Court of Appeals of Indiana | Opinion 91A02-1504-JT-213 | September 23, 2015 Page 1 of 13

ATTORNEY FOR APPELLANT FATHER

Robert J. Little

Brookston, Indiana

ATTORNEY FOR APPELLANT MOTHER

Steven Knecht

Vonderheide & Knecht, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Abigail R. Recker

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of Termination of 

the Parent-Child Relationship of:

B.H. and S.H. (Minor Children),

and

B.H. (Father) and

M.B. (Mother),

Appellants-Repondents,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

September 23, 2015

Court of Appeals Case No.

91A02-1504-JT-213

Appeal from the White Circuit 

Court

The Honorable Robert W. 

Thacker, Judge

Trial Court Cause Nos.

91C01-1410-JT-8

91C01-1410-JT-9

Baker, Judge.
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[1] B.H. (Father) and M.B. (Mother) appeal the juvenile court’s order terminating 

their relationship with their two children. Mother argues that the juvenile court

should have granted her motions to continue the termination hearing, and both 

parents argue that there is insufficient evidence supporting the termination 

order. Finding no error and sufficient evidence, we affirm.

Facts

[2] S.H. was born to Mother and Father on May 5, 2006; B.H. was born to Mother 

and Father on September 22, 2008.

[3] On April 30, 2013, law enforcement was called after Father stabbed his brotherin-law in the presence of the children. DCS received a report on May 2, 2013, 

detailing the incident and alleging that Father was an active methamphetamine 

user and had been arrested. During its assessment, DCS discovered that 

Mother and children were staying in a home that had previously been 

investigated for methamphetamine use. Mother, who was pregnant, refused to 

take a drug screen because she had recently smoked marijuana. As part of the 

assessment, DCS performed drug tests on both children. S.H. tested positive 

for methamphetamine. As a result, DCS removed both children from the 

parents’ care and custody and placed them in relative care.

[4] On May 24, 2013, DCS filed a petition alleging that the children were children 

in need of services (CHINS). The parents admitted that Father was 

incarcerated, that Mother had recently used marijuana, and that S.H. had tested 

positive for methamphetamine while in the parents’ care. On June 28, 2013, 
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the juvenile court found both children to be CHINS. At the July 19, 2013, 

dispositional hearing, the juvenile court ordered Mother to, among other things: 

maintain stable housing; refrain from drug use; submit to random drug screens; 

and attend all scheduled visitations with children. Because Father was 

incarcerated, the court did not order that he participate in any services.

[5] Between June and November 2013, Mother attended only fifteen out of twentyeight scheduled visits with the children. Her visits became more regular in 

January 2014, but she reported getting frustrated with the children, and the 

visitation supervisor had to intervene repeatedly because Mother was unable to 

manage the children’s behavior. In July 2014, the children moved to Florida to 

live with their maternal grandparents. Mother was allowed to have two weekly 

phone calls with the children, but during five and one-half months, Mother 

called only eight times and spoke to the children for approximately five minutes 

each time.

[6] After failing to attend two previous scheduled substance abuse intake 

assessments, in March 2014, Mother attended an intake assessment and was 

referred to an intensive outpatient program (IOP). She attended only four out 

of thirteen sessions and eventually quit attending altogether. Mother tested 

positive for methamphetamine in May 2013, and she tested positive for 

hydrocodone—for which she did not have a prescription—in July 2013, August 

2013, and twice in January 2014. Mother also missed multiple drug screens. In 

August 2014, Mother gave birth to her third child, who tested positive for 

opiates and methamphetamine at birth.
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[7] In June 2014, Mother was unsuccessfully discharged from homebased case 

management services. Throughout the CHINS case, Mother had unstable 

housing, living in at least six different locations. Mother was also incarcerated 

for theft between October and December 2013. At the time of the termination 

hearing, Mother was on probation, which she had already violated multiple 

times.

[8] In July 2014, Mother was living with her boyfriend. While the residence itself 

met minimal standards, Mother’s boyfriend was a convicted felon for violent 

crimes, had substance abuse issues, and had previously been involved with 

DCS. As a result, DCS did not approve the children to relocate to that home. 

At the time of the termination hearing, Mother and her boyfriend were still in a 

relationship. As of February 2015, Mother was homeless again.

[9] In 2000, Father was convicted of armed robbery and received a twenty-year 

sentence, with four years executed and ten years suspended to probation. 

When he was arrested in May 2013, he was still on probation for the armed 

robbery conviction. On May 2, 2013, Father was arrested for dealing 

methamphetamine. As a result of the arrest, Father’s probation was revoked 

and he was ordered to serve two years of the sentence for armed robbery. 

Eventually, Father was convicted of class B felony dealing in 

methamphetamine and class D felony criminal recklessness. He received an 

eleven-year sentence for these convictions. Father’s earliest possible release 

date is November 1, 2019.
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[10] On October 27, 2014, DCS filed a petition to terminate the parent-child 

relationship between the parents and the children. The first day of the 

termination hearing took place on December 18, 2014. That morning, Mother 

filed a motion to continue, contending that she had to work and risked getting 

fired if she came to court. The juvenile court denied the motion, in part 

because the motion had been filed at the last minute and multiple witnesses had 

traveled from out-of-state to testify. The second day of the termination hearing 

took place on March 3, 2015, and Mother again filed a motion to continue the 

morning of the hearing; the juvenile court again denied the motion. On March 

31, 2015, the juvenile court granted DCS’s petition and terminated the parentchild relationship between Mother, Father, and the children. Mother and 

Father now appeal.

Discussion and Decision

I. Motions to Continue

[11] Mother first argues that the trial court erroneously denied her motions to 

continue. We review a trial court’s ruling on a motion to continue a trial date 

for an abuse of discretion, with a strong presumption that the trial court 

properly exercised its discretion. Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 

N.E.2d 444, 449 (Ind. Ct. App. 2007). The party seeking a continuance must 

show that he or she is free from fault. Danner v. Danner, 573 N.E.2d 934, 937 

(Ind. Ct. App. 1991).
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[12] On the morning of December 18, 2014, the first scheduled day of the 

termination hearing, Mother filed a motion to continue, alleging that she was 

unable to attend because of work and transportation issues and that she had not 

received notice of the hearing. The record reveals, however, that on November 

20, 2014, Mother’s attorney was present when the juvenile court stated that the 

termination hearing would begin on December 18, 2014. Mother’s App. p. 3-4. 

Therefore, Mother had notice of the hearing. Her own failure to make 

arrangements with work is not good cause for a last-minute continuance, 

especially when multiple witnesses had traveled from out of state to testify. We 

find no abuse of discretion in the denial of the December 18, 2014, motion to 

continue.

[13] On the morning of March 3, 2015, the second day of the termination hearing, 

Mother again filed a motion to continue.1 This time, she alleged that she was 

unable to attend because the person who was to transport her to court had been 

injured. DCS objected, stating that if Mother had notified DCS as soon as there 

was a problem, DCS would have provided transportation to ensure her 

presence at court. The trial court denied the continuance. We find no abuse of 

discretion in this ruling. Additionally, we note that Mother was represented by 

counsel throughout all of the termination proceedings. Her attorney crossexamined witnesses and had the opportunity to introduce evidence on her 

 

1 The second day of the termination hearing was originally scheduled to take place on January 14, 2015. 

DCS moved for a continuance because the family case manager assigned to the case had a serious illness and 

was unable to testify. Mother did not object to the continuance, which the trial court granted.
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behalf. Consequently, we find no reason to conclude that Mother was denied a 

fair hearing, and we decline to reverse on this basis.

II. Termination Order

A. Standard of Review

[14] 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).

[15] 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:
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(i) The child has been removed from the parent for at 

least six (6) months under a dispositional decree.

(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 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
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(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.

B. Termination Between Mother and Children

[16] Mother argues that the juvenile court erred in concluding that there is a 

reasonable probability that the conditions resulting in the children’s placement 

outside the home will not be remedied; that continuation of the parent-child 

relationship poses a threat to the children’s well-being; and that termination is 

in the children’s best interests.

[17] First, with respect to the conditions resulting in the children’s removal from 

Mother, we note that the children were removed as a result of Mother’s 

admitted drug use and S.H.’s positive drug test for methamphetamine. Over 

the course of the CHINS case, Mother repeatedly failed to take a substance 

abuse intake assessment, and once she did so, she failed to complete the 

recommended IOP program. She also repeatedly tested positive for opiates for 

which she did not have a prescription and failed to show up for multiple 

random drug screens. During the CHINS proceedings, Mother gave birth to a 

third child, who tested positive for opiates and methamphetamine at birth. It is 

clear, therefore, that despite multiple opportunities to address her substance 

abuse issues, Mother has failed to do so. We find that the evidence in the 

record supports the juvenile court’s conclusion that there is a reasonable 
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probability that the conditions that resulted in the children’s removal from 

Mother’s care and custody would not be remedied.

[18] Second, with respect to the juvenile court’s conclusion that continuation of the 

parent-child relationship poses a threat to the children’s well-being, we again 

emphasize the above-described evidence of Mother’s ongoing substance abuse 

issues that have never been remedied. Furthermore, the record reveals that 

Mother has been wholly unable to maintain stable housing. She directs our 

attention to the residence in which she was living on the first day of the 

termination hearing. While that residence met minimal standards, her live-in 

boyfriend—a convicted violent felon with substance abuse issues and prior DCS 

history—did not. Furthermore, as of February 2015, Mother was homeless 

again. We find that this evidence readily supports the trial court’s conclusion 

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

children’s well-being.

[19] Finally, with respect to the best interests of the children, we highlight all of the 

above-described evidence. Additionally, we note that the record reveals that 

Mother did not maintain consistent contact with the children, either in person 

when they lived in Indiana, or by telephone after they moved to Florida. The 

children are in a loving, stable placement with their maternal grandparents, 

who plan to adopt them. Given Mother’s wholesale inability or refusal to 

address her issues and improve her parenting skills, we find that the juvenile 

court did not err by finding that termination of the parent-child relationship is in 

the best interests of the children.
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C. Termination Between Father and Children

[20] Father argues that we should reverse the termination order with respect to him 

because the sole reason supporting termination is the fact of his incarceration. 

Indeed, our Supreme Court has emphasized that “incarceration is an 

insufficient basis for terminating parental rights.” K.E. v. Ind. Dep’t of Child 

Servs., No. 82S04-1508-JT-491, at *1 (Ind. Aug. 20, 2015).

[21] We find both K.E. and an earlier case, In re G.Y., 904 N.E.2d 1257 (Ind. 2009), 

to be instructive. Turning first to G.Y., the mother in that case was incarcerated 

for an offense she had committed before her child was born. The G.Y. Court 

emphasized that “all of Mother’s criminal history consists of offenses that were 

committed before G.Y.’s conception in 2003. After that time and for the first 

20 months of his life, the record gives no indication that Mother was anything 

but a fit parent.” Id. at 1262. While incarcerated, Mother completed an eightweek drug rehabilitation program and a fifteen-week parenting class, and was 

actively participating in a job program, actively working towards an associate’s 

degree, and had regular and consistent visitation with the child. Finally, 

Mother’s release from prison was “imminent.” Id. at 1265. Given all of these 

factors, among others, our Supreme Court reversed the termination.

[22] In K.E., while Mother was pregnant with the child, Father was charged with 

multiple drug-related criminal offenses. 82S04-1508-JT-491, at *1. Father was 

already incarcerated at the time of the child’s birth, and his earliest possible 

release date was over two years from the date of the termination hearing. Our 
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Supreme Court noted that Father had housing and employment plans upon his 

release from incarceration; that Father had completed twelve programs while 

incarcerated and had attended Alcoholics Anonymous and Narcotics 

Anonymous; and that he visited with the child every week and spoke on the 

phone with the child every night. Thus, even though his release date was two 

years away, he had made “substantial efforts . . . to improve his life by learning 

to become a better parent, establishing a relationship with K.E. . . . , and 

attending substance abuse classes[.]” Id. at *7. In the end, our Supreme Court 

reversed the termination order. 

[23] We find the instant case to be distinguishable from both G.Y. and K.E. In both 

of those cases, the incarcerated parent had committed the criminal acts prior to 

the births of their children. Here, in contrast, Father’s children were five and 

seven years old when he stabbed their uncle in their presence. He was also 

dealing in methamphetamine and using methamphetamine, contributing to an 

environment that led to his seven-year-old testing positive for 

methamphetamine. Furthermore, Father’s release date was nearly five years 

away from the date of the termination hearing.2 Father did not testify regarding 

housing or employment plans following his release and he did not testify that he 

had completed any substance abuse programs while incarcerated despite 

admitting that he had abused methamphetamine during the children’s lifetimes. 

 

2

Father testified that he was participating in a program that would potentially cut two years off of his 

sentence. But he had not completed the program at the time of the hearing, and currently his release date is 

still November 1, 2019.
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Therefore, the fact of Father’s incarceration was not the sole evidence 

supporting termination.

[24] The K.E. Court noted that there is no bright line rule regarding when release 

must occur to maintain parental rights, instead stating that courts must consider 

whether other evidence, coupled with the expected release date, supports a 

termination order. Id. at *6. In this case, the expected release date is far in the 

future—five years from the date of the termination hearing. When coupled 

with the circumstances of the criminal activity, which directly affected Father’s 

children, and the absence of evidence regarding future plans and participation 

in substance abuse treatment, we find that the evidence demonstrates that the 

juvenile court did not err by concluding that termination is in the best interests 

of the children.3

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

Bailey, J., and Mathias, J., concur.

 

3

Father does not address the specific statutory elements required to be proved to support a termination; 

instead, he makes a general argument regarding the best interests of the children. To the extent that Father 

argues that reversal is warranted because DCS did not provide him with services during his incarceration, we 

note that it is well established that DCS is not required to provide services before commending termination 

proceedings. E.g., In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009).