Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 1 of 14

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

Yvonne M. Spillers

Fort Wayne, 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 the Matter of the Termination 

of the Parent-Child Relationship 

of C.P. and O.P. (Minor 

Children);

R.P. (Father),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

March 25, 2020

Court of Appeals Case No.

19A-JT-2379

Appeal from the Wells Circuit 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause Nos.

90C01-1811-JT-56

90C01-1811-JT-57

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 2 of 14

Statement of the Case

[1] R.P. (“Father”) appeals the trial court’s termination of his parental rights over 

his minor children C.P. and O.P. (“Children”). Father presents a single issue

for our review, namely, whether the Indiana Department of Child Services 

(“DCS”) presented sufficient evidence to support the termination of his parental 

rights. We affirm.

Facts and Procedural History

[2] Father and A.P. (“Mother”) (collectively “Parents”) have two children 

together: C.P., born November 13, 2015, and O.P., born October 12, 2016. On 

December 29, 2016, when O.P. was eleven weeks old, DCS received a report 

that Children were the victims of physical abuse. The Family Case Manager 

(“FCM”) who investigated the report went to Parents’ home and found it “in 

substandard condition with dirty diapers and clutter throughout.” Appellant’s 

App. Vol. 2 at 31. Father became “extremely defensive” and was “verbally 

aggressive toward the FCM.” Id. On January 4, 2017, DCS removed Children 

from Parents’ care, and on January 5, DCS filed petitions alleging Children 

were CHINS. On January 9, the State charged Father with battery, as a Level 5 

felony, for harming O.P.

[3] On April 24, after Parents admitted that Children were CHINS, the court found 

Children to be CHINS and entered a dispositional order. In particular, the 

court ordered Father to: participate in home-based therapy and follow all 

recommendations; complete a psychological evaluation and follow all 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 3 of 14

recommendations; not commit acts of domestic violence; participate in a 

domestic violence assessment program; and attend supervised visits with 

Children. Father was “partially compliant” in that “he attended (although did 

not complete) the Center for Nonviolence [program,] and he submitted himself 

to a psychological assessment.” Appellant’s Br. at 13. In September, Father 

pleaded guilty to battery, as a Level 6 felony, and he was sentenced to 545 days, 

with all but forty-four days suspended. In addition, Father was ordered to have 

no contact with O.P. for the duration of his suspended sentence.

[4] In November 2018, DCS filed petitions to terminate Father’s parental rights 

over Children.1

 Following a hearing, the trial court granted the termination 

petitions on August 2, 2019. In support of its order, the trial court entered the 

following relevant findings:

15. Father has criminal history that demonstrates a propensity 

for violence and disobedience of the law. Father has been 

convicted of the following offenses:

a. Burglary Break and Enter Structure of Another 

Person (State’s Exhibit 11).

b. Battery (State’s Exhibits 20-21);

c. Driving While Suspended (State’s Exhibits 1-2; 4-

6; 7-8; 22-30); and

1

 Mother voluntarily terminated her rights over Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 4 of 14

d. Battery on a Person Less Than 14 Years Old 

(State’s Exhibit[s] 12-19).

16. Father has three instances of substantiated allegations of 

sexual abuse. The first occurred in 2009 when Father was a

juvenile. The victims were ten (10) year-old, seven (7) year-old, 

and five (5) year-old boys. The second occurrence was in 2011 

when Father was eighteen (18) years old. The victim in that case 

was a fifteen (15) year-old girl. Finally, in 2018, Father was 

substantiated against again; the victim was a thirteen (13) yearold girl.

17. Father submitted to a diagnostic evaluation performed by

Jinny Broderick of Park Center (State’s Exhibit 59). Father was 

diagnosed with the following:

a. Other Specified Disruptive, Impulse Control, and 

Conduct Disorder;

b. Child Psychological Abuse, Encounter for mental 

health service for perpetrator of parent-child 

psychological abuse; and

c. Child Physical Abuse; Encounter for mental 

health services for perpetrator of parental child abuse.

18. The evaluation recommended that Father complete a 

certified batterer’s intervention program and meet with a 

neurologist for an evaluation regarding his head injury to 

determine what, if any, effect this has on his ability to manage

frustrations for such anger and resulting impulsive actions.

19. Father gave Jinny Broderick minimal information during the 

evaluation, appeared annoyed at the evaluation, and was 

aggressive in his language when speaking of FCM Garrett.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 5 of 14

20. During the evaluation, Father stated that he did not believe 

he had done anything wrong nor was he inappropriate in 

parenting his children. He did not believe that you can verbally 

abuse a child and that there was no abuse absent marks or

bruises.

21. Jinny Broderick believed that Father appeared grandiose, 

had rigid thinking, blamed others, and was pre-contemplative.

22. Father submitted to a psychological evaluation provided by 

Charles Rohr, Psy.D, on November 11, 2017 and December 7, 

2017. Father was diagnosed with the following: 

a. Child Psychological Abuse;

b. Child Physical Abuse;

c. Antisocial Personality Disorder;

d. Paranoid Personality Disorder; and

e. Mild Neurocognitive Disorder Due to Traumatic 

Brain Injury, with Behavioral Disturbance: mood 

disruptions, agitation, impaired executive function.

23. Father has not participated in a neurological evaluation to 

address any physical injury to his brain that might contribute to 

his mental health issues.

24. Father has not participated in individual therapy as 

recommended.

25. Father has never participated in mental health services as 

recommended by the psychological evaluation and the Center for 

Non-Violence.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 6 of 14

26. On January 24, 2018, Father initiated services at the Center 

for Non-Violence and began attending sessions; however, on 

June 9, 2018, Father was expelled from the program.

27. Brandon Evans, the Center for Non-Violence Men’s

Program Senior Coordinator, explained that Father had been 

expelled from the program for inappropriate behavior. Evans 

stated, “When confronted about an act of violence against a

former coworker, he [Father] became angry, defensive, and 

argumentative.”

28. Further, “[Father] stated ‘I’ll take care of Wendy (his DCS 

caseworker) and him (referring to the coworker in question).’”

Finally, Evans stated, “Lastly, he attempted to discredit staff in 

the eyes of other group members by saying, ‘Don’t trust him,’

while pointing his finger at the facilitator and speaking to another

participant.” (State’s Exhibit 58).

29. Father has battered Mother on multiple occasions. On one 

occasion, Mother received a bruised lip when Father smashed 

her face into the concrete. (State’s Exhibit 57).

30. Mother has witnessed Father being verbally aggressive 

toward the children on multiple occasions.

31. At the time of the fact-finding hearing, Mother and Father 

were no longer in a relationship.

32. Mother has consented to the adoption of the children by the 

current placement, the maternal grandmother.

33. The children are bonded with each other and their maternal 

grandmother.

34. The children have been removed from Father’s care for 

twenty-seven (27) months, which is nearly the entirety of the 

youngest child’s life.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 7 of 14

35. The Department’s plan for the children is that they be 

adopted by their maternal grandmother. The Department will 

continue to provide for the placement, care, and treatment of the 

children until such time as they are adopted.

36. The guardian ad litem is satisfied with the DCS’ plan for the 

children.

Appellant’s App. Vol. 2 at 32-35. This appeal ensued.

Discussion and Decision

Standard of Review

[5] Father contends that the trial court erred when it terminated his parental rights. 

We begin our review of this issue by acknowledging that “[t]he traditional right 

of parents to establish a home and raise their children is protected by the 

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe 

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. 

denied. However, a trial court must subordinate the interests of the parents to 

those of the child when evaluating the circumstances surrounding a 

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 

832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is 

proper where a child’s emotional and physical development is threatened. Id. 

Although the right to raise one’s own child should not be terminated solely 

because there is a better home available for the child, parental rights may be 

terminated when a parent is unable or unwilling to meet his or her parental 

responsibilities. Id. at 836.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 8 of 14

[6] Before an involuntary termination of parental rights can occur in Indiana, DCS 

is required to allege and prove:

(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.

* * *

(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.

Ind. Code § 31-35-2-4(b)(2) (2019). DCS’s “burden of proof in termination of 

parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. 

Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting 

I.C. § 31-37-14-2).

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

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of 

Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. 

denied. Instead, we consider only the evidence and reasonable inferences that 

are most favorable to the judgment. Id. Moreover, in deference to the trial 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 9 of 14

court’s unique position to assess the evidence, we will set aside the court’s 

judgment terminating a parent-child relationship only if it is clearly erroneous. 

Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. 

Ct. App. 1999), trans. denied.

[8] Here, in terminating Father’s parental rights, the trial court entered specific 

findings of fact and conclusions thereon. When a trial court’s judgment 

contains special findings and conclusions, we apply a two-tiered standard of 

review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). 

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

determine whether the findings support the judgment. Id. “Findings are clearly 

erroneous only when the record contains no facts to support them either 

directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If 

the evidence and inferences support the trial court’s decision, we must affirm. 

In re L.S., 717 N.E.2d at 208.

[9] On appeal, Father contends that the trial court erred when it concluded that: 

(1) the conditions that resulted in Children’s removal and the reasons for their 

placement outside of his home will not be remedied; (2) there is a reasonable 

probability that the continuation of the parent-child relationships poses a threat 

to the well-being of Children; and (3) termination is in Children’s best interests. 

However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the 

disjunctive, we need not address the issue of whether there is a reasonable 

probability that the continuation of the parent-child relationships poses a threat 

to the well-being of Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 10 of 14

[10] Initially, Father asserts that the court improperly admitted evidence “about 

facts and circumstances that occurred while Father was a juvenile, from other 

CHINS actions involving other children, and about Father’s criminal history.” 

Appellant’s Br. at 12. And he maintains that that evidence “influenced and 

formulated the basis of the Order being appealed.” Id. However, Father does 

not direct us to portions of the transcript showing that he objected to that 

evidence, other than a single objection to testimony regarding his molestation of 

three minor boys in 2009 when Father was also a minor. See Tr. Vol. 2 at 62. 

Accordingly, other than the testimony regarding the 2009 incidents, Father has 

waived this issue for our review. And, while the trial court mentioned the 2009 

offenses in one finding, there is ample independent evidence to support the 

termination of Father’s parental rights absent that evidence, and the error, if 

any, would be harmless. See In re Termination of Parental Rights of E.T., 808 

N.E.2d 639, 646 (Ind. 2004) (holding improper admission of evidence harmless 

error where substantial independent evidence supported judgment). Finally, 

there is no question that Father’s criminal history was relevant to the 

termination proceeding. Father’s contention on this point is not well taken.

Reasons for Children’s Placement Outside of Father’s Home

[11] Father contends that DCS did not present sufficient evidence to prove that the 

reasons for Children’s placement outside of his home will not be remedied. 

This court has clarified that, given the wording of the statute, it is not just the 

basis for the initial removal of the child that may be considered for purposes of 

determining whether a parent’s rights should be terminated, but also any basis
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 11 of 14

resulting in the continued placement outside of a parent’s home. Inkenhaus v. 

Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct. 

App. 2005), trans. denied. Here, the trial court properly considered the 

conditions leading to the continued placement outside of Father’s home, 

including Father’s history of domestic abuse, especially the battery of O.P. The 

court observed that Father did not participate in mental health services that 

were recommended following his psychological evaluation, and he “refuses to 

address his aggressive personality.” Appellant’s App. Vol. 2 at 36.

[12] We hold that the evidence supports the trial court’s findings and conclusion. 

To determine whether there is a reasonable probability that the reasons for 

Children’s continued placement outside of Father’s home will not be remedied, 

the trial court should judge Father’s fitness to care for Children at the time of 

the termination hearing, taking into consideration evidence of changed 

conditions. See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 

(Ind. 2014). However, the court must also “evaluate the parent’s habitual 

patterns of conduct to determine the probability of future neglect or deprivation 

of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. 

Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts 

have properly considered 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. Id. Moreover, DCS is not required to rule 

out all possibilities of change; rather, it need establish only that there is a 

reasonable probability the parent’s behavior will not change. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 12 of 14

[13] The trial court found, and the evidence supports, that: Father has a criminal 

history “that demonstrates a propensity for violence and disobedience of the 

law”; Father “did not believe he had done anything wrong nor was he 

inappropriate in parenting his children”; and Father was “expelled” from the 

Non-Violence Men’s Program “for inappropriate behavior.” Appellant’s App. 

Vol. 2 at 32-34. Father’s argument on appeal is simply an invitation for this 

Court to reweigh the evidence and judge the credibility of the witnesses, which 

we cannot do. Based on the totality of the circumstances, we hold that the trial 

court’s findings support its conclusion that the conditions that resulted in 

Children’s removal and the reasons for their placement outside of his home will 

not be remedied.

Best Interests

[14] Father also contends that the trial court erred when it concluded that 

termination of his parental rights is in Children’s best interests. In determining 

what is in a child’s best interests, a juvenile court is required to look beyond the 

factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. 

Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A 

parent’s historical inability to provide “adequate housing, stability, and 

supervision,” in addition to the parent’s current inability to do so, supports 

finding termination of parental rights is in the best interests of the child. Id.

[15] When making its decision, the court must subordinate the interests of the 

parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.), 

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 13 of 14

child is irreversibly harmed before terminating the parent-child relationship.” 

Id. Moreover, this Court has previously held that recommendations of the 

family case manager and court-appointed advocate to terminate parental rights, 

coupled with evidence that the conditions resulting in removal will not be 

remedied, are sufficient to show by clear and convincing evidence that 

termination is in the child’s best interests. Id. 

[16] Father asserts that “his serious head injury interfered with his ability to 

complete services” and that “he should have been given more time to get a 

neurological assessment and a treatment plan which could help him control his 

behaviors before terminating his parental rights.” Appellant’s Br. at 14. But 

Father ignores the fact that he had two years from the time DCS filed the 

CHINS petitions until the final hearing to seek a diagnosis and treatment. He 

gives no explanation why two years was not enough time to be assessed and 

participate in appropriate treatment for his alleged head injury.

[17] As the trial court’s findings demonstrate, Father has not shown that he is 

capable of parenting Children. Father did not participate in most of the courtordered services, and, because of his battery against O.P., a no-contact order 

prevented parenting time. Children have lived with their maternal grandmother

since January 2017, which is a pre-adoptive home, and they are bonded and 

thriving. The family case manager recommended termination of Father’s 

parental rights. Given the totality of the evidence, Father cannot show that the 

trial court erred when it concluded that termination of his rights was in 

Children’s best interests.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 14 of 14

[18] Affirmed.

Kirsch, J., and Brown, J., concur.