                                                                      FILED
                                                                 Sep 15 2016, 8:11 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Mark Small                                                 Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

Brian A. Karle                                             Robert J. Henke
Lafayette, Indiana                                         Deputy Attorney General

                                                           Abigail R. Recker
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

D.B. and V.G.,                                             September 15, 2016
Appellants-Defendants,                                     Court of Appeals Case No.
                                                           54A01-1603-JT-607
        v.                                                 Appeal from the Montgomery
                                                           Circuit Court
Indiana Department of Child                                The Honorable Harry A. Siamas,
Services,                                                  Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           54C01-1510-JT-246,
                                                           54C01-1510-JT-247,
                                                           54C01-1510-JT-248,
                                                           54C01-1510-JT-249,
                                                           54C01-1510-JT-250



Altice, Judge.


                                           Case Summary


Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016              Page 1 of 19
[1]   D.B. (Father) and V.G. (Mother) appeal following the involuntary termination

      of their parental rights. On appeal, they argue that the termination of their

      rights was improper because the termination petition was prematurely filed.

      Additionally, Father argues that the Department of Child Services (DCS)

      presented insufficient evidence to support the termination of his parental rights.


[2]   We affirm.


                                         Facts & Procedural History1


[3]   During the time relevant to this appeal, Mother and Father (collectively, the

      Parents) had two daughters together, Bi.B and Br.B. (collectively, the Girls),

      who were born in 2012 and 2013, respectively.2 Mother also has three older

      sons, Ra.G., H.G., and Ru.G (collectively, the Boys), who were born in 2005,

      2006, and 2008, respectively, from a previous relationship. The Boys’ father is

      deceased.


[4]   DCS became involved in April 2014 after receiving a report that the home was

      in poor condition, the Parents were using illegal drugs, and the Boys had been

      left at home alone. When law enforcement and a DCS investigator arrived at

      the home, they found Ra.G. and H.G., who were then eight and seven years




      1
        Because Mother challenges only the timeliness of the termination petition, our recitation of the facts is
      largely limited to those relevant to Father’s argument that DCS presented insufficient evidence to support the
      termination of his rights.
      2
       While this case was pending, Mother gave birth to another child. That child is not a subject of these
      proceedings.

      Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016                      Page 2 of 19
      old, alone and without a working telephone. The investigator also discovered

      that the home was dirty, with trash and dirty dishes piled up and a mouse

      infestation. When the Parents returned home after receiving a phone call from

      the DCS investigator, Mother submitted to a drug screen and tested positive for

      methamphetamine. Father refused a drug screen but admitted to using

      marijuana three weeks earlier.


[5]   As a result of these events, DCS filed petitions alleging that all five children

      (collectively, the Children) were Children in Need of Services (CHINS). On

      May 8, 2014, the Children were adjudicated CHINS following the Parents’

      admission to the allegations in the CHINS petitions. On June 6, 2014, the

      CHINS court issued its dispositional order, pursuant to which the Children

      were made wards of DCS but remained in the Parents’ home. The court also

      ordered the Parents to participate in a number of services, including home-

      based case management, substance abuse treatment, and random drug screens.


[6]   On July 14, 2014, DCS received a report that there had been an incident of

      domestic violence between the Parents. DCS Family Case Manager (FCM)

      Charlene Tolley made contact with Mother, who confirmed that the Parents

      had been in a physical altercation while the Children were present. Mother also

      admitted that she and Father had used methamphetamine together a few days

      earlier and had driven with the Children in the car less than an hour later.

      Father again refused to submit to a drug screen. In light of these developments,

      DCS removed the Children immediately. The Boys were placed in one foster

      home and the Girls in another. A detention hearing was held the next day, and

      Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 3 of 19
      the CHINS court entered an order approving the Children’s removal and

      continued placement in foster care. The Parents were subsequently ordered to

      participate in supervised visitation.


[7]   The Parents’ participation in reunification services was sporadic throughout the

      underlying CHINS proceedings. Father refused to submit to random drug

      screens for the first several months of the CHINS proceedings. Father

      eventually submitted to a total of thirty-five drug screens throughout the course

      of the underlying proceedings, twenty-three of which were positive for

      marijuana, methamphetamine, or both. Father was also referred for an eight-

      week intensive outpatient program (IOP) for substance abuse. Due to his poor

      attendance and failed drug screens, Father did not complete the program in the

      allotted time frame. Father completed IOP after receiving a one-month

      extension. Father was then referred to a relapse prevention program, and

      although he did not begin that program when he was originally supposed to, he

      did eventually complete the program. Despite completing treatment, he

      continued to test positive for marijuana and methamphetamine.


[8]   The Parents were also referred for couple’s counseling, but Father stopped

      attending after only two sessions. Father testified that he stopped going to

      couple’s counseling because he “didn’t want to go no more[.]” Transcript at 32.

      Father was also referred for individual therapy, but he did not attend a single

      session.




      Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 4 of 19
[9]    The Parents’ participation in home-based services was limited. According to

       home-based case manager Jamie Selby, the Parents refused to work on

       budgeting and “were reluctant or resistant to complying with services or

       recommendations.” Id. at 59. Additionally, Father exhibited ongoing

       disrespectful behavior toward Selby. When she would attempt to redirect him,

       he would yell at her and tell her that she did not know how to do her job. Selby

       thought that Father might take better direction from a man, so she brought on a

       male case worker. Father made some limited progress for a few months until

       the male case worker was reassigned to another location and Father had to

       begin working with Selby again.


[10]   During supervised visits, Parents struggled with engaging with the Children and

       imposing discipline. Additionally, Father exhibited disruptive behavior. For

       example, when a visit at a park was ended early due to inclement weather,

       Father became very loud and argumentative in the presence of the Children.

       On other occasions, visits were ended early because Mother and Father got into

       heated arguments and continued “to cuss and holler” in front of the Children

       after being told to stop. Id. at 66. Father fell asleep during a number of visits

       and at other times appeared to be under the influence. Additionally, the

       Parents sometimes failed to show up for visits at all, eventually resulting in the

       implementation of a policy requiring them to arrive for scheduled visits thirty

       minutes early in order to prevent the Children from being transported to the

       visitation facility only to find that the Parents were not there.




       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 5 of 19
[11]   On May 18, 2015, the CHINS court found that the Parents were not compliant

       with the case plan and changed the permanency plan to reunification with a

       concurrent plan of adoption. On September 23, 2015, the CHINS court

       changed the permanency plan to adoption only and relieved DCS of the

       obligation to provide services other than supervised visitation. DCS filed its

       termination petitions on October 9, 2015. An evidentiary hearing was held on

       March 9, 2016, and approximately one week later, the trial court entered its

       order terminating Mother’s rights to all five of the Children and Father’s rights

       to the Girls. This appeal ensued. Additional facts will be provided as

       necessary.


                                            Discussion & Decision


[12]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the 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 inferences most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its

       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. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[13]   The trial court entered findings in its order terminating the Parents’ parental

       rights. When the trial court enters specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of


       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 6 of 19
       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine

       whether the evidence supports the findings, and second we determine 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). A judgment is

       clearly erroneous only if the findings do not support the court’s conclusions or

       the conclusions do not support the judgment thereon. Id.


[14]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish parents, but to protect their children. Id.


                                                   1. Timeliness


[15]   The Parents first argue that the termination of their parental rights was

       improper because the termination petition was prematurely filed. Ind. Code §

       31-35-2-4(b)(2)(A) provides that a termination petition must allege that at least

       one of the following is true:


       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 7 of 19
                (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[.]


[16]   Although the evidence presented at the evidentiary hearing in this matter

       unequivocally established that the Children had been removed from the Parents

       under a dispositional decree for well over six months, the termination petitions

       regarding the Girls contained no allegation that subsection (i) had been

       satisfied.3 Instead, those petitions alleged only that the requirements of




       3
         The termination petitions regarding Ra.G. and Ru.G. did contain allegations under subsection (i) that
       Ra.G. and Ru.G. had been removed for at least six months under a dispositional decree. See Mother’s
       Appendix at 41, 45. The trial court’s finding that Ra.G. and Ru.G had been removed for at least six months is
       clearly supported by the record, and Mother makes no argument to the contrary. Because the termination
       petition regarding H.G. does not appear anywhere in the record presented to us on appeal, any argument
       challenging the trial court’s finding under subsection (i) with respect to H.G. has been waived. See Ramsey v.
       Madison Cnty. Dep’t of Family & Children, 707 N.E.2d 814, 817-18 (Ind. Ct. App. 1999) (noting that “[o]n the
       points assigned as error, the appellant has the burden of presenting both a cogent argument and the
       appropriate portions of the record to establish the error[,]” and that an appellant who fails to do so waives
       consideration of those issues). In any event, even if we assume that the termination petition for H.G. did not
       contain an allegation under subsection (i), our resolution of the timeliness issue with respect to the Girls
       would apply with equal force to H.G. Accordingly, Mother is not entitled to reversal of the trial court’s
       termination of her parental rights to the Boys.

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016                      Page 8 of 19
       subsections (ii) and (iii) had been met. It is undisputed, however, that

       subsection (ii) is inapplicable here. It therefore appears to us that DCS intended

       to make allegations under subsection (i) in the petitions regarding the Girls, but

       inadvertently made allegations under subsection (ii) instead.4 Indeed, DCS

       argued at the evidentiary hearing that the requirements of subsections (i) and

       (iii) had been satisfied, with no mention of subsection (ii).


[17]   Father argued below that DCS’s failure to include an allegation under

       subsection (i) in its termination petitions regarding the Girls precluded the trial

       court from granting the petitions on that basis, and that the petitions were

       prematurely filed for the purposes of subsection (iii). Specifically, he noted that

       the Girls were removed from the home on July 14, 2014 and the termination

       petition was filed on October 9, 2015. Thus, the petition was filed five days

       short of the fifteen-month waiting period set forth in subsection (iii). The trial

       court entered findings that both subsection (i) and subsection (iii) had been

       satisfied with respect to all five of the Children.


[18]   On appeal, both Parents reassert the timeliness arguments Father made below.

       DCS concedes that at the time the termination petitions were filed, the Girls

       had not yet been removed for 15 of the most recent 22 months as set forth in

       subsection (iii). In order for the petitions to have been timely filed under that




       4
        This issue could have been avoided entirely if DCS had simply exercised adequate care and attention in
       drafting and filing its termination petitions in this matter. In the future, we urge DCS to proofread its filings
       with greater care.

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016                         Page 9 of 19
       subsection, they would have to have been filed five days later—on October 14,

       2015 instead of October 9, 2014. Nevertheless, citing In re J.W., Jr., 27 N.E.3d

       1185 (Ind. Ct. App. 2015), trans. denied, DCS claims that this court has held that

       the requirements of subsection (iii) are satisfied so long as a child has been

       removed from a parent for fifteen of the most recent twenty-two months

       immediately preceding the termination hearing. Because the termination

       hearing in this case was not held until March 9, 2016, DCS argues that the

       fifteen-month requirement was satisfied. Father responds that J.W. is

       inapposite and that the outcome in this case is controlled by In re Q.M., 974

       N.E.2d 1021, 1025 (Ind. Ct. App. 2012), trans. denied, in which this court held

       that time requirements of I.C. § 31-35-2-4(b)(2)(A)(iii) must be satisfied at the

       time the termination petition is filed.


[19]   We agree that DCS’s reliance on J.W. is misplaced. In that case, the parents

       argued that the fifteen-month waiting period set forth in I.C. § 31-35-2-

       4(b)(2)(A)(iii) should be tolled during any period in which DCS fails to provide

       services to a parent. This court held that the statute simply requires DCS to

       demonstrate compliance with the statutory waiting period, with no requirement

       that DCS provides services to the parent during that time. In reaching this

       conclusion, the court reasoned that I.C. § 31-35-2-4(b)(2)(A)(iii) “is

       unambiguous and simply requires the DCS to demonstrate that a specific

       waiting period has occurred—namely, fifteen of the most recent twenty-two

       months immediately prior to the termination hearing—with a child removed from

       the parent.” J.W., 27 N.E.3d. at 1190 (emphasis supplied). We note, however,


       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 10 of 19
       that whether the children had been removed for fifteen of the most recent

       twenty-two months was not at issue in J.W. The only issue before the court was

       whether the fifteen-month waiting period should be tolled due to DCS’s failure

       to provide services.


[20]   In Q.M., on the other hand, this court was squarely presented with the issue we

       now confront—whether the children had been removed for fifteen of the most

       recent twenty-two months as required by I.C. § 31-35-2-4(b)(2)(A)(iii). This

       court held that “[a]n involuntary termination petition must allege, and the State

       must prove by clear and convincing evidence, that the child was . . . removed

       from the family home at least fifteen of the most recent twenty-two months ‘at

       the time the involuntary termination petition was filed.’” Q.M., 974 N.E.2d at 1024-

       25 (quoting In re D.D., 962 N.E.2d 70, 74 (Ind. Ct. App. 2011)) (emphasis

       supplied). Because the children in that case had been removed from the home

       for only approximately thirteen months at the time the termination petitions

       were filed, DCS conceded that it had not satisfied “the jurisdictional

       requirements” of I.C. § 31-35-2-4(b)(2)(A)(iii).5 Id. at 1024. Concluding that




       5
         Our Supreme Court has noted a “tendency in procedural law to treat various kinds of serious procedural
       errors as defects in subject matter jurisdiction[.]” In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014)
       (quoting K.S. v. State, 849 N.E.2d 538, 541 (Ind. 2006)). “The question of subject matter jurisdiction entails a
       determination of whether a court has jurisdiction over the general class of actions to which a particular case
       belongs.” K.S., 849 N.E.2d at 542. There is no question that the court in this case has jurisdiction over
       proceedings to terminate parental rights. The issue presented here is therefore one of legal or procedural
       error, not subject matter jurisdiction.

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016                      Page 11 of 19
       DCS had not satisfied the requirements of I.C. § 31-35-2-4(b)(2)(A)(iii), this

       court reversed.


[21]   Because this court directly addressed the issue of the date by which the fifteen-

       month requirement set forth in I.C. § 31-35-2-4(b)(2)(a)(iii) must be satisfied in

       Q.M., we find that case controlling on that issue. As DCS filed its petitions to

       terminate the Parents’ rights to the Girls on October 9, 2015—five days before

       the fifteen-month waiting period expired—its petition was premature and did

       not satisfy the requirements of the statute. This is so regardless of the fact that

       the Children had been removed for well over fifteen of the most recent twenty-

       two months by the time of the termination hearing.


[22]   This does not, however, end our inquiry. The Parents have made no argument

       that they were prejudiced in any way by the premature filing. DCS was

       relieved of its obligation to provide services in the CHINS case and the

       permanency plan was changed to adoption on September 23, 2015—before the

       termination petitions were filed. Thus, the five-day-early filing had no effect on

       the provision of services to the Parents, and we are unaware of any other way

       they were harmed. It is well settled that this court will not reverse a trial court’s

       judgment where the decision does not prejudice the substantial rights of a party.

       See Ind. App. Rule 66(A) (providing that “[n]o error or defect in any ruling or

       order or in anything done or omitted by the trial court or by any of the parties is

       ground for granting relief or reversal on appeal where its probable impact, in

       light of all the evidence in the case, is sufficiently minor so as not to affect the

       substantial rights of the parties”); Ind. Trial Rule 61 (providing that “[t]he court

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 12 of 19
       at every stage of the proceeding must disregard any error or defect in the

       proceeding which does not affect the substantial rights of the parties”).


[23]   Perhaps anticipating this response, Father cites Q.M. for the proposition that

       DCS must strictly comply with the termination statutes “[b]ecause parents have

       a constitutionally protected right to establish a home and raise their children[.]”

       974 N.E.2d at 1024. We agree that failure to strictly comply with the

       termination statutes amounts to error, but this does not preclude application of

       the harmless error rule. Indeed, Indiana courts regularly apply harmless error

       analysis in cases involving the termination of parental rights and alleged

       violations of other important constitutional rights. See In re the Involuntary

       Termination of Parent-Child Relationship of Kay.L., 867 N.E.2d 236, 241 (Ind. Ct.

       App. 2007) (applying harmless error analysis to a parent’s argument that the

       termination petition did not contain all information required by statute); see also

       Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002) (holding that “[a] denial of

       the right to be present during all critical stages of the proceedings, like the right

       to counsel at a critical stage, is a constitutional right that is subject to a harmless

       error analysis”); Jackson v. State, 735 N.E.2d 1146 (Ind. 2000) (finding a denial

       of the defendant’s constitutional right of confrontation to be harmless). For the

       reasons set forth above, we conclude that any error resulting from the

       premature filing of the termination petitions was harmless, and the Parents are

       therefore not entitled to reversal on that basis.


                                        2. Sufficiency of the Evidence



       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 13 of 19
[24]   Next, Father argues that DCS presented insufficient evidence to support the

       termination of his parental rights to the Girls. In addition to the waiting period

       requirements discussed above, when DCS seeks to involuntarily terminate a

       parent’s parental rights, it must allege and prove by clear and convincing

       evidence:


                (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[.]


       I.C. § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[25]   Father challenges only the trial court’s finding that I.C. § 31-35-2-4(b)(2)(B)(i)

       had been satisfied—i.e., that DCS had established by clear and convincing

       evidence a reasonable probability that the conditions resulting in the Girls’

       removal and placement outside the home will not be remedied. In making such

       a determination, the trial court must judge a parent’s fitness to care for his or

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 14 of 19
       her 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. The court must also evaluate the parent’s habitual patterns

       of conduct to determine whether there is a substantial probability of future

       neglect or deprivation of the child. Id. In conducting this inquiry, courts may

       consider 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 Cnty. Office of Family & Children, 762 N.E.2d 1244,

       1251 (Ind. Ct. App. 2002), trans. denied. The court may also consider the

       parent’s response to the services offered through DCS. Lang v. Starke Cnty. Office

       of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.

       “A pattern of unwillingness to deal with parenting problems and to cooperate

       with those providing social services, in conjunction with unchanged conditions,

       support a finding that there exists no reasonable probability that the conditions

       will change.” In re L.S., 717 N.E.2d at 210. Moreover, the failure to exercise

       visitation demonstrates a “lack of commitment to complete the actions

       necessary to preserve [the] parent-child relationship.” Lang, 861 N.E.2d at 372

       (quoting In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)) (alteration in

       original).


[26]   In his brief, Father focuses solely on whether the conditions resulting in the

       Girls’ initial removal have been remedied. However, the language of Indiana’s

       termination statute makes clear that “it is not just the basis for the initial

       removal of the child that may be considered for purposes of determining

       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 15 of 19
       whether a parent’s rights should be terminated, but also those bases resulting in

       the continued placement outside of the home.” In re A.I., 825 N.E.2d 798, 806

       (Ind. Ct. App. 2005), trans. denied.


[27]   The trial court made the following relevant findings in support of its conclusion

       that there is a reasonable probability that the conditions resulting in the Girls’

       removal and continued placement outside the home will not be remedied:


               The children were removed from their parents in July 2014. The
               DCS has offered reunification services to both parents but neither
               parent was able to participate in these services in order to
               overcome their parenting deficits. [Father] has been particularly
               uncooperative and difficult. For many months he refused to
               participate in any services or take drug screens. His relationship
               with [Mother] is combative and sometimes violent. Neither
               parent did anything to protect the children from [the Parents’]
               toxic relationship. [Father] continued to abuse marijuana and
               methamphetamine. His visits with the children were inconsistent
               and he often ended the visits early. He has not visited with the
               [B]oys for two months at the time of the termination hearing and
               he has not visited more than twice with the [G]irls in the last two
               months. [Father] has made no progress and there is no reason to
               think that any services can be offered to him that would improve
               his poor parenting, substance abuse or domestic dysfunction.


       Father’s Appendix at 56.


[28]   On appeal, Father argues that the problems in his relationship with Mother had

       been remedied because Mother and Father were in the process of separating.

       We acknowledge that Mother testified that she and Father were no longer

       romantically involved at the time of the termination hearing. Although they


       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 16 of 19
       were still living together, Mother testified that she was “moving out slowly.”

       Transcript at 44. Mother testified that she had moved “four or five boxes” to her

       mother’s house. Id. at 46. Mother acknowledged that she had said she was

       going to move out in the past, but never did so. When asked if he and Mother

       were going to continue living together, Father testified that he was “leaving it

       up to [Mother.]” Id. at 32. As our Supreme Court has noted, “[r]equiring trial

       courts to give due regard to changed conditions does not preclude them from

       finding that parents’ past behavior is the best predictor of their future behavior.”

       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Accordingly, the trial court was free

       to attribute greater weight to the Mother’s pattern of not following through with

       her threats to leave than to her current claims that she was moving out.

       Moreover, the Parents failed to complete couple’s counseling. After only two

       sessions, Father stopped attending because he “didn’t want to go no more[.]”

       Transcript at 32. The trial court’s finding that there was a reasonable probability

       that the Parents’ combative and sometimes violent relationship would not be

       remedied is not clearly erroneous.


[29]   With respect to his drug abuse, Father argues that the evidence presented on

       this point was “thin.” Father’s Brief at 11. Father acknowledges testimony that

       he submitted to a total of thirty-five drug screens throughout the course of the

       underlying proceedings, twenty-three of which were positive for marijuana,

       methamphetamine, or both. He notes further, however, that the positive drug

       screens were not admitted into evidence and argues that it is unclear when his

       last positive drug screens occurred and how many drug screens were positive for


       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 17 of 19
       marijuana only, which he calls “a much less destructive substance.” Id. at 12.

       Father has not acknowledged that in its May 18, 2015 order changing the

       permanency plan from reunification to concurrent plans of reunification and

       adoption, the CHINS court found that Father had completed relapse

       prevention, but nevertheless “continues to test positive for marijuana.” Exhibit

       2. In its September 23, 2015 order changing the permanency plan to adoption

       only, the CHINS court found that Father “continues to use various substances,

       including THC and methamphetamine.” Id. Moreover, Father admitted to

       FCM Tolley that he provided Mother with drugs in July 2015, and FCM Tolley

       testified at the termination hearing that Father was “still positive for drugs.”

       Transcript at 159. This evidence was sufficient to support the trial court’s

       finding that there was a reasonable probability that Father’s drug use would not

       be remedied.


[30]   The evidence presented at the termination hearing also supports the trial court’s

       findings that Father did not visit with the Girls consistently, and when Father

       did show up for visits, his behavior was often inappropriate and disruptive. He

       got into loud verbal altercations with Mother and the visitation supervisor in

       the presence of the Children, he repeatedly fell asleep during visits, and

       sometimes appeared to be under the influence.


[31]   In sum, Father has made no real progress toward addressing his parenting

       deficiencies. Accordingly, the trial court’s finding that there is reasonable

       probability that the conditions resulting in the Girls’ removal and continued



       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 18 of 19
       placement outside the home will not be remedied is amply supported by the

       evidence.


[32]   Judgment affirmed.


[33]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 54A01-1603-JT-607 | September 15, 2016   Page 19 of 19
