MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                            Feb 22 2019, 9:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 22, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of: M.F., Minor Child,                                    18A-JT-1845
J.F., Father                                              Appeal from the Madison Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable G. George Pancol,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 48C02-1712-JT-107
Child Services,
Appellee-Petitioner.



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019                   Page 1 of 23
[1]   J.F. (“Father”) appeals the involuntary termination of his parental rights with

      respect to his child, M.F. We affirm.


                                       Facts and Procedural History

[2]   Father and A.P. (“Mother”) are the parents of M.F., who was born in

      December 2015. 1 M.F. was born THC positive. M.F., and his older sibling,

      M.O., were removed from the home on February 17, 2016. On February 18,

      2016, the Indiana Department of Child Services (“DCS”) filed a petition

      alleging that M.F. was a child in need of services (“CHINS”). The petition

      alleged that: M.F.’s sibling, M.O., sustained burns, redness, or blistering to his

      hand; Father and Mother did not seek medical treatment; Mother held M.O.’s

      hand under a hot water faucet as punishment; M.O. had been locked in the

      basement on occasion as punishment causing him to be fearful and to cry for

      help; and Mother and/or Father had failed to provide appropriate supervision

      or care to M.F. in that they did not engage in safe sleeping practices. Also, on

      February 18, 2016, the court entered an Order on Initial/Detention Hearing

      indicating that it had held a hearing, found that Father and Mother admitted

      the allegations in the petition, and concluded that the removal of M.F. was

      authorized and necessary to protect the child. The court also entered its Order

      Authorizing Filing of CHINS Petition.




      1
        Mother was married to another man when M.F. was born, but genetic testing revealed that Father is M.F.’s
      father. Mother and Father are also parents of a second child. At the June 12, 2018 hearing, M.F.’s maternal
      grandmother testified that the second child was eight months old. Mother does not appeal the termination of
      her parental rights as to M.F.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019              Page 2 of 23
[3]   On March 16, 2016, the court entered an Order on Dispositional Hearing. It

      ordered Father to contact the case manager every week; notify the case

      manager of any changes in address, household composition, employment, or

      telephone number within five days; notify the case manager of any arrest or

      criminal charges for any household member within five days of the charge;

      allow the case manager or other service providers to make announced or

      unannounced visits to the home; enroll in recommended programs; keep all

      appointments; remain in the county; maintain suitable housing; secure and

      maintain a legal and stable source of income; not use illegal controlled

      substances or alcohol; participate in counseling; complete a parenting

      assessment; complete a substance abuse assessment; submit to random

      drug/alcohol screens; not commit any acts of domestic violence; and “attend all

      schooled visitations with the child.” Appellant’s Appendix Volume II at 22.

      On September 20, 2016, the court entered an Order on Periodic Case Review

      finding that Father had not complied with the case plan and was non-compliant

      with services.


[4]   On December 14, 2017, DCS filed a Verified Petition for Involuntary

      Termination of Parent-Child Relationship. On January 11, 2018, the court held

      a hearing. Kaylee Jones of the Madison County Department of Child Services

      testified that she was assigned as M.F.’s permanency case manager, that Father

      and Mother had not notified her of changes of address or household

      composition within five days as ordered in the dispositional order, which was a

      safety concern. She testified that Father had not notified her of any arrests or


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 3 of 23
      criminal charges within five days, that he had been pulled over for DWI and

      placed in jail and currently had a warrant in that cause, and that “there is also a

      police call for disturbance on New Year’s Day.” Transcript Volume II at 8.

      She stated that Father did not complete home based services and that his

      medication management was a safety concern because he had been diagnosed

      with anxiety and depression, and relapse is very common if not handled

      appropriately. She testified that Mother was arrested for domestic battery on

      May 29, 2016, services were recommended for both parents in October 2016,

      and neither parent completed those services. She stated that Father was visiting

      once weekly for two hours and “had a no show for the visit last week.” Id. at

      13.


[5]   Deondre Hill testified that he worked with M.F. and Father and supervised

      visits for approximately three months, and that Father was consistent but had

      missed two visits including one the previous week.


[6]   Christy Green, a home based case manager and visitation supervisor, testified

      that she worked with Father between October 2016 and July 2017, that he

      consistently missed visits, would be late, and failed to bring the appropriate

      supplies, but had improved with respect to bringing supplies during the last

      three months. She expressed concern with Father’s ability to ascertain what

      was safe for a child of M.F.’s age and that he “just was not able to understand

      child development well enough to be able to care for [M.F.] on his own without

      supervision.” Id. at 25.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 4 of 23
[7]    Thomas Asaunte, a mental health and addiction therapist with Adult and Child

       Services, testified that Father was one of his clients receiving addiction

       counseling services, that he had been working with Father for about one month,

       and that it was his understanding that Father had completed IOP prior to

       becoming his client. He testified that he had four visits with Father, that his

       current impression was that Father was making progress, and that he needed to

       be with Father longer than one month to provide a full assessment.


[8]    At the end of the hearing, the court stated that it would continue Father’s

       treatment, drug screens, and visitation. The court mentioned the petition to

       terminate parental rights and indicated that it would enter a denial for Father

       and Mother.


[9]    On June 12, 2018, a termination hearing was held. Greenwood Police Sergeant

       James Brian Long testified that he had been called to Mother’s address on April

       30, 2018, based upon her report that “her apartment building was broke in to by

       her son’s father.” Id. at 55. Sergeant Long stated that he observed that the front

       door was kicked in and that he was unable to locate Father at the time. He

       indicated that a Playstation 4 and some type of sexual toy were taken from the

       home but no charges were filed because he was “having a hard time

       establishing whether or not [Father] did not have a right to be there.” Id. at 56.


[10]   Jones, the permanency case manager, testified that she had the case since

       October 2016 and that M.F.’s removal was based on Mother burning the older

       child with water, M.F. being born exposed to THC, and unsafe sleep practices.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 5 of 23
       She stated that DCS offered family counseling to the parents and that a referral

       was made on March 9, 2016, but that service was not completed successfully.

       She testified that the parents completed a parenting assessment, but neither

       parent followed through with the recommendations, and that DCS offered

       clinical interview services to parents on May 16, 2006, but that was not

       completed successfully. She stated that Father successfully completed a

       substance abuse assessment but did not successfully complete the substance

       abuse treatment because he tested positive for hydrocodone in March 2018 and

       also relapsed in May 2018. She stated that parents did not comply with drug

       screen referrals and did not successfully complete home based services, and that

       Father had been somewhat compliant with visitation but “there were a few

       recent no shows or cancellations.” Id. at 66. She also stated that Father did not

       successfully complete a referral for home maker services or fatherhood

       engagement. On cross-examination, Jones stated that Father’s drug screens

       were currently suspended due to “no shows or refusals.” Id. at 87.


[11]   Asaunte, the mental health and addiction therapist, testified that Father

       enrolled in addiction treatment in November 2017. When asked if there was a

       point where Father relapsed, Asaunte answered: “I have his records his screens

       here, it was only on March 22, he had a positive for Opiate but he brought in

       his prescription medication which was prescribed for him in July and he proved

       that he didn’t really relapse (INAUDIBLE).” Id. at 94. On cross-examination

       by Father’s counsel, Asaunte responded that Father successfully completed his

       part of the program and volunteered to do more.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 6 of 23
[12]   Jasmine May, an employee of Children’s Bureau, testified that she had the case

       since April 24th and that Father had not visited consistently with M.F. She

       indicated that she had concerns with Father’s parenting skills and stated:


               [Father] lacks parenting, he is a great father during visit time but
               he, he doesn’t really know how to respond to [M.F.]
               appropriately . . . for instance, we were in the library for
               community visit and [M.F.] was running around playing and
               stuff like that and [Father] didn’t really know how to you know,
               maintain him being quiet . . . other than that . . . that’s about it.


       Id. at 101. When asked if she had any safety concerns, May answered:


               [M]y only safety concern that I would have with [Father] at this
               moment is when May 16th, I’m sorry, May 10th he smelled of
               alcohol . . . , I brought it to [Father’s] attention and [Father]
               denied it stating that he did not smell of alcohol. May 16th is
               when he stated that he had the food poisoning but later down the
               road told his FCM that he had been drinking the night before . . .
               .


       Id. at 102. On cross-examination, May testified that Father “doesn’t really

       know how to interact with” M.F. Id. She stated that Father missed three of

       seven sessions with her.


[13]   Green, the supervised visitation facilitator, testified that she had the case for

       approximately nine months between October 2016 and June or July 2017, that

       visits were initially scheduled for twice a week for a total of five hours, and that

       visits were reduced because Father did not show up, showed up late, and did

       not bring the appropriate supplies. She indicated that she had safety concerns


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 7 of 23
       and that she “never saw [Father] demonstrate the ability to parent his child

       safely without like constant redirection and guidance and help and that kind of

       thing.” Id. at 108.


[14]   Emma Johnson testified that she met Father and Mother in January 2015 when

       Mother reached out to the Safe Families program for help with M.O., her oldest

       son. She testified that she was the director of Safe Families in Madison County

       for four years and had since relocated to Oregon and was in the process of

       adopting M.O. She stated that she had safety concerns with Father “primarily

       because of the dysfunctional relationship between he and” Mother. Id. at 114.

       She testified that, during the time M.O. and M.F. were removed from the

       home, she talked to Father and encouraged him to leave Mother, obtain an

       apartment, and try to gain custody of M.F. by himself, and that she “even

       offered to rally the support of our community and to donate furniture and to

       really help him get set up on his own since the case was between [Mother] and

       [M.O.] and he made no effort at all to take me up on that” and “he didn’t try at

       all to get his own place even though it would have gotten his child back a lot

       sooner.” Id. at 115. She testified that Mother called her in the spring of 2016

       when she and Father were in a “very violent and physical fight” and that

       Mother was ultimately taken to jail for three days. Id.


[15]   On cross-examination, Johnson testified that the services she last provided

       through Safe Families ended at the time that the DCS case began, that Father

       has called her for advice, and that she has “encouraged [Father] time and time

       and time again to move on with his life and I tried to help him understand that

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 8 of 23
       they are in a co-dependent dysfunctional relationship . . . .” Id. at 117-118.

       When asked if most of the domestic violence was Mother being physically

       violent with Father, she answered in part that M.O. “still to this day talks about

       watching [Father] punch [Mother] in the face so I don’t have hard evidence that

       it goes both ways, I truly believe that it goes both ways between the two of them

       equally but . . . the only one that I can attest to that is on record is where she

       you know was the abuser.” Id. at 118.


[16]   Casey Lynn Conrad testified that M.F. had been in her care since he was three

       and a half months old and that Father “only had two hour visits with him for

       over a year.” Id. at 123. M.F.’s court appointed special advocate, Danielle Bell

       (“CASA Bell”), testified that she did not think there was a reasonable

       probability that the reasons for M.F.’s removal would be remedied and that

       adoption is in M.F.’s best interest.


[17]   Father presented the testimony of M.F.’s maternal grandmother and great-

       grandmother. M.F.’s grandmother testified that Father resided with her and

       her mother, was a good man, and loved his children. She also testified that she

       did not see him drinking at her apartment but that Father spent most of the time

       by himself. M.F.’s great-grandmother testified that she did not have any

       concerns about Father’s parenting skills and had not seen him inebriated.


[18]   When asked to describe his employment since the case had been opened, Father

       testified that he had been an independent contractor, worked in warehouses,

       worked at a mall in Indianapolis, worked at a mall in Greenwood, had a period


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 9 of 23
       of time when he did not work, obtained another job for about three weeks, and

       did not obtain another job besides caring for M.F.’s grandmother and great-

       grandmother. When asked where he had lived during the case, he answered:

       “the Anderson house, and then my sisters [sic] house on Wheeler Street in

       Indianapolis, and then after that we ended up getting, oh that’s when I did the

       half-way house thing, [Mother] ended up moving in with her brother uh and

       then she moved into a couple half way houses at that time.” Id. at 150. He also

       stated that he and Mother then decided to reunite and moved to Greenwood.

       He testified that he did not previously listen to the encouragement to separate

       from Mother because he “fell in love with that good [Mother],” and that he did

       not believe he would ever do that again. Id. at 153.


[19]   During the direct examination of Father, the following exchange occurred:


               Q. There’s been some . . . testimony or some assumptions or
               some allegations that you had relapsed recently.

               A. I did. Yep, it is.

               Q. What would that consist of?

               A. Alcohol[.]

               Q. All right. How much alcohol?

               A. Oh, I don’t usually drink beers. It’s just a quick little 4-5
               shots, that’s it. You know, I try my best to you know, stay away
               from it . . . and I know it was [a] mistake and I know I’m capable
               of, I stayed a year sober. You know, if I have a goal to work
               towards, eliminate evil out of it. I am very confident in myself.
               But yeah, I made a couple mistakes. Relapse maybe 2-3 times


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 10 of 23
               but if I, if I have a positive goal to work to, I don’t think it will
               ever happen again.

                                                     *****

               Q. When was the last time you had a drink?

               A. Two nights ago.


       Id. at 156. He testified that his positive drug screen was due to a prescription

       and that he did not have a problem with opiates.


[20]   Father’s counsel asked: “You had a problem the last couple of months as a

       result of what?” Id. at 163. Father answered: “Oh, just losing my home, my

       car, and my family and potentially my son, my first born son, [M.F.].” Id. He

       also stated: “I would like, there’s a lot that I would like but I would like a

       different team of people to start brand new fresh and I think you know a second

       chance would be very fair as long as I eliminate a certain person out of the

       equation.” Id. at 164.


[21]   On July 5, 2018, the court entered a ten-page order terminating the parent-child

       relationship between Father and Mother and M.F. In part, the order states:


                                               Findings of Fact

               The Court finds by clear and convincing evidence:

               1.) [M.F.] was born December 16, 2015, and was two years old
               on the date of the trial completed on this matter.

                                                     *****



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 11 of 23
        7.) The CHINS Court conducted a review hearing on September
        20, 2016, making the following findings from which the Court
        finds the following facts and inferences for the purposes of the
        termination proceedings.

            a. Father and Mother appeared in person, and by counsel,
               Jon Reeder.
            b. Neither parent has complied with services, enhanced their
               ability to parent, but both have visited the children.
            c. Mother admitted to smoking marijuana and driving
               without a license, and was arrested for domestic battery
               during this period.
            d. Father tested positive for benzodiazepines and struggled
               with alcohol.

                                              *****

        11.) The CHINS Court conducted a permanency hearing on
        April 18, 2017, making the following findings from which the
        Court finds the following facts and inferences for the purposes of
        the termination proceedings.

                                              *****

                 d. Father took only 5 drug screens in the period (two
                 positive), repeatedly cancelled or no-showed for his
                 parenting assessment, and by failing to communicate
                 contact information changes to the Department was
                 unable to begin Fatherhood Engagement. Issues with
                 visitation led to visits being cut back from twice weekly to
                 once weekly.

                                              *****

        16.) On or about May 2, 2018, DCS filed a report to the CHINS
        Court detailing the history of the case and the non-compliance of
        both parents as well as notified the Court of a recent incident
        between the parents that had led to them no longer co-habitating
        and the involvement of the Greenwood Police.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 12 of 23
                                              *****

        20.) At the trial on the termination petition conducted on June
        12, 2018, [] Kaylee Jones, Permanency Family Case Manager
        testified. The Court makes the following findings and reasonable
        inferences from this testimony for the purposes of these
        termination proceedings.

                                              *****

            l. DCS provided the following services to [Father] and he was
               not compliant in those services.

                 i. Family counseling
                 ii. Medication evaluation at [Father’s] request
                 iii. Ongoing medication services
                 iv. Parenting assessment
                 v. Clinical Interview services
                 vi. Substance Abuse assessment services
                 vii. Outpatient treatment services
                 viii. Random drug screens
                 ix. Urine drug screens
                 x. Gas cards were provided for visitation
                 xi. Home-based casework
                 xii. Home maker services
                 xiii. Fatherhood engagement
                 xiv. Supervised visitation

            m. There is no reasonable probability the conditions which
               led to the removals will be remedied.
            n. Termination of the parent-child relationship is in the
               children’s best interest.
            o. A satisfactory plan of adoption exists for the care and
               treatment of the minor children.

        21.) [Based on the testimony of Jasmine Nave, the court found:]

            a. [Father] has not visited [M.F.] in the last month.
            b. [Father] has regressed in bringing supplies for the minor
               child.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 13 of 23
            c. [Father] struggles to interact appropriately with the child,
               ie they tend to just watch videos on his phone, and
               [Father] is not always able to properly parent/correct the
               child when visits occur in public places.

        22.) [Based on Thomas Asaunte’s testimony, the court found:]

            a. Mr. [Asaunte] was [Father’s] substance abuse therapist.
            b. Father did a six week program with sessions twice weekly
               in March-April of 2018.
            c. Father requested the program be extended.
            d. Father informed Mr. [Asaunte] that he had drank after the
               six week program was completed, but Mr. [Asaunte] does
               not consider that a relapse as it occurred after the six week
               program was completed.
            e. Father has attended no sessions since informing Mr.
               [Asaunte] of his drinking.

        23.) [Based on Christy Green’s testimony, the court found:]

            a. Father was inconsistent in visiting [M.F.].
            b. Father was often unprepared to meet [M.F.’s] needs
               during visitation.
            c. Issues with visitation led to a reduction of visits from twice
               weekly to once weekly during Ms. Green’s tenure with the
               case.

        24.) [Based on Emma Johnson’s testimony, the court found:]

            a. Mrs. Johnson became involved with the family before
               DCS opened the case.
            b. Safe Families provided services to the family before DCS
               involvement.
            c. Both parents have individually reached out to Mrs.
               Johnson for help and advice since they began working
               with Safe Families.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 14 of 23
                   d. Mrs. Johnson advised [Father] that his relationship with
                      [Mother] was toxic and it would be in [M.F.’s] best
                      interest if they separated.
                   e. Mrs. Johnson has been involved as either a service
                      provider or a foster parent for longer than the DCS case
                      has been opened and has witnessed the parents’ pattern of
                      domestic violence and reconciliation multiple times.

                                                     *****

               27.) [Based on Father’s testimony, the court found:]

                   a. [Father] is currently unemployed.
                   b. [Father] no longer lives with [Mother] and their youngest
                      child.
                   c. [Father] lives with [Mother’s] mother and grandmother.
                   d. [Father] stated he took the game system and sex toy, but
                      did not break in to do so and he wanted to get his things.
                   e. [Father] testified the door at his former residence was
                      damaged on or around New Years of 2018 during a
                      domestic violence incident in which [Mother] threw him
                      into the door.
                   f. This New Year’s Day incident occurred in the presence of
                      the couple’s youngest child as well as [Mother’s] mother
                      and grandmother.
                   g. [Father] testified he did relapse with alcohol usage in May
                      of 2018.
                   h. [Father] testified he cannot explain why he has continued
                      to get back together with [Mother] other than he loves her.
                   i. [Father] stated he will not be getting back together with
                      her ever again.

       Appellant’s Appendix Volume II at 45-52.


[22]   The court concluded that there was a reasonable probability that the conditions

       that resulted in M.F.’s removal from and continued placement outside the care


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 15 of 23
       and custody of the parents would not be remedied; termination of the parent-

       child relationship between the parents and M.F. was in the best interests of

       M.F.; and the plan of DCS of adoption of M.F. was acceptable and satisfactory.


                                                    Discussion

[23]   The issue is whether the evidence is sufficient to support the termination of

       Father’s parental rights. In order to terminate a parent-child relationship, DCS

       is required to allege and prove, among other things:


               (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). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 16 of 23
[24]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id. “[W]e do not

       independently determine whether that heightened standard is met, as we would

       under the ‘constitutional harmless error standard,’ which requires the reviewing

       court itself to ‘be sufficiently confident to declare the error harmless beyond a

       reasonable doubt.’” Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind.

       1991) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our

       review must ‘give “due regard” to the trial court’s opportunity to judge the

       credibility of the witnesses firsthand,’ and ‘not set aside [its] findings or

       judgment unless clearly erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child

       Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial

       Rule 52(A))). “Because a case that seems close on a ‘dry record’ may have been

       much more clear-cut in person, we must be careful not to substitute our
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 17 of 23
       judgment for the trial court when reviewing the sufficiency of the evidence.” Id.

       at 640.


[25]   Father argues that DCS failed to prove by clear and convincing evidence that

       the conditions resulting in the removal of M.F. would not be remedied or that

       termination was in the best interest of M.F. He asserts that the “primary

       condition for the child’s removal was due to Mother burning the older child and

       M.F. being born drug exposed to THC.” Appellant’s Brief at 11. He contends

       that the record shows that he was in substantial compliance with the case plan.

       DCS asserts there was a reasonable probability that the conditions that led to

       M.F.’s removal would not be remedied, and that Father did not participate in a

       majority of services and had a pattern of relapsing, never provided evidence of a

       permanent job, and never obtained suitable housing. DCS also contends that

       termination is in M.F.’s best interest.


[26]   In determining whether the conditions that resulted in M.F.’s removal will not

       be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

       First, we identify the conditions that led to removal, and second, we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. at 643. In the second step, the trial court must judge a parent’s

       fitness as of the time of the termination proceeding, taking into consideration

       evidence of changed conditions, balancing a parent’s recent improvements

       against habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. We entrust that delicate

       balance to the trial court, which has discretion to weigh a parent’s prior history

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 18 of 23
       more heavily than efforts made only shortly before termination. Id. Requiring

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

       from finding that a parent’s past behavior is the best predictor of his future

       behavior. Id.


[27]   The statute does not simply focus on the initial basis for a child’s removal, but

       also those bases resulting in the continued placement outside the home. In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider

       evidence of a parent’s prior criminal history, history of neglect, failure to

       provide support, lack of adequate housing and employment, and the services

       offered by DCS and the parent’s response to those services. Id. Where there

       are only temporary improvements and the pattern of conduct shows no overall

       progress, the court might reasonably find that under the circumstances the

       problematic situation will not improve. Id.


[28]   To the extent Father does not challenge the trial court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[29]   During the direct examination of Jones, the permanency case manager, the

       following exchange occurred:


               Q. . . . Based on your time in this case and the testimony you
               just provided in court, is there reasonable probability that the
               conditions that lead to the removal of [M.F.] be remedied?


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 19 of 23
               A. No.

               Q. Why do you say that?

               A. Neither parent has successfully completed any of the services
               DCS has put in place that they were court ordered to participate
               in at the dispositional hearing. [I]t’s been clearly established that
               the parents have cycling behavior of . . . being together, being
               okay for a little bit, getting into drinking, drugs, domestic
               violence, getting arrested or having criminal charges, . . . being
               separated for a while and then doing it all over again and getting
               back together. We just recently saw that . . . at the initial TPR
               hearing everything was going well[;] since that time, [Father] has
               been kicked out of the home. There have been several police
               calls. Uh, [Father] has relapsed. It’s clear at this point that there
               is a cycle of issues with their relationship that severely puts
               [M.F.]’s safety at risk.


       Transcript Volume II at 67.


[30]   Green, the supervised visitation facilitator, testified that she had the case for

       approximately nine months between October 2016 and June or July 2017 and

       that “[t]here was not a time that I supervised visitation where I was confident

       that [Father] would be able to care for [M.F.] without the assistance of DCS or

       somebody being involved to guide him and his ability to parent.” Id. at 107-

       108.


[31]   The following exchange occurred during the direct examination of CASA Bell:


               Q. [B]ased on your time on this case, is there reasonable
               probability that the reasons for the removal will be remedied?

               A. Uhm, I do not think so.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 20 of 23
               Q. All right and why do you say that?

               A. [A]s I stated in my report, . . . CASA feels that there is no
               reasonable probability that the conditions that caused [M.F.’s]
               removal or the reasons for the continued placement outside of the
               home will not be remedied due to [Mother] and [Father’s]
               inconsistency and lack of compliance with offered services and
               ability or refusal to maintain a safe stable home and ability or
               refusal to provide or maintain a source of income and ability or
               refusal to obey the law, provide a safe environment without
               domestic violence and/or an ability or refusal to maintain
               commitment to [M.F.’s] best interest for safety and permanency
               needs as evidence[d] by lack of and/or adherent to utilization of
               appropriate and healthy coping skills provided by services
               offered.


       Id. at 125.


[32]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a

       reasonable probability that the conditions leading to M.F.’s removal will not be

       remedied.


[33]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 21 of 23
       cannot wait indefinitely for their parents to work toward preservation or

       reunification and courts need not wait until the child is irreversibly harmed such

       that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, focusing on permanency, standing alone, would

       impermissibly invert the best-interests inquiry. Id. at 648. Recommendations

       by both the case manager and child advocate to terminate parental rights, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.


[34]   Jones, the permanency case manager, and CASA Bell testified that adoption

       was in M.F.’s best interest. Based on the testimony, as well as the totality of the

       evidence in the record and set forth in the court’s termination order, we

       conclude that the determination that termination is in the best interests of M.F.

       is supported by clear and convincing evidence.


                                                    Conclusion

[35]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence. We find no error and

       affirm.


[36]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 22 of 23
Bradford, J., concurs.


Bailey, J., concurs in result.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1845 | February 22, 2019   Page 23 of 23
