Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 1 of 20

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 Sheff

Sheff Law Office

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

INDIANA DEPARTMENT OF 

CHILD SERVICES

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE 

CHILD ADVOCATES,INC.

Janice Mandla Mattingly

Janice Mandla Mattingly, P.C.

Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship, 

Ki.H., K.H., and Kr.H. (Minor 

Children), 

and 

K.D.H. (Father),

Appellant-Respondent,

November 18, 2020

Court of Appeals Case No.

20A-JT-263

Appeal from the Marion Superior 

Court

The Honorable Mark A. Jones, 

Judge

The Honorable Peter Haughan, 

Magistrate 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 2 of 20

v.

Indiana Department of Child 

Services,

Appellee-Petitioner,

and

Child Advocates, Inc.

Appellee-Guardian ad Litem. 

Trial Court Cause Nos.

49D15-1809-JT-1145 

49D15-1809-JT-1146 

49D15-1809-JT-1147

Brown, Judge.

K.D.H. (“Father”) appeals the involuntary termination of his parental rights to 

his children, Ki.H., K.H., and Kr.H.

1

 We affirm.

Facts and Procedural History

Father’s several children include Ki.H. who was born on June 23, 2015, and 

K.H. and Kr.H. (the “Twins,” and with Ki.H., the “Children”), who were born 

on September 23, 2017. The Twins were removed from their parents’ care on 

the day they were born, and on September 26, 2017, Ki.H. was removed and 

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

Children were children in need of services (“CHINS”) and that their mother 

tested positive for codeine, morphine, and heroin during pregnancy. Also on 

1 The children’s mother signed consents to adoption and was dismissed from the termination case on August 

26, 2019, and she died on or about September 5, 2019. 
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September 26, 2017, the court held an initial hearing at which Father was 

present, appointed counsel for Father upon request, and ordered supervised 

parenting time. Upon the Twins’s release from the hospital, the court approved 

a placement in either kinship, relative, or foster care for the Children. 

On January 10, 2018, the court held a hearing at which Father was not present, 

Father’s counsel waived factfinding, and the court entered CHINS 

adjudications with respect to the Children upon admission by their mother. On 

February 7, 2018, the court entered a dispositional decree; awarded DCS 

wardship of the Children; authorized increased parenting time up to and 

including temporary trial visitation upon positive recommendation from the 

guardian ad litem, DCS, and service providers; ordered Father to participate in

drug screens; and indicated that, if he had ten consecutive, clean, random drug 

screens, he would no longer be required to screen. At a permanency hearing at 

which counsel represented Father, who was not present, the court made a 

finding that Father was incarcerated and changed the permanency plan to 

adoption.

On September 27, 2018, DCS filed a petition to terminate Father’s parental 

rights, and a TPR Summons And Notice of Hearing indicates Father was 

served in October 2018 at the Henderson County Detention Center in 

Henderson, Kentucky. On October 12, 2018, the court issued an order which 

continued the initial hearing and appointed Child Advocates, Inc., as guardian 

ad litem for the Children. The order indicates that it was “RECOMMENDED 

BY:” Magistrate Larry E. Bradley. Appellant’s Appendix Volume II at 79. The 
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court’s order from the continued initial hearing on November 9, 2018, which 

was also “[r]ecommended by” Magistrate Bradley, indicates “Ryan Gardner” 

appeared as a “GAL Attorney” and the court set the matter for pre-trial 

conference and appointed a public defender for Father. Id. at 110-112 (some 

capitalization omitted). 

On February 20, 2019, DCS filed a motion to transport Father from the 

Henderson County Detention Center, or alternatively to allow him to 

participate by telephone or videoconference in the termination trial. An order 

recommended by Magistrate Bradley denied the motion to transport Father but 

allowed him to appear by videoconference. In response to DCS’s filing of a 

second motion to transport, the court issued an order on July 2, 2019, which 

denied the motion to transport but allowed appearance by videoconference and 

was approved and ordered by “Ryan K. Gardner, Judge.” Id. at 156.

On July 25, 2019, Larry E. Bradley filed, as a volunteer attorney, an E-Filing 

Limited Appearance form for Child Advocates, Inc. On July 29, 2019, the 

court continued the trial set for that day in an order which noted that: “Ms. 

Berg[, Father’s counsel,] is requesting Mr. Bradley, GAL Attorney, withdraw 

from the case as there is conflict.” Id. at 163. The same day, Child Advocates 

filed a Motion to Withdraw Appearance requesting to remove volunteer 

attorney Bradley, which the court granted. 

Magistrate Peter Haughan of the Juvenile Division of the Marion Superior 

Court presided over Father’s termination hearing which was held on September 
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26, 2019, October 31, 2019, and November 6, 2019. The court issued a set of 

three orders, with each corresponding to a certain half-day hearing. The court’s

November 6, 2019 order was “APPROVED & ORDERED BY:” Judge Pro 

Tempore Ryan K. Gardner, whereas Judge Mark A. Jones of the Juvenile 

Division of the Marion Superior Court had approved and ordered the previous 

half-day hearings. Id. at 205. 

On January 5, 2020, the court issued its “Order Terminating the Parent-Child 

Relationship Between the Parent, [Father], and the Children,” which was 

signed by Magistrate Haughan and Judge Jones. The court found that a 

November 4, 2013 order2 had terminated the parent-child relationship between 

Father and his two older children, born in 2003 and 2004; CHINS petitions had 

been filed with respect to the older children in 2011 based on lack of 

appropriate supervision by their mother; Father was incarcerated and his ability 

or willingness to parent had not been demonstrated and the children were later 

found to be in need of services; Father was released from prison around July of 

2012 but failed to contact DCS until attending a CHINS hearing in late 

November of 2012 and; the dispositional order was modified to provide home 

based services which Father failed to complete. The order observed that Father 

was convicted in July 2013 of Assisting a Criminal, anticipated being released 

2 The November 4, 2013 order recommended by Magistrate Bradley states that Ryan Gardner 

appeared as counsel for Child Advocates, Inc..
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on April 15, 2014, and had a criminal record at twenty-five years of age 

consisting of five felony convictions and two misdemeanor convictions. 

The January 2020 termination order further found that, since the termination of 

Father’s parental rights regarding his older children, he has had at least one 

felony conviction in 2015 for which the court issued five warrants ordering that 

he be taken into custody and, subsequent to the conviction, found him to have 

violated the terms of his sentence or probation and ordered his incarceration; 

one felony charge and several misdemeanor charges in 2017; and two felony 

charges and misdemeanor charges in 2018. The order found that, as Father 

served the sentence associated with the 2015 conviction, he received two 

probation violations resulting in further incarceration, and that, at the time of 

the court’s termination order, he still faced outstanding warrants in the 

proceedings related to the 2017 and 2018 charges. It indicated Father testified 

at a fact-finding hearing that he was incarcerated in a United States penitentiary 

in Kentucky, where he had been since April 2018 because of a conviction of the 

federal offense of possession of a firearm; he received a sixty-month federal 

sentence, still had two years of incarceration to serve, and would then be moved 

to a halfway house to engage in work and rehabilitative programs; he has not 

seen the Children in person since he became incarcerated but communicated 

via computer tablet with the younger children and via telephone with Ki.H.; 

and that the inmates are frequently on lockdown, so Father has not been able to 

engage in any programs or communicate with the Children. 
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The court further found that, prior to his incarceration, Father’s parenting time 

remained supervised and the Children were never placed in his care and that 

the Twins were placed shortly after birth with Father’s uncle and his uncle’s 

partner, have special medical conditions, and have behaviors that can escalate 

quickly into tantrums. It found that the Father’s uncle and his uncle’s partner 

both take them to their doctor appointments, their home is the only home the 

Twins have ever known, and they provided for the needs and are willing to 

adopt them if Father’s parental rights were terminated. It indicated the Twins 

were loved and well-cared for and Father’s uncle was concerned with Father’s 

sobriety and believed he needed help. 

Based upon the testimony of Family Case Manager Patrick Wilburn (“FCM 

Wilburn”), the court found that Father had been incarcerated throughout most 

of the pendency of the Children’s CHINS cases and did not successfully 

complete random drug screens, the Children have never been placed with 

Father and he did not want placement of them, he did not want to complete 

random drug screens or the Father’s Engagement program, and he does not 

have the ability or willingness to provide the Children with a safe and stable 

permanent home or provide for their short-term and long-term needs. It stated 

FCM Wilburn believed the conditions that led to the removal and retention of 

the Children from Father’s care and custody have not been remedied; the 

continuation of the parent-child relationship is a threat to the well-being of the 

Children; and it is in the best interests of the Children that Fathers’ parental 

rights be terminated. Furthermore, based upon the testimony of guardian ad 
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litem Ed Walker (“GAL Walker”), it found that Father reported to GAL 

Walker in October 2017 that he did not want to be considered for placement of 

the Children, but that he would participate in the services of substance abuse 

evaluation and treatment, random drug screens, and the Father’s Engagement 

program; the referrals for these services were made on Father’s behalf; and 

Father did not engage in these services. It indicated GAL Walker was never 

able to recommend that Father have unsupervised parenting time due to his 

decision not to participate in services and his subsequent incarceration and that 

GAL Walker, who visited the Children many times, believed it is in the 

Children’s best interests that Father’s parental rights be terminated and the 

Children be adopted by their current respective caregivers.

The order then found the conditions that led to the Children’s removal –

Father’s criminal behavior and the accompanying incarceration, problems with 

alcohol and/or substance abuse, and lack of ability or willingness to parent the 

Children – had not been remedied. In finding that it was highly probable that 

these conditions would not be remedied, even if Father was given additional 

time to remedy the conditions, the court stated: the Children’s CHINS cases 

have been open for over two years; Father continues to engage in criminal 

behavior that results in his incarceration he is currently serving a federal

sentence and will not be released for at least two years; he has state charges 

pending; Father has not engaged in any services that could assist him to remedy 

these conditions; from the beginning of the CHINS cases, Father has done 

nothing to demonstrate that he has the ability or willingness to parent the
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Children and to provide them with a safe and stable home; and there is a 

substantial probability that future neglect or deprivation will occur because of 

his failure to remedy the conditions. The court found a reasonable probability 

that the continuation of the parent-child relationship between Father and the 

Children poses a threat to their well-being and that DCS had shown by clear 

and convincing evidence that termination of the parent-child relationship 

between Father and the Children is in the best interests of the Children.

Discussion

The United States Supreme Court “has ‘recognized on numerous occasions that 

the relationship between parent and child is constitutionally protected,’ and that 

‘[t]he fundamental liberty interest of natural parents in the care, custody, and 

management of their child does not evaporate simply because they have not 

been model parents or have lost temporary custody of their child to the State.’” 

In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013) (internal quotations 

omitted) (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549 (1978); 

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388 (1982)). However, these 

protected parental rights are not absolute and must be subordinated to the 

children’s interests to maintain the parent-child relationship. Bester v. Lake 

County Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus, 

“[p]arental rights may be terminated when the parents are unable or unwilling 

to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004)). 
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When reviewing the termination of parental rights, we do not reweigh the 

evidence or determine the credibility of witnesses, but consider only the 

evidence that supports the judgment and the reasonable inferences to be drawn 

from the evidence. See In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine 

our review to two steps: whether the evidence clearly and convincingly supports 

the findings, and then whether the findings clearly and convincingly support the 

judgment. Id. Reviewing whether the evidence “clearly and convincingly” 

supports the findings, or the findings “clearly and convincingly” support the 

judgment, is not a license to reweigh the evidence. Id. Our review must give 

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

witnesses firsthand and not set aside its findings or judgment unless clearly 

erroneous. Id. “Because a case that seems close on a ‘dry record’ may have 

been much more clear-cut in person, we must be careful not to substitute our 

judgment for the trial court when reviewing the sufficiency of the evidence.” Id.

at 640. 

The involuntary termination statute is written in the disjunctive and requires 

proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). 

In order to terminate a parent-child relationship, DCS is required to allege and 

prove, among other things:

(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 
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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 wellbeing 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.

Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition 

described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parentchild relationship. Ind. Code § 31-35-2-8(a). 

We first address Father’s argument that Indiana Code § 31-35-2-4 is 

unconstitutional on its face and as applied because it lacks a requirement that 

DCS “first provide services to attempt reunification of the parent and child 

during the CHINS proceedings prior to moving to termination of parental rights

– services required by DCS procedural manuals,” and, in “failing to require 

DCS to perform its published procedures uniformly prior to moving for 

termination,” it creates the conditions for similarly situated parents to be treated 

unequally. Appellant’s Brief at 45-46. He contends DCS failed to comply with 

its own manuals regarding services, the FCM never attempted to provide him 
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with services before recommending termination of his parental rights, and DCS 

should have reassessed “the best way to provide services to assist” him and the 

Children. Id. at 49. DCS maintains that Father raises this challenge for the first 

time on appeal, and because he had the chance to raise it during the termination 

factfinding but failed to do so, he should be deemed to have forfeited review of 

whether Indiana Code § 31-35-2-4 is constitutional. See Appellee DCS’s Brief at 

43 (“Dissimilar to waiver, ‘which involves the intentional relinquishment or 

abandonment of a known right, “forfeiture is the failure to make the timely 

assertion of a right[.]”’”) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 

49, 54 (Ind. 2013)). 

“Challenges to the constitutionality of a civil statute may be waived if they 

could have been raised to the trial court but the appellant failed to do so.” In re 

R.S., 774 N.E.2d 927, 929 (Ind. Ct. App. 2002), trans. denied. Our review of the 

record reveals that Father did not raise the issue of the constitutionality of 

Indiana Code § 31-35-2-4 before the trial court. Accordingly, we find he has 

waived the issue. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (citing 

Plank., 981 N.E.2d at 53 (“Declining to review an issue not properly preserved 

for review is essentially a cardinal princip[le] of sound judicial administration.” 

(internal quotation omitted))). 

Waiver notwithstanding, the record reveals that the services provided Father

were not insufficient under the circumstances and that he was not deprived of 

due process. To the extent Father relies on In re T.W., in that case this Court 

examined the requirements of due process in the context of termination 
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proceedings and stated it was led to “one conclusion: for a parent’s due process 

rights to be protected in the context of termination proceedings, DCS must have 

made reasonable efforts to preserve and/or reunify the family unit in the 

CHINS case,” that “[w]hat constitutes ‘reasonable efforts’ will vary by case,”

and that “does not necessarily always mean that services must be provided to 

the parents.” 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied. The 

record reveals Father spoke with GAL Walker at a October 2017 child and 

family team meeting where he shared that “he didn’t think that services would 

be beneficial to him at that time, and at that time, um, chose not to or said he 

wasn’t going to participate in services.” Transcript Volume II at 40. It also 

reveals that, although he was eventually offered and began certain services

through the Father’s Engagement program, he did not complete those services. 

Furthermore, Father did not engage in drug screens, which the court ordered in 

its dispositional decree in the CHINS case, before being incarcerated. In light 

of the record, reversal based on the application of Indiana Code § 31-35-2-4 in 

this case is not warranted, and we cannot say that Father’s due process rights 

were violated. See In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009) 

(observing that the absence of services was due to the father's incarceration and 

that he did not point to any evidence that he specifically requested visitation or 

other services, and holding that the inability to provide services did not amount 

to a denial of due process).

Turning to Father’s argument that attorneys/judicial officers Gardner and 

Bradley’s vacillating roles as attorneys and judicial officers violated conflicts of
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interest concerns for attorneys and impartiality requirements for judicial officers

to such an extent that he was “deprived . . . of the most basic concepts of 

fundamental fairness in court proceedings and tainted the process in a manner 

that requires reversal for new proceedings,” Appellant’s Brief at 35, we initially 

observe that the Indiana Code of Judicial Conduct provides that a “judge shall 

disqualify himself . . . in any proceeding in which the judge’s impartiality might 

reasonably be questioned . . . .” Ind. Judicial Conduct Rule 2.11(A). Rule 2.11 

lists several specific instances requiring recusal, including cases where the judge 

has “served as a lawyer in the matter in controversy . . . . ” Id. at (A)(6). The 

Comment to Rule 2.11 notes that a judge’s obligation not to hear or decide 

matters under the Rule “applies regardless of whether a motion to disqualify is 

filed.” Jud. Cond. R. 2.11 cmt. [2]. To the extent that Father argues specific 

violations of the Code of Judicial Conduct,

3 this Court rejected the argument 

that the Code of Judicial Conduct supplies a freestanding mechanism for relief,

see Mathews v. State, 64 N.E.3d 1250, 1254 (Ind. Ct. App. 2016), trans. denied, 

and 

held that the obligations in the Code of Judicial Conduct are 

enforced by the individual judge against himself in the first 

3 We note Father also points to Indiana Professional Conduct Rule 1.12, which is titled “Former Judge, 

Arbitrator, Mediator or Other Third-Party Neutral” and provides that a “lawyer shall not represent anyone in 

connection with a matter in which the lawyer participated personally and substantially as a judge or other 

adjudicative officer, arbitrator, mediator or other third-party neutral, or law clerk to such a person, unless all 

parties to the proceeding give informed consent, confirmed in writing.” While Bradley did file an appearance

on July 29, 2019, as a volunteer attorney on behalf of Child Advocates, the guardian ad litem, he filed a 

motion to withdraw on the same day, and his appearance was withdrawn upon the realization he had been 

previously involved in the case.
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instance, and in the last instance by disciplinary actions of the 

Indiana Supreme Court. We also held that allowing an 

independent action under the Code of Judicial Conduct would

allow litigants, trial courts, and this Court to usurp the exclusive 

supervisory authority of the Indiana Supreme Court over judicial 

conduct.

Abney v. State, 79 N.E.3d 942, 951 (internal citations removed) (citing Mathews, 

64 N.E.3d at 1255). Even if we were to undertake independent review of the 

circumstances in light of the requirements of the Code of Judicial Conduct, we 

cannot say that Father would prevail. See Mathews, 64 N.E.3d at 1256 (holding 

the defendant would not prevail even if we conducted an independent review in 

light of the Code of Judicial Conduct). Unlike in Bloomington Magazine, Inc. v.

Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012), on which Father relies and in which 

this Court found that there was the appearance of impropriety because one of 

the attorneys served as chairman of the judge’s recent election campaign and 

the trial court abused its discretion in denying a motion to recuse herself, see 

L.G. v. S.L., 88 N.E.3d 1069, 1071 (Ind. 2018) (discussing Bloomington), the 

record does not support that Magistrate Haughan, who conducted the 

termination of parental rights trial, or Judge Jones, as the second judicial officer

who signed the termination order were influenced by the actions of either 

attorneys/judicial officers Bradley and Gardner. Cf. Bloomington, 961 N.E.2d at 

64 (noting that the mere appearance of bias and partiality may require recusal if 

an “objective person, knowledgeable of all the circumstances, would have a 

rational basis for doubting the judge’s impartiality.” (citing Patterson v. State, 926 

N.E.2d 90, 94 (Ind. Ct. App. 2010)). And, despite then-Magistrate Bradley and 
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then-Attorney Gardner’s involvements in a 2018 initial hearing, and then-Judge 

Pro Tempore Gardner’s approval of a November 2019 order summarizing the 

half-day events of the termination hearing date; and, while then-Magistrate 

Bradley and then-judicial officer Gardner4 may have signed separate pre-trial 

orders in 2019 that denied motions to transport and directed video conferencing 

or telephonic appearances for Father who was incarcerated, we do not find that 

Father has overcome the presumption against personal bias or prejudice. See 

L.G. v. S.L., 88 N.E.3d at 1073 (“Adverse rulings and findings by a trial judge 

are not sufficient reason to believe the judge has a personal bias or prejudice. . . 

. The law presumes that a judge is unbiased and unprejudiced. To overcome 

this presumption, the moving party must establish that the judge has personal 

prejudice for or against a party. Such bias or prejudice exists only where there 

is an undisputed claim or the judge has expressed an opinion on the merits of 

the controversy before him.” (internal citations removed)).5

We next turn to Father’s argument that the termination order is not supported 

by clear and convincing evidence. As noted, the involuntary termination 

statute is written in the disjunctive and requires proof of only one of the 

4 Although the July 2, 2019 order indicated “Judge” below the approval signature line, we note that Indiana’s 

Directory of Courts & Clerks lists Ryan Gardner as a Magistrate. See DIRECTORY OF COURTS & CLERKS IN 

INDIANA 28, https://www.in.gov/judiciary/files/court-directory.pdf (last accessed November 5, 2020). See 

also COURTS & CLERKS OFFICES, Courts.IN.Gov., https://www.in.gov/judiciary/2794.htm (last accessed 

November 5, 2020).

5 While the misconduct here did not deprive Father of due process, we admonish against the practice of 

appearing as an attorney and a judicial officer in the same case and underscore the importance of monitoring 

against such conflicts.
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circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). In determining whether 

the conditions that resulted in a child’s removal will not be remedied, we 

engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643. 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. at 643. In 

the second step, the trial court must judge a parent’s fitness as of the time of the 

termination proceeding, taking into consideration evidence of changed 

conditions, balancing a parent’s recent improvements against habitual patterns 

of conduct to determine whether there is a substantial probability of future 

neglect or deprivation. Id. 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 a 

parent’s past behavior is the best predictor of future behavior. Id. The statute 

does not simply focus on the initial basis for a child’s removal for purposes of 

determining whether a parent’s rights should be terminated, but also those bases 

resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 

385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent’s 

drug abuse, history of neglect, failure to provide support, lack of adequate 

housing and employment, and the services offered by DCS and the parent’s 

response to those services. Id. Where there are only temporary improvements 

and the pattern of conduct shows no overall progress, the court might 

reasonably find that under the circumstances the problematic situation will not 

improve. Id. While incarceration alone cannot serve as a basis for termination 
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of parental rights, it is well-settled that a trial court may evaluate the parent’s 

habitual patterns of conduct to assess the likelihood that the child or children

could experience future neglect or deprivation; and give considerable weight to 

the parent’s history of incarceration and the effects upon the child or children. 

See A.D.S. v. Ind. Dep’t of Child Services, 987 N.E.2d 1150, 1157 (Ind. Ct. App. 

2013) (holding that the parent’s habitual patterns of conduct should be evaluated 

to determine the probability of future neglect or deprivation of the child, that 

DCS is not required to prove a parent has no possibility of changing; and that 

DCS need only establish a reasonable probability that no change will occur), 

trans. denied. 

To the extent Father does not challenge certain findings of fact, the 

unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. 

Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver 

of the argument that the findings were clearly erroneous), trans. denied.

The record reveals Father’s pattern of continued involvement with law 

enforcement. In Indiana, he received at least one felony conviction in 2015;

one felony charge in 2017 and several misdemeanor charges; and two felony 

charges in 2018, among other misdemeanor charges. As he served the sentence

associated with the 2015 conviction, Father received two probation violations 

resulting in further incarceration, and at the time of the court’s termination 

order he still faced outstanding warrants in the proceedings related to the 2017 

and 2018 charges. Furthermore, as of the fact-finding hearing, Father was 

incarcerated in a United States penitentiary in Kentucky, where he had been 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 19 of 20

since April 2018 because of a conviction of the federal offense of possession of a 

firearm. He testified during the fact-finding hearing that he still had two 

additional years of incarceration to serve and would then be moved to a halfway house to engage in work and rehabilitative programs. FCM Wilburn 

testified that the Children need permanency and a safe and stable home

environment, both of which Father was unable to provide, and that the reason 

the Children were removed had not been remedied, because they “need to be 

taken care of and he’s unable to do that at this time.” Transcript Volume II at 

30. The court found that the Children have never been placed with Father; 

Father did not want placement of them; he did not want to complete the 

services which had been ordered for him or those referred for him; and he does 

not have the ability or willingness to provide the Children with a safe and stable 

permanent home or provide for their short-term and long-term needs. In light 

of the unchallenged findings and evidence set forth above and in the record, we 

cannot say the trial court clearly erred in finding that a reasonable probability 

exists that the conditions resulting in the Children’s removal or the reasons for 

their placement outside Father’s care will not be remedied. 

In determining the best interests of a child, the trial court is required to look 

beyond the factors identified by DCS and to the totality of the evidence. 

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. 

App. 2003). In so doing, the court must subordinate the interests of the parent 

to those of the child. Id. The court need not wait until a child is irreversibly 

harmed before terminating the parent-child relationship. Id. Moreover, the 
Court of Appeals of Indiana | Memorandum Decision 20A-JT-263 |November 18. 2020 Page 20 of 20

recommendations by both the case manager and child advocate 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 a child’s best interests. A.D.S., 987 N.E.2d at 1158-1159. 

Both FCM Wilburn and GAL Walker testified that termination of the 

relationship between Father and the Children was in their best interests. Based 

on the testimony, as well as the totality of the evidence as set forth in the record 

and termination order, we conclude that clear and convincing evidence 

supports the trial court’s determination that termination is in the Children’s best 

interests.

Affirmed.

Robb, J., and Crone, J., concur.