Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 1 of 24

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

Danielle L. Gregory

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

INDIANA DEPARTMENT OF 

CHILD SERVICES

Curtis T. Hill, Jr.

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE:

CHILD ADVOCATES, INC. 

DeDe Connor

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of: J.J. (Minor 

Child), 

and

L.J. (Father),

June 24, 2019

Court of Appeals Case No.

18A-JT-3025 

Appeal from the Marion Superior 

Court

The Honorable Marilyn Moores, 

Judge 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 2 of 24

Appellant-Respondent,

v. 

The Indiana Department of 

Child Services,

Appellee-Petitioner, 

and

Child Advocates, Inc., 

Guardian ad Litem. 

The Honorable Larry Bradley, 

Magistrate

Trial Court Cause No.

49D09-1805-JT-574 

Tavitas, Judge. 

Case Summary

[1] L.J. (“Father”) appeals the termination of his parental rights to J.J. (the 

“Child”). We affirm. 

Issues

[2] Father raises two issues, which we revise and restate as follows:

I. Whether procedural error occurred that violated Father’s 

due process rights. 

II. Whether there was sufficient evidence to terminate

Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 3 of 24

Facts

[3] The Child was born to Mother1 and Father in August 2016. On May 1, 2017, 

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

a Child in Need of Services (“CHINS”). The petition alleged: (1) Mother’s and 

Father’s inability, refusal or neglect to care for the child; (2) the parents 

committed an act or failed to act seriously endangering the physical or mental 

health; and (3) the Child was born with drugs in his system. 

[4] As to Father, the petition alleged that, on or about April 27, 2017, Father tested 

positive for amphetamine, methamphetamine, and THC; however, he denied 

any drug usage. Father appeared at the detention hearing on May 1, 2017 and

requested counsel. Subsequently, Father was incarcerated2 and waived a factfinding hearing with regard to the CHINS petition. The trial court granted 

wardship of the Child to DCS and adjudicated the Child a CHINS on 

September 15, 2017. Father did not attend the dispositional hearing; nor did 

Father attend the periodic review hearings on December 5, 2017, March 6, 

2018, or the permanency hearing on April 24, 2018. Counsel for Father

appeared at each hearing. 

 

1 Mother’s parental rights were also terminated; however, Mother is not a party to this appeal. 

2 Father was incarcerated during the entirety of the CHINS and termination proceedings. Initially, Father 

was incarcerated for a probation violation after he was charged with several new offenses. Father ultimately

pleaded guilty in May 2017 to intimidation, a Level 5 felony, and domestic battery, a Class A misdemeanor. 

Father expects to be released in 2020, at the latest, and is hoping for an earlier release. 
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[5] DCS filed a petition to terminate Mother’s and Father’s parental rights on May 

10, 2018. Father did not attend several of the initial or pre-trial hearings; 

however, counsel for Father did attend the hearings, and Father attended pretrial hearings on August 29, 2018, and October 1, 2018, by telephone. The trial 

court conducted separate fact finding hearings with regard to the termination of 

Mother’s and Father’s parental rights on October 1, 2018, and November 7, 

2018, respectively.

3

 Father appeared by phone for his fact finding hearing.

4

 

[6] At the fact finding hearing, K.A. (“Foster Mother”) testified that the Child was 

placed with her in April 2017, when the Child was eight months old. Foster 

Mother lives with her husband and her eleven-year-old son. Foster Mother 

testified that she has a great relationship with the Child and that she is willing 

to adopt the child. Foster Mother testified that the Child has not had any visits 

with Father while in her care. Father stated that the last time he saw the Child 

was in May 2017. 

[7] Katrina McGhee is the Child’s guardian ad litem (“GAL”). McGhee testified 

that she was happy with the Child’s placement with the foster parents. 

McGhee also stated that she “never has had a conversation with dad.” Tr. p. 

56. McGhee does not believe that the Child should be returned to parents 

 

3 Because only Father appeals, the relevant facts are the evidence that was presented at the November 7, 

2018, hearing. 

4 Father did file a motion to transport for the termination fact finding, which the trial court denied. The trial 

court did order, however, that Father’s attorney attempt to initiate the ability for Father to video conference 

in for the hearing. 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 5 of 24

because “both parents are incarcerated,” and accordingly, McGhee “[doesn’t] 

know how they would be able to parent [the Child].” Id. McGhee supported 

DCS’s position to terminate parents’ rights to the Child and testified that

returning the Child to Mother and Father would be detrimental to the Child

because the Child has not seen either parent in over a year and neither parent 

has “participated in any services [for] most of the case.” Id. at 64. McGhee 

also noted, however, that Father was not ordered to complete any services 

during the CHINS proceeding because Father was incarcerated. 

[8] DCS family case manager (“FCM”) Reilly Wilson testified that he contacted 

Father through letters and that Wilson received two letters from Father. 

Although Father claimed that he was participating in services while 

incarcerated, Wilson could not verify Father’s claim.

5

 When asked why the 

plan changed from reunification to adoption, Wilson stated: 

DCS felt that the parents had adequate time to resolve safety 

concerns and that [the Child] deserves permanency and those 

timelines had been past [sic]. He had been in our system for or 

he had been with DCS as a ward of the State for some time and 

[Mother and Father] had not alleviated the safety concerns that 

DCS initially had for [the Child].

 

5 Father stated he completed the Inside Out Dad’s Program and participated in: (1) parenting classes; (2) 

Healthy Families Program; and (3) the Read to Me Dad Program where Father would record audio of 

himself reading books. 
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Id. at 74-75. Wilson also stated that Father has not remedied the conditions 

that kept the Child out of Father’s care. Wilson also testified that continuation 

of the parent-child relationship would pose a threat to the Child’s well-being

and that Father has not demonstrated he can sustain a safe and stable home for 

the Child. Wilson requested the trial court terminate the parental rights of 

Father. 

[9] Wilson acknowledged that he does not recall ever speaking with or visiting 

Father while Father was incarcerated. Father was not involved in the making 

of the case plan; nor did Wilson ever send Father a case plan. Wilson testified 

that he never referred Father to the Father Engagement program because it 

“would have done probably little to help” Father, due to the length of Father’s 

incarceration. Id. at 91. Father claims that he expressed his desire to 

participate in services in a letter to Wilson. 

[10] Father testified that his current anticipated release date is May 2020; however, 

Father has completed the Purposeful Incarceration program and hopes to be 

released earlier.

6

 Father acknowledged that he received documentation from 

his attorney while he was incarcerated and that his attorney kept Father 

updated regarding the case proceedings. 

 

6 As a result of Father’s incarceration for his probation violation, the trial court recommended the Purposeful 

Incarceration program in which, after completion of the program, the trial court “will consider modifying 

placement in 6th year of sentence.” Petitioner’s Ex. p. 108. Father indicated that, because he completed the 

program, he hoped to have his sentence modified soon and that he already had an attorney for his sentence 

modification. 
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[11] Father and Mother hoped the Child would be reunited with the Child’s paternal 

grandfather or Father’s grandmother.7

 Father cannot explain why the Child 

was not placed with those relatives. At the hearing, DCS noted that it 

completed a home study with regard to paternal grandfather, but recommended 

that the Child remain with foster parents. 

[12] The trial court terminated Father’s parental rights on November 27, 2018. As 

related to Father, the trial court found: 

* * * * *

20. Due to [Father] being incarcerated, no services were ordered 

by the Court at disposition.

21. Although no documentation was provided, [Father] testified 

he has completed a therapeutic community living program, two 

parenting classes while in prison, and participates in alcoholics 

anonymous and narcotics anonymous.

22. [Father] has been incarcerated during the CHINS case due to

violating probation from a 2012 Burglary (a Class B Felony at the 

time) and Robbery (a Class B Felony at the time) by being 

charged in May of 2017, of Intimidation using a deadly weapon, 

Intimidation where threat is to commit a forcible felony, 

Kidnapping, Criminal Recklessness committed with a deadly 

weapon, and Domestic Battery.

 

7 At the beginning of the CHINS proceedings, both Mother and Father also requested that the Child be 

placed with a maternal cousin. Furthermore, at the permanency hearing on April 24, 2018, the Child’s 

paternal grandfather appeared and requested modification of placement with him. 
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23. [Father] pleaded guilty to the counts of Intimidation as a 

Level 5 Felony and Domestic Battery as a Class A misdemeanor 

on May 7, 2017. 

24. [Father] believes his earliest possible release date is in May of 

2020. He can request modification of his placement at some 

future date. He currently has no hearing pending. 

25. [Father] has not seen [the Child] since [the] CHINS case was 

filed. He informed the IDCS family case manager that he had 

little contact with [the Child] prior to that.

26. [The Child] was not over eight months of age when he last 

had contact with his father and is now over the age of two.

27. There is a reasonable probability that the continuation of the 

parent-child relationship between [the Child] and his father poses 

a threat to [the Child’s] well-being in that it would be a barrier to 

[the Child] being adopted into the home he has known and by 

the family he knows and is bonded to. Being removed from his 

home and foster family would be disruptive, and adversely affect 

his well-being. 

28. There is a reasonable probability that the conditions that 

resulted in the removal and continued placement of [the Child] 

outside the home will not be remedied by his father. [Father]

was incarcerated at the beginning of the CHINS case and will 

remain so, currently until May of [2020].

29. [The Child] is in a preadoptive home where he has resided 

since April of 2017. He has been observed as being very bonded 

in the home. 

30. [The Child] does not inquire about his mother or father.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 9 of 24

Appellant’s App. Vol. II p. 76. Father now appeals. 

Analysis

[13] Father challenges the termination of his parental relationship with the Child. 

The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. In re 

K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225, 

1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is 

‘perhaps the oldest of the fundamental liberty interests recognized by th[e] 

[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 

(2000)). We recognize, of course, that parental interests are not absolute and 

must be subordinated to the child’s interests when determining the proper 

disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental 

rights may be terminated when the parents are unable or unwilling to meet their 

parental responsibilities by failing to provide for the child’s immediate and longterm needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 

258, 265 (Ind. Ct. App. 2004), trans. denied). 

[14] When reviewing the termination of parental rights, we neither reweigh the 

evidence nor judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind. 

2011). We consider only the evidence and reasonable inferences that are most 

favorable to the judgment. Id. We must also give “due regard” to the trial 

court’s unique opportunity to judge the credibility of the witnesses. Id. 

(quoting Ind. Trial Rule 52(A)). 
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[15] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter 

findings of fact that support the entry of the conclusions required by subsections 

(a) and (b)” when granting a petition to terminate parental rights.8

 Here, the 

trial court did enter findings of fact and conclusions of law in granting DCS’s 

petition to terminate Father’s parental rights. When reviewing findings of fact 

and conclusions of law entered in a case involving the termination of parental 

rights, we apply a two-tiered standard of review. First, we determine whether 

the evidence supports the findings, and second, we determine whether the 

findings support the judgment. Id. We will set aside the trial court’s judgment 

only if it is clearly erroneous. Id. A judgment is clearly erroneous if the 

findings do not support the trial court’s conclusions or the conclusions do not 

support the judgment. Id. 

[16] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the 

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, 

the court shall terminate the parent-child relationship.” Indiana Code Section 

 

8 Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a 

delinquent child or CHINS, provide as follows:

(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the 

allegations in a petition described in section 4 of this chapter are true, the court shall 

terminate the parent-child relationship.

(b) If the court does not find that the allegations in the petition are true, the court shall 

dismiss the petition.
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31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship 

involving a child in need of services must allege, in part: 

(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. 

(ii) The court has entered a finding under IC 31-34-

21-5.6 that reasonable efforts for family 

preservation or reunification are not required, 

including a description of the court’s finding, the 

date of the finding, and the manner in which the 

finding was made. 

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

has been under the supervision of a local office 

or probation department 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 child in need of services of a 

delinquent child. 

(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. 
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(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. 

DCS must establish these allegations by clear and convincing evidence. In re 

V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). 

I. Procedural Irregularities

[17] Father contends that the procedural irregularities during the termination 

proceedings resulted in a violation of his procedural due process rights. We 

address each of Father’s arguments below.9

 

[18] The nature of the process due in parental rights termination 

proceedings turns on a balancing of the ‘three distinct factors’ 

specified in Matthews v. Eldridge, 424 U.S. 319, 335 [ ] (1976): the 

private interests affected by the proceeding; the risk of error 

created by the State’s chosen procedure; and the countervailing 

 

9 Father argues that DCS failed to “state in the petition whether at least one factor would apply as the basis 

for filing a motion to dismiss the termination petition.” Appellant’s Br. p. 23 (footnote omitted). We are 

uncertain of how this applies to the matter before us, as there does not appear to be any evidence that DCS 

intended to move forward with a motion to dismiss. Accordingly, Father’s argument is waived for failure to 

make a cogent argument. 
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governmental interest supporting use of the challenged 

procedure.

A.P. v. Porter Cty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. 

App. 2000) (citations omitted), trans denied. Because of the interlocking CHINS 

and termination of parental rights statutes, “procedural irregularities in a 

CHINS proceeding[] may be of such import that they deprive a parent of 

procedural due process with respect to the termination of his or her parental 

rights.” Id. at 1112-13. 

[19] DCS argues that Father has waived his argument because he did not object to 

any of the procedural irregularities below, which Father acknowledges. Waiver 

notwithstanding, Father invites us to consider his arguments pursuant to the 

fundamental error doctrine. “The fundamental error doctrine applies to 

egregious trial errors.” In re B.R., 875 N.E.2d 369, 375 (Ind. Ct. App. 2007) 

(citations omitted), trans. denied. “In order for this court to reverse based on 

fundamental error, the error must have been a clearly blatant violation of basic 

and elementary principles, and the harm or potential for harm therefrom must 

be substantial and appear clearly and prospectively.” Id. 

A. Failure to Notify Father

[20] Father first alleges that DCS “failed to provide Father with notice, in writing, 

that a petition to terminate his parental rights to [the Child] would have to be 

filed” once the Child was in DCS’s care for at least fifteen of the last twenty-two 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 14 of 24

months, pursuant to Indiana Code Section 31-34-21-0.2. Appellant’s Br. p. 20. 

Indiana Code Section 31-34-21-0.2 provides: 

At a child’s first periodic case review occurring after June 30, 

1998, the local office is required to advise the child’s parent, 

guardian, or custodian in writing that a petition to terminate the 

parent-child relationship must be filed with respect to the child 

after June 30, 1999, if the child has been removed from the 

child’s 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. However, if a child’s parent, guardian, or custodian 

fails to appear at the first periodic case review occurring after 

June 30, 1998, the local office shall make reasonable efforts to 

send notice of the advisement to the last known address of the 

parent, guardian, or custodian.

[21] DCS counters that the trial court’s dispositional decree indicates that “failure to 

participate as required by a Parental Participation Order under Ind[iana] Code 

31-34-20-3 can lead to the termination of the parent-child relationship under 

Ind[iana] Code 31-35.” Petitioner’s Ex. 7 p. 44. Moreover, DCS indicates that 

Father admitted he received information from his attorney and the trial court’s 

orders.10 

[22] While we agree that the trial court notified Father regarding the potential for 

termination of his parental rights, the statute clearly indicates that it is DCS’s 

 

10 DCS also argues that the trial court found in its April 24, 2018 order that DCS had complied with the 

notice requirements; however, our review of the trial court’s finding indicates that the trial court was 

referencing DCS’s compliance with notification requirements for the periodic case review pursuant to 

Indiana Code Section 31-34-21-4(a). 
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responsibility to do so.11 That said, Father has failed to prove that he suffered 

clear, substantial harm as a result of DCS’s failure. See B.R., 875 N.E.2d at 375. 

Father was to remain incarcerated until 2020; therefore, even if Father was 

notified of the time frame for the filing of the termination petition, Father has 

not shown that he could have been released from incarceration or could have 

provided a stable home for the Child had he known about the time frame. 

Accordingly, to the extent that DCS’s failure to notify Father was error, Father 

has not established fundamental error. 

B. Notice of Periodic Case Review

[23] Father claims that he was never notified of the periodic case review hearings

and, therefore, was denied the opportunity to be heard. Pursuant to Indiana 

Code Section 31-34-21-4(a), “[e]xcept as provided in subsection (f), at least 

seven [] days before the periodic case review, including a case review that is a 

permanency hearing under section 7 of this chapter, the department shall 

provide notice of the review” to the persons identified in the statute, including 

the child’s parent, guardian, or custodian, the attorney of record, a prospective 

adoptive parent, foster parents, or other persons. 

[24] Although Father did not attend the periodic case review hearings, Father’s 

attorney attended and represented Father. Moreover, the trial court’s order on 

 

11 As noted above, Father also acknowledged that his attorney kept him up to date on the proceedings. 
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April 24, 2018, indicated that “DCS did provide proof of notice required by 

subsection (a) at the periodic case review” to Father. Petitioner’s Ex. 11 p. 62. 

[25] Regardless, Father has not demonstrated that any error created clear and 

substantial harm. Father had an attorney present at each of the review 

hearings, and he had an opportunity to be heard through his attorney. This 

case differs from A.P., 734 N.E.2d at 1117, in which the father had a no contact 

order with regard to the child and was banned from appearing at the periodic 

review hearing, despite the father’s constant requests to be present. Here, the 

record does not demonstrate that Father was denied the right to be at the 

hearing, unlike the father in A.P. Father cannot establish fundamental error. 

C. Failure to Involve Father in Case Planning

[26] Father also argues that he was not included in the case planning for the Child;

nor was he sent the case plan. Under Indiana Code Section 31-34-15-1, a case 

plan is required for each child who is under DCS’s supervision. Indiana Code 

Section 31-34-15-2 states that: 

The department, after negotiating with: 

(1) the child’s parent, guardian, or custodian; 

. . .

shall complete a child’s case plan not later than sixty (60) days 

after the date of the child’s first placement or the date of a 

dispositional decree, whichever occurs first. 
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Once the case plan is completed, a copy “shall be sent, not later than ten [] days 

after the plan’s completion, to: (1) the child’s parent, guardian, or custodian; . . 

.” Ind. Code § 31-34-15-3. 

[27] DCS argues that, although this was one of the due process violations identified 

in A.P., no case plans are included in the record, nor is evidence regarding the 

contents of the case plan in the record; therefore, DCS urges us to follow In re 

T.F., 743 N.E.2d 766, 772 (Ind. Ct. App. 2001), trans. denied. In T.F., we

distinguished A.P., stating:

[I]n A.P., although no case plans were made part of the court’s 

record prior to the termination hearing, the appellate record 

contained nine case plans. However, in our case, the record does 

not contain a case plan, thus the record does not reflect whether a 

case plan was ever prepared or whether the [parents] were ever 

provided with a copy of a case plan. Therefore, in A.P. we had 

the opportunity to analyze the case plan concurrently with the 

original dispositional order and the multiple review hearing 

orders to determine whether the parents were properly notified of 

their right to know what conduct could lead to the termination of 

their parental rights. In fact, in A.P. we found that the original 

dispositional order and the multiple review hearing orders 

provided some written notice to the parents, however, the case 

plans often contained requirements not contained in the court 

orders. Therefore, in A.P. we held that the difference in 

requirements between the case plans and the court orders 

heightened the importance of providing copies of case plans to 

the parents. 

T.F., 743 N.E.2d at 771 (citations omitted). Thus, we concluded that, “because 

proof of a case plan is not an element enunciated in the termination proceedings 
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under Ind[iana] Code § 31-35-2-4, the record of the CHINS proceedings is not 

before this court in order for us to examine whether a case plan was prepared 

and provided to the [parents].” Id. at 772. The same outcome is required here. 

Accordingly, Father has failed to prove that he suffered clear, substantial harm 

as a result of DCS’s failure to provide Father with the case plans. 

D. Efforts to Reunify

[28] Father also argues that DCS made no efforts to reunify the Child with Father 

pursuant to Indiana Code Section 31-34-21-5.5(b), which states: 

Except as provided in section 5.6[12] of this chapter, the 

department shall make reasonable efforts to preserve and reunify 

families as follows:

(1) If a child has not been removed from the child’s home, 

to prevent or eliminate the need for removing the child 

from the child’s home.

(2) If a child has been removed from the child’s home, to 

make it possible for the child to return safely to the child’s 

home as soon as possible.

[29] DCS responds that it “is not required to provide a parent with services directed 

at reunification with the child while the parent is incarcerated,” citing Rowlett v. 

Vanderburgh Cty. Office of Family and Children, 841 N.E.2d 615, 622 (Ind. Ct. 

App. 2006), trans. denied. In Rowlett, we noted that DCS “did not, nor was it 

 

12 It does not appear that any provisions of sections 5.6 apply in this case. 
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required to, provide [the father] with services directed at reuniting him with his 

children,” due to [the father’s] incarceration. Id. Father has failed to 

demonstrate fundamental error. 

E. Failure to Place with Relatives

[30] Finally, Father argues that DCS failed to identify relatives that the Child could

be placed with, despite Mother’s and Father’s request, initially, that the Child 

be placed with a maternal cousin and later with paternal grandfather. DCS 

responds that consideration of placement with relatives is a requirement for a 

CHINS proceeding; however, Father is appealing a termination proceeding. 

Indiana Code Section 31-34-4-2 states: 

(a) If a child alleged to be a child in need of services is taken into 

custody under an order of the court under this chapter and the 

court orders out-of-home placement, the department is 

responsible for that placement and care and must consider 

placing the child with a:

(1) suitable and willing relative; or

(2) de facto custodian;

before considering any other out-of-home placement.

(b) The department shall consider placing a child described in 

subsection (a) with a relative related by blood, marriage, or 

adoption before considering any other placement of the child.
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[31] We agree with DCS that consideration of relative placement is a concern in a 

CHINS proceeding. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) 

(concluding that, in termination proceedings, DCS is only required to establish 

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

quotations omitted). Accordingly, we find that Father has failed to establish 

fundamental error. 

II. Sufficiency of Evidence

[32] Father argues that the evidence was insufficient to terminate his parental rights

pursuant to Indiana Code Section 31-35-2-4 (b)(2)(B) and Indiana Code Section 

31-35-2-4(b)(2)(C). We will address each in turn below. 

A. Conditions that Led to Removal will not be Remedied

[33] Father first argues that the trial court erred in concluding the conditions that led 

to the Child’s removal will not be remedied.13 Specifically Father contends that 

he “had voluntarily participated in services while he was incarcerated, he was 

pending an early release due to his participation in services, he had a plan for 

housing upon his release, and he had a plan for employment upon his release.” 

Appellant’s Br. p. 32. 

 

13 Father argues, also, that the trial court erred in concluding that the continuation of the parent-child 

relationship between Father and the Child poses a threat to the Child’s well-being. The statute only requires 

that DCS prove one of the Indiana Code Section 31-35-2-4(b)(2)(B) factors; therefore, we only address 

whether the conditions that led to the Child’s removal will be remedied.
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[34] “In determining whether ‘the conditions that resulted in the [Child’s] removal . 

. . will not be remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4 

N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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. In analyzing this second step, the trial court judges the parent’s 

fitness “as of the time of the termination proceeding, taking into consideration

evidence of changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family 

& Children, 839 N.E.2d 143, 152 (Ind. 2005)). “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 parents’ past behavior is the best predictor of their future behavior.” 

Id. 

[35] The trial court found that “[t]here is a reasonable probability that the conditions 

that resulted in the removal and continued placement of [the Child] outside the 

home will not be remedied by his father. [Father] was incarcerated at the 

beginning of the CHINS case and will remain so, currently until May of 

[2020].” Appellant’s App. Vol. II p. 76. The Child was removed for several 

reasons, including Mother’s and Father’s inability, refusal or neglect to care for 

the child, and the parents’ acts/omissions that seriously endangered the 

physical or mental health of the Child. Father has been unable to remedy the 

situations due to his incarceration. 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 22 of 24

[36] In K.E. v. Indiana Dept. of Child Services, 39 N.E.3d 641, 648 (Ind. 2015), our 

Supreme Court concluded that, “[a]lthough at the time of the termination 

hearing Father’s possible release was still over two years away[,] that alone is 

insufficient to demonstrate that the conditions for removal will not be 

remedied.” Id. Noting that the “release date alone is not determinative,” our 

Supreme Court considered “whether other evidence, coupled with [the 

consideration that the father was incarcerated,] demonstrates by clear and 

convincing evidence a reasonable probability that Father would be unable to 

remedy the conditions for removal.” Id. 

[37] There, the trial court found that the father had made significant strides because 

the father had completed twelve programs during incarceration, “the majority 

of which were completed voluntarily and did not result in sentence reductions.” 

Id. Moreover, the child in K.E. visited the father every other week for two or 

three hours, and the FCM in that case “testified that Father interacts well with 

the [child, and the father’s other children] during visitations.” Id. at 649. The 

child in K.E. also recognized the father, knew who he was, and the father made 

nightly phone calls to the child.

[38] K.E. is distinguishable from the present case. Father has had very little 

involvement in the Child’s life, including prior to his incarceration. Father has 

not seen the Child since the CHINS case began. While Father has participated 

in many programs during his incarceration, some of these programs appear to 

have been completed in contemplation of an early release. Moreover, Father 

has completed some additional programs for the benefit of his other child, but 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 23 of 24

not the Child in the present case. In other words, we do not see Father making 

the same improvement as the father in K.E., and Father’s incarceration is not 

the sole basis for his failure to remedy the conditions that led to removal. 

Accordingly, sufficient evidence supports the finding that the conditions that 

led to the Child’s removal will not be remedied. 

B. Best Interests of the Child

[39] Father also argues that the trial court erred in concluding that termination is in 

the best interests of the Child. Father acknowledges that both the GAL and 

FCM indicated that terminating Father’s parental rights was in the Child’s best 

interests; however, Father still contends that was not sufficient because Father 

participated in services and was bettering himself. 

[40] In determining the best interests of a child, the trial court is required to look at 

the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68 (Ind. Ct. 

App. 2008). The trial court must subordinate the interests of the parents to 

those of the child involved. Id. at 168. Termination of a parent-child 

relationship is proper where the child’s emotional and physical development is 

threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until 

a child is irreversibly harmed such that his or her physical, mental, and social 

development is permanently impaired before terminating the parent-child 

relationship. Id. Additionally, a child’s need for permanency is a “central 

consideration” in determining the best interests of a child. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 24 of 24

[41] Father essentially invites us to reweigh the evidence, which we cannot do. See 

C.G., 954 N.E.2d at 923. Father presented the evidence regarding his attempts 

at bettering himself to the trial court. DCS presented evidence that Father had 

not seen the Child in a significant amount of time. While we commend the 

work Father has done while incarcerated, we will not reweigh the evidence to 

reach the opposite conclusion as the trial court. The Child is presently in a 

stable home with foster parents who are willing to adopt the Child. As these 

proceedings occurred when the Child was at such a young age, the Child does 

not ask about Mother or Father. We agree that stability of the Child, which 

presently exists, is a central consideration in these cases. Accordingly, the trial 

court’s conclusion that termination is in the Child’s best interests is not clearly 

erroneous.

Conclusion

[42] The procedural irregularities in this case do not constitute fundamental error, 

and accordingly, Father’s due process rights were not violated. Sufficient 

evidence exists to terminate Father’s parental relationship with the Child. We 

affirm. 

[43] Affirmed. 

Crone, J., and Bradford, J., concur.