

be arrested in front of [his] [C]hildren.” (Transcript pp. 39, 43). 

[9] On March 29, 2017, the State filed an Information, charging Father with two 

Counts of Level 5 felonies dealing in a narcotic drug and one Count of Level 6 

felony possession of a narcotic drug. Father “stayed low for a while until [he]

got [his] bond money together to bond immediately out.” (Tr. p. 43). On May 

15, 2017, he turned himself in and bonded out the same day. He remained out 
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on bond until he was sentenced on January 16, 2018. During the sentencing 

hearing, he pleaded guilty to one Count of dealing in a narcotic drug and to one 

Count of possession of a narcotic drug. He was sentenced to eight years in the 

Indiana Department of Correction with no time suspended. 

[10] Ky.H. has been receiving individual therapy from Pamela Rumsey (Rumsey) at 

the Bowen Center since September 2015. During these therapy sessions, Ky.H. 

is learning to communicate her emotions appropriately. Although Ky.H. has 

made progress since starting therapy, Rumsey advised that Ky.H. needs 

“continued stability and consistency” and a stable environment to continue to 

make progress. (Tr. pp. 27-28). The Children also receive in-school and 

homebased services from Patricia Meriwether (Meriwether) at the Bowen 

Center. Ky.H. needed help to stay focused on tasks and to follow directions. 

She is also enrolled in a peer and skills group to work on social skills and 

emotion regulation. Ka.H. receives help in identifying and managing her 

emotions. While both Children have mentioned Father, Meriwether clarified 

that there is “[n]ot a whole lot of emotion involved.” (Tr. p. 35). When Ky.H. 

mentions Father, it is “generally not wanting to talk about him, [and] [s]he has 

mentioned not wanting to see him when she thought she was going to have to 

see him.” (Tr. p. 35). 

[11] On November 3, 2017, DCS filed its verified petitions for involuntary 

termination of the parent-child relationship. Father remained incarcerated at 

the time of the termination hearing on June 8, 2017, with an earliest possible 

release date of July 16, 2023. Father testified that since being incarcerated he 
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has participated in the Recovery While Incarcerated Program. The program is 

a nine-month intensive rehabilitation program that consists of daily AA/NA 

meetings, program facilitation classes, and random drug screens. Completion 

of the program results in a six-month time cut and might come with a sentence 

modification, if approved by the court. 

[12] On June 8, 2018, the trial court terminated Father’s parental rights to his 

Children, finding, in pertinent part, that:

[Father] himself testified that the [C]hildren are in a good place 

and well cared for. When asked why his parental rights should 

not be terminated, he testified that he wants to remain a part of 

their lives. While that may be what he wants, he did not indicate 

it is in the [C]hildren’s best interests or that it had anything to do 

with what the [C]hildren want. The evidence overwhelmingly 

supports that what [Father] wants is not in the [Children’s] best 

interests.

The evidence is clear and convincing that continuation of the 

parent-child relationship with [Father] is not in the [C]hildren’s 

best interests. The [Children] need and deserve permanency, not 

just a placement subject to change.

DCS’s plan for the [C]hildren is adoption by their current 

placement, their [M]aternal [G]randparents.

(Appellant’s App. Vol. II, p. 52).

[13] Father now appeals. Additional facts will be provided if necessary.
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DISCUSSION AND DECISION

I. Standard of Review

[14] Father challenges the termination of his parental rights to the Children. The 

Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. Bester v. 

Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A 

parent’s interest in the care, custody, and control of his or her children is 

‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. 

Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute 

and must be subordinated to the child’s interests in determining the proper 

disposition of a petition to terminate parental rights.” Id. If “parents are unable 

or unwilling to meet their parental responsibilities,” termination of parental 

rights is appropriate. Id. We recognize that the termination of a parent-child 

relationship is “an ‘extreme measure’ and should only be utilized as a ‘last 

resort when all other reasonable efforts to protect the integrity of the natural 

relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child 

Servs., 39 N.E.3d 641, 646 (Ind. 2015).

[15] Indiana courts rely on a “deferential standard of review in cases concerning the 

termination of parental rights” due to the trial court’s “unique position to assess 

the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans. 

dismissed. Our court neither reweighs evidence nor assesses the credibility of 

witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 

2013). We consider only the evidence and any reasonable inferences that 
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support the trial court’s judgment, and we accord deference to the trial court’s 

“opportunity to judge the credibility of the witnesses firsthand.” Id. 

II. Termination of Parental Rights Statute

[16] In order to terminate a parent’s rights to his child, DCS must prove:

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

(i) The child has been removed from the parent for at least six (6) 

months under a dispositional decree.

* * * *

(iii) The child has been removed from the parent and has been 

under the supervision of a local office . . . for at least fifteen (15) 

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

with the date the child is removed from the home as a result of 

the child being alleged to be a [CHINS] . . . ;

(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 [CHINS];

(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.
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Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by 

clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 

92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the 

existence of a fact to ‘be highly probable.’” Id. On appeal, Father does not 

challenge the trial court’s finding that the Children have been removed from the 

home for the requisite period of time.

A. Conditions have not been remedied2

[17] Father claims that there is insufficient evidence to support the trial court’s 

determination that the conditions which resulted in the removal of the Children

have not been remedied. It is well established that “[a] trial court must judge a 

parent’s fitness as of the time of the termination hearing and take into 

consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of 

Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied. 

In judging fitness, a trial court may properly consider, among other things, a 

parent’s substance abuse and lack of adequate housing and employment. 

McBride v. Monroe Co. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial 

court may also consider a parent’s failure to respond to services. Lang v. Starke 

Co. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual 

patterns of conduct must be evaluated to determine whether there is a 

 

2

 Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove 

only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, the trial court based its 

termination decision on DCS’s satisfaction of Indiana Code section 31-35-2-4(b)(2)(B)(i) & (ii)—that the 

conditions that resulted in the Children’s removal have not been remedied and the continuation of the parentchild relationship poses a threat to the Children’s well-being.
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substantial probability of future neglect or deprivation.” Stone, 656 N.E.2d at 

828. A trial court “need not wait until the children are irreversibly influenced 

by their deficient lifestyle such that their physical, mental and social growth is 

permanently impaired before terminating the parent-child relationship.” Id. 

Furthermore, “[c]lear and convincing evidence need not reveal that the 

continued custody of the parents is wholly inadequate for the child’s very 

survival. Rather, it is sufficient to show by clear and convincing evidence that 

the child’s emotional and physical development are threatened by the 

respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.

[18] In support of his argument that the conditions which resulted in the removal of 

the Children have been remedied, Father contends that his argument is “fairly 

straight-forward.” (Appellant’s Br. p. 21). Specifically, he argues that due to 

his release date of July 16, 2013, and the “fact that the Children were thriving in 

relative care and being well-taken care of,” he insists that “he should [be] given 

time to implement services with DCS upon release from incarceration[.]” 

(Appellant’s Br. p. 21). 

[19] Upon review of the evidence, we find that DCS clearly established that Father

did not remedy the conditions which resulted in the removal of the Children in 

the first place. From September 2016, through May 15, 2017, prior to Father 

turning himself in on drug-related charges, Father put forth a minimal amount 

of participation with the court-ordered services. Of the 32 scheduled individual 

therapy sessions, he only completed 17. Even though he initially attended 

supervised visits with the Children, he stopped participating in March 2017 and 
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has not seen the Children since then. Trying to blame DCS for his failure to 

complete his services, Father contends that the was discouraged from 

participating by a DCS family case manager after he bonded out on May 15, 

2017. Making short shrift of this argument, the trial court noted—albeit in a 

footnote—that “[w]hile the [c]ourt finds that hard to believe because of the 

family case manager involved, even if true, [the Children] are his children and 

he was responsible to take any and all steps to pursue reunification. Other than 

submit to a drug test, he did nothing.” (Appellant’s App. Vol. II, p. 51). 

[20] Furthermore, at the time the Children were removed from his care and 

adjudicated as CHINS, Father had tested positive for illegal drugs on three 

different occasions. In August 2016, Father supplied Mother with the heroin 

that she overdosed on, and in March 2017, Father was charged with three drugrelated Counts. Overall, illegal substances have continued to be an issue for 

Father, and ultimately led to his incarceration.

[21] Unlike Father, we do not consider his situation similar to K.E. v. Ind. Dep’t of 

Child Servs., 39 N.E.3d 641, 648 (Ind. 2015), in which our supreme court 

reversed the termination of an incarcerated father’s parental rights given father’s 

“substantial efforts towards bettering his life” by participating in twelve 

programs during his incarceration, most of which were voluntary and did not 

result in a sentence reduction. In addition, while father was incarcerated at the 

time of removal and throughout the entire CHINS case, he nevertheless 

participated in visitation with his children every other week and made nightly 

phone calls to his children. Id. 649. Here, however, Father had nine months 
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prior to his incarceration to participate in services and visit with the Children. 

Other than a minimal effort, Father failed to complete any significant services

and he has not seen the Children since March 2017. Although Father 

participated in the Recovery While Incarcerated Program during his 

incarceration, the trial court found that Father’s “reasons for doing so do not 

appear to be motivated by a desire to be reunited with his [Children], but 

instead to gain his release from prison as soon as possible.” (Appellant’s App. 

Vol. II, p. 52). 

[22] Accordingly, as the record reflects substantive evidence documenting Father’s

pattern of inability, unwillingness, and lack of commitment to cooperate with 

services and to address his substance abuse problem, the trial court’s conclusion 

that there is a reasonable probability that the conditions that resulted in the 

Children’s removal from Father’s care have not been remedied was not clearly 

erroneous.3

 

B. Best Interests of the Children

[23] Father also challenges the trial court’s determination that termination of his

parental rights is in the best interests of the Children. The parent-child 

relationship is “one of the most valued relationships in our culture.” Bester, 839 

 

3 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and we affirmed the trial 

court’s conclusion that the conditions that resulted in the Children’s removal have not been remedied, we 

will not address whether the continuation of the parent-child relationship poses a threat to the Children’s 

well-being.
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N.E.2d at 147 (quoting Neal v. DeKalb Cnty. Div of Family & Children, 796 

N.E.2d 280, 285 (Ind. 2003)). Thus, the purpose of terminating a parent-child 

relationship is to protect the child, not to punish the parent. In re C.C., 788 

N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied. When considering whether 

termination would be in a child’s best interests, the trial court must “look 

beyond the factors identified by [DCS] and . . . look to the totality of the 

evidence.” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. 

App. 2013), trans. denied. “The trial court need not wait until the child is 

irreversibly harmed such that the child’s physical, mental and social 

development is permanently impaired before terminating the parent-child 

relationship.” K.T.K., 989 N.E.2d at 1235. Permanency is a central 

consideration in determining a child’s best interests. Id. “[T]he right of parents 

to raise their children should not be terminated solely because there is a better 

home available for the children.” In re K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 

2001).

[24] By the time of the termination hearing, the Children had been removed from 

Father’s care for over two and a half years. They have been in their Maternal 

Grandparents’ care since the removal and are thriving. Ky.H. is receiving 

therapy sessions to aid in her emotional health and both Children are receiving 

in-school and homebased services. Ky.H.’s therapist advised that Ky.H. is best 

served with “continued stability and consistency” and a stable environment to 

continue to make progress. (Tr. pp. 27-28). 
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[25] Father alleges that he will be able to provide stability and housing for the 

Children upon his release; however, at the time of the termination hearing his 

release was still five years away. He had not yet completed any services or 

courses which would allow him a possible sentence modification or time cut. 

Moreover, at no point during the CHINS proceeding did Father demonstrate 

that he could provide the Children with a stable environment, nor did he 

demonstrate a continued abstinence from illegal substances. It is well 

established that “[a] parent’s historical inability to provide a suitable 

environment, along with the parent’s current inability to do the same, supports 

a finding that termination of parental rights is in the best interests of the 

children.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). 

[26] Accordingly, based on the totality of the evidence, we find that there is ample 

support for the trial court’s determination that termination of Father’s parental 

rights is in the Children’s best interests. 

C. Satisfactory Plan

[27] As a final contention, Father challenges DCS’s plan for the future care and 

treatment of the Children. In order for the trial court to terminate the parentchild relationship, the court must find that there is a satisfactory plan for the 

care and treatment of the children. In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. 

App. 2008). This plan need not be detailed, so long as it offers a general sense 

of the direction in which the child will be going after the parent-child 

relationship is terminated. Id. Here, DCS’s plan was for the Children to be 
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adopted by Maternal Grandparents. Therefore, the evidence supports the trial 

court’s finding that DCS had a satisfactory plan for the care and treatment of 

the Children. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004) 

(concluding that the State’s plan for child to be adopted by current foster 

parents or another family constitutes a suitable plan for child’s future care), 

trans. denied.

CONCLUSION

[28] Based on the foregoing, we conclude that DCS presented clear and convincing 

evidence to support the trial court’s order terminating Father’s parental rights to 

the Children.

[29] Affirmed.

[30] Kirsch, J. and Robb, J. concur