IN RE: the Termination of the Parent-Child Relationship of I.B.O.S. and I.K.M.S. (Minor Children) and S.C. (Mother) and R.S. (Father) (2025)

MEMORANDUM DECISION

Case Summary

[1] S.C. (Mother) and R.S. (Father) [collectively, Parents] separately appeal the trial court's order terminating their parental rights over I.B.O.S. and I.K.M.S. (collectively, Children). Mother disputes one of the trial court's findings of fact and argues that the trial court clearly erred when it terminated her parental rights. Father challenges many of the trial court's findings of fact and argues that the trial court clearly erred when it terminated his parental rights. Finding otherwise as to both Parents, we affirm.

Facts and Procedural History

[2] The pertinent proceedings were first initiated against Mother and Father shortly after the birth of their first child, I.B.O.S. They later had a second child, I.K.M.S., for whom another case was initiated. The relevant period for our review begins with the birth of I.B.O.S. on June 27, 2020 and ends with the termination of parental rights hearings held on July 22 and August 5, 2024. We relay the facts material to each parent's experience throughout this period.

2020-2022

[3] I.B.O.S was born to Parents on June 27, 2020. Father picked up criminal charges shortly before and after I.B.O.S.’s birth, and he later pled guilty in separate causes to misdemeanor criminal mischief and conversion. In both causes, he was sentenced to 365 days in jail with credit for time served and 305 days suspended.¹

[4] In August 2020, the Indiana Department of Child Services (DCS) removed I.B.O.S. from Parents’ care due to their drug use and domestic violence in the home. DCS then filed a petition alleging I.B.O.S. to be a child in need of services (CHINS). After a hearing, the trial court approved I.B.O.S.’s removal and placement with Paternal Grandmother. The court ordered Parents to engage in standard provisional services, including diagnostic assessments, drug and alcohol assessments, drug screens, and supervised visitation.

[5] In November, Parents admitted to many of the allegations in the CHINS petition and the trial court determined I.B.O.S. was a CHINS. Specifically, Mother admitted domestic violence was occurring in the family home and that Parents used methamphetamine. Father admitted he had a criminal history and there was abuse or neglect in the home. In its dispositional decree, the court ordered services similar to those already ordered in addition to home-based services and a domestic violence program for Mother and non-violence counseling and a batterer's intervention program for Father. The court also continued I.B.O.S.’s placement with Paternal Grandmother.

[6] On April 7, 2021, the criminal court found Father noncompliant with the conditions of his suspended sentences and ordered him to serve thirty days on electronic monitoring. That same day, Father pled guilty to misdemeanor invasion of privacy for violating a protective order related to Mother, and he received a 365-day sentence suspended to unsupervised probation. The next month, Father again violated the conditions of his suspended sentences and was remanded to jail for thirty days with credit for time served. Around this time, Mother pled guilty to misdemeanor invasion of privacy in two separate cases for violating no contact orders in place between herself and Father.

[7] Also in April, the trial court removed I.B.O.S. from Paternal Grandmother's home and placed him with Foster Parents, where he has remained ever since. Mother did not visit I.B.O.S between April and October 2021, and Father did not visit him between April and August 2021.

[8] In July, Mother tested positive for cocaine and failed to complete outpatient substance abuse treatment referred by DCS. Around that time, Father completed a substance use assessment at Bowen Center. In August, the court held a permanency hearing and entered an order finding Mother and Father had both been noncompliant with services, failed to participate in random drug screens, and tested positive for illegal substances. The court adopted a permanency plan for termination of parental rights with adoption for I.B.O.S.

[9] In November, DCS referred Father to a substance use group and individual therapy at Bowen Center based on the recommendations noted in the assessment, but Father did not fully complete those services. He tested positive for fentanyl on November 12. Then, on December 1, he pled guilty to felony invasion of privacy with a prior conviction and received a 183-day sentence executed in the Department of Correction with sixteen days of credit time.

[10] On January 18, 2022, the court held a permanency hearing and found that Mother continued to use illegal substances, including fentanyl. In further violation of her case plan, she had not maintained communication with DCS and had failed to complete an inpatient substance abuse treatment program. Mother was pregnant with I.K.M.S. at the time, and Father was still incarcerated and noncompliant with services. The court maintained the plan for termination of parental rights with adoption for I.B.O.S.

[11] In April, Father pled guilty to misdemeanor public indecency and battery. He received an aggregate sentence of 365 days suspended with electronic monitoring.

[12] I.K.M.S. was born on May 10, 2022, and initially remained in Parents’ care. Following a July hearing, the court continued I.B.O.S.’s placement in foster care and the permanency plan. In October, the court modified the dispositional decree in I.B.O.S.’s case and ordered Parents to complete new diagnostic and drug and alcohol assessments, follow all recommendations of those assessments, and enroll in a domestic violence program. Mother continued to test positive for fentanyl at the end of 2022. In late December 2022, DCS removed I.K.M.S. from Parents’ care and placed her with I.B.O.S. and his Foster Parents.

2023-2024

[13] Mother tested positive for fentanyl in early January 2023. On January 4, DCS petitioned to adjudicate I.K.M.S. a CHINS due to Parents’ history of domestic violence, continued drug use, and engagement in criminal activity. That same day, the court held a hearing and continued I.K.M.S.’s foster care placement.

[14] On March 7 and March 20, the court held the fact-finding hearing and adjudicated I.K.M.S. a CHINS. During the first part of 2023, Mother continued to be noncompliant with services. In January, she entered inpatient treatment at a facility called Volunteers of America (VOA), but she left in March without completing the program. After leaving VOA, Mother moved in with Father at Paternal Grandmother's house and did not attend visitations with Children from January to May. Between March 2023 and February 2024, Mother regularly used fentanyl and occasionally used methamphetamine to “cope with [her] depression [and] mental disorders.” Transcript Vol. 5 at 115.

[15] In January 2023, Father completed a psychological evaluation with Dr. David Lombard during which Father admitted to recently using Percocet without a valid prescription. Following a personality assessment and substance abuse inventory, Dr. Lombard diagnosed Father with antisocial personality disorder and opiate use disorder.² Father also completed a parenting assessment, and his “short, simplistic[,]” and “authoritarian” answers “did not reflect a good understanding of the needs of [C]hildren.” Id. at 16. Dr. Lombard recommended that Father complete a six-month substance abuse treatment program, attend support group meetings for six months thereafter, and participate in weekly counseling “[t]o improve his ability to have healthy relationships.” Id. at 17-18.

[16] Father also completed a drug and alcohol assessment at Bowen Center around this time. From that assessment, it was recommended that Father participate in individual therapy and substance use groups. DCS referred Father to individual and group counseling at Bowen Center. He participated in individual therapy “off and on” until May 2023 but did not achieve a successful discharge from the service, and he did not attend substance use groups. Id. at 78. He tested positive for cocaine once and fentanyl and/or norfentanyl nine times between January and May 2023.

[17] In April, the court entered a dispositional decree in I.K.M.S.’s CHINS case and ordered Parents to participate in similar services to those previously ordered. The following month, warrants were issued for Father's arrest in two criminal cases. In a case filed in August 2022, amongst other charges, Father had been charged with Level 5 felony criminal recklessness by aggressively driving and killing another person and Level 6 felony leaving the scene of an accident with moderate or serious bodily injury. In May 2023, while out on bond in that case, Father picked up additional charges for misdemeanor driving offenses. Father turned himself in on May 14, 2023, later entered guilty pleas, and remained incarcerated throughout the proceedings.

[18] From February 22, 2023, until he was incarcerated in May 2023, Father missed forty-nine calls for drug screens and twenty-two drug screens. Before his incarceration, Father participated in supervised visits with Children through Phoenix Associates,³ and he engaged in a “handful” of video visits with Children after becoming incarcerated. Id. at 102.

[19] Mother tested positive for fentanyl and/or norfentanyl twelve times between April and July. She tested positive for methamphetamine and/or amphetamine five times between July and September. Over this time, she also returned positive tests for cocaine and ethanol.

[20] In June, the trial court ordered that I.K.M.S's permanency plan was termination of parental rights and adoption with a concurrent plan of reunification with Mother. I.B.O.S.’s plan remained strictly termination of parental rights and adoption. In July, Mother started attending a women's substance abuse group led by Kendra Miklos, a therapist at Phoenix Associates. The group met once a week, and Mother attended less than half of the sessions but completed the program in March 2024. In September 2023, DCS referred Mother to a recovery coach at Phoenix Associates to help her address “barriers to her sobriety.” Id. at 197. Together, Mother and her recovery coach applied for her to enter inpatient substance abuse treatment at the YWCA Recovery Services Program, which she started in February 2024.

[21] In November 2023, the court eliminated I.K.M.S.’s concurrent permanency plan of reunification and entered a joint plan for Children for termination of parental rights with adoption. The next month, Mother began attending individual counseling sessions with Miklos to address her “[t]rauma, mental health[,] and substance abuse.” Id. at 31. Mother missed a few sessions at the outset but did not miss any sessions after February 2024 and appeared to be “working very positively toward” her therapeutic goals. Id. at 31.

[22] After testing positive for fentanyl on February 12, Mother entered inpatient treatment in the YWCA Recovery Services Program that month. The program consisted of three phases and was expected to take six to nine months to complete. While in the program, Mother attended alcoholics anonymous and narcotics anonymous meetings, and her recovery coach provided domestic violence education. However, she tested positive for ethanol on June 11.

[23] On March 7, 2024, DCS petitioned to terminate Parents’ parental rights as to Children. The court held fact-finding hearings on July 22 and August 5. I.B.O.S. had recently turned four years old, and I.K.M.S. had recently turned two. Both Children had been removed from Parents’ care for most of their lives.

[24] Many witnesses testified at the termination hearings, including Mother, Father, Children's foster father, a DCS family case manager (FCM), Children's court-appointed special advocate (CASA), and various service providers. Father, still incarcerated, testified that his earliest possible release date was January 27, 2025, with three years of supervised probation thereafter. He planned to live with Parental Grandmother after his release and had inquired about employment prospects. While incarcerated, Father completed the DOC's Recovery While Incarcerated (RWI) program, took additional courses in anger management and fatherhood engagement, and participated in cognitive behavioral therapy classes.

[25] Mother had completed the first phase of her treatment in the YWCA Recovery Services Program but had not obtained a sponsor as the program required. She visited Children twice a week at Phoenix Associates. Between January 24, 2022 and the first termination hearing on July 22, 2024, Mother skipped 497 calls for drug screens, missed ninety-eight drug screens, and had fifteen abnormal drug screens. She testified that she last used methamphetamine in January 2024 and fentanyl in February 2024. Due to her housing situation and positive drug tests, Mother never earned the ability to engage in unsupervised or in-home visits with Children. Mother testified that she planned to live with Father at Paternal Grandmother's house after her release from inpatient treatment and his release from incarceration.

[26] Children were “doing phenomenal[ly]” well in their placement, had bonded with Foster Parents, and their foster home was “the only home that both children ha[d] ever known.” Id. at 92, 154, 175. The CASA testified that terminating parental rights was in Children's best interests because Mother had not demonstrated the ability to stay sober and Father had been “haphazardly compliant with [ ] substance use services[,]” engaged in criminal activity throughout the case, or was incarcerated. Id. at 174. DCS's plan for Children upon the termination of Parents’ parental rights was adoption by their willing and able Foster Parents.

[27] On October 31, the trial court entered a comprehensive order terminating Parents’ parental rights. Both Parents filed notices of appeal, and then Father filed a pro se motion to withdraw representation and a motion to correct error. In his motion to correct error, Father argued his counsel had failed to submit the full RWI treatment summary and the trial court had made erroneous findings. The court held a hearing on Father's motion to correct error and permitted him to supplement the RWI exhibit yet denied his motion because its termination order was “based on a plethora of evidence, exhibits, testimony, and information[,] ․ not [ ] just one report[.]” Mother's App. Vol. 2 at 174. Parents now separately appeal.

Discussion and Decision

[28] Parents separately appeal the trial court's termination of their parental rights. “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). “A parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, we recognize that “parental interests are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights.” Id. If “parents are unable or unwilling to meet their parental responsibilities[,]” termination of parental rights is appropriate. Id.

[29] Mindful of the trial court's “unique position to assess the evidence,” we rely on a “highly deferential standard of review in cases concerning the termination of parental rights.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans. dismissed. We neither reweigh evidence nor reassess the credibility of witnesses. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). “We consider only the evidence and any reasonable inferences” that support the trial court's judgment, and we “give ‘due regard’ to the trial court's opportunity to judge the credibility of the witnesses firsthand.” Id. (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)).

[30] Before a parent's rights can be involuntarily terminated, DCS must file a petition to terminate the parent-child relationship. At the time DCS petitioned to terminate Parents’ parental rights, Indiana Code section 31-35-2-4(b) provided, in relevant part:

(2) The petition must allege:

․

(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.

․

(C) that termination of the parent-child relationship is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.4

[31] If the trial court finds that the allegations in the petition are true, it “shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a). DCS has the burden to prove the required elements “by clear and convincing evidence.” In re C.A., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014) (citing I.C. § 31-37-14-2).

[32] We apply a two-tiered standard of review when reviewing a trial court's findings of fact and conclusions of law. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). “First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment.” In re I.A., 934 N.E.2d at 1132. We will reverse the trial court's judgment only when it is clearly erroneous. Bester, 839 N.E.2d at 147. A judgment is clearly erroneous if the trial court's findings of fact do not support its conclusions of law or if its legal conclusions do not support its ultimate decision to terminate parental rights. In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied.

1. Findings of Fact

[33] In its termination order, the trial court made over 175 findings of fact, many of which are articulated in the facts section of this opinion. Mother challenges a single finding related to her positive drug screens. While acknowledging she “struggled with substance use,” she challenges Finding 138, which states that “Mother ․ tested positive for Methamphetamines and Amphetamines on September 6 (and Methadone), September 14, and September[ ] 19 of 2024.” Mother's Brief at 16; Mother's App. Vol. 2 at 144. In disputing this finding, Mother states the obvious—that “[t]here was no such evidence ․ presented” because the termination proceedings “concluded a full month prior to these alleged positive screens.” Mother's Br. at 17. However, the year in this finding was most certainly a scrivener's error. The record shows Mother tested positive for methamphetamine and methadone on September 6, 2023, and methamphetamine and amphetamine on both September 14 and 19, 2023. See Ex. Vol. 3 at 16, 8, 4. The trial court's scrivener's error does not justify setting aside this finding because its intended finding is readily discernable from the evidence in the record. See McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 200 (Ind. Ct. App. 2003) (finding typographical error did not warrant reversal of termination decision). Notwithstanding the foregoing, the trial court's many remaining unchallenged findings related to Mother “stand as proven.” In re De.B., 144 N.E.3d 763, 772 (Ind. Ct. App. 2020).

[34] Father, for his part, challenges Findings 68, 69, 70, 71, 92, 97, 165, 166, 170, 182, 183, 184, 185, 187, 190, 195, 196, 197, 200, 210, and 214. Findings 68, 69, 70, and 71 relate to Dr. Lombard's testimony. Specifically, the trial court found:

68․ [Father] is at high risk of relapsing, along with other things, within the first month of release from his incarceration.

69․ [Father] did not engage in weekly individual counseling “to improve his ability to have health[y] relationships and reduce his volatility” as recommended by Dr. Lombard in his evaluation.

70․ [Father] did not engage in a parenting skills program prior to his incarceration to address his lack of knowledge regarding parenting, as determined by the assessment by Dr. Lombard.

71․ [A]lthough [Father] participated in Recovery While Incarcerated and completed that program, the program did not meet the ․ recommendation of substance use treatment for six (6) months followed by six months of sobriety, attending support meetings and having a sponsor, recommended by Dr. Lombard in his evaluation in 2023.

Father's Appendix Vol. 2 at 49.

[35] As to Finding 68, Dr. Lombard testified that people are generally at “high risk” of overdose within the first month of their release from incarceration. Tr. Vol. 5 at 23. Based on Father's history with drug use, the trial court could infer that concern applied to Father. Regarding Finding 69, the evidence shows that Father attended individual counseling “off and on” in the months preceding his incarceration. Id. at 78. While Father participated in some individual counseling, the trial court's specific finding is supported by the record. Concerning Finding 70, Father does not deny that he did not participate in parenting skills program prior to being incarcerated as recommended by Dr. Lombard. Whether Father gained parenting skills through programs while incarcerated is irrelevant to the accuracy of Finding 70. With respect to Finding 71, Father argues that the DOC's RWI program met Dr. Lombard's two-phase recommendation, or in the alternative, the recommendation was a “legal impossibility to comply with while he [was] incarcerated.” Father's Br. at 19. The doctor testified that the RWI program satisfied part of his recommendation, but that does not mean it met the latter half of his recommendation. See Tr. Vol. 5 at 20. Moreover, whether Father was physically able to complete the doctor's recommendation while incarcerated does not go to the accuracy of the finding but to the validity of any conclusions drawn therefrom.

[36] Finding 92 states that Foster Parents are “willing to adopt” Children upon termination. Father's App. Vol. 2 at 51. This finding is supported by foster father's testimony that “if the [c]ourt determined that they needed to be adopted, we'd be happy to adopt them.” Tr. Vol. 5 at 87.

[37] Father challenges the portion of Finding 97 in which the trial court found Father had not visited Children “in person” since May 2023. Father's App. Vol. 2 at 51. However, Father does not challenge this finding's truth—he simply would like it rephrased to reflect his phone or video visits with Children during his incarceration. The record supports that Father did not visit Children in person after he became incarcerated in May 2023. See Tr. Vol. 5 at 101.

[38] Father disputes Finding 165, which states Father “never obtained his own independent housing.” Father's App. Vol. 2 at 57. However, Father's own testimony shows that he lived at Paternal Grandmother's house throughout the proceedings and planned to move back in with her upon his release from incarceration. Tr. Vol. 5 at 100-02. Father also argues that independent housing was not required by the dispositional order, but the trial court was permitted to express its concern with Parents’ housing plan given their history of domestic violence.

[39] Father challenges Findings 166 and 170 which respectively state that neither parent had “successfully addressed his or her substance use issues” or shown they had “benefitted from the service[s]” they were receiving at the time of the termination hearings. Father's App. Vol. 2 at 57. These findings reflect the trial court's concern that Father had not shown consistent sobriety outside of a controlled setting. While Father seemingly made strides toward sobriety while incarcerated, Dr. Lombard testified that the effectiveness of substance use programs offered in a controlled setting may be impacted by the inability to access substances. Tr. Vol. 5 at 22. The doctor testified that someone who experienced forced sobriety through incarceration should seek to stay “abstinent when they're outside of the controlled setting for an extended period of time of at least another six months.” Id. Because Father remained incarcerated at the time of the termination proceedings, he had not demonstrated he could maintain sobriety outside of incarceration. These findings were supported by the record.

[40] Father contests Finding 182, which states he had broken laws and rules, engaged in domestic violence, and abused the use of painkillers and illegal drugs. Father's App. Vol. 2 at 58. He believes this finding was inappropriate because it considered his “past actions[.]” Father's Br. at 22. However, a trial court may find that past behavior is the best indicator of future behavior. See In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Thus, the court was certainly permitted to make factual findings related to the conditions that resulted in Children's removal—namely, Father's history with drug use, incarceration, and domestic violence.

[41] Father challenges Findings 183, 184, 185, and 187, which state:

183․ [Father] cannot provide the children with the stability that they need due to his criminal involvement, his own need for services to address his substance use issues, domestic violence issues, and his antisocial personality disorder, and his own lack of stability․

184․ [Father] has not completed services, including individual counseling, related to his antisocial personality disorder.

185․ [Father] has not completed services related to domestic violence issues, including batterers intervention that he was ordered to complete.

187․ [T]here are safety concerns for the children if they were returned to the care of [Father] without any services or interventions to address domestic violence, ․ the effects of domestic violence on parenting, his antisocial personality disorder, parenting, and his substance use issues.

Father's App. Vol. 2 at 58-59.

[42] Father's arguments as to these four findings are mostly impermissible requests for us to reweigh the evidence regarding the effect of his services. Again, the record shows that Father attended individual counseling at Bowen Center “off and on” and had not been successfully discharged before becoming incarcerated. Tr. Vol. 5 at 78, 80. And while Father participated in services during his incarceration, including cognitive behavioral therapy, it is not clear whether any of those services were geared toward specifically addressing his antisocial personality disorder. Although the FCM testified that Father had “participated” in a domestic violence treatment program at the Center for Nonviolence before becoming incarcerated, she did not say he completed that training, and Father himself testified that he “definitely lapsed” with this service at some point. Id. at 166, 185. However, Finding 187 is unsupported to the extent it suggests that Father did not participate in any services to address the identified issues. While we do not disturb the trial court's findings related to Father's level of participation in services, motivations for participation, progress in services, or continuing need for services, it is clear error to find he was “without any services” intended to address any of the identified issues. Father's App. Vol. 2 at 59.

[43] Father challenges Finding 190 in two respects. First, he disagrees with the trial court's finding that he had no “personal contact” with Children since May 2023, noting he had several video visits with Children since he became incarcerated. However, Father himself referred to in-person visitation as “personal visits,” testifying that he was “allowed to have video and phone visits but not personal visits.” Tr. Vol. 5 at 191. Second, the trial court found that it would be “unreasonable to ask the minor children ․ to wait longer” to see if Father maintained sobriety, obtained stable hosing, addressed his mental health and domestic violence issues, and abstained from criminal activity. Father's App. Vol. 2 at 59. Father believes the evidence demonstrates that he has accomplished these items, but the record supports the trial court's concern that Father had not demonstrated long-term stability in these respects outside of a controlled environment.

[44] Father also disputes Findings 195, 196, and 197. In short, these findings state that Father “lacks insight” into the effects of his criminal activity, incarceration substance use, domestic violence, and antisocial personality disorder on Children. Id. at 60. Father again points to his participation in various services and identifies a report articulating the progress he made through the RWI program while incarcerated. See Father's App. Vol. 3 at 41-43. He also directs us to his testimony that he gained insight into his negative behaviors and did not want to continue them. See Tr. Vol. 5 at 192-193. However, the trial court was not required to believe Father's testimony, and based on Father's consistent recidivism, drug use, and irregular compliance with services throughout the proceedings, the court could have inferred that Father lacked insight into the effects of his behaviors on Children. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not required to believe a witness's testimony even when it is uncontradicted.”).

[45] Father also disagrees with Findings 200 and 210. In Finding 200, the court found that Father's participation in services constituted a “historical pattern” of “last minute” participation before major proceedings in the case, whereafter Father failed to follow through and continued to engage in “destructive patterns” of behavior. Father's App. Vol. 2 at 60. In Finding 210, the court found that Father “did not comply with the Court ordered services that were ordered provisionally and at the dispositional hearings.” Id. at 61. As described above, the record supports that Father was not consistent with his participation in services before his incarceration, and the court could conclude that Father's participation in services improved only because he entered a controlled setting. Before he became incarcerated, Father was not in compliance with all aspects of the substance abuse treatment recommended by Dr. Lombard, had recently tested positive for illegal drugs, did not consistently submit to random drug screens, and had gaps in visitation with Children. See Tr. Vol. 5 at 13, 78-79, 90, 150. The trial court was not precluded from making these findings related to Father's patterns of behavior.

[46] Finally, Father challenges the part of Finding 214 stating:

Both parents have unaddressed substance abuse issues, issues with domestic violence that Father has not completed batterer's intervention services, unaddressed mental health issues, and Father lacks parenting skills and understanding regarding hearing from the children.

Father's App. Vol. 2 at 61. Father again references his perception of his participation in services. We have already addressed these matters to the extent necessary to support our determination. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“Because there is evidence sufficient to support the trial court's ultimate findings on the elements necessary to sustain the judgment, we hold that the erroneous finding was merely harmless surplusage that did not prejudice Mother and, consequently, is not grounds for reversal.”), trans. denied.

2. Termination of Parental Rights Determination

[47] Parents claim that the record and findings do not support the trial court's conclusion that there was a reasonable probability that the conditions resulting in Children's removal would not be remedied.⁵ See I.C. 31-35-2-4(b)(2)(B)(i) (2024). Father also argues the evidence was insufficient to show that continuation of the parent-child relationship posed a threat to Children's well-being and that termination was in their best interests.

[48] We conduct a two-step analysis to determine whether the conditions that led to a child's placement outside the home will not be remedied. K.T.K., 989 N.E.2d at 1231. First, we consider the conditions that led to the child's placement and retention in foster care, and second, “ ‘whether there is a reasonable probability that those conditions will not be remedied.’ ” Id. (quoting I.A., 934 N.E.2d at 1134). During the second step of the analysis, the trial court must “judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions, and balancing any recent improvements against ‘habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation.’ ” In re S.E., 15 N.E.3d 37, 46 (Ind. Ct. App. 2014) (quoting In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)), trans. denied. Because this requires a delicate balancing, we give the trial court “discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” E.M., 4 N.E.3d at 643.

[49] “Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.” Id. The trial court may properly consider “evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment.” Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008). It may also consider the services offered by DCS and the parent's response to those services. A.F. v. Marion Cnty. Off. of Fam. and Child., 762 N.E.2d 1244, 1252 (Ind. Ct. App. 2002), trans. denied.

[50] Here, the trial court removed Children from Parents’ care at separate times, but both removals were due to Parents’ drug use, domestic violence, and Father's criminal activity. Children remained removed throughout the proceedings for these reasons.

A. Mother

[51] The trial court made a plethora of unchallenged findings related to Mother, many of which are detailed above. It also made the following relevant findings:

166. The Court finds neither parent has successfully addressed his or her substance use issues as of the time of the termination trial.

․

198. The Court finds that [Mother] lacks insight into the effect of her substance use on the children, even though they were very young during this use.

199. The Court finds that [Mother] lack[s] insight about how her depression and other mental health issues negatively affect her parenting and her ability to meet the emotional and physical needs of her children.

200. The Court finds that Mother and Father participating in services at the last minute prior to the fact-finding for the termination of parental rights is a historical pattern where prior to hearings or major decisions by the Court, the parents begin doing enough with services that permanent decisions cannot be made and they still have the opportunity to participate in services to work towards reunification. However, they do not follow through and continue to engage in the same destructive patterns of substance abuse, domestic violence, not addressing mental health issues that affect their daily lives, and criminal activity.

․

214․ Mother has resided in five (5) different treatment facilities for her substance use issues and has resided with [Father] with his mother for a majority of the time she was not in treatment. Mother has not demonstrated stability on her own.

Mother's App. Vol. 2 at 147, 150, 151.

[52] The trial court then concluded that the conditions resulting in removal would not be remedied, reasoning:

219. [Mother] is currently engaged in the substance use services for the fifth (5th) time at a sober living residential treatment program. When the fact-finding trial regarding the termination of parental rights began in July, [Mother] had just “phased up” or been promoted to Phase II of the substance use treatment program on July 19, 2024. Mother was discussing domestic violence that has occurred in her life with her recovery coach through Phoenix. [Mother] interrupts her supervised visitation to call [Father] where he is incarcerated so that he may speak to the children during her visitation. In addition, [Mother's] future plan when she leaves Recovery Services (previously known as Hope House) is to live with [Father], the person who perpetrated violence against her (and vice versa), in the home owned by his [m]other. Mother violated no contact orders and was criminally charged and sentenced for those violations on two occasions during the pendency of the CHINS proceedings. Mother is still attending therapy to address her depression and mental health issues, but is still not engaging in some of the elements needed for her substance use treatment. [Mother] has not demonstrated that she has benefitted from the services as she did not successfully complete any of the services referred.

220. As stated above, neither parent has been able to show that they can live a sober and substance free lifestyle outside incarceration or a sober living facility. As neither has successfully completed domestic violence treatment, the parents have unaddressed domestic violence issues and plan to reside together with one another upon each person's release from his incarceration and her sober living facility. Therefore, the issues have clearly not been remedied. The Court concludes that both parents are participating in the services as of the time of the fact-finding trial for self-serving reasons, not to learn, grow and obtain sobriety for himself or herself or to remedy the issues that must be addressed so that they can properly parent and make wise decisions in regard to the children. The Court concludes the actions are close in time and short lived to try to stop the termination process and/or obtain time cuts for an earlier release from prison. By clear and convincing evidence, the Court determines that the issues that resulted in the removal of the children have not been remedied.

Id. at 153-54.

[53] On appeal, Mother argues that the trial court improperly required her to secure “independent housing[,]” that some parents will take longer than others to “respond to significant substance abuse” and mental health concerns, and that she was “working hard and remedying the reasons for [DCS's] involvement” at the time of the termination hearings. Mother's Br. at 18-19.

[54] The trial court's observation that Mother failed to secure independent housing does not concern us. First, this was one of many factors that contributed to the court's termination decision. More importantly, the court's concern was appropriate. Parents had a history of domestic violence, which included the issuance and violation of protective and no contact orders between the two, and they planned to live together after Father was released from prison. Given that Parents had not demonstrated that their domestic violence issues were resolved or shown consistent stability and sobriety outside of controlled settings, the trial court did not err in identifying Parents’ cohabitation plan as cause for concern amongst many other factors.

[55] As for Mother's additional arguments about her response to services and the trial court's failure to evaluate her progress as of the time of the termination hearing, these are impermissible requests to reweigh the evidence. See I.A., 934 N.E.2d at 1132. The trial court clearly considered Mother's status at the time of the termination hearing. It viewed Mother's participation in services as incomplete, self-serving, and as showing an historical pattern of strategic participation to avoid negative consequences in Children's cases. See Mother's App. Vol. 2 at 154. While Mother may disagree with the trial court's characterization, she did not challenge specific findings regarding these issues.

[56] Moreover, Mother continued to test positive for illegal drugs throughout the proceedings and admitted to using fentanyl as late as February 2024. See Tr. Vol. 5 at 116. She then entered inpatient treatment and had only partially progressed through the program at the time of the termination hearings. It was the trial court's prerogative to weigh any evidence of changed conditions and recent improvements against “habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation.” S.E., 15 N.E.3d at 46 (quoting E.M., 4 N.E.3d at 643). It was also within the trial court's discretion to disregard Mother's efforts to comply with her case plan made shortly before the termination hearings. See K.T.K., 989 N.E.2d at 1234. While we acknowledge that parents may see progress through services at different rates, “[a] juvenile court need not wait until a child is irreversibly harmed by a deficient lifestyle such that his or her physical, mental, and social growth are permanently impaired before terminating the parent-child relationship.” In re J.C., 994 N.E.2d 278, 287 (Ind. Ct. App. 2013), reh'g denied. Considering the evidence and unchallenged findings, we conclude the trial court's determination that there was a reasonable probability Mother would not remedy the conditions resulting in Children's removal is not clearly erroneous.

B. Father

[57] Like Mother, Father maintains that the trial court clearly erred in finding there was a reasonable probability he would not remedy the conditions resulting in Children's removal. He also argues that termination was not in Children's best interests.

[58] Father focuses his argument on analogizing his circumstances to those presented in two termination of parental rights cases in which the Indiana Supreme Court held in favor of incarcerated parents. See In re G.Y., 904 N.E.2d 1257 (Ind. 2009) (reversing trial court's order terminating mother's parental rights), reh'g denied; In re J.M., 908 N.E.2d 191 (Ind. 2009) (affirming trial court's denial of State's petition to terminate parents’ parental rights). While G.Y. and J.M. share common factual themes, G.Y. focused on the element of best interests whereas J.M. focused on the elements related to remedying conditions the led to removal and the threat to the child. G.Y., 904 N.E.2d at 1262; J.M., 908 N.E.2d at 194.

[59] We have laid out the law applicable to the remedying conditions element above. In determining the best interests of a child, “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. “A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.” A.K., 924 N.E.2d at 221 (quoting Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied). Parental rights may be terminated when a parent is unable or unwilling to fulfill his responsibilities as a parent. Id. Furthermore, the child's need for permanency is also critical in a best-interests analysis. Ma.H., 134 N.E.3d at 49.

[60] In both G.Y. and J.M., the parents at issue cared for their respective child at the beginning of child's life. G.Y., 904 N.E.2d at 1258 (finding mother had cared for child for first twenty months of his life without allegations of criminal activity or unfitness); J.M., 908 N.E.2d at 192 (finding parents had cared for child for first three years of his life without allegations of unfitness). The parents eventually became incarcerated before CHINS proceedings were initiated. G.Y., 904 N.E.2d at 1258-59; J.M., 908 N.E.2d at 192. Later, at the time of termination proceedings, the incarcerated parents had taken positive steps to better themselves and cooperated with services while incarcerated, maintained a relationship with the child or had taken action to provide permanency for the child upon their release from incarceration, and were set to be released in the near future. See G.Y., 904 N.E.2d at 1262, 1264-65; J.M., 908 N.E.2d at 195.

[61] In each case, the Supreme Court did not find the child's ultimate need for permanency to be so dire as to warrant immediate permanency through adoption. See G.Y., 904 N.E.2d at 1265; J.M., 908 N.E.2d at 196. In G.Y., the Supreme Court found that “the amount of time that it will likely take [m]other to comply with” further services and conditions ordered by the trial court was not a “sufficiently strong reason” to support the trial court's conclusion that termination of mother's parental rights was in the child's best interests. G.Y., 904 N.E.2d at 1264. And in J.M., the Supreme Court found the record supported the trial court's determination that parents’ “ability to establish a stable and appropriate life upon release can be observed and determined within a relatively quick period of time.” J.M., 908 N.E.2d at 196.

[62] Father argues his circumstances are nearly identical to those presented in G.Y. and J.M. Because his release from incarceration was mere months away at the time of the termination hearings, Father contends the trial court should have determined Children would not be prejudiced by waiting to see “whether the services provided [to Father] in prison [would] translate to the outside.” Father's Br. at 31.

[63] However, unlike the parents in G.Y. and J.M., Father was not incarcerated for a significant portion of Children's CHINS cases prior to May 2023. Despite having his liberty and knowing the gravity of the CHINS proceedings, Father showed a pattern of engaging in criminal activity, failed to correct course after receiving multiple suspended sentences, violated the terms of his suspended sentences, used illegal drugs intermittently until his incarceration, and failed to adequately participate in court-ordered services. He was even undeterred from committing crimes and using illegal drugs following the birth of his second child, I.K.M.S. It is axiomatic that “individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Castro, 842 N.E.2d at 374 (quoting In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App. 1992)) (internal brackets omitted).

[64] In rendering its judgment, the trial court was permitted to balance Father's demonstrated patterns of conduct throughout the proceedings against any evidence of changed conditions. See E.M., 4 N.E.3d at 643. Although Father participated in services while incarcerated, the court found these steps were the product of his confinement in a controlled environment and there was a reasonable probability Father would return to his previous patterns of behavior after his release from incarceration. Under these circumstances, we cannot say the trial court clearly erred in giving more weight to Father's consistent pre-incarceration patterns of behavior in determining there was a reasonable probability Father would not remedy the conditions resulting in Children's removal. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not consider whether the continuation of the parent-child relationship would pose a threat to Children's well-being. See In re S.K., 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019), trans. denied.

[65] As for the Children's best interests, much of the same evidence that supports Father's failure to remediate the conditions resulting in Children's removal supports the best interests analysis. See A.K., 924 N.E.2d at 221 (finding the “same evidence” supported multiple required elements for termination). Moreover, the CASA testified that termination of Father's parental rights was in Children's best interests. See In re P.B., 199 N.E.3d 790, 799 (Ind. Ct. App. 2022) (noting the CASA's recommendation is relevant to best interests), reh'g denied, trans. denied.

[66] At the time of the termination hearings, I.B.O.S. was four years old, I.K.M.S. was two years old, and both had been removed from Parents’ care for most of their young lives. Although Children had a bond with Father, he has not been a stable force in Children's lives, nor has he been able to remain sober or resist engaging in criminal activity. Children are also bonded with their Foster Parents, and the FCM testified the Children were “doing phenomenal[ly]” in their care. Tr. Vol. 5 at 154. I.K.M.S overcame developmental issues after her removal from Parents’ care and both Children had “progressed leaps and bounds since [being] removed.” Id. Children need and deserve permanency, and Father, still incarcerated at the time of the termination hearings, failed to demonstrate he was able to meet his parental responsibilities. The trial court did not err in concluding termination of parental rights was in the best interests of Children.

[67] We conclude there was sufficient evidence to support the trial court's termination of Father's parental rights as to Children.⁶

Conclusion

[68] For the foregoing reasons, we affirm the judgment of the trial court terminating Parents’ parental rights to Children.

FOOTNOTES

1.   We note that the record is not clear regarding the precise terms of Father's criminal sentences, their consecutive or concurrent nature with his other sentences, or the effect of his suspended sentences being revoked. See Exhibits Vol. 1 at 165-247. However, the gist is clear: Father demonstrated a pattern of engaging in criminal activity between 2020 and 2023.

2.   At the July 22, 2024 termination hearing, Dr. Lombard testified “[t]he primary finding [of the personality assessment] was ․ that he ha[d] a pattern of antisocial behaviors including things like conflict with authority, defiance of social norms, [and] engagement in high-risk activities.” Tr. Vol. 5 at 14.

3.   Phoenix Associates is a mental health facility in Fort Wayne, Indiana that offers services including individual, family, and group therapy; mental health and behavioral health services; and case management services. Phoenix Associates, https://www.phoenixassociates.net/ [https://perma.cc/MSD9-UFPM].

4.   The legislature amended Indiana Code section 31-35-2-4, effective March 11, 2024, just four days after DCS petitioned to terminate Parents’ parental rights in this case. The pertinent provisions of the statute are substantively the same post-amendment.

5.   Mother's appellate argument does not clarify which required elements of the involuntary termination of her parental rights she is challenging. While she broadly asserts that the trial court's decision to terminate her parental rights was clearly erroneous, her argument is only geared toward the remedying conditions prong of Indiana Code section 31-35-2-4(b)(2)(B). However, the trial court found an alternative basis existed for termination—that there was a reasonable probability continuation of the parent-child relationship would pose a threat to Children's well-being. Because DCS was required to prove the existence of only one of these circumstances, Mother had to challenge both findings to have any potential recourse. Her analysis also fails to cogently challenge the best interests element of involuntary termination of parental rights. See Ind. Appellate Rule 46(A)(8)(a).

6.   Relatedly, Father appeals the trial court's denial of his motion to correct error. “We generally review a trial court's ruling on a motion to correct error for an abuse of discretion.” Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App. 2017). An abuse of discretion occurs when the trial court's decision was “against the logic and effect of the facts and circumstances” before it “or if the court has misinterpreted the law.” Id.In his motion to correct error, Father argued that he suffered prejudice because his RWI treatment summary was missing a page when it was admitted at the termination hearing. See Appellee's App. Vol. 2 at 10; Ex. Vol. 4 at 126; Supplemental Ex.at 5-7. Father argues the second page of this exhibit “fully articulated [his] prognosis and progress” given the services he completed while incarcerated. Father's Br. at 33. However, the trial court allowed Father to supplement the record and ultimately denied Father's motion because its original order was “based on a plethora of evidence, exhibits, testimony, and information[.]” Mother's App. Vol. 2 at 174-75. While the missing page of the report does reflect positively upon Father's progress in services while incarcerated, the trial court drew from ample evidence in drawing many different conclusions to support its termination order. The trial court did not abuse its discretion in finding its termination order stood in light of the supplemented exhibit and denying Father's motion to correct error.

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.