Court of Appeals of Indiana | Memorandum Decision 40A01-1712-JT-2860 | May 3, 2018 Page 1 of 10

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

R. Patrick Magrath

Alcorn Sage Schwartz &

Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of: 

O.W. (Minor Child),

and

T.W. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

May 3, 2018

Court of Appeals Case No.

40A01-1712-JT-2860

Appeal from the Jennings Circuit 

Court

The Honorable Jon W. Webster, 

Judge

Trial Court Cause No.

40C01-1612-JT-66
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Baker, Judge.

[1] T.W. (Father) appeals the trial court’s order terminating his relationship with 

his daughter, O.W. (Child). Father argues that there is insufficient evidence 

supporting the trial court’s conclusion that termination is in Child’s best 

interests. Finding the evidence sufficient, we affirm.

Facts

[2] Child was born to her Mother and Father in March 2005. On April 12, 2015, 

Mother died. At that time, Child lived with Mother and her husband, but after 

Mother’s death, Child’s stepfather was unable or unwilling to continue to care 

for Child. Father had little to no relationship with Child at the time of Mother’s 

death; indeed, he had not seen Child in several years. As a result, on May 19, 

2015, the Department of Child Services (DCS) filed a petition alleging that 

Child was a child in need of services (CHINS). 

[3] Father admitted that he had little to no relationship with Child and that he had 

alcohol abuse and mental health issues that prevented him from being a safe 

and appropriate caregiver at that time. Based on those admissions, the trial 

court found Child to be a CHINS on May 29, 2015. On August 14, 2015, the 

trial court entered a dispositional decree, ordering that Father participate in the 

following services: complete a parenting assessment, substance abuse

assessment, and psychological evaluation, and comply with any 

recommendations stemming from those assessments; submit to random drug 
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screens; meet with medical or psychiatric personnel and take all medication as 

directed; and attend supervised visitation with Child.

[4] In June 2015, Father completed a substance abuse assessment, which 

recommended that he participate with intensive outpatient therapy (IOT) and 

individual psychotherapy. He never participated with IOT. He completed a 

psychological evaluation, which led to diagnoses of mild intellectual disability 

and alcohol and cannabis dependence. 

[5] In November 2015, Father completed a parenting assessment. The assessor 

concluded that Father “would have difficulty meeting his daughter’s on-going 

developmental needs as well as providing a safe and nurturing environment that 

would facilitate growth and learning.” DCS Ex. 8 p. 7. She was also 

concerned that Father would be unable to grasp concepts sufficiently to enable 

him to perform parental tasks without supervision. The assessor made the 

following recommendations: (1) Father needed to make “substantial 

improvements” to his home environment; (2) he needed “extensive help 

learning appropriate parenting skills” and would also need ongoing parenting 

support and direction; (3) he should complete a mental health evaluation and 

participate in individual therapy; and (4) he should participate with substance 

abuse treatment. Id. at 7-8.

[6] On January 7, 2016, Child, who has significant behavioral issues and hears 

voices, completed a psychological evaluation. The psychologist diagnosed 

Child with reactive attachment disorder, other specific schizophrenia spectrum, 
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and other psychotic disorder with persistent auditory hallucinations. It was 

recommended that Child participate in individual therapy and see a psychiatrist 

to explore medication possibilities.

[7] Partially because of Child’s significant issues, she has had to change placements 

frequently during the underlying proceedings. She was initially placed with her 

maternal grandfather, then placed with her maternal aunt and uncle, then 

placed in foster care and, after that first placement ended, was placed with 

another foster family (Foster Parents).

[8] In October 2016, after Child was moved from relative care into foster care, she 

began seeing Debra Garrett for individual therapy. At that time, Child 

struggled with attachment issues, had imaginary friends, was afraid that Father 

would resume using drugs and alcohol, struggled with grief, and exhibited 

behavioral issues, including physical aggression. Garrett recommended that 

Child continue to participate in individual therapy and that Child and Father 

participate in family therapy. Garrett believes that Child “requires an 

environment that demands structure and consistency for her to be successful.” 

Tr. Vol. II p. 7. Child has made significant progress since she began 

participating regularly with therapy.

[9] Also in October 2016, Father stopped participating in services consistently and 

disclosed that he had been drinking alcohol and smoking marijuana. On 

October 20, 2016, Father tested positive for THC. That is the only drug screen 

he agreed to submit to throughout the entirety of the case. Id. at 60-61.
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[10] Garrett supervised the visits between Father and Child. Initially, the visits were 

in Father’s home and lasted for three hours. But three hours seemed too long, 

as both Child and Father wanted to leave early and they did not interact very 

much. Thereafter, they were reduced to two and one half, and then to two, 

hours in length. At some point, Father disclosed that he had marijuana in his 

home but would not tell DCS where it was so that it could be ensured that 

Child could not find it; after that, his visits were held in an office or out in the 

community. At times during visits, Father told Garrett that he had been using 

marijuana and drinking alcohol. On one occasion, he reported that he did not 

have enough money for groceries but had spent $25 on marijuana. Child 

expressed that she did not want to live with Father because she was worried he 

would resume his drug and alcohol use, requested full supervision at all visits, 

and exhibited emotional behaviors before and after visits.

[11] On December 21, 2016, DCS filed a petition to terminate the parent-child 

relationship between Father and Child.

[12] In January 2017, Father was referred to Garrett for therapy, but during his first 

session, he was adamant about refusing to participate. Therefore, that referral 

was unsuccessfully closed. 

[13] In August 2017, Father admitted that he had been drinking beer and vodka, he 

had been arrested for public intoxication, and on one occasion, had been 

drinking with friends when one of those friends put a gun to Father’s head. 
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Following these incidents, he increased his attendance at Alcoholics 

Anonymous, but continued to refuse to attend IOT.

[14] The termination hearing took place on September 19, 2017. At that time, Child 

had been placed with Foster Parents for three to four months and was doing 

well. Foster Parents provided Child with a structured environment and were 

very involved with her school to ensure that her special needs were being met. 

Foster Parents were open to the possibility of adopting Child, though they had 

not made a final decision in that regard. The Family Case Manager (FCM), 

Guardian ad Litem (GAL), and Garrett all testified that termination of Father’s 

parental rights was in Child’s best interests. Father conceded that he was 

unable to care for Child and that it was in her best interests to remain placed 

with Foster Parents. Child has consistently indicated throughout the case that 

she does not want to live with Father, that she does not want unsupervised 

contact with Father, and that she wants to continue living with Foster Parents. 

On October 18, 2017, the trial court granted DCS’s petition to terminate the 

parent-child relationship. Father now appeals.

Discussion and Decision

I. Standard of Review

[15] Our standard of review with respect to termination of parental rights 

proceedings is well established. In considering whether termination was 

appropriate, we neither reweigh the evidence nor assess witness credibility. 

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will 
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consider only the evidence and reasonable inferences that may be drawn 

therefrom in support of the judgment, giving due regard to the trial court’s 

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial 

court entered findings of fact and conclusions of law, we will not set aside the 

findings or judgment unless clearly erroneous. Id. In making that 

determination, we must consider whether the evidence clearly and convincingly 

supports the findings, and the findings clearly and convincingly support the 

judgment. Id. at 1229-30. 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.” Bester v. Lake Cty. Office of Family & Children, 

839 N.E.2d 143, 148 (Ind. 2005).

[16] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate 

parental rights for a CHINS must make the following allegations:

(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) A 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 
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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 or 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.

(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 prove the alleged circumstances by clear and convincing evidence. 

K.T.K., 989 N.E.2d at 1230.

II. Best Interests

[17] Father’s sole argument on appeal is that the evidence does not support the trial 

court’s conclusion that termination is in Child’s best interests. In evaluating 
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what is in a child’s best interests, the court must consider the totality of the 

evidence, subordinating the interests of the parent to that of the child. In re 

A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010); In re J.S., 906 N.E.2d 226, 236 

(Ind. Ct. App. 2009). The court need not wait until a child is irreversibly 

harmed before terminating the parent-child relationship. J.S., 906 N.E.2d at 

236.

[18] Over two years passed between the opening of the CHINS case and the 

termination hearing. Despite all that time, Father had to concede at the 

termination hearing that he was still unable to care for Child, given both his and 

her special needs. Moreover, although they had participated in years of 

supervised visitation, there had been little to no improvement in their 

relationship. Indeed, Child did not want any unsupervised visits with Father, 

much less to be placed with him. And although it was repeatedly 

recommended that Father participate with individual therapy and substance 

abuse treatment, he refused to take part in either service and used drugs and 

alcohol throughout much of the underlying proceedings. 

[19] Father argues that the trial court should have ordered that Child be placed in a 

permanent guardianship with Foster Parents rather than the final remedy of 

termination. Both Garrett and the FCM testified, however, that it would be 

better for Child to achieve permanency and stability through termination rather 

than continue to live in an impermanent “limbo” of guardianship. Tr. Vol. II p. 

31-32, 66. The GAL also opined that termination would be in Child’s best 

interests. Id. at 86. We find that this testimony, together with the underlying 
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facts in the record, support the trial court’s conclusion that termination is in 

Child’s best interests.

[20] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.