Court of Appeals of Indiana | Memorandum Decision 03A04-1709-JT-2135 | March 27, 2018 Page 1 of 16

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

Heather M. Schuh-Ogle

Thomasson, Thomasson, Long & 

Guthrie, P.C.

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

K.D. (Minor Child)

and

K.H. (Father),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

March 27, 2018

Court of Appeals Case No.

03A04-1709-JT-2135

Appeal from the Bartholomew 

Circuit Court

The Honorable Heather Mollo, 

Magistrate

The Honorable Kelly Benjamin, 

Judge

Trial Court Cause No.

03C01-1701-JT-587

Vaidik, Chief Judge.
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Case Summary

[1] K.H. (“Father”) appeals the termination of his parental rights to his son. 

Finding no error, we affirm.

Facts and Procedural History

[2] Father and J.D. (“Mother”) are the parents of K.D. (“Child”), who was born 

February 1, 2016.1 Mother has another child, W.H., who was born in October 

2001. On the day of Child’s birth, the Indiana Department of Child Services 

(DCS) received a report that Mother was addicted to opiates and 

benzodiazepines during her pregnancy with Child, Child showed signs of

withdrawal after birth (and was in the NICU receiving treatment for 

withdrawal), and Father had been arrested two days earlier and charged with 

attempted murder and battery by means of a deadly weapon for shooting two 

people (W.H., age fourteen, was present during the shootings) and was in the 

Bartholomew County Jail. Based on these allegations, DCS requested an 

emergency order to remove Child from Mother, which the juvenile court 

granted on February 4. After being discharged from the hospital, Child was

placed with K.B., Mother’s cousin. When Child was placed with K.B., he had 

a “high level of need,” “was still going through withdrawals,” and “could not 

 

1 Mother signed a consent for Child to be adopted and, as such, is not a party to this appeal. 
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soothe himself.” Appellant’s App. Vol. II p. 10. Child has been with K.B. ever 

since. 

[3] On February 8, DCS filed a petition alleging that Child was in need of services

(CHINS) based on the same allegations. A fact-finding hearing was held in 

April, and Mother and Father, who was still in jail, admitted that Child was a 

CHINS. In particular, Father agreed (1) that he was unavailable to care for 

Child due to his incarceration and (2) that the circumstances outlined in the 

CHINS petition (including that he was facing charges for shooting two people 

and that W.H. was present during the shootings) were “concerning for the 

safety of his son.” Ex. 6. The juvenile court adjudicated Child a CHINS. The 

parties reached an agreement as to services, and the court issued a dispositional

decree that specified Father would, among other things, participate in 

Fatherhood Engagement and follow all recommendations and keep DCS 

informed about his criminal case. Id. The permanency plan at the time was 

reunification. 

[4] A guardian ad litem (GAL) was appointed in July. At an October status 

hearing, evidence was presented that Child was receiving occupational therapy 

through First Steps, was progressing well with K.B., was meeting all 

developmental milestones, and was “content” and “happy.” Ex. 8. A

representative from Fatherhood Engagement reported that Father was “very 

engaged” in the program and had asked about having visits with Child at the 

Bartholomew County Jail. Id. The GAL testified, however, that it would be 

“best” to postpone any visits between Father and Child until Father’s criminal 
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case was resolved and it was known “how soon he might be free from 

confinement.” Id. The GAL reasoned that Child was approximately eight 

months old and was “moving into a stage where bonds are strongly formed.” 

Id. Accordingly, to introduce someone unknown to Child, without the 

opportunity for regular contact, “could prove unsettling and confusing” to 

Child. Id. The juvenile court agreed with the GAL and withheld visitation 

until there was “a clearer understanding of [Father’s] long-term living 

arrangements.” Id. The court scheduled a permanency hearing for January 

2017 and appointed counsel for Father. 

[5] In the meantime, Father, represented by counsel, moved for visitation with 

Child, and a hearing was held on December 6. At that time, there was the 

potential that Father “could be incarcerated for a significant period of time.” 

Ex. 9. DCS talked to Captain Martoccia at the Bartholomew County Jail, who 

said that visitation between inmates and small children was “discouraged” and 

that visitation was by video conference only (no personal contact). DCS 

opposed visitation, because it was unknown how Child would react to a new, 

strange environment. Accordingly, DCS recommended “postponing 

discussions regarding visitation . . . until [Father] has resolved his criminal 

matters and there is an identified release date.” Id. The GAL concurred with 

DCS and added that Child “is very attached to his placement, and is very 

[leery] of new places and people.” Id. Furthermore, the GAL was concerned 

that Child would “not feel safe or secure in the jail environment.” Id. The 

GAL also recommended postponing visits until the length of Father’s 
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incarceration was known. In short, the GAL did not believe that “the benefit to 

the father these visits would provide, is worth the risk to the child.” Id. 

Moreover, K.B. was unwilling to take Child to the jail to visit Father. The 

juvenile court, acknowledging that Father could be incarcerated “for a 

significant period of time,” denied Father’s request to visit Child. Id. The court 

reasoned that Child was not familiar with Father and that there was uncertainty 

regarding the length of Father’s sentence. 

[6] About a week later, on December 14, Father pled guilty to two counts of Level 

5 felony battery by means of a deadly weapon. He was later sentenced to three 

years in prison on each count, to be served consecutively, for a total of six 

years. 

[7] The permanency hearing was held in January 2017. Evidence was presented 

regarding the resolution of Father’s criminal case, including that his earliest 

possible release date was July 2020.2 Evidence was also presented that Child, 

who at that time had been with K.B. for eleven months, was “healthy and 

happy,” progressing well, and “very bonded” to her. Ex. 10. In addition, 

Mother had signed a consent for K.B. to adopt Child. The permanency plan 

was changed to adoption.

 

2 DOC’s Offender Search shows that Father’s projected release date is now January 2020. See

http://www.in.gov/apps/indcorrection/ofs/ofs (last visited Mar. 15, 2018). 
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[8] On January 31, DCS filed a petition to terminate Father’s parental rights to 

Child. Two weeks later, Father was transferred from the Bartholomew County 

Jail to the Department of Correction (Branchville Correctional Facility) to serve 

his sentence. 

[9] An evidentiary hearing was held in May. Several witnesses testified, including 

Mother, a former girlfriend of Father, Father’s caseworker at Branchville 

Correctional Facility, K.B., the DCS family case manager, and the GAL. 

[10] Mother testified about her three-year relationship with Father. Specifically, she 

testified that Father had physically and mentally abused her, including 

“pull[ing]” her down a flight of stairs, holding a gun to her head, and choking 

her when she was eight months pregnant with Child. Tr. Vol. II p. 12. Mother 

opined that K.B. should adopt Child:

I believe [Child] should stay where he’s at. [Child] goes to 

therapy with [K.B.], he is very well taken care of. She pays for 

day care, she does all the doctor’s visits and . . . she has a 

relationship with my son, and so does the family. 

Id. at 13. 

[11] M.H., Father’s former girlfriend, testified about her eighteen-month 

relationship with him. Specifically, M.H. “ha[s] a child with him,” E.H., who 

was five years old at the time of the hearing. Id. at 33. M.H. said that Father 

had “very little” contact with E.H., including “none” in the last three years. Id.

at 34. M.H. described her relationship with Father as “[r]ocky” and testified 
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about an incident in June 2012 where Father was arrested for choking her. Id.

at 33. M.H. said that Father had a “drinking problem” and a “marijuana 

substance issue.” Id. at 34. 

[12] Father’s caseworker from Branchville Correctional Facility testified about the 

DOC programs available to him. According to the caseworker, Father was 

only enrolled in a literacy program at the time. Because Father did not have a 

GED or an 8th grade reading level, he was ineligible for most programs that 

awarded time cuts. Nevertheless, Father had requested to enroll in Inside Out 

Dads (which teaches parenting skills), but he had not yet received confirmation. 

[13] K.B. testified that Child was “doing very well” since he had been placed with 

her. Id. at 48. Child no longer had symptoms of withdrawal and was doing 

occupational therapy with First Steps. Although Child had an eating/sensory 

disorder, K.B. was taking him to see “numerous doctors.” Id. 

[14] K.B. also testified about Father’s efforts to stay informed about Child. When 

Father was in the Bartholomew County Jail, K.B. “opened up a phone 

account” and put money in it so that Father could call her about Child. Id. at 

50. K.B. also sent Father letters and photos of Child (which he then 

inexplicably sent to M.H., who has no relation to Child). K.B. said that Father 

called her “a few times,” and although Father would “sometimes” ask about 

Child, he “very quickly want[ed] to turn the conversation [to Mother].” Id. at 

51. That is, Father wanted to know “what [Mother] was doing” and “who she 

was running with.” Id. at 53. K.B. said that Father had sent her “two letters.” 
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Id. at 52. In one of the letters, Father said that he wanted his family to be 

involved with Child, which K.B. agreed to. However, he never asked about 

Child’s health in either letter. K.B. testified that she did not hear anything from 

Father between October 2016 and April 2017. When asked if she had concerns 

about Child being placed with Father, K.B. answered:

[Father] has not shown that he is truly, I mean I paid money, I 

didn’t have to do that, for a card for him to call to check on 

[Child], on his condition and how he was doing, and he was so 

concerned about his family being involved, and I have not heard 

from his family except through a Facebook from his mother in 

Trinidad, a few times.

Id. at 55. K.B. was also concerned about Father’s “drug[]” use, that Child did 

not know Father, that Father had a “temper,” that Father did not have a 

relationship with his other child, and that Father was in prison for a violent 

crime. Id. at 55-56. 

[15] The DCS family case manager testified that Father started participating in 

Fatherhood Engagement in August 2016 when he was in the Bartholomew 

County Jail; however, that program was no longer available when he was 

transferred to the DOC in February 2017. The family case manager testified 

about other programs that were available to Father when he was in the 

Bartholomew County Jail, such as Providing Opportunities for Parental Success 

(POPS), Bible study, Celebrate Recovery, and AA/NA meetings; however, 

Father did not take advantage of any of them. When asked if Father had ever 

asked her how Child was doing, the family case manager responded:
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There have been several conversations with [Father] where he 

will ask in general, how [Child] is doing, but never really 

specifics regarding his recovery from a surgery, or specifics 

related to how [Child], whether or not [Child] is meeting his 

developmental milestones. 

Id. at 60. And when asked if she had any concerns if Child was placed with 

Father, the family case manager said:

[Child] does not know any other parent, other than [K.B.] and 

[her boyfriend]. He is very clearly bonded with them. He looks 

to them for comfort and love. By placing [Child] in a home with 

a complete stranger, after being raised for four years, essentially 

five years with [K.B.] and [her boyfriend], it would be very 

confusing for [Child], very traumatizing. And due to the fact that 

[Father’s] been incarcerated since [Child’s] birth, we’re not sure 

what Father’s level of need is. The Department is aware that he 

is incarcerated for a very violent crime, that he has a son that, 

prior to [Child], that he was not really involved in his care nor his 

life, that he’s been physically violent in front of another child, as 

witnessed by the Department’s involvement, and that he’s been 

physically aggressive with two girlfriends. 

Id. at 61. The family case manager stressed that placing Child with Father 

could be harmful:

Based on the reason, again for the Department’s involvement 

with [Father] shooting the two people in front of another child . . 

. and initially [Father] was facing Attempted Murder charges. 

He ple[d] down to his current charges, it has been noted that 

[Father] has a history of being physically violent towards women 

in past relationships. . . . [Child] does not know [Father], he’s a 

complete stranger to him. And again, [Child] is very physically, 

visibly bonded with [his] current placement, and taking him
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away from [K.B.] and [her boyfriend] would be, again very 

traumatizing for him.

Id. at 62. Accordingly, the family case manager said that the plan for Child was 

adoption. 

[16] Finally, the GAL testified that Child had made “[t]remendous progress” since 

being placed with K.B. and had overcome “many of the effects . . . of the 

substances that he was exposed to while in the womb.” Id. at 67. When asked 

if the case should be kept open until 2020, when Father was set to be released 

from prison, the GAL responded:

[Father] is only connected with this child biologically. This 

child, I can tell by my visits and my observations, of his 

interactions with the foster family, he considers, even at this 

young age of fifteen months, [K.B.] to be his mother and her 

[boyfriend] to be his father. It is my opinion that to delay 

permanency for this child and delay adoption, would be cruel to 

the child. It would be emotionally cruel to re-unite him, after the 

age, which would be four or older. And I think because of the 

criminal history that we are dealing with in terms of [Father], 

and the lack of stability that we’re dealing with in his home, that 

this reunification would be potentially dangerous to [the child]. 

Id. at 67-68. Accordingly, the GAL testified that it was in Child’s best interests 

for Father’s parental rights to be terminated and for K.B. to adopt Child.

[17] After the hearing, the juvenile court issued an order in August 2017 granting 

DCS’s petition, reaching the following conclusions under the termination 

statute, Indiana Code section 31-35-2-4: (1) Child has been removed from 
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Father for at least six months under a dispositional decree; (2) there is a 

reasonable probability that the conditions that resulted in Child’s removal will 

not be remedied and3that continuation of the parent-child relationship poses a 

threat to the well-being of Child; (3) termination is in the best interests of Child; 

and (4) the plan of adoption for Child is satisfactory. 

[18] Father now appeals. 

Discussion and Decision

[19] In a termination case, the juvenile court must make conclusions regarding the 

allegations in the termination petition, and it must enter findings of fact in 

support of those conclusions. Ind. Code § 31-35-2-8(c). When the losing party 

appeals, the role of the appellate court is to determine whether the evidence 

supports the findings and whether the findings support the conclusions. In re 

R.S., 56 N.E.3d 625, 628 (Ind. 2016). We will set aside a termination judgment 

only if it is clearly erroneous. Id.

[20] Here, Father does not challenge the juvenile court’s first and last conclusions: 

that Child has been removed from him for at least six months under a 

dispositional decree and that the plan of adoption is satisfactory. Therefore, we 

 

3 The juvenile court’s termination order uses “or,” but it is clear from the termination hearing that the court 

meant “and.” See Tr. Vol. II p. 84. 
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need only decide whether the juvenile court’s findings4support its conclusions 

that there is a reasonable probability that the conditions that resulted in Child’s 

removal will not be remedied and that termination is in the best interests of 

Child. We hold that they do.5

[21] The juvenile court engages in a two-step analysis to determine whether the 

conditions that led to the child’s placement outside the home will not be 

remedied. First, the court ascertains what conditions led to the child’s

 

4

Father challenges some of the juvenile court’s fifty-three findings. First, Father challenges Finding No. 20 

and a portion of Finding No. 29, which note that Father “may” be facing deportation to Trinidad. Even 

disregarding Father’s immigration status, we find that the unchallenged findings are sufficient to support the 

termination of his parental rights. 

Second, Father challenges a portion of Finding No. 35, which states that M.H. “had a child with [F]ather.” 

Father argues that there is no evidence that “paternity of that child was ever established.” Appellant’s Br. p. 

25. It is true that paternity was not established at the time of the hearing. However, M.H. testified that 

Father was E.H.’s father, that E.H. had Father’s last name, that she and Father were together when E.H. was 

born, and that she encouraged contact between them but Father had “very little” contact with E.H., 

including “none” in the last three years. Based on this evidence, the court acted within its discretion in 

finding that Father was E.H.’s father. 

Third, Father challenges Finding No. 30: “Putting aside Father’s unavailability due to incarceration, he does 

pose a safety risk to the Child. The recent criminal convictions warrant further understanding as to how and 

why Father shot two people and did so in the presence of Mother’s older daughter, who was fourteen years 

old at the time.” However, Father himself admitted during the CHINS proceeding that the fact that he shot 

two people in the presence of fourteen-year-old W.H. was “concerning for the safety of [Child].” Ex. 6. The 

evidence supports this finding. 

Finally, Father appears to argue that the court’s findings are insufficient because there is no “clear 

connection” to the “judgment.” Appellant’s Br. p. 12. We find that court’s findings sufficiently support its 

conclusions. See I.C. 31-35-2-8(c) (“The court shall enter findings of fact that support the entry of the 

conclusions . . . .”).

5 Because we affirm the juvenile court’s conclusion that there is a reasonable probability that the conditions 

that resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is 

a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of 

Child. See In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010) (“We first observe that [Indiana Code] section 31-35-

2-4(b)(2)(B) is written in the disjunctive. Thus DCS was required to prove by clear and convincing evidence 

only one of the two requirements of subsection (B).”).
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placement outside the home. Second, the court determines whether there is a 

reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.

Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these 

decisions, the court must consider a parent’s habitual pattern of conduct to 

determine whether there is a substantial probability of future neglect or 

deprivation. Id. 

[22] Here, the conditions that led to Child’s placement and retention with K.B. were 

(as admitted by Father himself at the CHINS fact-finding hearing): (1) Father’s 

unavailability due to his incarceration and (2) the fact that he shot two people in 

the presence of fourteen-year-old W.H. was “concerning for the safety of 

[Child].” Ex. 6; see also Tr. Vol. II p. 28 (DCS assessment worker: “Father 

admitted to me that he had shot two people, so that was very concerning . . . 

[i]n regards to how he would be able to keep his son safe.”). Although Father’s 

incarceration will end in 2020, at which point he will be available to parent, the 

fact remains that he shot two people in the presence of a child. This makes his 

parenting skills highly questionable, especially considering that Father was not 

involved in the life of his other son, was more concerned about Mother than 

Child when he was in jail, and did not ask K.B. or the family case manager 

about Child’s health (Findings 21, 22, and 45). As to whether there is a 

reasonable probability that these conditions will not be remedied, as the 

juvenile court found, Father has a “history of domestic violence perpetrated . . . 

in other intimate relationships,” including choking M.H., putting a gun to 

Mother’s head, and choking Mother when she was eight months pregnant with 
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Child (Findings 31, 33, and 36). Given Father’s lack of interest in Child and 

propensity for violence, the juvenile court did not err when it concluded that 

there is a reasonable probability that the conditions that resulted in Child’s 

removal will not be remedied. 

[23] In determining whether termination of parental rights is in the best interests of a 

child, the juvenile court is required to look at the totality of the evidence. In re 

D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the 

court must subordinate the interests of the parent to those of the 

child. Id. Termination of the parent-child relationship is proper where the 

child’s emotional and physical development is threatened. In re R.S., 774 

N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The court need not wait 

until the child is irreversibly harmed such that his physical, mental, and social 

development is permanently impaired before terminating the parent-child 

relationship. Id. In addition, a child’s need for permanency is a central 

consideration in determining the child’s best interests. In re G.Y., 904 N.E.2d 

1257, 1265 (Ind. 2009), reh’g denied. Further, the testimony of a child’s 

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). 

[24] DCS presented evidence that Father’s rights should be terminated because of 

Child’s need for permanency. Two days before Child was born, Father shot 

two people in the presence of another child and has been incarcerated ever 

since. Following Child’s release from the hospital, Child was placed with a 
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relative, K.B., with whom Child has bonded and made “tremendous 

developmental strides.” Appellant’s App. Vol. II p. 10 (Finding 47). While 

Father was in the Bartholomew County Jail, K.B. put money in an account so 

that Father could call her about Child. Father called her a “few” times, but he 

was more concerned about who Mother was running around with than he was 

with Child’s health and progress. K.B. also sent Father photos of Child, but 

Father inexplicably sent them to M.H. instead of keeping them for himself. 

Father sent K.B. two letters, but, as the juvenile court found, they were 

“accusatory” and “did not inquire as to the Child’s health condition.” Id. at 8 

(Finding 22). In addition, K.B. did not hear anything from Father between 

October 2016 and April 2017. In short, Father showed a low level of interest in 

Child when he should have been doing everything in his power to show his 

dedication to obtaining reunification with Child. For this reason, the GAL 

testified that Father was only connected to Child “biologically” and that it was 

in Child’s best interests for Father’s parental rights to be terminated and for 

K.B. to adopt Child. 

[25] Nevertheless, Father claims he is similar to the father in K.E. v. Indiana 

Department of Child Services, 39 N.E.3d 641 (Ind. 2015). In that case, the father 

was incarcerated for drug offenses when his child was born, and there was 

“seemingly nothing else that [the father] could have been doing to demonstrate 

his dedication to obtaining reunification” with his child: the father had 

completed twelve programs while incarcerated (the majority of which were 

voluntary and did not result in sentence reduction), a family member regularly 
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brought his child to visit him in prison, and he spoke to his child every night on 

the phone. Id. at 649. Our Supreme Court overturned the termination of the 

father’s parental rights. Setting aside the fact that Father is in prison for 

shooting two people in the presence of a child, there is substantially more that 

Father could have done while incarcerated to demonstrate his dedication to 

obtaining reunification with Child. This includes, at a bare minimum, regularly 

keeping apprised of Child’s health and progress. The juvenile court did not err 

in concluding that termination is in Child’s best interests.6

[26] Affirmed. 

May, J., and Altice, J., concur.

 

6

Father also argues that DCS refused to let him visit Child and that this was a violation of Indiana Code 

section 31-34-21-5.5, which requires DCS to make reasonable efforts to preserve and reunify families during 

CHINS cases. We first note that during the CHINS case here, the parties came to an agreement regarding 

services, and those services did not include visitation. See Ex. 6 (“The court now proceeds to a Dispositional 

Hearing. The parties have reached an agreement as to the necessary services in these matters.”). Moreover, 

the failure to provide services in a CHINS proceeding (here, visitation) is unavailable for review during an 

appeal following the termination of parental rights. See In re G.M., 71 N.E.3d 898, 906 (Ind. Ct. App. 2017). 

If Father wanted to appeal this issue, he should have done so earlier. After the juvenile court entered the

dispositional order, Father moved for visitation with Child, and the court denied his request. Indiana Code 

section 31-34-23-1 allows a parent to move to modify a dispositional decree, which is essentially what Father 

did when he requested visitation with Child. Father, however, did not appeal the court’s denial of his 

motion.