Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016 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

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:,

A.H. (Child),

 and,

M.L. (Father),

Appellant-Respondent,

 

July 29, 2016

Court of Appeals Cause No.

28A01-1601-JT-209

Appeal from the Greene Circuit 

Court

The Honorable Erik C. Allen. 

Judge

Trial Court Cause No.

28C01-1503-JT-90
Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016 Page 2 of 10

 v.

The Indiana Department of Child 

Services,

Appellee-Petitioner.

Barnes, Judge.

Case Summary

[1] M.L. (“Father”) appeals the termination of his parental rights to A.H. We 

affirm.

Issue

[2] Father raises one issue, which we restate as whether the trial court properly 

found a reasonable probability that the conditions resulting in A.H.’s removal 

will not be remedied.

Facts

[3] A.H. was born to Father and T.H. (“Mother”) in May 2008. In October 2010, 

Father was awarded custody of A.H. In approximately February 2013, Father’s 

girlfriend, B.I., moved in with him and A.H. On October 2, 2013, Father was 

at work, and B.I. complained about five-year-old A.H. to Father. When Father 

returned home from work, A.H. had bruises on his face. Father then spanked 

A.H. with a wooden board, sprayed cold water onto A.H.’s face for several 
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minutes, and “flicked” his penis because A.H. had wet the bed. Tr. p. 589. The 

next evening, Father had to take A.H. to a babysitter when he went to work. 

The babysitter noticed the bruising to A.H. and called the Department of Child 

Services (“DCS”). A.H. was transported to the Green County Hospital. A.H. 

had extensive bruises around his eyes and on his face, upper chest, back, and 

arms. He also had a “goose egg” on his forehead and “linear” red marks 

around his neck that were “indicative of strangulation.” Id. at 197, 212. A.H. 

told investigators that Father and B.I. physically abused him, including 

“whippings with a board, whipping with open hands and closed hands, 

choking, using water, throwing him against walls, and slamming him onto the 

ground.” Ex. 6, p. 1.

[4] DCS removed A.H. from Father’s care and placed him in foster care with his 

paternal great aunt and uncle. DCS filed a petition alleging that A.H. was a 

child in need of services (“CHINS”), and Father admitted that A.H. was a 

CHINS. The trial court ordered Father, in part, to complete a parenting 

assessment and psychological evaluation and follow all recommendations. 

Ultimately, Father was convicted of Class D felony neglect of a dependent and 

was sentenced to serve two and one-half years. Father was released from jail in 

July 2014. 

[5] Father participated in services, including a psychological evaluation and 

therapy. Therapist Christine Pryor gave Father a preliminary diagnosis of 

“intermittent explosive disorder, anti-social features, anxiety disorder, NOS, 

and parent child relational problem.” Tr. p. 286. Psychologist Sarah Szerlong 
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initially diagnosed Father with an anxiety disorder with some paranoid 

features. Additionally, Pryor tried working with Father on personal anger 

management and “identifying and utilizing more appropriate forms of 

punishment” to a child and gaining insight and a more empathic response. Id.

at 290. Father made little progress toward gaining insight. Pryor saw little 

empathy for A.H. from Father. Father believed that A.H. should “face his fears 

and move on.” Id. at 503. Father refused to take medications that were 

prescribed for him. Although there were times that Father appeared to be 

crying while discussing A.H., Pryor never saw any tears, which indicated 

deception to her and is often seen in anti-social people. Father had “bizarre 

behaviors,” including smiling at inappropriate times. Id. at 294. Father later 

worked with therapist Regina Hildenbrand-Moore. Hildenbrand-Moore’s 

diagnostic impression of Father was that he had anti-social and narcissistic 

personality disorders. She also saw limited progress in Father reaching his 

therapy goals.

[6] After his removal from Father, A.H. was initially very quiet. After a few 

weeks, he began to exhibit signs of trauma, including “fits” and “meltdowns.” 

Id. at 307. His foster parents determined certain triggers for the meltdowns or 

fits, including bath time, driving past Father’s house, and Taco Bell (Father’s 

former employer). A.H. was initially diagnosed with post-traumatic stress 

disorder and possibly ADHD. During kindergarten, A.H.’s foster mother had 

to attend school with him each day. A.H. has severe post-traumatic stress 

disorder and is “very fearful” of Father. Id. at 388. 
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[7] After Father’s release from jail, A.H.’s therapist started contact between A.H. 

and Father through letters, then telephone calls, and then supervised visits. 

When A.H. started receiving telephone calls from Father, A.H.’s meltdowns 

and fits increased. When face-to-face visits with Father started, the meltdowns 

and fits increased even more. A.H.’s behaviors became “extreme.” Id. at 380. 

In June 2015, the trial court ordered that face-to-face visits between Father and 

A.H. stop. 

[8] DCS filed a petition to terminate Father’s parental rights.1 After an evidentiary 

hearing, the trial court issued findings of fact and conclusions thereon 

terminating Father’s parental rights. Father now appeals.

Analysis

[9] Father challenges the termination of his parental rights to A.H. The Fourteenth 

Amendment to the United States Constitution protects the traditional right of 

parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127, 

1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or 

her children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed 

the parent-child relationship is ‘one of the most valued relationships in our 

culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796 

N.E.2d 280, 285 (Ind. 2003)). We recognize, of course, that parental interests 

 

1 Mother filed a consent for adoption.
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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.’” Id. (quoting In re D.D., 804 

N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied). 

[10] When reviewing the termination of parental rights, we do not reweigh the 

evidence or judge witness credibility. Id. 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)). Here, the trial 

court entered findings of fact and conclusions thereon in granting DCS’s 

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

and conclusions thereon entered in a case involving a 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. 

[11] 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 
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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: 

(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 establish these allegations by clear and convincing evidence. Egly v. 

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

[12] Father argues only that the trial court’s conclusion that the conditions resulting

in A.H.’s removal will not be remedied is clearly erroneous. Father does not 

challenge the trial court’s conclusion that there is a reasonable probability the 

continuation of the parent-child relationship poses a threat to A.H.’s well-being. 
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Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Subsection 

(b)(2)(B)(iii), which concerns repeated CHINS adjudications, is inapplicable 

here. Consequently, DCS was required to demonstrate by clear and convincing 

evidence a reasonable probability that either: (1) the conditions that resulted in 

A.H.’s removal or the reasons for placement outside the home of the parents 

will not be remedied, or (2) the continuation of the parent-child relationship 

poses a threat to the well-being of A.H. See, e.g., Bester v. Lake County Office of 

Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 

766, 774 (Ind. Ct. App. 2001), trans. denied. The trial court concluded both that 

the conditions resulting in A.H.’s removal will not be remedied and that the 

continuation of the parent-child relationship poses a threat to A.H.’s well-being. 

By failing to challenge the trial court’s conclusion regarding a threat to A.H.’s 

well-being, Father has implicitly conceded the sufficiency of (b)(2)(B)(ii) and 

has effectively waived review of the trial court’s determination under Indiana 

Code Section 31-35-2-4(b)(2)(B).

[13] Waiver notwithstanding, the trial court’s determination that the conditions 

resulting in A.H.’s removal will not be remedied is not clearly erroneous. In 

making this determination, the trial court must judge a parent’s fitness to care 

for his or her child at the time of the termination hearing and take into 

consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 

(Ind. Ct. App. 2001), trans. denied. However, the trial court must also “evaluate 

the parent’s habitual patterns of conduct to determine the probability of future 

neglect or deprivation of the child.” Id. 
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[14] Father argues that his supervised visits with A.H. were positive and that they 

had a loving relationship. Father points out that Dr. Jeffrey Huttinger, a 

clinical psychologist, testified that Father was remorseful and that A.H. needed 

more visitation with Father. However, Dr. Huttinger only had two one-hour 

sessions with Father and A.H. The therapists that spent many hours with 

Father and A.H. testified that continued contact between Father and A.H. was 

harmful to A.H. and that Father made little progress in gaining empathy or 

understanding of A.H.’s feelings. The DCS case worker testified that A.H. has 

severe post-traumatic stress disorder and is “very fearful” of Father. Tr. p. 388. 

When contact with Father was increased, A.H. had “pretty serious acting out

behaviors at home as well as at school.” Id. Despite extensive therapy for both 

Father and A.H., there was little progress in repairing A.H.’s relationship with 

Father. The trial court found a reasonable probability that the conditions that 

resulted in A.H.’s remove and continued placement outside Father’s home 

would not be remedied. Given the lack of progress in repairing the relationship 

between Father and A.H., we cannot say that this conclusion is clearly 

erroneous. 

Conclusion

[15] The trial court properly found a reasonable probability that the conditions 

resulting in A.H.’s removal will not be remedied. The evidence is sufficient to 

sustain the termination of Father’s parental rights to A.H. We affirm.

[16] Affirmed.
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Vaidik, C.J., and Mathias, J., concur.