Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JT-1947 | April 5, 2017 Page 1 of 18

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

Jennifer L. Harmeyer

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Abigail R. Recker

Deputy Attorneys General

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

In re the Termination of the 

Parent-Child Relationship of 

T.H. (Minor Child),

and

J.H. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

April 5, 2017

Court of Appeals Case No.

10A01-1608-JT-1947

Appeal from the Clark Circuit 

Court

The Honorable Vicki L. 

Carmichael, Judge

The Honorable Joni L. Grayson, 

Magistrate

Trial Court Cause No.

10C04-1511-JT-22
Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JT-1947 | April 5, 2017 Page 2 of 18

Mathias, Judge.

[1] The Clark Circuit Court terminated J.H.’s (“Father”) parental rights to T.H., 

his minor child. Father appeals and raises several issues, which we restate as 

whether the trial court’s findings were supported by the evidence and whether 

the trial court erred when it terminated Father’s parental rights.

[2] We affirm.

Facts and Procedural History

[3] T.H. was born on November 11, 2012, to Father and B.H. (“Mother”), who are 

married. Mother is a drug addict, and T.H. tested positive for opiates at birth. 

T.H., who was born in Kentucky, was removed from her parents’ care because 

Father was homeless and Mother was a drug addict. The child was placed in 

foster care, and the State of Kentucky ordered Father to participate in 

numerous services. 

[4] T.H. was returned to Father’s care on April 11, 2014, but the State of Kentucky 

issued a no-contact order between Mother and T.H. Mother did not participate 

in services and continued to use drugs. The State of Kentucky then closed its 

case. Shortly thereafter, Mother and Father moved to Sellersburg, Indiana.

[5] On July 15, 2014, Mother’s sister discovered twenty-month-old T.H. alone in 

the house. Father left T.H. in Mother’s care while he was at work, and Mother 

left the house to get cigarettes. DCS removed T.H. from Father’s care and 
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placed her with her maternal aunt, but she was eventually returned to the care 

of her former foster parents.

[6] Mother and Father admitted that T.H. was a child in need of services 

(“CHINS”) in September 2014. Father was ordered to participate in numerous 

services including participation in parenting classes, counseling, and supervised 

visitation with T.H., and maintaining contact with his family case manager. 

[7] Father initially participated in services and supervised visitation. The visitation 

supervisor did not have any concerns with Father’s interaction with T.H. 

Father completed a psychological evaluation, but four of the tests were returned 

as invalid and could not be scored. Father does not use illegal substances, and 

his drug screens were negative. Father attended parenting classes but did not 

complete the twelve-week program.

[8] Mother was also ordered to participate in numerous services. Mother 

participated in some services, but also continued to use illegal substances. 

Mother acknowledged her substance abuse problem but refused to refrain from 

using illegal substances. 

[9] In April 2015, Father’s employment ended when the company he worked for 

shut down. In May 2015, Father’s vehicle broke down and he did not have 

reliable transportation. Father’s participation in services and visitation with 

T.H. ceased after Father no longer had a vehicle. The trial court ordered 

visitation with T.H. suspended in November 2015 because Father failed to 
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exercise visitation with T.H. from May 2015 to November 2015. Father also 

failed to maintain contact with his family case manager.

[10] On November 10, 2015, DCS filed a petition to terminate Mother’s and 

Father’s parental rights. Evidentiary hearings were held on the petition on 

March 3, April 7, April 21, and June 9, 2016. On July 27, 2016, the trial court 

issued an order terminating parents’ parental rights. The trial court found in 

pertinent part:

4. On May 28, 2015, a permanency hearing was held . . . . 

Mother and Father did not appear. . . . The Court found that 

Father was not in compliance with the plan. Father had 

completed a psychological evaluation, but the majority of the 

results were not considered valid due to reporting by Father that 

was minimized. Father had attended five (5) to six (6) parenting 

classes. Father attended counseling on March 2, 2015, but 

cancelled on April 9, 2015 and no-showed on April 19, 2015. 

Father had clean drug screens during the report period. . . . 

5. On August 20, 2015, a periodic case review hearing was held, . 

. . . Mother and Father failed to appear. . . . At that time, the 

Court also found that Father had not complied with Child’s case 

plan. Father had not attended counseling since March 2015. 

Father attended five (5) to six (6) parenting classes, but had not 

completed the course. Father was unemployed. Father had not 

visited Child since May 8, 2015. Father had failed to maintain 

contact with the Family Case Manager since May 2015. . . . The 

Court found that Mother and Father had not enhanced their 

ability to fulfill their parental obligations, had not cooperated 

with DCS, and had not visited Child since May 8, 2015.

6. On November 19, 2015, a periodic case review hearing was 

held . . . . Mother and Father failed to appear. . . . Father was not
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participating in any services, submitting to random drug screens, 

or maintaining contact with the Family Case Manager. He had 

not visited Child since May 8, 2015. . . . 

7. On May 19, 2016, a permanency hearing was held . . . . 

Mother and Father failed to appear. . . . Mother had housing 

with Father. Visitation was suspended by the Court in November 

2015 due to failure of the Parents to attend visitation since May 

of 2015. . . . Father had not participated in services, including 

parenting classes or counseling. Father had not maintained 

contact with the Family Case Manager, including updating her 

on his telephone number. Father had screened negative for all 

substances on screens he had submitted to. Father had recently 

obtained employment, but did not provide such information to 

the Family Case Manager. He continues to live with Mother. . . . 

***

76. Father failed to maintain consistent contact with [Family 

Case Manger] Martin, including responding to correspondences 

and telephone messages within a reasonable amount of time.

77. Father failed to contact FCM Martin by telephone at least 

once per week.

78. FCM Martin would communicate with Father via telephone 

calls, text messages, letters, and home visits.

***

81. When FCM Martin did speak with Father, he would often 

get angry with FCM Martin and hang up the phone.
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82. As of May 2015, Father stopped all contact with FCM 

Martin.

83. FCM Martin’s telephone number and work address ha[ve]

been the same for the entirety of this CHINS matter.

84. On August 24, 2015, Father stated to FCM Martin to leave 

him alone and not to contact him anymore.

***

101. Father completed a psychological assessment, but the 

majority of the results of Father’s evaluation were not considered 

valid and he failed to follow all the recommendations of the 

assessment.

***

105. Father’s results from the Incomplete Sentence Blank-Adult 

Form revealed a theme of blaming Mother and lack of concern 

for Child. Father’s “responses suggest a man who likely placed 

too much of the blame onto his spouse for the loss of custody of 

his daughter. That being said, he also fears for his wife’s safety 

and is generally concerned for her well-being. Overall, there is a 

lack of concern expressed for [T.H.’s] well-being.”

***

110. Dr. Sheppard summarized the following based on the 

psychological evaluation: “However, [J.H.] appears unwilling 

and unable to accept additional responsibility himself for 

ensuring his daughter’s safety. He seems to care about her and 

want to be a good father, but he struggles with the specifics of 

how to do that. Further, there is some question about his ability 
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to truly connect and bond with his child. He expresses missing 

her, but largely from the perspective of what she provides to him 

(being able to hold her, having a happy family, etc.). [J.H.] 

clearly expresses love for his family, but might be lacking a 

deeper connection with his child. He might not fully understand 

all that is involving [sic] in taking care of and nurturing an 

infant/toddler. This examinee is also likely in denial about his 

wife’s serious substance abuse issues. This can lead to enabling 

and denying real risks that exists [sic].”

111. Dr. Sheppard diagnosed Father with Relationship Distress 

with Spouse or Intimate Partner and Parent-Child Relationship 

Problem based upon the relationship problems presenting in the 

family. 

***

113. Based on the psychological evaluation, Dr. Sheppard 

recommended the following:

a. Father to only have access to Child if he can ensure that 

she will not be around Mother when she is under the 

influence and that Father must realize he is responsible for 

providing a safe and nurturing environment for Child; 

b. Father would benefit from attending Al-Anon and/or NarAnon; 

c. Visitation to be supervised:

d. Family therapy to occur once Mother is actively engaged 

in substance abuse treatment;

e. Father to submit to random drug screens;
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f. That those working with the family should be aware of 

signs of domestic violence and report any suspicious 

activity due to it appearing such has happened in the past:

g. Father would benefit from hands-on parenting services; 

and

h. Ongoing case management.

114. FCM Martin discussed the finding and recommendations of 

the psychological assessment with Father in January of 2015.

115. Father failed to follow the recommendations of the 

evaluation by failing to attend Al-Anon and failing to complete 

parenting classes offered to him.

116. On February 19, 2015, Father stated to Mother’s ACP 

therapist, Lori Paris, that he bought drugs for Mother and 

provided Mother money to purchase drugs.

117. Lori Paris believed Father was enabling Mother’s use.

118. Father failed to complete parenting classes and demonstrate 

knowledge and skills learned in the classes.

119. Father stated in FCM Martin that he did not need parenting 

classes.

***

126. Father failed to participate in individual counseling at a 

frequency and duration as recommended by the therapist.

***
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128. FCM Martin reminded Father at a home visit on January 

22, 2015 that he needed to schedule a counseling appointment to 

address his anger management. Father denied having an anger 

problem and denied needing counseling.

***

133. Father participated in supervised visitation with Child from 

July 2014 until May 2015.

134. Father was offered supervised visitation with Child on 

Mondays and Sundays while Child was placed in relative care 

from July 15, 2014 to October of 2014. Father visited Child only 

on Mondays.

135. After Child was placed in kinship care in October 2014, a 

referral for supervised visitation was made to Family Time, Inc. 

on October 17. 2014.

136. Family Time, Inc. provided Father fully supervised 

visitation with Child at a frequency of two (2) times per week for 

two (2) hours at each visit.

137. Father failed to attend thirteen (13) visitations from October 

2014 to May 2015 . . . . 

138. Father failed to attend any further visitations with Child 

after May 12, 2015.

139. Between May 12, 2015 to November 19, 2015 (when visits 

were ordered suspended by the Court due to a failure of Father to 

visit with Child), no visit was ever denied to Father.
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140. Father stated to Melina Olivas that he stopped visiting the 

child because vehicle was not working properly and also stated 

concerns with gas money.

141. Melina Olivas provided Father resources for transportation 

and resources to get his vehicle fixed.

142. Melina Olivas provided Father a gas card in May of 2015 

and offered him a ride to Court.

143. In late May or early June of 2015, Melian Olivas went to the 

home of Mother and Father to provide groceries. There was no 

electricity in the home at that time.

144. In late June 2015, Melina Olivas went to the home of 

Mother and Father to provide groceries.

145. Father never asked Melina Olivas about Child during her 

encounters with him after he stopped visiting Child in May 2015.

***

151. Father has criminal history in Kentucky.

***

164. Mother stated to Child’s maternal aunt, Angela Carwile, 

that Father was physically abusive to her in their relationship.

165. Angela Carwile advised Mother to file a police report.
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166. Mother described to Angela Carwile an incident where she 

had wanted money from Father for drugs, that Father made her 

perform sexual acts, that Father hit her while this occurred, that 

father put her in the basement, pinned her up, and threatened her 

with a machete.

167. Angela Carwile witnessed Mother with a black eye in the 

summer of 2014 and Mother stated Father had caused the injury.

168. In March of 2015, FCM Martin observed a photo of Mother 

with a black eye.

***

197. Guardian ad Litem, Michael Forsee (“GAL Forsee”) agrees 

that it is in Child’s best interest for termination of parental rights 

and adoption. GAL Forsee makes this recommendation due to 

Mother’s inability to maintain sobriety, Father’s enabling of 

Mother, Mother and Father’s failure to visit Child, Mother and 

Father’s failure to comply with any services or request from the 

Department of Child Services, that Mother and Father have been 

non-existent in Child’s life for many months, and due to Child’s 

current foster parents providing for Child and being the only 

parents Child has bonded with. Mother and Father failed and 

refused to make an appointment with GAL Forsee.

Appellant’s App. pp. 22-40.

[11] The trial court then concluded that the conditions that resulted in T.H.’s 

removal and continued placement outside Father’s home would not be 

remedied and that continuation of the parent-child relationship poses a threat to 

T.H.’s well-being. The court also concluded that termination of Father’s rights 
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was in T.H.’s best interests. Father now appeals the order terminating his 

parental rights to T.H.1

Discussion and Decision

[12] The purpose of terminating parental rights is not to punish parents but instead 

to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004). 

Although parental rights have a constitutional dimension, the law allows for 

their termination when the parties are unable or unwilling to meet their 

responsibilities as parents. Id. Indeed, parental interests must be subordinated to 

the child’s interests in determining the proper disposition of a petition to 

terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).

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

parental rights must allege

(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;

 

1 The trial court also terminated Mother’s parental rights, but Mother has not appealed the trial court’s order.
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(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.

[14] DCS must prove each element by clear and convincing evidence. Ind. Code § 

31-37-14-2; G.Y., 904 N.E.2d at 1261. However, because Indiana Code section 

31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find 

that only one prong of subsection (b)(2)(B) has been established by clear and 

convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

[15] Clear and convincing evidence need not establish that the continued custody of 

the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty. 

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead 

sufficient to show by clear and convincing evidence that the child’s emotional 

and physical development are put at risk by the parent’s custody. Id. If the court 

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

[16] We have long had a highly deferential standard of review in cases involving the 

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App. 

2011). We neither reweigh the evidence nor assess witness credibility. Id. We 

consider only the evidence and reasonable inferences favorable to the trial court's 

judgment. Id. In deference to the trial court's unique position to assess the 

evidence, we will set aside a judgment terminating a parent-child relationship 

only if it is clearly erroneous. Id. Clear error is that which leaves us with a 
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definite and firm conviction that a mistake has been made. J.M. v. Marion Cnty. 

Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans. denied. 

[17] Finally, where, as here, the trial court includes findings of fact and conclusions 

thereon in its order terminating parental rights, our standard of review is twotiered. S.P.H., 806 N.E.2d at 879. First, we must determine whether the 

evidence supports the findings, and, second, whether the findings support the 

legal conclusions. Id.

The Trial Court’s Findings

[18] Father argues that the trial court’s findings of fact concerning his prior criminal 

history from the State of Kentucky and that finding of fact number 99 

concerning his income are not supported by the evidence. 

[19] The DCS presented certain exhibits concerning Father’s criminal history to the 

trial court, but the exhibits were not admitted after Father objected on the 

grounds of relevance. However, Father himself testified concerning his criminal 

history, and the GAL’s report discussed it as well. Tr., Vol. II, pp. 32, 37, 39, 

40, 43; Ex. Vol., DCS Ex. 27. This evidence is sufficient to support the findings 

describing Father’s criminal history.

[20] Father also challenges finding number 99, which states that “Father failed to 

have a legal source of income after losing his job at Swifty’s gas station in spring 

of 2015 until obtaining current employment at AutoZone on January 29, 2016.” 

Appellant’s App. p. 30. The DCS presented evidence that Father had no 

income for twelve weeks between the date the gas station closed and the date 
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Father began collecting unemployment. Therefore, the finding is not supported 

by the evidence to the extent it states that Father had no income until January 

29, 2016. However, as Father was employed on the date of the termination 

hearing, the inaccuracy in this finding does not require reversal of the trial 

court’s judgment. 

Sufficient Evidence

[21] Next we address Father’s argument that the trial court clearly erred when it 

concluded that there is a reasonable probability that continuation of the parentchild relationship poses a threat to T.H.’s well-being and that termination of his 

parental rights was in T.H.’s best interests.

I. Threat to T.H.’s Well-Being

[22] Father argues that the trial court clearly erred when it found there is a 

reasonable probability that continuation of the parent-child relationship poses a 

threat to T.H.’s well-being. When considering subsection 31-35-2-4(b)(2)(B)(ii), 

the trial court must examine the parent’s habitual patterns of conduct to 

determine the probability of future neglect or deprivation of the child. A.D.S. v. 

Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013). The trial 

court may consider evidence of a parent’s prior history of neglect, failure to 

provide support, and lack of adequate housing and employment. Id. DCS is not 

required to provide evidence ruling out all possibilities of change. Id. Instead it 

needs to establish only that a “reasonable probability” exists that the parent’s 

behavior will not change. Id.
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[23] Father argues that the DCS failed to prove a continued threat to T.H.’s wellbeing because he has a stable home, he does not use illegal substances, and he 

appropriately cared for T.H. during supervised visitations. Father also partially 

complied with the services ordered and had difficulty maintaining his 

participation in services after he lost his job and his car broke down.

[24] However, even when Father was employed and had a working vehicle, he did 

not participate in all services ordered and missed several supervised visitations. 

He told his family case manager that he did not need parenting classes or 

counseling. After he lost his job and no longer had a working vehicle, in May 

and June 2015, DCS provided resources to Father so that he could attend 

supervised visitation with T.H., but Father failed to do so and has not visited 

with T.H. since May of 2015. He has not participated in any services since May 

of 2015. He also never requested information about T.H.’s welfare from DCS 

service providers. Father’s failure to exercise his right to visit T.H. demonstrates 

a “lack of commitment to complete the actions necessary to preserve [the] 

parent-child relationship.” Lang v. Starke County Office of Family and Children, 861 

N.E.2d 366, 372 (Ind. Ct. App. 2007).

[25] Father is still married to Mother, who admits to abusing illegal substances. 

DCS also presented evidence that Father enables Mother’s drug use, and 

Mother admitted she will continue to use illegal substances. Before T.H. was 

removed from Father’s care, Father allowed Mother to care for T.H. even 

though Mother is a drug addict. For all these reasons, we conclude the trial 

court’s conclusion that there is a reasonable probability that continuation of the 
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parent-child relationship poses a threat to T.H.’s well-being is supported by the 

evidence.2

II. T.H.’s Best Interests

[26] In determining the best interests of a child, the trial court must look beyond the 

factors identified by DCS and consider the totality of the evidence. In re J.S., 

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In so doing, the trial court must 

subordinate the interests of the parent to those of the child.” Id. Children have a 

paramount need for permanency, which our supreme court has deemed a 

central consideration in determining a child's best interests. In the Matter of E.M., 

4 N.E.3d 636, 647-48 (Ind. 2014). Courts “need not wait until a child is 

irreversibly harmed such that the child’s physical, mental, and social 

development is permanently impaired before terminating the parent-child 

relationship.” Id. at 648 (citation omitted). We have previously determined that 

the testimony of the case worker or guardian ad litem regarding the child’s need 

for permanency supports a finding that termination is in the child's best 

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

(Ind. Ct. App. 2003).

 

2 Father also argues that there was insufficient evidence to support the trial court's conclusion that there is a 

reasonable probability that 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. Indiana Code section 31-35-2-4(b)(2)(B) is 

written in the disjunctive and requires clear and convincing evidence of only one of the circumstances listed 

in subsection (B). See R.J. v. Ind. Dep't. of Child Servs., 56 N.E.3d 729 (Ind. Ct. App. 2016). Therefore, we need

not address this argument.
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[27] Here, the GAL testified that termination of Father’s parental rights was in 

T.H.’s best interests. Tr. pp. 96, 100-01. On the date of the final termination 

hearing, T.H. had been in Father’s care for only three of her forty-three months 

of life. At the time of that hearing, Father had not seen, much less cared for,

T.H. in over a year. Moreover, Father and Mother are still married, and Father 

has historically enabled Mother’s illegal substance abuse. T.H. deserves the 

permanency and stability she now has with her foster family, and her foster 

parents wish to adopt her.3

[28] For these reasons and those expressed in the trial court’s termination order, we 

conclude that the trial court’s finding that termination of Father’s parental 

rights to T.H. is in her best interests is supported by clear and convincing 

evidence.

Conclusion

[29] Clear and convincing evidence supports the trial court’s order terminating 

Father’s parental rights to T.H.

[30] Affirmed.

Kirsch, J., and Altice, J., concur. 

 

3 Father also argues that the DCS did not prove that it has a satisfactory plan for the care and treatment of 

T.H. Adoption by the foster parents, who have taken care of T.H. most of her life is a more than satisfactory 

plan for her care and treatment. The fact that the foster parents inquired about T.H.’s welfare after they 

learned that she was returned to Father’s care does not negate their suitability as adoptive parents.