Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019 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

Talisha R. Griffin

Marion County Public Defender Agency 

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Frances H. Barrow

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:

H.O. (Minor Child)

 and

T.O. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

December 31, 2019

Court of Appeals Case No.

19A-JT-1681

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. Moores, 

Judge

The Honorable Scott B. Stowers, 

Magistrate

Trial Court Cause No.

49D09-1812-JT-1436
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019 Page 2 of 10

Bailey, Judge.

Case Summary

[1] T.O. (“Father”) appeals the termination of his parental rights to H.O. 

(“Child”), upon the petition of the Marion County Department of Child 

Services (“the DCS”). Father presents a single, consolidated issue for review: 

whether the DCS established, by clear and convincing evidence, the requisite 

statutory elements to support the termination decision. We affirm.

 Facts and Procedural History

[2] Child was born in July of 2008. In December of 2016, Child was in the 

physical custody of D.C. (“Mother”) and Father was incarcerated.

1

 At that 

time, the DCS alleged Child to be a Child in Need of Services (“CHINS”) and 

entered into an informal adjustment with Mother. Mother did not comply with 

the requirements of the informal adjustment, and Child was placed in the care 

of Father’s brother (“Uncle”) and his wife (“Aunt”). Child had previously lived 

with Uncle and Aunt for a year in which both parents were incarcerated.

1

In 2009, Father had been convicted of battery causing serious bodily injury to a person less than 14 years of 

age. Father’s testimony did not clarify whether or not his incarceration in 2016 was related to the battery

conviction.
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[3] On February 7, 2017, Child was adjudicated a CHINS. Father was ordered to 

participate in a parenting program called Father Engagement. Father was 

released from incarceration in April of 2017 and participated in some services, 

including visitation. However, he was arrested on multiple occasions in 2018, 

and charged with resisting law enforcement, possession of marijuana, 

intimidation, battery, and criminal recklessness with a deadly weapon. His last 

visit with Child was in October of 2018. On December 7, 2018, Father was 

charged with battery resulting in bodily injury to a pregnant woman, Father’s 

girlfriend.

[4] On December 14, 2018, the juvenile court ordered that the permanency plan be 

changed to a plan for adoption. Mother consented to Child’s adoption by Aunt 

and Uncle. On January 7, 2019, the DCS filed a petition to terminate Father’s 

parental rights to Child. On March 6, 2019, Father pled guilty to battery and 

received a three-year sentence, with two years to be served in work release and 

one year on probation.

[5] A hearing on the termination petition was conducted on May 14, 2019. At that 

time, Father was again incarcerated, upon an allegation that he had violated a 

term of his work release. He was also subject to a no-contact order for the 

protection of Aunt and a no-contact order for the protection of his former 

girlfriend and her mother. At the hearing, service providers testified that Father

had made some reunification efforts, such as attaining employment, but was 

unable to complete services or provide Child a stable home due to his chronic 

incarceration. The Guardian ad Litem (“GAL”) and family case managers 
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opined that termination of the parent-child relationship was in Child’s best 

interests.

[6] On June 3, 2019, the trial court issued its order terminating Father’s parental 

rights. He now appeals. 

Discussion and Decision

Standard of Review – Sufficiency of the Evidence

[7] When we review whether the termination of parental rights is appropriate, we 

will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d 

1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable 

inferences that are most favorable to the judgment. Id. In so doing, we give 

“due regard” to the trial court’s unique opportunity to judge the credibility of 

the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana 

Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is 

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

(Ind. 2013). In order to determine whether a judgment terminating parental 

rights is clearly erroneous, we review the trial court’s judgment to determine 

whether the evidence clearly and convincingly supports the findings and the 

findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at 

1132. 
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Requirements for Involuntary Termination of Parental Rights

[8] “The Fourteenth Amendment to the United States Constitution protects the 

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

Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are 

of a constitutional dimension, the law provides for the termination of those 

rights when the parents are unable or unwilling to meet their parental 

responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 

147 (Ind. 2005). The State is required to prove that termination is appropriate 

by a showing of clear and convincing evidence, a higher burden than 

establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.

[9] Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must 

allege and prove by clear and convincing evidence to terminate a parent-child 

relationship:

(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 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;
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(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.

[10] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and 

therefore the court need only to find that one of the three requirements of 

subsection (b)(2)(B) was established by clear and convincing evidence. See In re 

L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).

Analysis

[11] According to Father, the DCS failed to present clear and convincing evidence 

of a reasonable probability that he would fail to remedy the conditions that led 

to Child’s removal, that continuation of the parent-child relationship poses a 

threat to Child, and that termination of parental rights is in Child’s best

interests.

[12] As to failure to remedy conditions, we employ a “two-step analysis.” In re 

E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we identify the conditions that led 
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to removal; and second, we must determine whether there is a reasonable 

probability that those conditions will not be remedied. Id. In the second step, 

the trial court must judge parental fitness as of the time of the termination 

hearing, taking into consideration the evidence of changed conditions. Id.

(citing Bester, 839 N.E.2d at 152). The trial court is entrusted with balancing a 

parent’s recent improvements against habitual patterns of conduct. Id. The 

trial court 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.

[13] Habitual conduct may include parents’ prior criminal history, drug and alcohol 

abuse, history of neglect, failure to provide support, and a lack of adequate 

housing and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 

1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider the 

services offered to the parent by DCS and the parent’s response to those services 

as evidence of whether conditions will be remedied.

[14] The trial court’s order provides in relevant part:

There is a reasonable probability that the conditions that resulted 

in the child’s removal and continued placement outside of the 

home will not be remedied by her father. [Father] has not made 

meaningful or sustainable progress toward reunification. He 

continues to commit illegal acts which make him unavailable to 

provide permanency and [to] parent. The child has been out of 

[Father]’s custody since December 2016 and he has never 

progressed to unsupervised parenting time.
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Appealed Order at 2.

[15] Child was removed from Mother’s custody in 2016; at that time, Father could 

not provide Child with a home due to his incarceration. He was released from 

prison in April of 2017. Cyclically, Father obtained employment and housing, 

but lost both upon his subsequent incarceration. When Father was in the 

Marion County Jail, he could not visit Child nor could he actively participate in

the Father Engagement program.2 Father’s participation in services became 

“stagnant.” (Tr. at 47.) Father visited with Child at the home of Aunt and 

Uncle but lost that privilege after he struck Aunt with a rock and she obtained a 

no-contact order. Father was unable to maintain independent housing after he 

pled guilty to battering his pregnant girlfriend and was placed in work release.

[16] At the hearing, Father testified and acknowledged that he had pending criminal 

charges. He hoped for dismissal of most of the charges and for his return to

work release. Even so, Father could not house Child in work release. Indeed, 

he admitted that he was unable to care for Child at the present time. The

evidence clearly supports the finding that the conditions leading to removal 

were unlikely to be remedied. Because Indiana Code Section 31-35-2-4(b)(2)(B)

is written in the disjunctive, we need not address Father’s contention that there 

was insufficient evidence of his posing a threat to Child. 

2 There was testimony that Father maintained contact with his service provider, but sessions could not occur 

in the jail.
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[17] Father also contends that the DCS did not present clear and convincing 

evidence that termination is in Child’s best interests. In determining what is in 

a child’s best interests, the court must look to the totality of the evidence. In re 

A.D.S., 987 N.E.2d at 1158. We have previously held that recommendations by 

the case manager and CASA to terminate parental rights, in addition to 

evidence that the conditions resulting in removal will not be remedied, is 

sufficient to show by clear and convincing evidence that termination is in the 

child’s best interests. Id. at 1158-59.

[18] In addition to evidence of Father’s circumstances and response to services, the 

DCS presented evidence relative to Child’s placement. There was testimony 

that Child had lived with Aunt and Uncle for several years and was bonded 

with them and their children; she wished to continue living with them; she 

performed well academically and was in extra-curricular activities. Child’s 

GAL and family case manager opined that termination of Father’s parental 

rights was in Child’s best interests. Finally, Father testified that his brother’s 

home was an appropriate place for Child. Father’s argument is not a true claim

of insufficient evidence. He simply requested that the court extend the relative 

placement for two years more years while he was incarcerated or in work 

release, while maintaining Father’s legal relationship to Child. The trial court 

was not obliged to do so. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 

1989) (holding that, where parents had “failed to correct their behavior for 

years,” the trial court could not be expected to “place [a child] on a shelf” until 

parents were able to care for the child).
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Conclusion

[19] The DCS established by clear and convincing evidence the requisite elements to 

support the termination of parental rights. 

[20] Affirmed.

Kirsch, J., and Mathias, J., concur.