In the Matter of the Termination of the Parent-Child Relationship of K.A. (Minor Child) and B.A. (Father) B.A. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Nov 05 2020, 8:56 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
G. Allen Lidy Curtis T. Hill, Jr.
Lidy Law, PC Attorney General of Indiana
Mooresville, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 5, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of K.A. (Minor Child) and B.A. 20A-JT-812
(Father); Appeal from the Morgan Circuit
B.A. (Father), Court
The Honorable Matthew Hanson,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
55C01-1909-JT-349
The Indiana Department of
Child Services (DCS),
Appellee-Petitioner
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 1 of 25
[1] B.A. (“Father”) appeals the involuntary termination of his parental rights to
K.A. (“Child”). Father challenges a number of the trial court’s findings, and he
also argues that the trial court’s findings do not support its conclusions that the
conditions that led to Child’s removal would not be remedied and that the
continuation of the Father-Child relationship would pose a threat to Child’s
well-being. We affirm.
Facts and Procedural History 1
[2] Child was born to J.G. (“Mother”) on August 28, 2018. Child tested positive
for “THC, fentanyl, codeine, Tramadol, and morphine” at birth. (App. Vol. II
at 44.) Mother admitted using heroin and cocaine in the past. She also told the
Department of Child Services (“DCS”) that she used unprescribed Percocet and
marijuana while pregnant. Father, who was required to wear an ankle bracelet
“due to possession charges[,]” was found “in the hospital cafeteria vomiting
with a syringe in his arm” and was treated at the hospital for an accidental
overdose. (Id.) After he was treated, police arrested Father because they found
his drug paraphernalia in Mother’s hospital room.
[3] On August 29, 2018, DCS removed Child from Parents’ care and placed Child
with a foster family. At some point shortly thereafter, DCS placed Child with
his paternal grandmother. On August 31, 2018, DCS filed a petition alleging
1
We remind Father’s counsel that Indiana Appellate Rule 46(A)(6)(c) requires the Statement of Facts be in
narrative form.
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Child was a Child in Need of Services (“CHINS”) based on Parents’ drug use
and Father’s incarceration. On October 1, 2018, Mother and Father admitted
Child was a CHINS and the trial court adjudicated Child as such. From
September 20, 2018, to October 29, 2018, Father was enrolled in a substance
abuse treatment program in Florida. Father failed to appear for a hearing in
one of his criminal cases on October 22, 2018, and the criminal court issued a
warrant for his arrest.
[4] On December 12, 2018, the trial court held its dispositional hearing. Father did
not appear. At some point in the winter of 2018, Father returned to Florida to
participate in substance abuse treatment, but he left the program after testing
positive for illegal drugs. On January 31 or February 1, 2019, Mother died of a
drug overdose. On February 2, 2019, police arrested Father on a bench warrant
from the possession case stemming from Father’s heroin use at the hospital
during Child’s birth on February 2, 2019. On February 4, 2019, Father pled
guilty to Level 6 felony unlawful use of a syringe. The criminal court sentenced
him to 365 days in home detention.
[5] On March 13, 2019, the trial court held a review hearing and removed Child
from the Child’s placement with paternal grandmother because “there were
several issues with the placement (paternal grandmother) surrounding
[Mother’s] life support issues, comments to social workers at the hospital,
visitations that were permitted with various non-approved people and/or the
parents, and other issues[.]” (Id. at 23.) DCS then placed Child with maternal
grandmother. On March 13, 2019, the trial court entered its dispositional
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order, requiring Father to, among other things: contact DCS, notify DCS of a
change in address or employment, notify DCS of any new criminal charges,
allow DCS to make unannounced visits to Father’s residence, participate in all
recommended services, maintain safe and appropriate housing, secure and
maintain stable employment, refrain from using illegal drugs or alcohol, submit
to random drug screens, complete a parenting assessment, and attend all
scheduled visits with Child. On April 1, 2019, DCS placed Child with maternal
aunt, where he has remained for the pendency of these proceedings.
[6] After the trial court’s dispositional order in the CHINS case, Father completed
his substance abuse evaluation and enrolled in the Fatherhood Engagement
program as ordered by the trial court. From March 13 until May 28, 2019,
Father participated in two supervised visits with Child per week. On March 13
and April 8, 2019, Father tested negative for illegal drugs. He tested positive for
THC, morphine, and fentanyl on May 6, 2019, and for morphine and fentanyl
on May 20, 2019.
[7] From May 28 through October 4, 2019, Father was in and out of jail for various
violations of his home detention placement. At some point in those four
months, Father left Indiana without the permission of DCS or his probation
officer, reportedly to engage in substance abuse treatment services in Florida.
On June 18, 2019, the trial court suspended Father’s supervised visits with
Child. Because Father was non-compliant with services, on August 15, 2019,
the trial court changed Child’s permanency plan from reunification to adoption.
On September 11, 2019, DCS filed its petition to terminate Father’s parental
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 4 of 25
rights to Child. After his release from incarceration on October 4, 2019, Father
began to re-engage in services such as substance abuse treatment and the
Father’s Engagement program.
[8] In November 2019, Father began group therapy sessions to address substance
abuse and parenting skills. The service provider suggested Father participate in
a recovery process group prior to the substance abuse and parenting skills group
sessions because Father tested positive for illegal drugs. Father did not return to
the service provider for the recovery group, substance abuse group, or the
parenting group. On November 4, 2019, he tested positive for THC and
cocaine. Father continued his participation with Fatherhood Engagement. On
November 21, 2019, Father tested positive for THC and cocaine. Father did
not complete some requested screens in December 2019. Father did not
complete some of the requested screens in January 2020.
[9] The trial court held fact-finding hearings on DCS’s termination petition on
February 27 and March 4, 2020. On March 8, 2020, the trial court entered its
order terminating Father’s parental rights to Child.
Discussion and Decision
[10] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Instead, we consider only the evidence and reasonable
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 5 of 25
inferences most favorable to the judgment. Id. In deference to the juvenile
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. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S.
1161 (2002).
[11] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court
must subordinate the interests of the parents to those of the child, however,
when evaluating the circumstances surrounding a termination. In re K.S., 750
N.E.2d at 837. The right to raise one’s own child should not be terminated
solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[12] To terminate a parent-child relationship in Indiana, DCS must allege and
prove:
(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.
(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 county office of
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family and children 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
(D) that there is a satisfactory plan for the care and treatment
of the child.
Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of
these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.
“[I]f the State fails to prove any one of these statutory elements, then it is not
entitled to a judgment terminating parental rights.” Id. at 1261. Because
parents have a constitutionally protected right to establish a home and raise
their children, the State “must strictly comply with the statute terminating
parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18
(Ind. Ct. App. 1994).
1. Challenged Findings
[13] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
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Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208. Unchallenged findings
“must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.
1992). Father challenges a number of the trial court’s findings.
A. Findings Regarding Father’s Drug Screens
[14] Father challenges five findings regarding the drugs screens required of him as
part of the trial court’s dispositional order. Regarding the outcomes of his drug
screens, Father challenges the following findings:
121. That [Father] missed several drug tests in October, which
were deemed positive, failed two others and passed two others.
*****
140. That on both 12/11 and 12/17 [Father] had positive drug
screens for THC and simply failed to show up for any other
screens.
*****
143. That [Father] had positive drug screens on 1/14 for
Cocaine and THC, on 1/20 for THC and on 1/23. [Father]
failed all other screens for simply not showing up and was
negative for the two he did appear for.
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144. That [Father] was negative for drugs on the two screens he
took in February of 2020.
(App. Vol. II at 29-31.) Father contends these findings are not supported by
evidence in the record.
[15] Regarding Father missing drug screens, the family case manager testified Father
missed drug screens, but she did not give any specific dates that those screens
were missed. (See Tr. Vol. II at 12) (when asked if Father missed drug screens,
family case manager answered in the affirmative). DCS concedes “[i]t is
unclear from the record where the trial court obtained this information[.]” (Br.
of Appellee at 20.) Nevertheless, there were several other unchallenged findings
regarding Father’s drug use.
[16] Father does not challenge the following findings regarding his drug use:
8. That the main reasons for filing [the CHINS] petition were
based upon drugs found in [Child’s] system at birth and both
parents’ use of illegal substances.
9. That in addition to these issues, at the hospital where [Child]
was born, [Father] had an overdose on drugs and eventually
ended up in Marion County Jail.
*****
15. That a hearing [on the CHINS petition] was held on
September 21, 2018 at which [Father] did not appear as he had
apparently been released from jail and had flown to Florida to
seek drug treatment.
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*****
18. That [Father] filed an affidavit admitting he was father of the
[Child], and that he had drug issues and could not care for
[Child] due to being out of state in treatment.
*****
59. That it was indicated at one visit [with Child] that the
provider believed that [Father] showed signs of intoxication and
other providers surmised [Father] may have relapsed.
*****
61. That [Father] had two positive drug screens on May 6, 2019
for THC, Morphine and Fentanyl and again on May 29, 2019 for
Morphine and Fentanyl, and he cancelled a meeting with the
FCM [family case manager] when she was to meet with him
about the screens.
62. That by text [Father] admitted to relapsing.
*****
77. That [at a review hearing on June 18, 2019, during which
Father did not appear, but was represented by counsel] the
parties discussed [Father’s] whereabouts, concerns for his lack of
progress on any of the recommendations from this case and the
CASA [court-appointed special advocate] raised concerns about
[Father’s] recent visits where she believed he was clearly under
the influence of drugs.
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78. That these worrisome visits preceded [Father’s] return to the
Florida drug treatment facility so it is not a far stretch to find that
CASA’s concerns and beliefs were likely true in regards with [sic]
[Father] being under the influence of drugs at the visits.
79. That showing up high to visits is a clear and apparent danger
to [Child].
*****
97. That during the month of July [2019] [Father] also avoided
taking drug screens.
*****
122. That on November 4, 2019 [Father’s] drug test was positive
for THC and Cocaine.
*****
136. That [Father,] the FCM and others testified that [Father]
was confronted in November of 2019 with having to drop his
IOP [intensive outpatient program] class to attend an “active
users” group until he could get clean, and only then return to the
IOP class.
*****
163. That this case began just two (2) days after [Child’s] birth
when [Child] was born drug positive and [Father] was arrested
and overdosed on drugs.
*****
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171. Here, however, [Father] was discovered high in the hospital
cafeteria, admitted to throwing a needle and spoon with heroin
into the bushes and was clearly overdosing on drugs.
172. Therefore, it became apparent quite early in this case that
[Father] has a serious drug issue that needed to be addressed.
*****
184. That over the next several months [Father] did eventually
complete an assessment, did none of the recommended drug
services thereafter, and was eventually back using drugs in the
late spring of 2019.
*****
194. That within a matter of days or [sic] reengaging in services
[in Fall 2019], however, [Father] failed two (2) more drug tests.
*****
196. That on November 21, 2019 [Father] had a positive test for
THC, Cocaine, BZE and EME.[ 2]
*****
2
Donna McCoy, the certified toxicologist from the laboratory that processed Father’s drug screens, testified
BZE is “benzoylecgonine . . . a metabolite of cocaine” and EME is “ecgonine methyl ester . . . which is
another metabolite of cocaine[.]” (Tr. Vol. II at 75.)
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202. Likewise, [Father] claimed he has been drug free despite
simply skipping out on almost all of the drug tests from
November to the date of the termination hearing.
*****
212. That in whole, it is clear that [Father] continues to use
drugs and has an ongoing drug abuse issue.
(Id. at 21-36.) As there are multiple unchallenged findings documenting
Father’s drug abuse issues, any trial court error created by including findings
121, 140, 143, and 144 was harmless. See Lasater v. Lasater, 809 N.E.2d 380,
397 (Ind. Ct. App. 2004) (“To the extent that the judgment is based on
erroneous findings, those findings are superfluous and are not fatal to the
judgment if the remaining valid findings and conclusions support the
judgment.”).
[17] Additionally, Father contends Finding 123, which pertains to his drug use, is
not supported by evidence. Finding 123 states: “That [Father] had previously
admitted to the case worker using several weeks prior to this test [on November
4, 2019].” (App. Vol. II at 29.) However, the family case manager testified
Father indicated to her “[d]uring the team meeting in November” that he “does
have a problem and does need help.” (Tr. Vol. II at 115.) Father’s argument is
an invitation for us to reweigh the evidence and judge the credibility of
witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge the credibility of witnesses). Finding
123 is supported by the evidence.
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B. Findings Regarding Father’s Participation in Services
[18] Father contends two of the court’s findings are “directly in conflict[.]” (Br. of
Appellant at 20.) He points to Finding 139, which states, “That in December
the case worker attempted to engage [Father] in all of the services he was
supposed to [be] working [on] but he otherwise did not engage,” (App. Vol. II
at 30), and Finding 138, which states, “that in December [Father] did become
engaged with Fatherhood Engagement.” (Id.) He also asserts the evidence
does not support the finding that his case worker attempted to engage him in
December 2019 because she testified that she had only communicated with
Father “thru [sic] text messaging and phone calls.” (Tr. Vol. II at 129.)
[19] Additionally, with regard to visitation, Father challenges Finding 191, which
states “[t]hat [Father’s] visitations were suspended completely in June of 2019
until he could show three (3) months of clean screens and reengage in services.”
(App. Vol. II at 34.) Father does not argue the record fails to support this
finding, but instead argues the trial court’s order suspending Father’s visitation
did not include the requirement that he produce three months of negative drug
screens and reengage in services.
[20] As an initial matter, Father’s arguments are invitations for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See In re
D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the
credibility of witnesses). Further, “under Indiana law, even a complete failure
to provide services cannot serve as a basis to attack the termination of parental
rights[,]” Stone v. Daviess Cty. Div. of Children & Family Servs., 656 N.E.2d 824,
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830 (Ind. Ct. App. 1995), trans. denied, and it is well settled that “a parent may
not sit idly by without asserting a need or desire for services and then
successfully argue that he was denied services to assist him with his parenting.”
In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). Thus, Father’s
arguments regarding the trial court’s findings about the services, visitation, and
communication during these proceedings fail.
C. Findings Regarding Court Proceedings
[21] Father challenges a number of findings pertaining to the court proceedings,
specifically:
114. That while the court could have perhaps defaulted [Father]
on the entire hearing, the court chose instead to keep [Father’s]
denial [of DCS’s petition to terminate his parental rights] in place
and set up a fact-finding hearing.
115. This particular fact finding was set since [Father] had
clearly caused delay and had not even appeared at the November
12, 2019 hearing to inform the court of the progress of his search
for counsel.
*****
152. This denial [of Father’s motion to continue] was based on
the fact that this matter had often been delayed by [Father’s]
actions throughout this case and even once new counsel was
finally hired after the start of the termination hearing, just a few
days before the main hearing, [Father] fired and hired another
new counsel.
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153. Simply put, this case had been delayed enough and due to
timelines and consideration for permanency, and through the
review hearings the court was aware [Father] was not
participating in any services anyway making a continuance
request seem more [like] another tactic to delay/stall the hearing.
(App. Vol. II at 29, 31.) Father contends Findings 114 and 115 indicate the trial
court’s “predilection to find against [Father].” (Br. of Appellant at 16.)
Similarly, he argues Findings 152 and 153 are further examples of the “the
procedure [the trial court] used in ramming this [termination of parental rights
petition] through to conclusion [which] strikes at the heart of essential fairness
in the litigation process.” (Id. at 24.)
[22] The record indicates Father refused court-appointed counsel after DCS filed its
petition to terminate his parental rights, did not hire private counsel for two
months, and then changed counsel again before the termination fact-finding
hearing. During the termination proceedings, Father was participating in
Fatherhood Engagement, but was not consistently engaged with any other
service, including those to address his substance abuse problem. Father’s
arguments are invitations for us to reweigh evidence and judge the credibility of
witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge the credibility of witnesses). Further,
Father has not indicated how the trial court’s characterization of the
proceedings before it affected his substantial rights, and thus any error in their
inclusion was harmless. See Indiana Appellate Rule 66(A) (harmless error
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occurs when, in light of all of the evidence in the case, the error is sufficiently
minor so as not to affect the substantial rights of a party).
D. Other Challenged Findings
[23] Father challenges Finding 190, which states in relevant part, that he was
released from jail on October 28, 2019. He also challenges Finding 233, which
states in relevant part that he was released from jail on September 4, 2019. The
parties do not dispute that Father was released from jail on October 4, 2019.
However, these two clerical errors are harmless because the correct date Father
was released from jail is stated multiple times elsewhere in the order. See S.M.
v. Elkhart Cty. Ofc. of Family & Children, 706 N.E.2d 596, 598 (Ind. Ct. App.
1999) (“When a trial judge makes an erroneous fact finding that is superfluous
to the judgement the error does not warrant reversal.”).
[24] Father also argues Finding 178, which states “[t]hat within days of arriving at
the [rehabilitation] facility [in Florida] [Father] spoke about the corruption of
the Indiana DCS system, how his mother was attempting to gain custody of his
son[,]” (App. Vol. II at 33), is not supported by the evidence. He maintains the
record indicates, “[c]lient informed therapist that his mother feels that she will
be able to gain custody of his son soon and that the system up in Indiana is
corrupt” (State’s Ex. Vol. II at 84), “39 days after he was admitted” (Br. of
Appellant at 24), not “within days” of his admission at the Florida
rehabilitation facility. Father’s arguments are invitations for us to reweigh
evidence and judge the credibility of witnesses, which we cannot do. See In re
D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the
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credibility of witnesses). Further, even if the characterization of the time frame
in which Father expressed his displeasure with DCS is incorrect, that error does
not warrant reversal. See S.M., 706 N.E.2d at 598 (“When a trial judge makes
an erroneous fact finding that is superfluous to the judgement the error does not
warrant reversal.”).
[25] Finally, Father challenges a number of findings that are conclusory in nature:
204. That as is clearly evident to anyone reviewing the history of
this case [Father] refuses to accept any path to redemption other
than his own.
205. That from the very start of this case [Father] has always
taken his own steps, [has] refused the aid of those trying to help
him, and has refused to maintain sobriety for any long period of
time.
206. While some could say that putting yourself into [a] rehab
facility back in the fall of 2018 was a positive step, the rehab did
not hold, [Father] skipped out on his criminal case which
resulted in a warrant and [Father] has refused to let anyone in
Indiana assist him with his drug use.
*****
213. Likewise, it is clear that [Father] refuses to get the help he
needs to overcome this addiction and will not seek out this help
as it has awaited him since the case started.
214. It is clear beyond a reasonable doubt that there is a
reasonable probability that [Father] has not and will not remedy
the drug issues he has faced for over ten years of his life.
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*****
241. Instead [Father] did his own thing, thumbed his nose at the
system and the state, and this criminal behavior is one that has
been in play for most of his life and continues to this day.
*****
269. [Father] lacks any ability to care for or provide for [Child]
as he has not done so consistently while under the dictates of this
case.
(App. Vol. II at 35-40.) Father contends these findings are irrelevant and
conclusory in nature, and that they change the standard under which Father
may be reunified with Child from whether Father may remedy the situation
which resulted in Child’s removal to whether Father can be “redeemed.” (Br.
of Appellant at 27.) Father also argues “there is no requirement that the only
path to remedying the situation is through DCS intervention.” (Id.) Further,
regarding Finding 269, Father asserts that the trial court’s finding attempts to
impose a new standard, “to wit: Because the child has been removed from the
Appellant the entire time the case was pending, then termination must occur
because the Appellant could not provide care and custody for the child during
the case.” (Id. at 30.)
[26] Father’s entire appellate argument, but especially the portion regarding the
conclusory findings, meanders and nitpicks at language in the findings that has
absolutely no relevance. He cites very few cases, and those cases he cites are
often not on point or properly cited. At best, Father’s arguments regarding the
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trial court’s conclusory findings are invitations for us to reweigh the evidence or
judge the credibility of witnesses, which we cannot do. See In re D.D., 804
N.E.2d at 265 (appellate court cannot reweigh evidence or judge the credibility
of witnesses). At worst, they lack cogency and are waived for our review. See
In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (waiving argument for lack
of cogency), trans. denied. Nevertheless, we hold the trial court did not err in
making these findings as they are supported by the record as discussed supra.
2. Conditions Under Which Child Was Removed Would Not
Be Remedied
[27] The trial court found the conditions that resulted in Child’s removal would not
be remedied. In making such a determination, a trial court must judge a
parent’s fitness to care for his child at the time of the termination hearing,
taking into consideration evidence of changed conditions. In re J.T., 742
N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It must evaluate the
parent’s habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Pursuant to this rule, courts
have properly considered evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cty. Office of Family &
Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
[28] The trial court may also properly consider, as evidence of whether conditions
will be remedied, the services offered to the parent by DCS and the parent’s
response to those services. Id. A trial court need not wait until a child is
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 20 of 25
irreversibly influenced by a deficient lifestyle such that his or her physical,
mental, and social growth are permanently impaired before terminating the
parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). Father argues the trial court’s conclusion that the conditions that
resulted in Child’s removal would not be remedied was “not reliable” “based
upon . . . the evidence actually introduced at the TPR Trial.” (Br. of Appellant
at 30.)
[29] The trial court entered a plethora of unchallenged findings that support its
conclusion that the conditions that resulted in Child’s removal would not be
remedied, including:
95. The DCS caseworker quite accurately points out in the
report that [Father] has continued to make excuses, essentially
lie, and continue to put off any work towards services in this
case.
96. The DCS caseworker reset several meeting times at
[Father’s] requests, however he most often did not show up for
those meetings.
*****
98. That in July [2019] [Father] began to accuse the caseworker
and others involved of lying and essentially making up things
about him.
*****
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 21 of 25
135. That at the end of November [2019] [Father] ceased all
services with Centerstone [the service provider for substance
abuse rehabilitation services].
136. That [Father], the FCM and others testified that [Father]
was confronted in November of 2019 with having to drop his
IOP [Intensive Outpatient] class to attend an “active users”
group until he could get clean, and only then return to the IOP
class.
*****
141. In January [2020] [Father] continued to work with
fatherhood engagement, however since he was not seeing
[Child], the meetings focused more on support and advice during
the pending termination proceedings.
*****
157. Initially it should be stated that at no time in [Child’s] life
has he ever lived with [Father].
*****
177. Father admitted to the [Florida rehabilitation] facility that
he had been abusing drugs since age 16, was willing and ready to
change, was willing to get involved in the 12 step programs and
find sponsors, admitted to a long history of legal troubles and
violence, and had clear control issues.
*****
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 22 of 25
180. It should be noted this [Florida rehabilitation] facility was
not approved for services by the DCS and until late December
[2018] the DCS did not even know where [Father] was located
while in Florida.
*****
209. That [Father] has refused to utilize any consistent treatment
or help from the DCS to overcome his drug addiction which is as
prevalent today as it was when this case started.
*****
215. Second, [Father] has issues with criminal activity.
*****
237. That this case started with criminal behaviors and such
behaviors have continued over the life of this case.
238. That [Father] showed a complete inability to tackle his legal
issues, chose to remove himself from the state on two occasions
knowing he was not to leave, and continued to violate the simple
dictates placed upon him by community corrections without
regard for the rules.
239. That [Father] admitted to a long history of criminal
behaviors and although this most recent criminal charge in
Marion County is just one of several, the behaviors by [Father]
show a complete disregard for authority or the law.
240. That [Father] was given chance after chance, perhaps even
more chances than this court has ever seen in a criminal case, to
Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020 Page 23 of 25
get out on the streets, seek help and find a direction other than a
criminal one.
*****
249. Overall, however, it is clear [Father] lacks any real stability
and has not had an ability to have a home or hold a job over the
duration of this case and up until months after the termination
case was filed.
250. That despite this recent alleged stability at home and work,
[Father] has refused to return to any of the DCS services
available to him to fix all of the issues in his life.
*****
256. Whether due to a complete lack of maturity, being
emboldened by others that did not insist [Father] get a home, job
or treatment, or by simply not having a care [sic] to see the real
dangers here, [Father] cannot seem to remedy his complete lack
of stability and ability to care for himself, let alone a young child.
(App. Vol. II at 27-39.) The trial court’s unchallenged findings about Father’s
drug use, noncompliance with services, criminal behavior, and lack of stability
are sufficient to support its conclusion that the conditions that resulted in
Child’s removal would not be remedied. 3 See In re G.M., 71 N.E.3d 898, 908
3
Father also argues the trial court’s findings do not support its conclusion that the continuation of the parent-
child relationship posed a threat to the well-being of Child. However, as the trial court’s findings supported
its conclusion that the conditions under which Child was removed would not be remedied, we need not
address that argument. See In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999) (because statute written in
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(Ind. Ct. App. 2017) (affirming the trial court’s conclusion that the conditions
under which child was removed from mother’s care would not be remedied
based on mother’s continued drug use and noncompliance with services).
Conclusion
[30] With the exception of Findings 121, 140, 143, and 144, the findings Father
challenges were supported by evidence, the findings were superfluous, or his
challenge thereto was waived. Regarding Findings 121, 140, 143, and 144, the
trial court’s inclusion of findings not seemingly supported by evidence was
harmless because there existed several other unchallenged findings to
demonstrate Father’s drug use. Additionally, the trial court’s findings support
its conclusion that the conditions that resulted in Child’s removal would not be
remedied. Accordingly, we affirm the involuntary termination of Father’s
parental rights to Child.
[31] Affirmed.
Riley, J., and Altice, J., concur.
disjunctive, court needs to find only one requirement to terminate parental rights), reh’g denied, trans. denied,
cert. denied 534 U.S. 1161 (2002).
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