MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                   Jun 16 2020, 9:33 am
court except for the purpose of establishing                                        CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Abigail R. Recker
Anderson, Indiana                                         Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              June 16, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
L.S. and K.S. (Minor Children)                            19A-JT-2693
and J.S. (Father),                                        Appeal from the Orange Circuit
Appellant-Respondent,                                     Court
                                                          The Honorable Steven L. Owen,
        v.                                                Judge
                                                          Trial Court Cause Nos.
Indiana Department of Child                               59C01-1903-JT-55
Services,                                                 59C01-1903-JT-56
Appellee-Petitioner.



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020                           Page 1 of 19
[1]   J.S. (“Father”) appeals from a judgment of the Orange Circuit Court granting

      the Indiana Department of Child Services’ (“DCS”) petition to terminate

      Father’s parental rights to L.S. and K.S. (“the Children”). Father contends that

      (1) insufficient evidence supports the trial court’s findings and (2) the findings

      do not support the conclusions that lead to the termination of his parental rights

      to Children. Concluding that the trial court’s findings and conclusions are not

      clearly erroneous, we affirm.


                                  Facts and Procedural History
[2]   DCS became involved with the Children’s family in August 2014. The

      Children—born in April 2008 and December 2009—lived with Mother at the

      time.1 Upon receiving a report that Mother was abusing drugs, a DCS employee

      administered a drug test, which came back positive, and DCS started an

      informal adjustment with the family. Father was not involved in the informal

      adjustment. Mother continued abusing drugs, and the Children were removed

      to their maternal aunt’s care on December 19, 2014.


[3]   Shortly thereafter, DCS filed a petition alleging the Children were children in

      need of services (“CHINS”) as a result of Mother’s drug abuse. At a January 5,

      2015, hearing, Parents admitted the Children were CHINS, and the court

      entered its order declaring the same on February 3. Following a February 19,




      1
       T.W. (“Mother”) voluntarily relinquished her parental rights to Children when she consented to their
      adoption on August 13, 2019. Tr. p. 30. Accordingly, Mother does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020                  Page 2 of 19
      2015, dispositional hearing, the trial court ordered Mother, but not Father, to

      participate in DCS services. Father was permitted to have visitation with the

      Children. The permanency plan for the Children at the time was reunification.


[4]   Then in May 2015, the trial court authorized Father to have a trial home visit

      with the Children subject to his submission of clean drug screens; however,

      Father and his girlfriend tested positive for illegal substances, and the trial home

      visit never commenced. A review hearing in Children’s case took place on

      October 5, 2015. The trial court authorized the Children’s return to Father’s

      care subject to three conditions: that Father submit only clean drug screens, that

      Father and Children reside at Father’s aunt’s home, and that Children have no

      unsupervised contact with Father’s girlfriend. Ex. Vol. 1, pp. 94–95; Tr. p. 44.

      Father tested positive for cocaine on October 5 and October 9. DCS filed a

      motion for emergency hearing on October 20, alleging that Father had not

      complied with the trial court’s conditions. The trial court denied DCS’s motion

      following a hearing on October 26 but ordered that the Children be removed

      from Father’s care if Father submitted another positive drug screen.


[5]   The Children’s trial home visit with Father lasted from October 2015 until

      March 2016, when Father tested positive for illegal drugs. The Children were

      returned to their maternal aunt’s care, where they remained for the duration of

      these proceedings. Following the Children’s removal, Father participated in

      supervised visitation with the Children through Ireland Home Based Services

      for approximately eighteen months, from March 2016 until November 2017.

      The weekly visits lasted four hours and took place at Father’s home. The

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 3 of 19
      supervisor described these visits as going “exceptionally well,” and Father

      attended ninety-five out of one hundred visits with Children. Tr. pp. 74, 84.

      Father, however, submitted numerous positive drug screens for a variety of

      illegal substances during the period in which he had supervised visitation with

      Children: in April 2016 for THC; in June 2016 for THC, amphetamine, and

      methamphetamine; in July 2016 for THC, amphetamine, and

      methamphetamine; in August 2016 for THC; in October 2016 for THC; and in

      December 2016 for amphetamine.


[6]   Following a dispositional hearing on August 17, 2016, the trial court issued a

      modified dispositional decree on November 3, 2016, ordering Father to

      participate in services. Father was to, among other things: refrain from using

      illegal drugs and engaging in criminal activity; complete a substance abuse

      assessment and follow all recommendations; submit to random drug and

      alcohol screens; attend all scheduled visits with the Children; and complete an

      intensive outpatient treatment program. Father missed various weekly drug

      screens through much of 2017. Ex. Vol. 2, pp. 243–50; Ex. Vol. 3, pp. 2–4.

      Father submitted positive drug screens for amphetamine, methamphetamine,

      and hydrocodone in August 2017, and for methamphetamine and THC in

      September 2017.


[7]   DCS filed a petition to terminate Father’s parental rights in October 2017. DCS

      also assigned Family Case Manager (“FCM”) Karen Howson to the family’s

      case at that time, and the court suspended Father’s services and supervised



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 4 of 19
      visits with the Children. The permanency plan for the Children was modified

      from reunification to adoption.


[8]   In May 2018, Father was convicted of Class B misdemeanor possession of

      marijuana. In October 2018, the termination petition was dismissed at DCS’s

      request, and DCS reinstated services for Father, who at that point had not seen

      the Children for one year. A home-based therapist completed a parenting and

      family functioning assessment of Father in October. Father admitted to using

      marijuana in the three months preceding the assessment and to “recent” use of

      methamphetamine and cocaine. Tr. pp. 92, 111. The therapist found that the

      Children could have attachment issues with Father and that Father had a high

      probability of substance use disorder. The therapist recommended that Father

      continue random drug screens, attend a relapse prevention class, attend a

      support program such as Narcotics Anonymous, continue with fatherhood

      engagement services, and learn to bond with the Children.


[9]   Following these recommendations, in late 2018, Father participated in but did

      not complete fatherhood engagement services. Father also completed a

      substance abuse assessment in November 2018. Based on the results of that

      assessment, DCS referred Father to a substance use disorder group and directed

      him to attend individual therapy. Completion required attendance at eight

      group sessions, and Father attended four. He did not participate in any

      individual therapy sessions. Father was also referred twice for psychological

      evaluation but did not complete the evaluation. He did not start an intensive

      outpatient treatment program that was referred by DCS. FCM Howson had

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 5 of 19
       difficulty reaching Father via telephone and at his home. And in December

       2018, Father tested positive for methamphetamine and THC. Father was

       discharged from the recommended group therapy provider in February 2019 for

       non-compliance.


[10]   DCS filed a second petition to terminate Father’s parental rights on March 20,

       2019. The Court Appointed Special Advocate (“CASA”) filed a report in

       August 2019 recommending that termination of Father’s parental rights and

       Children’s adoption were in Children’s best interests. A fact-finding hearing on

       the petition was held on August 13, 2019. Father was incarcerated on that date

       for a pending charge of criminal mischief in Orange County. Children had been

       placed outside of Father’s home for fifty of the preceding fifty-five months at the

       time of the fact-finding hearing. The court entered its order terminating Father’s

       parental rights on October 11, 2019, finding in relevant part:


               77. Since removal [in March 2016] from Father, Father has failed
               to demonstrate the ability to maintain sobriety.


               78. Father has cycled through periods of negative screens, and
               then Father will relapse, using THC and Methamphetamine
               primarily.


               79. FCM Howson testified credibly that adoption is in the
               [C]hildren’s best interest based on: (1) the lack of progress by
               Father to address substance use; (2) the amount of time that has
               passed since Father has visited with the [C]hildren; and (3)
               [Child]’s Youth Report where she indicates that she does not
               want to see her Father.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 6 of 19
       Appellant’s App. Vol. 3, p. 108. Father now appeals the termination of his

       parental rights.


                                      Discussion and Decision
[11]   Parental rights are “precious and protected by our Federal and State

       constitutions.” In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013).

       Nevertheless, parental rights are not absolute: “termination of parental rights is

       appropriate when parents are unable or unwilling to meet their parental

       responsibilities.” In re R.L.-P., 119 N.E.3d 1098, 1104 (Ind. Ct. App. 2019).


[12]   When DCS seeks to terminate parental rights, it must prove its case by clear

       and convincing evidence, a heightened burden of proof that reflects the “serious

       social consequences” of parental rights termination. In re G.Y., 904 N.E.2d

       1257, n.1 (Ind. 2009). Decisions to terminate parental rights are among the

       most fact-sensitive that trial courts are called upon to make. In re E.M., 4

       N.E.3d 636, 639 (Ind. 2014).


[13]   Accordingly, we review such decisions with great deference in recognition of a

       trial court’s unique position to assess the evidence. In re S.P.H., 806 N.E.2d 874,

       879 (Ind. Ct. App. 2004). Our standard of review in parental rights termination

       cases requires us to consider only the evidence favorable to the judgment below;

       we do not reweigh the evidence nor judge the credibility of witnesses. Egly v.

       Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). Rather,

       we ask whether the evidence clearly and convincingly supports the trial court’s

       findings, and then whether the findings clearly and convincingly support the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 7 of 19
       judgment. K.T.K. v. Indiana Dep’t of Child Servs., 989 N.E.2d 1225, 1229–30

       (Ind. 2013). We will set aside the trial court’s findings or judgment only if they

       demonstrate clear error, or “that which leaves [this Court] with a definite and

       firm conviction that a mistake has been made.” Z.B. v. Indiana Dep’t of Child

       Servs., 108 N.E.3d 895, 900 (Ind. Ct. App. 2018), trans. denied.


[14]   Thus, before a parent-child relationship may be terminated, DCS must prove by

       clear and convincing evidence:


               (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 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:




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 8 of 19
                     (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).


[15]   If the trial court finds the allegations in a petition described in Section 4 of this

       chapter are true, DCS need not show by clear and convincing evidence that

       continuation of the parent-child relationship is “wholly inadequate for [a]

       child’s survival.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). Rather,

       clear and convincing evidence that a child’s emotional and physical

       development would be threatened by continuation of the parent-child

       relationship is sufficient to support an order terminating parental rights. Id.


                I. Whether Sufficient Evidence Supports the Trial Court’s Finding

[16]   Father disputes that DCS presented evidence sufficient to support the finding

       that there existed a “lack of bonding” between the Children and Father.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 9 of 19
       Appellant’s App. Vol. 3, p. 105. A factual finding is clearly erroneous when

       there are no facts or inferences that may be drawn from the evidence in support

       of that finding. In re S.P.H., 806 N.E.2d at 879. Here, evidence regarding

       Father’s relationship with Children was presented via the testimony of Emily

       Clearwater, a therapist employed by Ireland Home Based Services who

       conducted a parenting and family functioning assessment with Father in

       October 2018. Tr. p. 87; Ex. Vol. 2, pp. 222–26. Clearwater’s assessment was

       based in part on results from a Parenting Stress Index (“PSI”) rating device;

       Clearwater wrote that the Children’s PSI profiles were “invalid due to defensive

       responding. [Father] appears to be responding in a defensive manner and

       attempting to look competent and stress free . . . [Father] may be detached and

       uninvolved in his parenting responsibilities.” Ex. Vol. 2, p. 225. Accordingly,

       Clearwater recommended that Father “learn how to bond with his children. His

       PSI results indict [sic] that there could be attachment issues which could be the

       result of not seeing his children for so long.” Id. at 223. During the termination

       hearing, Clearwater explained that the PSI profile invalidity “either means that

       there’s problems there with [the parent’s] attachment to the children, or [the

       parent is] trying to look stress free, as far as parenting goes.” Tr. p. 87.


[17]   Father points to the testimony of former FCM Kimberly Fletcher, who was

       assigned to the Children’s case from mid-2015 to January 2016. Fletcher said

       that she observed that the Children were bonded with Father, enjoyed visiting

       him, and “never didn’t want to visit with him.” Tr. pp. 51–52. Similarly, the

       testimony of a second therapist from Ireland Home Based Services, who


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 10 of 19
       supervised Father’s weekly visits with Children between March and August

       2017, was that the visits went exceptionally well, never required her

       intervention, and that Father was prepared for every visit. Tr. pp. 75–76.


[18]   Clearwater expressed her concern about a lack of bond between Father and

       Children in October 2018, at which time Father’s visits with Children had been

       terminated for approximately one year. And the trial court found that Children

       had been out of Father’s home for fifty of the fifty-five months preceding the

       termination hearing. From this evidence, the trial court could reasonably infer

       that there was a basis for Clearwater’s concern about a broken parental bond,

       given the time that had elapsed between the last of Father’s supervised visits

       with Children and the date of his parenting assessment. Thus, the trial court’s

       finding of a “lack of bonding” between Father and Children was not clearly

       erroneous.


[19]   We emphasize, however, that trial courts must articulate the existence of such

       clear and convincing evidence, where DCS proffers it. See In re C.M., 960

       N.E.2d 169, 174 n.6 (Ind. Ct. App. 2011) (“a recitation that a witness testified

       in a particular way does not equate to a finding of basic fact”), adhered to on

       reh’g, 963 N.E.2d 528. The sole “finding of fact” addressed to Father’s bond

       with Children consists of the trial court’s statement that Clearwater “was

       concerned for lack of bonding between [the Children] with Father.” Appellant’s

       App. Vol. 3, p. 105. Simply restating the hearing testimony of a DCS witness as

       the trial court’s own finding of fact, without determining whether the testimony

       was credible, falls short of a proper finding of basic fact. Furthermore,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 11 of 19
       articulating that DCS met its burden of proof is especially critical in light of the

       State’s “power to shape the historical events that form the basis for

       termination” when a child is already in the State’s custody. Tipton v. Marion Cty.

       Dep’t of Public Welfare, 629 N.E.2d 1262, 1265 (Ind. Ct. App. 1994), quoting

       Santosky v. Kramer, 455 U.S. 745, 763 (1982) (noting in dicta that the State’s

       unusual ability to structure the evidence in termination cases increases the risk

       of erroneous factfinding).


           II. Whether the Conditions Leading to Children’s Removal Would Not Be
                                           Remedied

[20]   Father challenges the trial court’s determination relating to Indiana Code

       section 31-35-2-4(b)(2)(B) (conditions will not be remedied). This subsection is

       written in the disjunctive, and therefore the trial court needed only to find that

       one of the three requirements of the subsection had been established by clear

       and convincing evidence. See In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App.

       1999), trans. denied. In determining whether there is a reasonable probability

       that a parent will remedy the conditions which resulted in a child’s removal, a

       trial court engages in a two-step inquiry: first, it identifies the conditions that led

       to and contributed to the child’s continued removal from the parent’s home;

       second, it determines whether there is a reasonable probability that the

       conditions justifying a child’s continued placement outside the home will not be

       remedied. In re K.T.K., 989 N.E.2d at 1231.


[21]   Here, when the Children were initially removed from Mother’s care due to her

       drug use, Father did not live with Mother and the Children. Although Father

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 12 of 19
       “had an open assessment with DCS in Dubois County due to [his] alleged

       substance abuse,” the trial court explicitly found that “Father was not involved

       with or the cause for [DCS]’s original involvement with the [C]hildren.”

       Appellant’s App. Vol. 3, pp. 102, 108. DCS initiated the Children’s trial home

       visit with Father following their removal from Mother’s home. The trial home

       visit lasted approximately five months, until Father violated the conditions of

       the court’s dispositional order by testing positive for illegal drugs. Accordingly,

       the individual failure of both Parents to maintain sobriety is the condition that

       led to Children’s removal. Thus, it was incumbent upon the trial court to

       determine whether DCS established, by clear and convincing evidence, a

       reasonable probability of non-remediation of that condition, as to Father.


[22]   Following the end of the trial home visit, Father consistently and successfully

       attended supervised visitations with Children for a substantial period of time.

       Father was unable, however, to maintain his sobriety during this time, as

       evidenced by numerous positive and presumptively positive drug screens. Those

       supervised visits, too, eventually stopped when DCS filed its first petition to

       terminate Father’s and Mother’s parental rights to the Children. Then, after the

       dismissal of the first petition and reinstatement of DCS services, Father failed to

       maintain contact with the Family Case Manager assigned to the family’s case.


[23]   Other conditions that Father was required to meet as part of the trial court’s

       dispositional orders included that Father “[c]omplete a substance abuse

       assessment and follow all treatments and successfully complete all treatment

       recommendations developed as a result of the substance use assessment” and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 13 of 19
       that Father complete an Intensive Outpatient Program (IOP) with a designated

       provider. Appellant’s App. Vol. 3, p. 103. Father followed some treatment

       recommendations but did not “[take] advantage of the services available to

       him[.]” Id. at 106. Father did not engage in relapse prevention classes; did not

       attend community support groups such as Narcotics Anonymous; did not seek

       a sponsor; did not complete a psychological evaluation; and did not attend

       individual therapy. Id. at 105–06. Father readily admitted that he failed to

       complete these programs and cited his full-time work schedule as hindering his

       ability to participate. Father also avers that he completed two substance abuse

       and detox programs, one of which he enrolled in without DCS’s referral. Tr.

       pp. 112, 123. Accordingly, the trial court’s findings appear to lead unerringly to

       the conclusion that DCS established a reasonable probability that Father will

       not remedy the condition—his use of illegal drugs—which led to the Children’s

       removal.


[24]   Father argues the trial court’s conclusion was clear error because its findings

       focused on his past parental shortcomings and failed to analyze evidence of

       Father’s present or future inability to parent the Children. Father cites in

       support a 2011 decision of this Court that reversed a termination judgment due

       to the trial court’s erroneous focus on a parent’s historical conduct and the

       corresponding absence of “factual findings as to [parent]’s current

       circumstances or evidence of changed conditions.” In re C.M., 960 N.E.2d at

       175. In that case, the condition that led to removal was the parent’s

       incarceration and her cohabitation with a drug-dealing boyfriend. In concluding


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 14 of 19
       that the condition had not been remedied, the trial court made no factual

       findings as to the parent’s current fitness based on her circumstances at the time

       of the termination hearing, which necessarily meant that the trial court failed to

       consider evidence of changed conditions. Rather, the trial court’s judgment was

       based on findings regarding the parent’s mediocre progress with DCS services,

       while findings regarding her living situation were absent. Furthermore, the trial

       court failed to make a determination as to the credibility of the parent’s

       testimony regarding her current living circumstances and voluntary

       participation in substance abuse treatment. In reversing the termination

       judgment, we wrote: “Mother claimed to have accomplished each of the things

       required to remedy the prior conditions. . . . Her testimony was not directly

       contradicted. The trial court made no determination as to whether Mother’s

       testimony was credible or lacking in credibility.” Id. at 175. Because the trial

       court in In re C.M. failed to analyze whether the condition leading to removal

       had been remediated, its termination judgment was reversed. Id.


[25]   Father argues that the trial court here similarly failed to analyze his current

       ability to parent Children, citing in support his stable living conditions and

       current employment. We cannot agree, because the condition leading to

       removal in Father’s case was his abuse of illegal substances. The trial court’s

       focus on his subsequent “habitual pattern of conduct” as it related to drug abuse

       was thus entirely relevant. See In re K.T.K., 989 N.E.2d at 1231. Father does not

       challenge the numerous findings that detail how, despite the various substance-

       abuse prevention services DCS recommended, Father returned to abusing


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 15 of 19
       drugs, including during his trial home visit with Children and during the period

       when he had supervised visits with Children. That Father did not take

       advantage of treatment services available to him up to the point of the

       termination hearing was properly considered as a habitual pattern of conduct,

       indicating that the condition leading to the Children’s removal from his care

       would not be remedied. The trial court’s judgment was also based on the

       finding that a therapist familiar with Father’s case “testified credibly that there

       is little likelihood of Father maintaining sobriety without completion of a

       treatment program.” Appellant’s App. Vol. 3, p. 106. And an FCM’s

       recommendation that the Children be adopted was based in part on Father’s

       lack of progress addressing substance abuse, which the trial court also found

       credible. Id. at 107.


[26]   Furthermore, at the time of the termination hearing on August 13, 2019, Father

       was incarcerated in the Orange County Jail for a pending charge of Class B

       misdemeanor criminal mischief. Previously, Father had been convicted of Class

       B misdemeanor possession of marijuana.2 That Father was incarcerated at the

       time of the termination hearing—though not related to the specific condition

       which led to Children’s removal—does not reflect well on Father’s current

       ability to parent Children; rather, it indicates that Father’s conditions may have




       2
         The trial court found that “Father was incarcerated for brief periods during the pendency of this case.”
       Appellant’s App. Vol. 3, p. 106. We fail to identify sufficient evidence supporting that finding in the record;
       however, Father does not challenge the accuracy of the finding, and the finding does not appear to have
       served as the basis for the trial court’s conclusion, so we limit our comment to that observation.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020                      Page 16 of 19
       changed for the worse. Any evidence of changed conditions—or a lack

       thereof—is relevant to the trial court’s determination of a parent’s fitness to care

       for a child at the time of the termination hearing. In re D.D., 804 N.E.2d 258,

       266 (Ind. Ct. App. 2004), trans. denied.


[27]   Based on these findings, the trial court concluded that there was a reasonable

       probability that the condition which resulted in Children’s removal and

       continued placement outside the home would not be remedied, and our review

       reveals no error in that conclusion.


                  III. Whether Termination was in the Children’s Best Interests

[28]   Father also challenges the trial court’s determination relating to Indiana Code

       Section 31-35-2-4(b)(2)(C) (best interests of the children). In determining what is

       in the best interests of the children, the court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. In re A.B.,

       887 N.E.2d 158, 167 (Ind. Ct. App. 2008). Nevertheless, a parent’s failure to

       make the changes that DCS has identified as necessary for reunification

       supports a conclusion that termination is in a child’s best interests. Matter of

       Ma.H., 134 N.E.3d 41, 50 (Ind. 2019). And, we consider a child’s need for

       permanency in acknowledging that children “cannot wait indefinitely for their

       parents to work toward preservation or reunification.” Id. at 49 (quoting In re

       E.M., 4 N.E.3d at 648).


[29]   The trial court here acknowledged that determining whether termination is in

       Children’s best interests “necessarily places the children’s interest in preserving

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 17 of 19
       the family into conflict with their need for permanency.” Appellant’s App. Vol.

       3, p. 109, quoting In re E.M., 4 N.E.3d at 647. Father contends that the only

       findings regarding Children’s best interests had to do with their current

       placement with a maternal aunt and correctly notes that a parent’s

       constitutional right to raise a child “may not be terminated solely because there

       may be a better home available for that child.” In re R.A., 19 N.E.3d 313, 321

       (Ind. Ct. App. 2014), trans. denied.


[30]   In this case, Children have had a permanent home with a relative since March

       2016; well over three years passed between the end of Children’s trial home

       visit with Father and the August 2019 termination hearing. The Children’s need

       for permanency at this stage thus cannot be discounted. Furthermore, the trial

       court’s judgment was not based solely on the Children’s long-term placement

       outside of Father’s care: its findings also included that Father had not made the

       change—gaining and maintaining sobriety—that DCS identified as a

       prerequisite to reunification. And the trial court found credible the testimony of

       an FCM and the CASA that termination of Father’s parental rights was in

       Children’s best interests. Appellant’s App. Vol. 3, p. 106–07. Where such

       testimony in support of termination is accompanied by clear and convincing

       evidence of a parent’s failure to remedy the condition which led to removal, the

       findings support a conclusion that termination is in the child’s best interests. In

       re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). Accordingly, there is no clear

       error in the trial court’s judgment that termination of Father’s parental rights is

       in the Children’s best interests.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 18 of 19
                                                 Conclusion
[31]   The trial court did not clearly err in inferring from the evidence that Father and

       Children may suffer from a lack of bonding. And the trial court’s conclusions

       that the conditions that led to Children’s removal would not been remedied and

       that termination of Father’s parental rights was in Children’s best interests were

       clearly and convincingly supported by its findings. Accordingly, we affirm the

       judgment terminating Father’s parental rights to Children.


[32]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2693 | June 16, 2020   Page 19 of 19
