IN RE: the Termination of the Parent-Child Relationship of A.K. (Minor Child); (2025)

MEMORANDUM DECISION

Case Summary

[1] N.N. (“Father”) appeals the order of the trial court terminating his parental rights to his minor son (“Child”). Father claims: (1) he did not have notice of the trial court's dispositional order in the underlying child-in-need-of-services (“CHINS”) case; (2) the Indiana Department of Child Services (“DCS”) did not make reasonable efforts to preserve the family and reunify Father with Child; (3) Father remedied the conditions that resulted in Child being placed outside Father's home; and (4) Father does not pose a threat to Child's well-being. We disagree and affirm.

Issues

[2] Father presents several issues, which we revise and restate as:

I. Whether Father had notice of the trial court's CHINS dispositional order.

II. Whether DCS made reasonable efforts to preserve the family and reunify Father and Child.

III. Whether Father remedied the conditions that resulted in Child being placed outside Father's home.

IV. Whether Father poses a threat to Child's well-being.

Facts

[3] Child was born in April 2023 to T.K. (“Mother”) and Father. At the time of his birth, Child had cocaine, fentanyl, amphetamine, and methamphetamine in his system. Mother admitted using fentanyl and cocaine while she was pregnant with Child, and she identified Father as both Child's father and as her drug supplier. Child was placed in the neonatal intensive care unit due to withdrawal symptoms, and Mother never returned to the hospital.

[4] On April 20, 2023, DCS filed a petition alleging that Child was a CHINS. Father could not be located at the time. Accordingly, on July 6, 2023, DCS served the CHINS petition and summons to Father via publication. Child, who has special needs, was placed in foster care and has not been returned to the care of either parent.

[5] On August 7, 2023, Mother admitted that Child was a CHINS based on her drug addiction, lack of housing, and lack of means to support Child. Father was not involved in Child's life at that time. On August 11, 2023, the trial court found Child to be a CHINS after Father did not respond to the summons that was served via publication. Sometime in August 2023, DCS learned that Father lived at a home on Dearborn Street in Indianapolis, and DCS served Father with the CHINS documents at that address.

[6] On September 6, 2023, the trial court held a dispositional hearing. Father did not appear, but the trial court ordered him to, among other things: (1) not use illicit drugs; (2) complete a parenting assessment and substance abuse assessment and follow all recommendations; (3) complete a psychological assessment and follow all recommendations; and (4) submit to random drug screens.

[7] On May 14, 2024, DCS filed a petition to terminate Father's parental rights. In June 2024, Father contacted DCS, and DCS Family Case Manager (“FCM”) Laura Rodgers offered services to Father based on the CHINS dispositional order. Father declined services and stated that he was waiting to take a DNA test to see if he was, in fact, Child's father.

[8] At a hearing held on July 10, 2024, Father appeared and claimed that he had only recently found out about the CHINS and termination of parental rights proceedings. The trial court conducted an initial hearing with regard to Father and advised Father of his rights. Father requested DNA testing to determine whether he was Child's father, and the trial court granted Father's request for a court-appointed attorney. A DNA test subsequently confirmed that Father was Child's father. Prior to the termination hearing, Father underwent a substance abuse assessment, but he repeatedly tested positive for illicit drugs, including cocaine and fentanyl,¹ and did not participate in all scheduled drug screens.

[9] On December 30, 2024, the trial court held an evidentiary hearing on the termination of parental rights petition.² At the hearing, Father admitted that he had owned the house on Dearborn Street, where DCS had served the CHINS papers, for seven years and had lived at this home for two years. Despite this, Father claimed that he never received notice of the CHINS and termination of parental rights actions because he had “no concerns,” and did not pay attention to “certain mail”; instead, he “just pa[id] bills.” Tr. Vol. II pp. 88, 90. Evidence was also presented that Father had another child who was found to be a CHINS in another county while Child's case was pending. Father also received notices about that case at the same address, but he did not open the mail, nor did he contact DCS with regard to that child. As a result, Father's parental rights to that child were terminated in May 2024. Father denied that he supplied Mother with drugs but admitted that he gave her money to purchase drugs.

[10] The day after the termination of parental rights hearing, the trial court granted DCS's petition to terminate Father's parental rights. The trial court entered extensive findings of fact and conclusions thereon terminating Father's parental rights. Father now appeals.

Discussion and Decision

Standard of Review

[11] The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent's interest in the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). When determining the proper disposition of a petition to terminate parental rights, we recognize that parental rights are not absolute and must be subordinated to the child's best interests. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) (“Parents have a fundamental right to raise their children—but this right is not absolute.”). “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Ma.H., 134 N.E.3d at 45-46.

[12] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

Ind. Code § 31-35-2-4(c).³

[13] Subsection (d) of this statute requires the existence of one or more circumstances, including:

(2) That:

(A) the child has been removed from the parent and has been under the supervision of [DCS] 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 [CHINS]; and

(B) despite the department's reasonable efforts to preserve and reunify the child's family under IC 31-34-21-5.5, the parent has been unable to remedy the circumstances that resulted in the child being placed in care outside the parent's home.

(3) That 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.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

* * * * *

I.C. § 31-35-2-4(d). DCS is required to prove these elements by clear and convincing evidence. Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).

[14] If the trial court finds that the allegations in the termination petition are true, it “shall” terminate the parent-child relationship and enter findings supporting its conclusions. Ind. Code § 31-35-2-8(c). Here, the trial court entered such findings of fact and conclusions thereon in granting DCS's petition to terminate Father's parental rights. We will affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence, and reasonable inferences that can be drawn from this evidence, that support the trial court's judgment. Id.

I. Father had notice of the CHINS dispositional order.

[15] Father argues that he had no notice of the CHINS dispositional order. Father did not present this claim to the trial court, and it is, therefore, waived for purposes of appeal. In re R.A.M.O., 190 N.E.3d 385, 392 (Ind. Ct. App. 2022) (citing Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015)). “ ‘[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court.’ ” Id. (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013)). This claim is, therefore, waived. See id. Waiver notwithstanding, Father's argument fails on the merits.

[16] Father was served in the CHINS case via publication. See Ind. Trial Rule 4.13 (providing for service by publication).⁴ After DCS discovered Father's address, a copy of the dispositional order was mailed to his address. Father admitted that he used this address as his mailing address but claimed that he did not pay attention to mail unless it was a bill. The fact that Father did not bother to open the mail sent to his mailing address does not mean that he was not provided notice of the dispositional order. Any lack of knowledge regarding the CHINS proceeding was due to Father's own actions.⁵

II. DCS made reasonable efforts to preserve the family and reunify Father and Child.

[17] Father also argues that DCS failed to make reasonable efforts to preserve the family and reunify him with Child. Father, however, did not present this argument to the trial court during the termination proceedings. R.A.M.O., 190 N.E.3d at 392) (citing Gurtner, 27 N.E.3d at 311). This claim is, therefore, waived as well. See id.

[18] Waiver notwithstanding, we note that DCS is required to make reasonable efforts to preserve or reunify the family during CHINS proceedings.⁶ In re S.K., 124 N.E.3d 1225, 1232 (Ind. Ct. App. 2019) (citing Ind. Code § 31-34-21-5.5), trans. denied. But this CHINS statutory provision “is not a requisite element of our termination statute, and ‘failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.’ ” S.K., 124 N.E.3d at 1232 n.1 (quoting In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009)). Accordingly, Father's argument fails.

[19] Besides, DCS made reasonable efforts to preserve or reunify Father with Child. We have long held that “[a] parent may not sit idly by without asserting a need or desire for services and then successfully argue that he was denied services to assist him with his parenting.” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (citing Jackson v. Madison Cnty. Dep't of Fam. and Child., 690 N.E.2d 792, 793 (Ind. Ct. App. 1998)). Once Father was aware of the CHINS case, not only did he not seek any services from DCS, but he also declined the FCM's offer to refer him to services.

[20] Father claims that, as soon as he confirmed that he was Child's biological father, he “cooperated and complied with everything DCS suggested[.]” Appellant's Br. p. 10. Father claims that “[b]etween November 8, 2024 and December 30, 2024, [Father] had engaged in each required drug screen, had stopped knowingly taking drugs (except marijuana), had begun drug classes, had bought [Child] clothes, and had engaged in each parenting visit DCS offered.” Id. This, of course, ignores the fact that Father tested positive for cocaine and/or fentanyl on November 7, November 11, and November 22, 2024. He also missed three drug screens in November and December 2024, and the trial court reasonably inferred that Father would have tested positive on the screens he missed. See In re P.B., 199 N.E.3d 790, 798 (Ind. Ct. App. 2022) (noting that DCS can presume that a parent who misses a drug screen would have tested positive) (citing In re A.B., 924 N.E.2d 666, 671 (Ind. Ct. App. 2010)).

[21] And Father's claim that he did not knowingly take the illicit drugs for which he tested positive is merely a request that we reweigh the evidence and accept his self-serving testimony, which the trial court found uncreditworthy. We cannot do so. Ma.H., 134 N.E.3d at 45. Under these circumstances, we cannot say that DCS failed to make reasonable efforts to preserve the family and reunify Father and Child.

III. There was a reasonable probability that the conditions that resulted in Child's placement outside of Father's home would not be remedied.

[22] Father next challenges the trial court's conclusion that there was “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.” Ind. Code § 31-35-2-4(d)(3). “In determining whether ‘the conditions that resulted in [Child's] removal ․ will not be remedied,’ we ‘engage in a two-step analysis.’ ” In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “First, we identify the conditions that led to removal.’ ” Id. at 643 (quoting K.T.K., 989 N.E.2d at 1231). But it is not just the reasons for the initial removal of the child that may be considered, but also the reasons that resulted in the continued placement of the child outside of the parent's home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005) (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997)), trans. denied.

[23] Second, “we ‘determine whether there is a reasonable probability that those conditions will not be remedied.’ ” E.M., 4 N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). In analyzing the second step, the trial court assesses the parent's fitness “ ‘as of the time of the termination proceeding, taking into consideration evidence of changed conditions.’ ” Id. (quoting Bester v. Lake Cnty. Off. of Fam. and Child., 839 N.E.2d 143, 152 (Ind. 2005)). “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. “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.

[24] Here, Father claims that, by the time of the termination of parental rights hearing, he was no longer using illicit drugs, had a suitable and safe place to live, and was engaging in services, including visiting Child. This argument asks us to consider Father's testimony and reweigh the evidence, which we cannot do. Ma.H., 134 N.E.3d at 45.

[25] The evidence and reasonable inferences that support the trial court's decision show that, although Father completed a substance abuse assessment, he repeatedly tested positive for cocaine and/or fentanyl before the termination hearing and missed several drug screens. As noted above, the trial court could reasonably infer that Father would have tested positive on those occasions that he failed to screen. P.B., 199 N.E.3d at 798; A.B., 924 N.E.2d at 671. Father also continued to use marijuana. As the trial court found, “Father has a long history of substance abuse,” and “Father is not a safe and sober caregiver for [Child].” Appellant's App. Vol. II p. 14.

[26] The trial court, therefore, did not clearly err by concluding that there was a reasonable probability that the conditions that resulted in Child's continued placement outside of Father's home would not be remedied. See In re C.D., 141 N.E.3d 845, 853 (Ind. Ct. App. 2020) (affirming trial court's conclusion that conditions that resulted in child's removal and continued placement outside the parents’ home would not be remedied where mother failed to address her substance abuse problem, tested positive for marijuana, and missed multiple drug screens); see also In re J.L., 919 N.E.2d 561, 563-64 (Ind. Ct. App. 2009) (noting the twofold danger of parental drug use—the child seeing the parent using drugs and the parent “essentially abandon[ing]” the child “without any responsible supervision”) (citing White v. State, 547 N.E.2d 831, 836 (Ind. 1989)).

IV. We need not consider Father's argument that he posed no risk to Child's well-being.

[27] Lastly, Father briefly argues that there was no evidence that the continuation of the parent-child relationship posed a risk to Child's well-being because, according to Father, he never put Child in danger. We note, however, that Indiana Code Section 31-35-2-4(d) is written in the disjunctive. That is, DCS must allege the existence of one or more of the circumstances listed in that chapter, which include: (1) that the child be placed outside the parent's home for fifteen of the previous twenty-two months; (2) that the conditions that resulted in the child's removal or placement outside the parent's home will not be remedied; or (3) that the continuation of the parent-child relationship poses a threat to the child's well-being. Id.; see also Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 n.5 (Ind. 2005) (noting disjunctive nature of prior version of this statute). The trial court found that there was a reasonable probability that the conditions that resulted in Child's removal or reasons for placement outside the home of the parents will not be remedied, and there is sufficient evidence to support that conclusion. We, therefore, need not address whether the continuation of the parent-child relationship posed a threat to Child's well-being. See Bester, 839 N.E.2d at 148 n.5.⁷

Conclusion

[28] Father had notice of the trial court's dispositional order in the CHINS case, and DCS did not fail to make reasonable efforts to preserve and reunify Father with Child. Sufficient evidence supports the trial court's conclusion that Father failed to remedy the conditions that resulted in Child being placed outside Father's home. Lastly, we need not address Father's arguments that he does not pose a threat to Child's well-being or that Child was not removed from Father's care for fifteen of the most recent twenty-two months. Accordingly, we affirm the trial court's judgment.

[29] Affirmed.

FOOTNOTES

1.   Father tested positive for cocaine and fentanyl on July 10, 2024, and he tested positive for cocaine on September 19, October 28, November 7, November 11, and November 22, 2024.

2.   Mother voluntarily relinquished her parental rights at a hearing on November 8, 2024.

3.   This statute was amended effective March 11, 2024, and again on July 1, 2025. Here, DCS filed its petition on May 14, 2024. Thus, we apply the version of the statute in effect at the time the petition was filed.

4.   Father makes no argument that the service by publication was insufficient.

5.   Father also argues that he was likely to comply with the dispositional order if given more time. We disagree. The dispositional order was mailed to Father's home on September 15, 2023. Even though the order was sent to Father's address, he chose not to pay attention to any of his mail except for bills. Father also declined services until the DNA test confirmed his paternity of Child. And after his paternity was confirmed, Father repeatedly tested positive for cocaine and fentanyl. Accordingly, we reject Father's claim that he was likely to comply with the dispositional order if given more time.

6.   The CHINS statutes do not require DCS to make reasonable efforts to preserve and reunify families under the circumstances enumerated in Indiana Code Section 31-34-21-5.6(b), which are inapplicable here.

7.   Father also briefly claims that DCS failed to prove that Child had been “removed from the parent and has been under the supervision of [DCS] 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 [CHINS].” I.C. § 31-35-2-4(d)(2). Because sufficient evidence supports the trial court's conclusion that the conditions that resulted in Child's placement outside of Father's home have not been remedied, we need not address Father's argument regarding the time requirements of subsection (d)(2)(A). Still, we note that Child was removed from Mother shortly after his birth in April 2023, and the termination of parental rights hearing was held on December 30, 2024. Thus, Child was removed from Father's care for more than fifteen of the last twenty-two months. To the extent that Father claims that the Child was not “removed” from his care until after Father established paternity, he is incorrect. A child is effectively removed from both parents if the child is removed from the care of the primary physical custodial parent. In re I.A., 934 N.E.2d 1127, 1134 n.5 (Ind. 2010) (citing Tipton v. Marion Cnty. Dep't of Pub. Welfare, 629 N.E.2d 1262, 1266 (Ind. Ct. App. 1994)).

Tavitas, Judge.

Judges Bailey and Kenworthy concur. Bailey, J., and Kenworthy, J., concur.