Court of Appeals of Indiana | Memorandum Decision 02A05-1407-JT-305 | February 13, 2015 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 A. Thoma

Leonard, Hammond, Thoma & Terrill

Fort Wayne, Indiana

ATTORNEY 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 Matter of the Termination 

of the Parent-Child Relationship 

of: J.M., N.H. & N.M. (Minor 

Children)

N.H. (Father),

Appellant-Respondent,

v.

The Indiana Department of

Child Services,

Appellee-Petitioner

February 13, 2015

Court of Appeals Case No.

02A05-1407-JT-305

Appeal from the Allen Superior 

Court.

The Honorable Charles F. Pratt, 

Judge.

The Honorable Lori K. Morgan, 

Magistrate.

Cause Nos. 02D08-1310-JT-122

 02D08-1310-JT-123

 02D08-1310-JT-124

Baker, Judge.
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[1] N.H. (Father) appeals the trial court’s order terminating the parent-child 

relationship between Father and his two children, N.A.H. and N.M. Father 

argues that there is insufficient evidence to establish that termination is in the 

children’s best interests and that DCS did not have a satisfactory plan for the 

children. Finding sufficient evidence and no other error, we affirm.

Facts

[2] Father and J.M. (Mother) have two children: N.A.H., born in 2007, and N.M., 

born in 2009.1 In April 2010, the Department of Child Services (DCS) filed a 

petition alleging that the children were children in need of services (CHINS). 

The children were removed from the care and custody of the parents in April 

2010, and have been out of Father’s care since that time.

[3] On May 19, 2010, Father and Mother admitted that the children were CHINS. 

Among other things, Father admitted to the following allegations in the CHINS 

petition: the parents were living with the children in a dirty motel room; the 

family was on the verge of being evicted for failing to pay rent; there was little 

to no food present in the room; and the children were unkempt and dirty. 

[4] On May 24, 2010, the juvenile court adjudicated the children to be CHINS. 

The juvenile court also issued a dispositional order on the same date. Among 

 

1 Mother had another child, J.M., in 2004. Although Father has included J.M. in this appeal, the undisputed 

evidence in the record establishes that he is neither the biological nor the legal father of J.M. Therefore, he 

has no standing to raise any issues with respect to J.M. and we will not consider J.M. to be at issue in this 

appeal. Mother’s parental rights were terminated with respect to all of the children and the parental rights of 

J.M.’s father were also terminated. Neither Mother nor J.M.’s father are participating in this appeal.
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other things, the juvenile court ordered Father to complete the following 

services and engage in the following behavior:

 Refrain from all criminal activity

 Maintain clean and appropriate housing

 Maintain contact with DCS and the guardian ad litem (GAL)

 Enroll in anger management counseling

 Complete a substance abuse assessment and comply with any 

recommendations

 Obtain and maintain employment

 Establish paternity

 Participate with home-based counseling

 Pay child support

 Submit to random drug screens and refrain from illegal drug use

 Attend and appropriately participate in all scheduled visits with the 

children

DCS Ex. 10. On July 9, 2012, the juvenile court amended the dispositional 

order, adding a new requirement that Father complete a psychological 

evaluation and comply with all recommendations stemming from that 

evaluation.

[5] At the time of the CHINS adjudication, Father was N.A.H.’s legal father and 

N.M.’s alleged father. Notwithstanding the juvenile court’s order to establish 

paternity with respect to N.M., nearly four years went by before Father 

complied. He finally established paternity with respect to N.M. on March 3, 

2014. Father has paid no child support during the CHINS or termination 

proceedings.
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[6] From April 2010 until the time of the termination hearing in 2014, Father did 

not have stable housing. During that time, he was either living with friends, 

living with his mother, or incarcerated. Father was unemployed between 

December 2011 and March 2014.

[7] On March 25, 2011, Father was convicted of class A misdemeanor operating a 

vehicle while intoxicated. He received a one-year sentence, suspended to 

probation. On February 1, 2012, the trial court revoked Father’s probation and 

extended probation for another year. On December 19, 2013, Father pleaded 

guilty to class D felony operating a vehicle while intoxicated, and was 

sentenced to three years of probation.

[8] Father used marijuana in July 2010, April 2012, and May 2012. He completed 

a substance abuse assessment, which recommended that he complete a 

substance abuse treatment program. He did not complete the substance abuse 

treatment program. With respect to the court-ordered psychological evaluation, 

Father claims that he completed the evaluation while incarcerated, but failed to 

provide any proof of that claim.

[9] While the instant CHINS case was ongoing, DCS received allegations that 

Father had sexually abused other minor children. On June 16, 2013, Father 

admitted that he had babysat two girls, approximately 13 and 14 years old, and 

had touched their “privates” on one or two occasions. Tr. Vol. 1 p. 92-93. 

DCS substantiated the allegations of sexual abuse. Father testified at the 
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termination hearing in this case that he has not sought the type of help that he 

believes he needs to address the issue.

[10] Father did not visit with the children between January and April 2013 or 

between August 2013 and February 2014. Father admits that he failed to 

maintain contact with the Family Case Manager (FCM) assigned to his case.

[11] DCS has considered placing the children with their paternal grandmother since 

the initial hearing in the CHINS case in April 2010. That has never occurred, 

however, and the children have been in the same foster placement since 

February 2012. In 2002, DCS removed two of paternal grandmother’s children 

from her care and custody for neglect related to her substance abuse issues. 

Moreover, paternal grandmother told the FCM that she did not have the 

financial ability or the physical space to have the children placed with her. She 

told the FCM that “she would definitely support Children in the best way she 

could if the kids were maintained with [foster mother].” Tr. Vol 2. p. 64-65. 

Father did not request a change of placement for the children from foster care to 

relative care until the final day of the termination hearing.

[12] On October 17, 2013, DCS filed a petition seeking to have Father’s parental 

rights terminated. The juvenile court held a hearing on the petition on March 

25, 26, and 27, 2014. On June 24, 2014, the juvenile court issued an order 

terminating the parent-child relationship between Father and his children. 

Father now appeals.
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Discussion and Decision

I. Standard of Review

[13] Our standard of review with respect to termination of parental rights 

proceedings is well established. In considering whether termination was 

appropriate, we neither reweigh the evidence nor assess witness credibility. 

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will 

consider only the evidence and reasonable inferences that may be drawn 

therefrom in support of the judgment, giving due regard to the trial court’s 

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial 

court entered findings of fact and conclusions of law, we will not set aside the 

findings or judgment unless clearly erroneous. Id. In making that 

determination, we must consider whether the evidence clearly and convincingly 

supports the findings, and the findings clearly and convincingly support the 

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing 

evidence that the child’s emotional and physical development are threatened by 

the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children, 

839 N.E.2d 143, 148 (Ind. 2005).

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

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least 

six (6) months under a dispositional decree.
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(ii) A court has entered a finding under IC 31-34-21-5.6 that 

reasonable efforts for family preservation or 

reunification are not required, including a description of 

the court’s finding, the date of the finding, and the 

manner in which the finding was made.

(iii) The child has been removed from the parent and has 

been under the supervision of a local office or probation 

department for at least fifteen (15) months of the most 

recent twenty-two (22) months, beginning with the date 

the child is removed from the home as a result of the 

child being alleged to be a child in need of services or a 

delinquent child;

(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 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.

DCS must prove the alleged circumstances by clear and convincing evidence. 

K.T.K., 989 N.E.2d at 1230.

[15] In this case, Father challenges only the final two elements of the termination 

statute. First, he argues that there is insufficient evidence establishing that 

termination is in the children’s best interests. Second, he argues that there is 

insufficient evidence of a satisfactory plan for the care and treatment of the 

children.
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II. Best Interests of the Children

[16] Turning first to whether there is sufficient evidence supporting the juvenile 

court’s conclusion that termination is in the children’s best interests, we note 

that in considering this element, the juvenile court must weigh the totality of the 

evidence before it. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2014). In 

doing so, “the trial court must subordinate the interests of the parents to those 

of the child[ren] involved.” Id. The court need not wait until the child is 

irreversibly harmed before terminating the parent-child relationship. Id. 

Among the evidence that may be considered is the services offered to a parent 

and his response to and participation with those services. In re M.S., 898 

N.E.2d 307, 311 (Ind. Ct. App. 2008).2

[17] In this case, the record reveals that Father had nearly four years to complete 

court-ordered services and achieve a lifestyle that is safe and appropriate for his 

children. He has wholly failed to do so:

 Father failed to establish paternity with respect to N.M. for nearly four 

years.

 Father has paid no child support during the CHINS or termination 

proceedings.

 Father has failed to maintain stable and appropriate housing.

 Father was unemployed between December 2011 and March 2014.

 

2 To the extent that Father focuses on paternal grandmother’s suitability as a caregiver, we note that the best 

interests analysis focuses on his ability to safely parent his children rather than the suitability of a relative care 

placement.
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 Father amassed two separate criminal convictions, including one felony, 

during the CHINS proceeding. At one point, his probation was revoked. 

At another, he was incarcerated for several months.

 Father used marijuana repeatedly and failed to participate with a courtordered substance abuse program.

 Father was unable to provide proof that he completed a psychological 

evaluation.

 DCS substantiated allegations that Father had sexually abused two other 

children while the CHINS case was ongoing. He has admittedly failed to 

seek treatment he believes he needs to address this issue.

 Father failed to visit with the children between January and April 2013 

and between August 2013 and February 2014.

 Father failed to maintain regular contact with the FCM assigned to his 

case.

In other words, the record is replete with evidence of Father’s wholesale failure 

to comply with court orders, get the treatment he needs, comply with the law, 

or in any way demonstrate that he is able and willing to be a safe and 

appropriate parent to his children. He had four years to comply, and he did not 

do so. Under these circumstances, there was sufficient evidence supporting the 

juvenile court’s conclusion that termination of the parent-child relationship is in 

the children’s best interests.

III. Satisfactory Plan

[18] Finally, Father argues that there is insufficient evidence establishing that there 

is a satisfactory plan for the care and treatment of the children. DCS’s plan for 

the care and treatment of the children is adoption, which is a satisfactory plan. 

See, e.g., In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) (noting that 

adoption is a satisfactory plan); In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App. 
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2000) (finding that adoption is a satisfactory plan even if a definite adoptive 

family has not been identified).

[19] Essentially, Father argues that a better, more satisfactory plan for placement of 

the children would be to place them in relative care. Specifically, he argues that 

they should have been placed with paternal grandmother. The uncontested 

evidence reveals that DCS repeatedly considered placement of the children with 

paternal grandmother throughout the CHINS case. She was not found to be a 

suitable placement, however, for a variety of reasons. Among other things, she 

had children removed from her care for substance abuse in the past, she was 

financially unable to care for the children, she did not have the space to care for 

the children, and, for most of the case, she indicated to the FCM that she was 

unable to have the children placed with her. Furthermore, Father did not even 

request a change of placement until the final day of the termination hearing, 

despite the fact that he had had four years to raise the issue. 

[20] Father’s arguments amount to a request that we reweigh the evidence, which 

we will not do. The evidence in the record supports a conclusion that adoption 

is a satisfactory plan for these children. 

[21] The judgment of the juvenile court is affirmed.

Vaidik, C.J., and Riley, J., concur.