IN RE: the Involuntary Termination of the Parent-Child Relationship of M.S. and C.S. (Minor Children) (2025)

MEMORANDUM DECISION

Case Summary

[1] R.S. (“Father”) appeals the termination of his parental rights to M.S. and C.S. (collectively, “Children”) on petition of the Department of Child Services (“DCS”). He argues DCS failed to present clear and convincing evidence to support the trial court's termination decision. We affirm.

Facts and Procedural History

[2] Father and Ca.S. (“Mother”)¹ (collectively, “Parents”), are the biological parents of two children: son M.S. (born in June 2012) and daughter C.S. (born in September 2015). In 2017, when M.S. was five years old and C.S. was twenty-one months old, DCS received information that Parents, Children, and two of Children's half siblings ² were homeless and Parents were using illegal drugs. On May 12, DCS assessment investigator Leighah Wheeler contacted Mother by phone, and Parents came to the DCS office to meet with her. Wheeler learned Mother and Children had been living with Mother's father but could no longer stay there, so Parents moved with the children to a hotel. Mother was employed, and Father was looking for work. Parents “didn't think it would be long before they would be able to find their own place and get back on their feet.” Tr. Vol. 2 at 22. So DCS allowed Children to remain with Parents, who were to stay in touch with Wheeler. Parents submitted to drug screens, which they admitted would likely be positive for illicit substances. On May 18, DCS received the drug test results: Mother tested positive for methamphetamine and amphetamine and Father tested positive for oxycodone and oxymorphone.

[3] Wheeler then had trouble getting in touch with Parents. On May 31, she learned Father was incarcerated in the Harrison County jail,³ so she went to speak with him. Father explained his arrest was due to “pain pills [that] were found in the vehicle with him that weren't labeled.” Id. at 24. Father did not know where Mother or Children were.⁴ DCS could not locate Mother and became concerned for Children's safety. On June 1, DCS requested emergency detention for Children, which the trial court granted.

[4] On June 5, DCS filed petitions alleging Children were Children in Need of Services (“CHINS”). Parents appeared at the detention hearing and informed DCS that M.S. was staying with his maternal aunt and C.S. was with her maternal grandmother. After the hearing, the trial court found continued removal was in Children's best interest due to Parents’ illegal drug use and lack of stable housing. The trial court adjudicated Children CHINS on August 2. On October 19, the trial court entered a dispositional decree ordering Father to, among other things: stay in contact with the Family Case Manager (“FCM”); maintain suitable, safe, and stable housing; not use or consume any illegal controlled substances and only take prescription medications for which a valid and current prescription exists; complete a substance use assessment and follow all resulting treatment recommendations; submit to random drug screens; attend all scheduled visitations; and provide Children with a safe, secure, and nurturing environment that is free from abuse and neglect. See Ex. Vol. 4 at 118.

[5] After the dispositional hearing, Father informed Wheeler “he did not need any services” because he started a job, found housing that would be available in a few weeks, and “all he needed to obtain was a valid prescription for the pills[.]” Tr. Vol. 2 at 28. But Father eventually engaged with services DCS offered and started visiting with Children.

[6] In the first few months after the dispositional order, Father completed forty-four drug screens, twenty-nine of which were positive for drugs, including amphetamine, methamphetamine, oxycodone, THC, hydrocodone, oxycodone, tramadol, and alprazolam. In November 2018, Father participated in a substance use disorder assessment, which indicated an extensive history with substance use and high probability of substance use disorder. The provider recommended therapy, participation in a twelve-step program, and case management to help him obtain stable housing, a legal driver's license, and medical insurance coverage.

[7] By mid-2018, Children were placed together with their maternal grandfather, where they remained throughout this case. Over the next several years, Father participated in a fatherhood engagement program, therapy, drug screens, and supervised visitation with Children. He found a job, gained housing, and eventually got his driver's license reinstated. But he continued to test positive for illegal drugs, with intermittent periods of sobriety. As one CASA neatly summarized Father's drug use in late 2020, Father's “drug screens are consistent for some variation of marijuana and pain pills with an occasional clean screen and an occasional addition of a new illegal drug.” Ex. Vol. 5 at 229.

[8] In late 2021 and early 2022, Father made substantial progress toward meeting his goals. He began checking in daily at the Harrison County DCS office and submitting to random drug screens several times per week, with nearly all screens coming back negative. Father was employed, maintained a home, visited weekly with Children, stayed in contact with DCS, and participated in child and family team meetings (“CFTMs”). In April 2022, Father began having unsupervised weekend overnight visits with Children in his home and was working toward a trial home visit.

[9] But things took a turn in May 2022. Father tested positive for marijuana or suboxone four times that month. After a status hearing, the trial court ordered Father to complete thirty days of clean drug screens before the trial home visit would begin. At a CFTM, Father's therapist agreed to help him put together a relapse prevention plan and help him locate twelve-step program meetings to attend. From June 1 to July 11, 2022, Father took twenty-five drug screens and tested positive for THC or oxycodone on seventy-six percent of them. In early August, Father tested positive for methamphetamine, amphetamine, and THC. On DCS's motion, the trial court returned Father's visitation to a supervised level. Father continued to meet with his therapist, maintained employment, housing, and attended CFTMs. But he kept testing positive for illegal drugs, including THC, methamphetamine, amphetamine, oxycodone, and cocaine. He never attended twelve-step meetings. Twice that year, DCS recommended Father enroll in a substance use treatment program, but Father denied he needed treatment.

[10] By the end of 2022, Father was noncompliant with the case plan and visitations were suspended due to his illegal drug use. In February 2023, the trial court changed Children's permanency plan to reunification with a concurrent plan of adoption. DCS filed petitions to terminate Father's parental rights on March 31, 2023. The trial court held a fact-finding hearing on May 18, June 22, August 3, September 11, October 12, October 26, December 14, and December 21, 2023, and February 22, 2024. During this period, Father lost and regained his job and housing, stopped providing drug screens, and ceased participating in services. Father's last visit with Children was in December 2022.

[11] At the fact-finding, Father testified he started using marijuana at age thirteen, and as of October 26, admitted he last used it two weeks prior. He described his marijuana use as, “I might smoke once every two (2) weeks, I might smoke a couple times in a week. I go weeks without smoking, which my drug screens have proved that.” Tr. Vol. 2 at 87. He stated he was aware marijuana use is illegal and subjects him to criminal penalties. He testified he was evicted in July 2023 and started renting a room from a friend in October 2023.

[12] Joshua Speer, the FCM since August 2021, testified the original reasons for removal were illegal substance use and homelessness. At the time of the fact-finding, he was still concerned for Children's safety due to “continued substance use, the lack of stability in housing, employment, the compliance with the dispositional decree.” Id. at 224. As FCM Speer saw it, Father “continued to demonstrate a pattern of insobriety, continued to have instabilities in housing and employment, [and] wouldn't or was unable to address his substance use problem.” Id. He believed termination was in Children's best interest because without it, they “will continue to languish in care indefinitely without having achieved permanency.” Id. at 227.

[13] At the close of the termination hearing, Children had been removed from Father's care for eighty months; M.S. was eleven years old, and C.S. was eight. In terminating Father's parental rights, the trial court found, in relevant part:

110. Father fails to recognize the extent of his substance abuse issues and the impact on reunification with Children.

* * *

140. Father's lack of insight into the needs of Children to have a sober and appropriate caregiver has permeated these cases and prevented reunification.

* * *

160. Father has had periods of intermittent sobriety. However, Father has a demonstrated pattern of not sustaining sobriety. Between May 2022 and May 2023, Father consistently tested positive for illegal substances and failed to reunify with Children. Father then refused to provide any random drug screens. There is a reasonable probability that Father will not remedy the reasons for Children's continued removal from his care.

Appellant's App. Vol. 2 at 34–36. The trial court also found termination was in Children's best interests.

Standard of Review

[14] In a proceeding to terminate parental rights, the trial court must enter findings of fact that support its conclusions. Ind. Code § 31-35-2-8(c) (2012). “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.” In re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)). We must accept as true trial court findings not challenged on appeal. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

[15] Out of deference to the trial court's unique position to assess the evidence, we will affirm the termination of parental rights unless the trial court's judgment is clearly erroneous. In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied. A termination decision is clearly erroneous “when the court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision.” Id. We neither reweigh evidence nor judge witness credibility. Id. And we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.

Statutory Requirements for Termination of the Parent-Child Relationship

[16] Parents have a fundamental right to raise their children. Id. This right, however, is not absolute and may be terminated when parents are unwilling to meet their parental responsibilities. Id. at 45–46. “The purpose of terminating parental rights is not to punish parents, but to protect the children.” In re I.B., 933 N.E.2d 1264, 1270 (Ind. 2010) (quoting Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992)).

[17] Because parental rights are “an important interest warranting deference and protection, and a termination of that interest is a ‘unique kind of deprivation,’ ” Indiana law sets a high bar to sever the parent-child relationship. In re C.G., 954 N.E.2d 910, 916–17 (Ind. 2011) (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)). To do so, DCS must prove the four elements of Indiana Code Section 31-35-2-4(b)(2) by clear and convincing evidence. See I.C. § 31-35-2-4(b)(2) (2019);⁵ I.C. § 31-37-14-2 (1997). The elements are:

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

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

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

(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.

I.C. § 31-35-2-4(b). If the trial court finds DCS has met its burden, “the court shall terminate the parent-child relationship.” I.C. § 31-35-2-8.

Clear and convincing evidence supports the trial court's termination decision.

[18] Father does not challenge the trial court's findings and conclusions as to the first and fourth statutory elements.⁶ Under the second element, the trial court found there is a reasonable probability Father will not remedy the reason for Children's placement outside his home, see I.C. § 31-35-2-4(b)(2)(B)(i), and there is a reasonable probability the continuation of the parent-child relationship poses a threat to Children's well-being, see I.C. § 31-35-2-4(b)(2)(B)(ii). But Subsection (b)(2)(B) is written in the disjunctive, so the trial court need only find one of the three requirements of that element has been established. In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010). Because we find it dispositive here, we review only whether DCS established, by clear and convincing evidence, there is a reasonable probability the conditions that resulted Children's removal will not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i).

[19] To make this determination, trial courts engage in a two-step analysis. In re K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013). First, the trial court ascertains what conditions led to Children's placement outside the home, then it determines whether there is a reasonable probability those conditions will not be remedied. Id. When making these decisions, the trial court must judge a parent's fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. E.M., 4 N.E.3d at 643. But the trial court must balance any recent improvements against a parent's 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 more heavily than efforts made only shortly before termination.” Id. The evidence presented by DCS need not rule out all possibilities of change; DCS need only establish there is a reasonable probability the parent's behavior will not change. In re C.C., 153 N.E.3d 340, 348 (Ind. Ct. App. 2020), trans. denied.

[20] The trial court also found termination was in Children's best interests. When deciding whether termination is in the child's best interests, trial courts “must look at the totality of the evidence and, in doing so, subordinate the parents’ interests to those of the children.” Ma.H., 134 N.E.3d at 49. Children's need for permanency is a central concern. Id. “Indeed, ‘children cannot wait indefinitely for their parents to work toward preservation or reunification.’ ” Id. (quoting E.M., 4 N.E.3d at 648). And trial 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.” E.M., 4 N.E.3d at 648 (quoting K.T.K., 989 N.E.2d at 1235).

The evidence supports the findings.

[21] Father first challenges two of the trial court's findings:

158. The evidence in these cases demonstrates Father has failed to address his sobriety in order to provide a safe and stable home for the children and has a habitual unwillingness or lack of commitment to address the issues affecting his parenting.

159. Thus, the evidence of Father's pattern of inability, unwillingness, or lack of commitment to address parenting problems and to cooperate with services, failing to cooperate with rehabilitation efforts, and otherwise failing to follow the dispositional orders, demonstrates the requisite reasonable probability that Father will not remedy the reasons for Children's retention in foster care.

Appellant's App. Vol. 2 at 37–38. In arguing the evidence does not support these findings, Father notes he provided daily drug screens and complied with services offered by DCS throughout the case. He argues this “hardly shows an ‘unwillingness’ to address the issues in this case.” Appellant's Br. at 20.

[22] But Father's argument minimizes the trial court's other findings about Father's refusal to acknowledge his substance use problem or engage with additional, recommended treatment to address it. And although Father had intermittent periods of sobriety, he was regularly using marijuana, methamphetamine, amphetamine, and oxycodone in late 2022, using oxycodone and marijuana in early 2023, and admitted to smoking marijuana during the pendency of the termination proceedings. Father's argument about his “unwillingness” to address certain issues is merely a request to reweigh evidence, which we will not do. Ma.H., 134 N.E.3d at 45. The evidence supports the findings.

The findings support the judgment.

[23] Father also argues the trial court's findings do not support the conclusion that there is a reasonable probability the conditions resulting in Children's removal will not be remedied and termination is in Children's best interests. The thrust of Father's argument is that the trial court's conclusions “focus solely on [Father's] historical failures during the course of the CHINS and termination proceedings” and such findings “are not sufficient to support the trial court's conclusions.” Appellant's Br. at 17.

[24] To support his argument, Father points to In re C.M., 960 N.E.2d 169 (Ind. Ct. App. 2011), aff'd on reh'g, 963 N.E.2d 528 (Ind. Ct. App. 2012). In that case, DCS became involved with a family and removed the children after the father battered them. Id. at 171. While the children were on a trial home visit with mother, she tested positive for oxycodone; another month later, police found marijuana in mother's apartment and arrested mother's boyfriend. Id. at 172. DCS again removed the children and petitioned to terminate mother's parental rights, which the trial court granted. Id. On appeal, this Court reversed the termination order because the trial court “made no factual determinations with respect to evidence of changed conditions” or whether mother's testimony and documentary evidence presented at the fact-finding hearing was credible. Id. at 174, 174 n.6. Observing a trial court “is to judge parental fitness at the time of the termination hearing, while taking into consideration the evidence of changed conditions,” this Court held the trial court's findings were insufficient to establish each element necessary to support the termination decision. Id. at 175 (citing In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied).

[25] Unlike in C.M., the trial court entered numerous findings concerning Father's fitness at the time of the fact-finding hearing. These included findings that Father declined to enroll in a substance use treatment program, continued to use illegal drugs, had been evicted and lacked housing from July to October 2023, and stopped participating in services offered by DCS to facilitate reunification with Children. Children were initially removed due to housing instability and drug use, and as FCM Speer observed at the fact-finding hearing, “This case has been open for six (6) and a half years. And the same problems we were dealing with six (6) and a half years ago, we're dealing with today.” Tr. Vol. 2 at 226. Although Father at times engaged with services DCS offered and had periods of sobriety over the life of this case, we entrust the trial court to balance Father's period of improvements with his habitual patterns of conduct. See E.M., 4 N.E.3d at 643. These findings were sufficient to support the trial court's conclusion that the conditions leading to Children's removal likely would not be remedied.

[26] Father also takes issue with the trial court's “almost singular focus on [his] substance abuse[.]” Appellant's Br. at 20. Observing substance use disorder is a profound disease and not a character flaw, Father argues terminating his parental rights “resembles punishment, not concern for children who should, if possible, maintain a relationship with their father.” Id. at 22. He argues he has a “constitutional right to try and resolve the issues that prevent family reunification without DCS prematurely giving up on [him].” Id.

[27] But this case has been pending for six years. Father had multiple opportunities to address his substance use. Father engaged with many services, including therapy for substance use disorder, but also would not attend any other recommended substance use treatment programs and denied having a substance use problem. The record and trial court's findings simply do not show DCS prematurely gave up on him. Yet even after a prolonged period of intervention, Father still lacked “insight into the needs of Children to have a sober and appropriate caregiver[.]” Appellant's App. Vol. 2 at 36. As this Court has observed, the “inevitable conclusion is that when [a parent] abuses drugs, [he] endangers [his] children in a variety of ways.” In re D.L., 814 N.E.2d 1022, 1029 (Ind. Ct. App. 2004), trans. denied. Children need permanency and they need not wait indefinitely for Father to realize his illegal substance use harms them and is a barrier to reunification.

[28] Finally, Father argues “the mere fact that the Children are in a better home cannot form the basis for the terminations.” Appellant's Br. at 24. Yet the trial court's extensive findings make clear the Children's placement with their maternal grandfather was not the sole reason for its termination decision. Children were removed due to housing instability and illegal drug use, and both conditions were still present at the time of the termination decision. In sum, the trial court's findings support the conclusions that there is a reasonable probability the conditions resulting in Children's removal will not be remedied and termination of the parent-child relationship is in Children's best interests.

Conclusion

[29] The findings were not clearly erroneous. Clear and convincing evidence supports the trial court's termination decision.

[30] Affirmed.

FOOTNOTES

1.   Mother signed a consent to adoption on September 11, 2023, which the trial court approved, and she is not a party to this appeal.

2.   Father is the biological father of the older two children. His parental rights to the older children were not subject to termination in the proceedings leading to this appeal.

3.   The State charged Father with possession of a legend drug; it later dismissed the charge.

4.   The older children were with their maternal grandparents.

5.   The legislature amended this statute with an effective date of March 11, 2024. We use the version of the statute in effect at the time DCS filed the petitions to terminate.

6.   In his opening brief, Father argues the trial court's findings did not establish DCS proved the first statutory element, but in reply, Father concedes this argument. See Appellant's Reply Br. at 5. Indeed, the trial court found Children had been removed from Father's care for eighty months. See Appellant's App. Vol. 2 at 34.

Kenworthy, Judge.

Judges Bradford and Pyle concur. Bradford, J., and Pyle, J., concur.