                                                                          FILED
                                                                     Jun 10 2020, 9:00 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT T.J.                                 ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                       Robert J. Henke
Wieneke Law Office, LLC                                     David E. Corey
Brooklyn, Indiana                                           Deputy Attorneys General
                                                            Indianapolis, Indiana
ATTORNEY FOR APPELLANT D.C.
Kimberly A. Jackson
Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                            June 10, 2020
Termination of the Parent-Child                             Court of Appeals Case No.
Relationship of D.C., Jr. (Minor                            19A-JT-2832
Child)                                                      Appeal from the Putnam Circuit
       and                                                  Court
                                                            The Honorable Matthew L. Headley,
T.J. (Mother) and D.C. (Father),                            Judge
Appellants-Respondents,                                     Trial Court Cause No.
                                                            67C01-1903-JT-6
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020                             Page 1 of 23
                                            Case Summary
[1]   D.C. (“Father”) and T.J. (“Mother”) appeal the order terminating their parental

      rights to D.C., Jr. (“Child”). Father alleges that the Putnam County

      Department of Child Services (“DCS”) failed to present sufficient evidence to

      support the termination of his parental rights. Having identified sufficient

      evidence as to Father, we affirm the termination of his parental rights. With

      respect to Mother, the termination of her parental rights was predicated on

      Mother’s written consent. As to her consent, there is no dispute that Mother

      received eight out of nine statutory advisements before she signed a consent

      form. However, there is equivocal evidence about whether Mother received the

      ninth advisement, which specifies that consent cannot be based upon promises

      regarding adoption or post-termination contact. Mother argues that she is

      entitled to reversal because there is inadequate evidence of consent. We agree

      that reversal is appropriate, and we remand with instructions for further fact-

      finding regarding whether Mother received the ninth statutory advisement.



                             Facts and Procedural History
[2]   Child was born to Mother and Father on December 22, 2013. In December

      2017, DCS filed a petition alleging that Child was a Child in Need of Services

      (“CHINS”) due to neglect. Specifically, DCS alleged that it received a report

      that Mother was using methamphetamine in the home. DCS alleged that it

      contacted Mother, who submitted to a drug screen, and that Mother tested

      positive for methamphetamine. DCS alleged that Mother was on probation for

      Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020        Page 2 of 23
      a methamphetamine-related offense. DCS further alleged that Father was

      incarcerated and that it was unable to locate a suitable kinship placement. DCS

      ultimately removed Child from Mother’s care and placed Child in foster care.


[3]   An initial hearing was held on December 21, 2017, at which Mother and Father

      admitted to the CHINS allegations. The court adjudicated Child a CHINS,

      ordered that Child remain in foster care, and scheduled separate dispositional

      hearings for Mother and Father. DCS filed a Pre-Dispositional Report in which

      it recommended that the permanency plan for Child be reunification with

      services for Mother and Father. Following a dispositional hearing as to Father,

      the trial court entered a dispositional order on May 23, 2018. Therein, the trial

      court ordered Father to contact the Family Case Manager (“FCM”) weekly.

      The court further ordered that “[i]f a program or programs is/are recommended

      by the [FCM] or other service provider,” Father must “enroll in that program

      [in] a reasonable time, not to exceed thirty (30) days and participate in the

      program as scheduled by that program without delay or missed appointments.

      If required to obtain an assessment, [Father must] arrange to complete that

      assessment within thirty (30) days.” Ex. Vol. 3 at 57. The court also ordered

      Father to—among other things—(1) keep all appointments with service

      providers; (2) refrain from using illegal substances; (3) submit to random drug

      screens; (4) complete a substance-abuse assessment and successfully complete

      all treatment recommendations; (5) attend all scheduled visitations with Child

      and comply with all visitation rules and procedures; (6) secure and maintain a

      stable source of income; and (7) maintain safe and stable housing.


      Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 3 of 23
[4]   In the ensuing months, Child remained in foster care with supervised visits. On

      February 18, 2019, the trial court found that Mother and Father had not been

      fully compliant with the case plan. The trial court entered an order changing

      the permanency plan to reunification with a concurrent plan of adoption.


[5]   On March 14, 2019, DCS filed a petition to terminate Mother’s and Father’s

      parental rights. A fact-finding hearing commenced on May 23, 2019, and

      concluded on August 27, 2019. Mother was not present at the August 2019

      hearing, at which the court received a signed form titled “Voluntary

      Relinquishment of Parental Rights.” App. Vol. 2 at 84. Mother’s counsel said

      that he met with Mother and “went over the rights and obligations and what

      she – the results of voluntary termination with her prior to signing it. And she

      did sign the voluntary termination in front of me and acknowledged her

      signature in front of the court reporter . . . .” Tr. Vol. 2 at 29. The court then

      inquired about Mother’s absence. Mother’s counsel said that Mother was not

      present because she “became physically ill after she signed it.” Id. The court

      then orally granted DCS’s request to terminate Mother’s parental rights, noting

      that it would “show . . . that she signed the voluntary relinquishment of her

      rights with her attorney, and her attorney is present here today and had an

      opportunity to speak with her.” Id. at 32. Fact-finding resumed as to Father.


[6]   At the fact-finding hearing, there was evidence that Father pleaded guilty to

      committing Level 6 felony Auto Theft in 2016 and received a 545-day sentence

      that was fully suspended to probation. On December 13, 2017—around the

      time Child was removed from Mother’s care—Father admitted to violating the

      Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020          Page 4 of 23
      conditions of his probation. Specifically, Father admitted that he (1) committed

      Class A misdemeanor Driving While Suspended; (2) failed to timely contact his

      probation officer when he was charged with that offense; (3) failed to report to

      five scheduled probation appointments; (4) was dishonest with his probation

      officer about using illegal drugs; and (5) submitted urine screens that tested

      positive for illegal drugs in February, March, and April of 2017. As to the drug

      screens, two of the screens tested positive for amphetamine, methamphetamine,

      and marijuana—the third drug screen tested positive for marijuana. Father’s

      probation was revoked and he was ordered to serve 180 days in jail.


[7]   Father was released from jail in early 2018. FCM David Fissell (“FCM

      Fissell”) testified that Father participated in a substance-abuse assessment at

      Cummins on March 6, 2018. That assessment did not result in treatment

      recommendations for Father. There was evidence that Father subsequently

      tested positive for methamphetamine in May 2018, “so the case manager at the

      time pursued services with Cummins.” Tr. Vol. 2 at 67. FCM Fissell testified

      that Father “became non-compliant with services and was discharged” from

      Cummins. Id. At some point before October 2018, the FCM at the time

      referred Father for an intake with a different service provider, Hamilton Center,

      “to see if there were barriers regarding not only the substance uses but

      also . . . stability, home stability, coping skills, if he has had past trauma.” Id.


[8]   In the fall of 2018, Father was charged with Class A misdemeanor Theft,

      reportedly committed on October 12, 2018. Father was incarcerated from

      November 15, 2018, until January 7, 2019. He later pleaded guilty to the

      Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020            Page 5 of 23
       October 2018 Theft and to a count of Class B misdemeanor Possession of

       Marijuana concerning conduct in August 2017. For the Theft, Father was

       sentenced to one year in jail, with the sentence fully suspended to probation.


[9]    When Father was released in January 2019, he contacted the FCM assigned at

       the time and “said he wanted to get started back up in the services.” Id. at 57.

       The FCM explained that Father needed to go to Hamilton Center to complete

       the intake. Father went to Hamilton Center around January 17, 2019, and was

       told that the referral had expired. The FCM then put in a new referral.


[10]   Father had positive drug screens throughout the proceedings. On May 1, 2018,

       Father tested positive for amphetamine and methamphetamine. On July 16,

       2018, Father tested positive for THC. On July 30, 2018, and again on August

       2, 2018, Father tested positive for amphetamine, methamphetamine, and THC.

       On October 15, 2018, Father testified positive for buprenorphine. On May 23,

       2019, Father “tested positive for marijuana.” Tr. Vol. 2 at 75. On July 14,

       2019, Father declined to submit to a drug screen. At the time, he did not

       explain why, he “just shook his head that he wouldn’t screen . . . .” Id. at 72.


[11]   There was evidence that Father was inconsistent in attending supervised visits.

       After cancellations and no-shows from Father and Mother, in February 2019

       the service provider began requiring the parents to confirm visits in advance.

       For the next two months, Father failed to contact the service provider to set up

       a visit. Father also missed a visit in the week prior to the August 2019 fact-

       finding hearing. At no point did Father progress to unsupervised visits.


       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 6 of 23
[12]   FCM Fissell agreed that it was a “common theme” that Father would express

       interest in participating in services but would ultimately not follow through. Id.

       at 71. When asked about services, Father said that he participated in the

       Cummins intake and “was ordered to take another one for whatever reason,

       which [he] had not got[ten] around to doing.” Id. at 36. Father said, “I just

       haven’t got[ten] to it.” Id. at 104. He testified as follows: “I don’t see the need

       to do[] something two and three and four times. Nothing really has changed

       that much that would significantly change what I need in my life.” Id. at 105.


[13]   On September 25, 2019, the court entered a written order terminating Mother’s

       and Father’s parental rights. The court entered certain findings as to Mother:


               Upon the presentation and admission into evidence of a validly-
               executed Voluntary Relinquishment of Parental Rights notarized
               by the court clerk and reviewed with Mother by her attorney, the
               Court granted a voluntary termination as to Mother. Mother
               declined to testify; her attorney stated he had reviewed her rights
               with her and the court clerk verified Mother’s signature.


       App. Vol. 2 at 59. As to Father, the court found that there were dispositional

       requirements imposed on Father, including “[e]nroll[ing] in recommended

       programs within a reasonable time” and “[s]ubmit[ting] to random drug

       screens.” Id. at 61. The court found that Father “failed to comply with the

       services offered in the dispositional order.” Id. at 63. The court observed that

       “Father admitted that[,] in an entire year, he did not get to . . . Hamilton Center

       to complete his intake assessment.” Id. It also found that “[i]f Child is returned

       to Father, he would be under the same threats he was previously.” Id.

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020          Page 7 of 23
[14]   The court further found that Child had been removed for at least six months

       under a dispositional order as of the time the petition was filed. It also found a

       reasonable probability that Father would not remedy the conditions that

       resulted in Child’s removal and placement outside the home, identifying “a

       substantial probability of future neglect by Father.” Id. at 68. The court found

       that “Father’s lack of commitment to the CHINS process demonstrates his lack

       of commitment to his child and shows a reasonable probability that he will

       continue to fail the Child.” Id. It also found that terminating Father’s parental

       rights was in Child’s best interests and that adoption was a satisfactory plan.


[15]   After Mother’s parental rights were terminated, she wrote to the court several

       times, requesting “another chance” and the opportunity to visit Child. App.

       Vol. 2 at 90. Mother and Father now bring this consolidated appeal.



                                   Discussion and Decision
                                          Standard of Review
[16]   “A parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). “Indiana law has accordingly established a

       ‘high bar’ for the termination of parental rights.” In re Bi.B., 69 N.E.3d 464, 467

       (Ind. 2017). A petition to terminate those rights must allege, in pertinent part:


               (A) that one (1) of the following is true:

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020          Page 8 of 23
                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree. . . .


               (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. . . .


               (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). To grant a petition, the court must enter findings

       of fact to support termination. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52(A).


[17]   When a court enters findings and conclusions, we ordinarily look to whether

       the evidence supports the findings and the findings support the judgment—

       reversing upon clear error. T.R. 52(A); In re R.S., 56 N.E.3d 625, 628 (Ind.

       2016). However, our legislature has directed that “[a] finding in a proceeding

       to terminate parental rights must be based upon clear and convincing

       evidence.” I.C. § 31-37-14-2. 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 1257, 1260-61 & n.1 (Ind. 2009)).

       In light of this heightened burden of proof, we review “whether the evidence

       clearly and convincingly supports the findings and the findings clearly and


       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020             Page 9 of 23
       convincingly support the judgment.” In re R.S., 56 N.E.3d at 628 (quoting In re

       I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). We will not set aside the findings or

       judgment unless clearly erroneous. T.R. 52(A); In re E.M., 4 N.E.3d at 642. In

       conducting our review, we “consider only the evidence that supports the

       judgment and the reasonable inferences to be drawn from the evidence.” In re

       E.M., 4 N.E.3d at 642 (quoting Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592

       N.E.2d 1232, 1235 (Ind. 1992)). Indeed, we do not reweigh the evidence, id.,

       and must give “due regard . . . to the opportunity of the trial court to judge the

       credibility of the witnesses.” T.R. 52(A). Moreover, to the extent the appeal

       involves a question of law—such as the interpretation of a statute—we will

       review the question of law de novo. In re Bi.B., 69 N.E.3d at 466.


                                                         Father
[18]   Father does not dispute that Child had been removed for the statutory period or

       that adoption is a satisfactory plan. See I.C. § 31-35-2-4(b)(2)(A), (b)(2)(D).

       Rather, he challenges the sufficiency of the evidence supporting the following

       findings: (1) there is a reasonable probability that the conditions resulting in

       Child’s removal or placement outside the home will not be remedied and (2)

       termination is in Child’s best interests. See I.C. § 31-35-2-4(b)(2)(B), (b)(2)(C).1




       1
         Father argues that it is unclear whether the court found an alternative basis for termination under
       subsection (b)(2)(B). Because that portion of the statute is written in the disjunctive, we need not resolve that
       issue and will focus only on the clearly entered finding under that subsection. See I.C. § 31-35-2-4(b)(2)(B).

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020                                  Page 10 of 23
                                          Remedied Conditions
[19]   In evaluating the likelihood of remedied conditions, the trial court is obligated

       to consider the parent’s fitness at the time of the termination hearing, taking

       into account evidence of changed conditions. K.E. v. Ind. Dep’t of Child Servs.,

       39 N.E.3d 641, 647 (Ind. 2015). “Changed conditions are balanced against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect.” Id. In evaluating a parent’s habitual patterns of

       conduct, the court may consider the parent’s “criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment”—among other things. Id. (quoting A.D.S.

       v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.

       denied). Moreover, the court may consider “the services offered to the parent

       and the parent’s response to those services” when evaluating whether there is a

       reasonable probability that the pertinent conditions will be remedied. Id.

       Notably, before a court may rely on non-compliance with services, there must

       be “some proof of the underlying problematic conditions for which services

       were required to begin with.” In re K.T., 137 N.E.3d 317, 328 (Ind. Ct. App.

       2019). In other words, there must be some evidence of a parent’s unfitness. Id.


[20]   Here, DCS presented evidence that Child was removed in December 2017

       because Mother had used methamphetamine in the home. Father was

       incarcerated. When Father was released in early 2018, he participated in a

       substance-abuse assessment through Cummins, which did not result in

       treatment recommendations. Shortly thereafter—in May 2018—Father tested

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020        Page 11 of 23
       positive for methamphetamine and amphetamine. Father then received some

       level of services from Cummins and was later unsuccessfully discharged. At

       some point before October 2018, DCS referred Father to Hamilton Center for

       an intake. For approximately one year thereafter, Father failed to complete the

       intake. Meanwhile, Father periodically tested positive for illegal drugs. When

       asked about services in the case, Father testified that he “was ordered to take

       another [intake] for whatever reason, which [he] had not got[ten] around to

       doing.” Id. at 36. Father’s testimony indicates a failure to appreciate that Child

       had been placed in foster care due to Mother’s drug abuse. Father wished to

       rely on the Cummins intake—which he claims placed him as “a zero on a scale

       of needing services,” id.—despite having tested positive for drugs after the

       intake and having been unsuccessfully discharged from services at Cummins.


[21]   In challenging the sufficiency of the evidence, Father suggests that FCM Fissell

       was “likely confused” when he testified that Father submitted a positive drug

       screen in May 2019. Br. of Father at 19. However, FCM Fissell answered

       affirmatively when asked whether Father submitted a positive drug screen on

       “5/23,” responding: “I believe that is the correct date. I know it was in May.”

       Tr. Vol. 2 at 76-77. When prompted to clarify which year, FCM Fissell replied:

       “2019.” Id. Father asserts that there is no corroborating exhibit showing a

       positive drug screen in May 2019. Father also speculates that supervised visits

       “almost certainly would have been halted until [Father] presented a drug-free

       screen.” Br. of Father at 19. However, FCM Fissell’s testimony provides




       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020       Page 12 of 23
       sufficient evidence that Father tested positive in May 2019. We must reject

       Father’s requests to reweigh evidence regarding ongoing substance use.


[22]   Father also notes that it was Mother—not Father—who abused substances

       when the CHINS case commenced. That is true. However, the evidence

       amply supports findings that “there is a substantial probability of future neglect

       by Father,” App. Vol. 2 at 68, and “[i]f Child is returned to Father, he would be

       under the same threats he was previously,” id. at 63. Indeed, it is reasonable to

       infer from the evidence that Father would not address his own issues with

       illegal substances, subjecting Child to the same type of neglect that Mother did.


[23]   Father challenges other findings.2 However, the record contains evidence of

       unaddressed issues with substance abuse. That evidence and findings related

       thereto support the ultimate finding regarding unremedied conditions. Thus,

       we need not address Father’s challenges to other findings in the context of

       unremedied conditions. See In re G.M., 71 N.E.3d 898, 907-08 (Ind. Ct. App.

       2017) (regarding a challenged finding as surplusage—at most harmless error—




       2
         In his Reply, Father asserts that DCS failed to adequately cite to the record and refute challenges to certain
       findings. According to Father, “[b]y failing to do so, DCS essentially has waived any claim that [those]
       findings are supported by the evidence.” Father’s Reply at 6. However, the Appellant bears the burden of
       demonstrating reversible error. E.g., Witherspoon v. Salm, 202 N.E.2d 892, 893 (Ind. Ct. App. 1964), trans.
       denied. When the Appellee ignores issues, we may reverse upon a showing of prima facie error. E.g., In re
       Parrish’s Estate, 293 N.E.2d 62, 65 (Ind. Ct. App. 1973). Even assuming without deciding that this lesser
       burden applies in this case, Father is not relieved from his burden of showing that the evidence does not
       support the findings and the findings do not support the judgment. See generally In re E.M., 4 N.E.3d at 642.

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020                                  Page 13 of 23
       where there were otherwise adequate findings to support the decision). We will

       address his contentions as necessary when considering Child’s best interests.


                                                 Best Interests
       “When determining what is in children’s best interests, trial courts may

       consider a variety of factors.” In re M.I., 127 N.E.3d 1168, 1171 (Ind. 2019)

       (emphasis removed). A child’s need for permanency is among the factors a

       court may consider, but it “is not reason enough to terminate parental rights

       where the parent has an established relationship with his/her child” and has

       “taken positive steps” in accordance with the plan for reunification. In re V.A.,

       51 N.E.3d 1140, 1152 (Ind. 2016). Ultimately, terminating parental rights is a

       “last resort” that is available “only when all other reasonable efforts have

       failed.” In re R.S., 56 N.E.3d at 631 (quoting In re V.A., 51 N.E.3d at 1151-52).


[24]   When Child was removed from Mother’s care, Father was unable to care for

       Child because Father was incarcerated. Father committed another criminal

       offense during the pendency of the CHINS matter and was incarcerated for

       more than a month. Father continued to use illegal substances during the

       pendency of the case. Despite being repeatedly informed that an uncompleted

       intake was a barrier to reunification, Father declined to complete the intake.


[25]   In July 2019, Father declined a drug screen. Father claims he was justified in

       doing so because the screen interfered with visitation. However, regardless of

       Father’s subjective beliefs, the refusal was part of a larger pattern of conduct

       showing a failure to follow through with important steps toward reunification.

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 14 of 23
       Notably, Child’s court-appointed special advocate (the “CASA”) testified that

       she met with Father about ten days before the fact-finding concluded, at which

       point Father expressed an interest in “complet[ing] services so that he could

       reunify with his son.” Tr. Vol. 2 at 97. The CASA explained that “if that was

       truly his intention, there were a few things that he was going to need to do in

       the next ten days”—and they “went over those at length.” Id. One step was to

       “immediately get in touch with [FCM Fissell].” Id. Another step was to allow

       the CASA to attend a supervised visit scheduled for August 25, two days before

       the fact-finding hearing. The third step was to explore “possible options for

       living,” id., as Father had been homeless at times during the proceedings.


[26]   In the ten days before the fact-finding hearing, Father did not contact FCM

       Fissell and he did not attend the scheduled supervised visit. Father made some

       progress by arranging to live with a family member. Moreover—as Father

       points out—over the course of the proceedings Father made progress toward

       obtaining stable employment. However, he failed to make sustained progress

       toward reunification by failing to fully comply with the dispositional order.


[27]   As to non-compliance, Father challenges the finding that he “failed to comply

       with the services offered in the dispositional order,” App. Vol. 2 at 76,

       contending that he “largely complied,” Br. of Father at 17. Father asserts that

       the court did not directly order a second assessment and “DCS’s request for a

       second assessment . . . without any further court order was unreasonable.” Id.

       However, whether or not the court directly ordered a second assessment, the

       dispositional order provided that “[i]f a program or programs is/are

       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020           Page 15 of 23
       recommended by the [FCM] or other service provider,” Father must “enroll in

       that program [in] a reasonable time, not to exceed thirty (30) days and

       participate in the program as scheduled by that program without delay or

       missed appointments. If required to obtain an assessment, [Father must]

       arrange to complete that assessment within thirty (30) days.” Ex. Vol. 3 at 57.

       Father failed to comply with the foregoing portion of the order. Moreover, we

       disagree that it was unreasonable to recommend a second assessment after

       Father tested positive for an illegal substance and was unsuccessfully discharged

       from services at Cummins. The evidence supports a finding of non-compliance.


[28]   Father also challenges the finding that the visitation supervisor “has observed a

       lack of bond, lack of supervision, lack of appropriate communication, and trust

       issues between Child and Father.” App. Vol. 2 at 78. As to a lack of a bond,

       the visitation supervisor testified that Child would “often not reciprocate

       [Father’s] affection.” Tr. Vol. 2 at 85. Although Father contends that the

       visitation supervisor did not observe Child show affection toward his foster

       parents, the testimony is nevertheless evidence of a lack of a bond. As to trust

       issues, there was testimony that a lack of a bond “can lead to trust issues and

       emotional instability . . . .” Id. at 85. As to communication-related concerns,

       there is evidence that Father spoke with five-year-old Child about “his bills, his

       lack of housing, [and] time he spent in jail.” Id. at 86. Ultimately, Father’s

       challenges to the findings regarding a lack of appropriate communication, a

       lack of a bond, and trust issues are requests to reweigh evidence. We decline.




       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 16 of 23
[29]   As to a lack of supervision, Father asserts that the finding is unsupported

       because the pertinent evidence largely relates to the duration of his bathroom

       breaks. He also challenges findings related to his ability to provide housing,

       income, and proper nutrition. However, assuming arguendo that those

       challenged findings are erroneous—and that Father had stable housing, a stable

       income, and was appropriate with supervision and nutrition—we are not

       persuaded of reversible error. Indeed, as of the August 2019 hearing, Child was

       five-and-one-half years old. Child had been removed from parental care for

       approximately twenty months—a substantial portion of his life. Father missed

       visits while he was incarcerated and Father missed visits with no explanation.

       At no time did visits progress to unsupervised visits, in part because Father

       declined to participate in services aimed toward reunification. The positive

       drug tests reflect an unremedied issue with substance abuse—the extent of

       which is unknown because Father failed to complete the Hamilton Center

       intake. To the extent Father claims there is no evidence of parental unfitness,

       there is evidence of drug use as recent as the day the fact-finding hearing

       commenced. Moreover, Father declined a drug screen the month before the

       fact-finding hearing concluded. The court found, and the evidence supports, a

       lack of a bond that could negatively affect Child by leading to trust issues.


[30]   FCM Fissell testified that termination is in Child’s best interests, noting that

       Father “has not followed through” with services. Id. at 74. Moreover, the

       CASA testified that termination is in Child’s best interests, citing Father’s “lack

       of consistency, the lack of communication, and the lack of follow through . . . .”


       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 17 of 23
       Id. at 98. Father challenges the finding that his “lack of commitment to the

       CHINS process demonstrates his lack of commitment to his child and shows a

       reasonable probability that he will continue to fail the Child.” App. Vol. 2 at

       68. Father claims that “he has shown a dedication to changing his situation to

       provide an appropriate home for his child.” Br. of Father at 29. However, a

       court is free to give more weight to a parent’s pattern of conduct than to a

       parent’s recent efforts. See In re E.M., 4 N.E.3d at 644. Furthermore, as the

       Indiana Supreme Court has explained, “children 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.’” Id. at 648 (quoting In re K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1235 (Ind. 2013)).


[31]   All in all, sufficient evidence supports the finding that terminating Father’s

       parental rights is in Child’s best interests. Moreover, because there is sufficient

       evidence supporting necessary findings under each statutory subsection, we

       conclude that there is sufficient evidence to terminate Father’s parental rights.


                                                      Mother
[32]   To terminate parental rights upon consent, Indiana Code Section 31-35-1-6

       requires specific findings. In pertinent part, the statute provides as follows:


               (a) . . . [T]he parents must give their consent in open court unless
               the court makes findings of fact upon the record that:


       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020          Page 18 of 23
                         (1) the parents gave their consent in writing before a
                         person authorized by law to take acknowledgments; and


                         (2) the parents were:


                                 (A) advised in accordance with section 12 of this
                                 chapter; and


                                 (B) advised that if they choose to appear in open
                                 court, the only issue before the court is whether
                                 their consent was voluntary.


               (b) If:


                         (1) the court finds the conditions under subsection (a)(1)
                         and (a)(2) have been met; and


                         (2) a parent appears in open court;


               a court may consider only the issue of whether the parent’s
               consent was voluntary.


       I.C. § 31-35-1-6 (emphasis added).


[33]   Section 12 specifies that “parents must be advised that,” among other things,

       “the parents’ consent cannot be based upon a promise regarding the child’s

       adoption or contact of any type with the child after the parents voluntarily

       relinquish their parental rights of the child after entry of an order under this

       chapter terminating the parent-child relationship.” I.C. § 31-35-1-12(9).




       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020              Page 19 of 23
[34]   Mother directs our attention to the written consent form. The form contains

       language tracking the first eight advisements from the statute. Compare id. with

       App. Vol. 2 at 84. However, the form omits the ninth advisement, which was

       added in 2012. DCS concedes that the ninth advisement was not on the form.


[35]   At bottom, Mother is challenging the sufficiency of evidence that she received

       all of the statutory advisements. See I.C. §§ 31-35-1-6 (requiring a “finding of

       fact[] upon the record” that a parent was “advised in accordance with section

       12”) & 31-37-14-2 (“A finding in a proceeding to terminate parental rights must

       be based upon clear and convincing evidence.”). To the extent DCS argues that

       Mother waived this sufficiency challenge by raising it for the first time on

       appeal, we conclude that the challenge is timely. See, e.g., T.R. 52(A)

       (contemplating appellate challenges to a court’s findings and conclusions).

       Moreover, to the extent DCS argues that any error is harmless, we note that a

       litigant challenging the sufficiency of evidence need not demonstrate harm

       separate from a failure of proof. See In re R.S., 56 N.E.3d at 628 (explaining

       that courts review “whether the evidence clearly and convincingly supports the

       findings and the findings clearly and convincingly support the judgment”); cf. In

       re Bi.B., 69 N.E.3d at 469 (“[A] statutory requirement—even one that seems

       minor or technical—is still a requirement. And . . . where that requirement

       protects the fundamental rights of parents, it takes on particular importance.”).


[36]   Here, the trial court entered the following written findings pertinent to Mother:


               Upon the presentation and admission into evidence of a validly-
               executed Voluntary Relinquishment of Parental Rights notarized
       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 20 of 23
               by the court clerk and reviewed with Mother by her attorney, the
               Court granted a voluntary termination as to Mother. Mother
               declined to testify; her attorney stated he had reviewed her rights
               with her and the court clerk verified Mother’s signature.


       App. Vol. 2 at 59. The consent form provides sufficient evidence that Mother

       received eight advisements. As to the ninth, DCS directs us to the following

       statement from Mother’s counsel: “I went over the rights and obligations and

       what she – the results of voluntary termination with her prior to her signing it.

       And she did sign the voluntary termination in front of me and acknowledged

       her signature in front of the court reporter, Your Honor.” Tr. Vol. 2 at 29.


[37]   According to DCS, “[w]hile the form is a tool, the form is not the law.

       Presumably, Mother’s attorney and the judge knew the law, and shared the

       same with Mother.” Br. of Appellee at 43. However, despite DCS’s suggestion

       to the contrary, there is no indication that the court gave the ninth advisement.

       Moreover, the law requires clear and convincing evidence supporting the

       findings—it does not afford a presumption. We conclude that the record is

       equivocal as to whether Mother received the following statutory advisement:


               [T]he parents’ consent cannot be based upon a promise regarding
               the child’s adoption or contact of any type with the child after the
               parents voluntarily relinquish their parental rights of the child
               after entry of an order under this chapter terminating the parent-
               child relationship.


       I.C. § 31-35-1-12(9).




       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020         Page 21 of 23
[38]   Ultimately, termination by written consent is proper only if Indiana Code

       Section 31-35-1-6(a) has been satisfied. Neal v. DeKalb Cty. Div. of Family &

       Children, 796 N.E.2d 280, 285 (Ind. 2003). Here, however, the record does not

       support a required finding under Indiana Code Section 31-35-1-6(a)(2)(A)

       (requiring a finding that a parent was “advised in accordance with section 12”).


[39]   Although the statutory requirement was not satisfied, it is well-settled that a

       parent may avoid written consent only where the purported consent was

       involuntary—i.e., “procured by fraud, undue influence, duress, or other

       consent-vitiating factors.” In re M.R., 728 N.E.2d 204, 209 (Ind. Ct. App. 2000)

       (quoting In re Snyder, 418 N.E.2d 1171, 1180 (Ind. Ct. App. 1981)), trans. denied.

       Mother briefly argues that her consent was involuntary because she was

       addicted to methamphetamine, became ill after signing the form, did not

       receive one of the advisements, and wrote to the court after the termination of

       her parental rights. However, we are not persuaded that these circumstances

       render the attempt at consent involuntary. Rather, the consent is incomplete.


[40]   Under these circumstances, we must remand for further fact-finding regarding

       whether Mother received the ninth statutory advisement. We therefore reverse

       the termination of Mother’s parental rights and remand for such fact-finding.



                                                 Conclusion
[41]   There is sufficient evidence to terminate Father’s parental rights, and so we

       affirm with respect to Father. As to Mother, there is equivocal evidence


       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020        Page 22 of 23
       regarding whether she received one of the required statutory advisements. We

       therefore reverse the termination of Mother’s parental rights and remand for

       further fact-finding regarding whether Mother received the ninth advisement.


[42]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JT-2832 | June 10, 2020     Page 23 of 23
