IN RE: the Termination of the Parent-Child Relationship of K.S. (2026)

MEMORANDUM DECISION

[1] K.S. (“Father”) and J.B. (“Mother”) (together, “Parents”) appeal the trial court's order terminating their parental rights to K.J.S. (“Child”). Parents raise the following restated issues for our review:

I.  Whether there was sufficient evidence supporting certain findings; and

II. Whether the trial court's judgment that Parents’ parental rights should be terminated was supported by clear and convincing evidence.

[2] Finding no error, we affirm.

Facts and Procedural History

[3] Parents are the biological parents of Child, who was born on November 30, 2019. On August 26, 2021, Mother gave birth to twins, and the next day, the Indiana Department of Child Services (“DCS”) received a report that the twins were born drug exposed in utero and were the victims of abuse or neglect. While the twins remained in the hospital, DCS investigated the report. Mother admitted to DCS that she used methamphetamine and marijuana weekly throughout her pregnancy with the twins. On September 27, 2021—at which point the twins were still in the hospital—DCS received a report alleging that Child was the victim of abuse or neglect based on concerns of substance abuse by Parents while caring for Child. The next day, DCS spoke with Mother and observed sores on her arms consistent with intravenous methamphetamine use. Mother refused to submit to a drug screen and refused to provide DCS full access to the home for its investigation. On September 30, 2021, Father was arrested in Scott County for dealing in methamphetamine, possession of methamphetamine, maintaining a common nuisance, and possession of marijuana. The twins’ cord blood tested positive for methamphetamine, and DCS removed the twins and Child from Parents’ care.

[4] On October 1, 2021, DCS filed a petition alleging that Child and the twins ¹ were children in need of services (“CHINS”) because Parents had failed to provide a safe and sober home environment for the children, which put the children “at risk for current and future harm.” Ex. Vol. III p. 24. The petition also alleged that Parents were using illegal substances while caring for Child, and that the twins were born drug exposed. On the same day, the trial court held a detention hearing and approved the removal of Child and the twins. At that time, Child was placed in relative care with paternal grandmother (“Grandmother”), and the twins were still in the hospital. On March 23, 2022, the trial court held the CHINS fact-finding hearing, and Father signed a stipulation and agreed dispositional order. In the order, he admitted to a history of substance abuse, that he was currently incarcerated and facing pending drug-related charges under case numbers 40C01-1801-F5-11 and 72C01-2110-F2-13, and that the twins’ cord blood tested positive for THC, methamphetamine, and amphetamine. The order also included the reunification services that Father was ordered to complete. On March 29, 2022, the trial court entered an order adjudicating Child and the twins to be CHINS as to Mother, and on May 18, 2022, the trial court entered a dispositional order requiring Mother to participate in reunification services. In their respective dispositional orders, Parents were ordered to obtain substance abuse evaluations, to attend outpatient substance abuse treatment, to submit to random drug screens, to complete home-based parent services, to attend visitations with Child, and to engage in comprehensive services. Mother was also ordered to complete inpatient substance abuse treatment and to attend individual counseling. The twins’ CHINS case was closed because maternal grandmother was appointed their guardian in a separate guardianship case.

[5] DCS family case manager Jennifer Starr (“FCM Starr”) was the family case manager for the majority of the case, and when she first began in the case, Parents did not immediately engage in services. At that time, Mother was unable to maintain sobriety, and Father was incarcerated. In August 2022, the trial court issued a periodic case review order and found that the cause of Child's removal had not been alleviated because Parents had only recently re-engaged in services, received services for substance use, and began visiting with Child. The permanency plan remained reunification with Parents. In the November 2022 order on periodic case review, the trial court found that Parents had not kept in contact with DCS, had not engaged in substance abuse services, had not submitted to drug screens, and had not visited Child.

[6] In December 2022, when FCM Starr visited Child in his placement, she noticed that he was “difficult to engage,” lacked social skills, “did not like to make eye contact,” and was usually engaged in viewing either the TV, a phone, or a tablet. Tr. Vol. II p. 45. FCM Starr recognized these as signs of autism and discussed testing with Parents. They were initially hesitant and defensive. FCM Starr also spoke with Grandmother about testing, but she did not think it was warranted and that Child “just had his quirks.” Id. at 47. FCM Starr also discovered that Child's pediatrician had previously advised Parents to have Child evaluated for autism in April 2022, but Parents had not done so because they “were opposed to the evaluation” and “did not feel like he needed it.” Id. at 47–48.

[7] After this reluctance to take Child for an evaluation, DCS petitioned for a court order to have Child complete an evaluation, which the trial court issued. FCM Starr was able to secure an appointment in June 2023 with Dr. Cindy Ross (“Dr. Ross”) after numerous unsuccessful attempts to schedule an appointment with a provider. Dr. Ross was a psychologist with George Junior Republic, which is a service provider for DCS and does home-based case management, home-based therapy, and supervised visits, among other services. At the time of the evaluation, Child was three and a half years old. After completing a neuro-psych evaluation, Dr. Ross diagnosed Child with a language disorder and concluded that his behaviors were “consistent with a diagnosis of autism spectrum disorder.” Id. at 31. She recommended that Child should participate in home-based services that would include “intensive behavioral intervention services specifically designed for youth with autism spectrum disorder” and should be referred to occupational therapy or speech language therapy. Id. Dr. Ross believed that these services would assist with Child's “language development” and “assist with his ability to respond to directions from other people[ ] and participate in social interactions and communication[.]” Id. at 32. Dr. Ross believed that if Child did not receive the recommended services, it could be detrimental to Child.

[8] Parents’ drug use was one of the reasons why DCS removed Child from their care. As part of the dispositional order, Mother was ordered to obtain substance abuse evaluations, attend outpatient substance abuse treatment, and submit to random drug screens. Throughout the case, Mother repeatedly tested positive for THC, which she ingested through vaping. In February 2023, after a permanency hearing, the trial court found that Parents were not complying with the case plan because Mother had not maintained contact with DCS, had not obtained employment, had not yet participated in referred substance abuse treatment, and continued to test positive for methamphetamine and amphetamine and because Father had not maintained contact with DCS, had not obtained employment, had not participated in substance abuse treatment, and did not show up for drug screens. After a permanency hearing held on May 17, 2023, the trial court again found that Parents were not in compliance with the case plan. At that time, Father was incarcerated at the Scott County Jail but had tested positive for drugs in February and March. Although an earlier attempt at inpatient treatment was not successful for Mother, in May 2023, she again began attending inpatient treatment and later completed the program. After completing the program, she moved into a transitional living program, where she stayed for several months.

[9] In September 2023, DCS approved a trial home visit (“THV”) with Mother, and Child moved into a sober living facility with Mother. About a month later, in October, Mother moved back into Grandmother's home with Child. This move concerned DCS because Father's sister, who had a history of substance abuse, also lived in the home. During this THV, Child had an occupational therapy evaluation on October 24, 2023, and a subsequent appointment was scheduled for November 2, which was canceled by Mother. Mother took Child to an appointment on November 9, but Child did not attend any subsequent occupational therapy appointments while in Parents’ care during the THV. The THV was extended because Father was released from jail, and DCS allowed Father to move back into the home with Child in November if he found employment, remained drug free, and repaired his car so he had transportation for employment. Father did not find employment until the fall of 2024. During the THV, concerns arose for DCS because Parents were not engaging in services as required, Child “was not being cared for,” and individuals were living in the home that “had not passed background checks.” Id. at 100–01.

[10] In February 2024, while Child was still in the care of Parents under the THV, Mother told DCS that Child was sick with a fever and had been ill for several weeks. Parents also reported that Child was “pulling at his ear” and woke up with “drainage from his ear so severe that his hair was matted” and that Child's urine smelled sweet. Id. at 54. When asked if she had taken him to the doctor, Mother said that Child's fever had broke when she gave him Tylenol. On February 7, 2024, DCS told Parents that they needed to take Child to the doctor the next day, and Parents did not do so. On February 9, Parents had still not taken Child to the doctor, and Mother reported to DCS that Child had a well check scheduled for March 3, but DCS told her that Child needed to go to the doctor sooner. As a result of Parents’ inaction, DCS petitioned for, and the trial court ordered, that the THV be ended on February 13, 2024. When DCS served the order to remove Child, Parents were very angry, and Father punched the outside of the house, and Mother charged at FCM Starr. Child was then placed in foster care and was placed in his current placement in March 2024, where he remained until the time of the termination hearing. After Child was removed from the THV in February 2024, Parents had supervised visits with Child. They consistently attended these visits and were attentive to Child during the visits. Parents were also consistently engaging in case management services at this point.

[11] On April 10, 2024, DCS filed a petition to terminate Parents’ parental rights to Child. The trial court held the termination fact-finding hearing on November 6, 2024, and February 12, 2025. At the time of the hearing, Child had been under the supervision of DCS for over three years.

[12] At the hearing, evidence was presented that Mother had been in recovery for her substance abuse since she completed inpatient treatment in April 2023. Since that time, Mother was consistent with her counseling appointments with Centerstone but did repeatedly test positive for THC throughout the case. Mother attributed these positive tests to the vaping of legal CBD products, which she used as a coping mechanism for stress. Her recovery coach testified that they were “trying to find other coping skills to use[.]” Id. at 171. Evidence was presented that, although these kind of vaping products are legal, they can still have “psychoactive effects” and “when ingested can cause impairment.” Id. at 22, 25. Evidence was also presented that Father tested positive for THC, methamphetamine, and amphetamine in the beginning of the case, and he last tested positive for methamphetamine and amphetamine in March 2023. Father completed inpatient substance abuse treatment in August 2022, and evidence was presented that while in treatment, “[h]e did everything that was expected of him.” Id. at 179.

[13] Evidence was presented regarding Father's criminal history. At the time of Child's removal, Father had been arrested for multiple drug-related offenses. In 2016, Father was charged with Level 5 felony burglary, Class A misdemeanor theft, Class A misdemeanor possession of marijuana, and Class A misdemeanor possession of paraphernalia and was later convicted of burglary and sentenced to three years with one year executed. In 2018, he was charged with Level 5 felony burglary, Class A misdemeanor criminal trespass, and Class B misdemeanor criminal mischief, and he was later found guilty of both misdemeanor charges and sentenced to 352 days. Then, at the time of Child's removal, he was charged with Level 2 felony dealing in methamphetamine, Level 4 felony possession of methamphetamine, Level 6 felony maintaining a common nuisance, and Class B misdemeanor possession of marijuana. He bonded out of jail in March 2022 but later failed to appear for a hearing, and a warrant was issued for his arrest in April 2023. He was re-arrested and back in jail in May 2023 and then bonded out again in September 2023. He later pleaded guilty to Level 4 felony possession of methamphetamine and was sentenced on May 16, 2024, to 3,650 days with 1,460 days suspended and 2,190 days executed on home detention. At the time of the termination hearing, Father was on home detention in that criminal case. FCM Starr testified that Father was incarcerated for the majority of the CHINS case, and DCS did not refer him to services while he was in jail because “typically services are not permitted ․ while a person is incarcerated” but that she recommended that he “participate in any services that were offered through the Scott County Jail.” Id. at 57.

[14] FCM Starr testified that, at the time of the hearing, Parents had suitable housing and were living in Grandmother's home. At that time, Father had employment but had only secured that employment in September 2024 after not being employed since his release from jail in September 2023. FCM Starr testified that, throughout the case, Mother had sporadic employment and that, although she stated she was employed at the time of the hearing, she had not provided proof of this employment to DCS. Evidence was presented that, prior to the THV, Mother had been doing well with services, but that once the THV began, she began missing appointments, including Child's therapy appointments. The local DCS director testified that, although Parents were engaged in services at the time of the hearing, the reason why DCS opposed reunification was that Parents had not shown that they were able to care for Child “at the level that he need[ed] with his autism diagnosis” and that Parents had shown that they were “unable to [attend necessary appointments] without prompting from service providers[.]” Id. at 109.

[15] Court appointed special advocate Deena Personett (“CASA Personett”) testified that she had been Child's direct advocate since February 2023. When she initially met Child, she stated he did not make eye contact or answer questions, and now he will respond when spoken to and is happy and engaging. She stated that she witnessed this huge growth in Child since March 2024, which was when Child was placed with his current foster parents. CASA Personett testified that, after Child's autism diagnosis, she worked with Mother for seven months to get Child into therapy for his autism without success due to no follow-up from Mother. Father was incarcerated at that time. She stated that, now that Child was in consistent therapy and consistently attending preschool, he has shown significant growth. CASA Personett also stated that, although Child was attending developmental preschool during the THV, Child missed twenty-two days of preschool from August 2023 to February 2024, which spanned the time of the THV. These absences were concerning because the developmental preschool provided important opportunities for Child's social development.

[16] Both FCM Starr and CASA Personett testified that they believed that termination was in Child's best interests. FCM Starr stated that although Parents were doing well in their sober lifestyle, Parents were not able to provide Child with the “type of environment that [he]needs” because Parents had not been able to demonstrate that they were able to get Child to his therapy appointments and other medical appointments and “provide him with ․ [the] stability” he needs to “thrive [and] to be successful.” Id. at 65. FCM Starr testified that Mother's “inability or refusal to seek medical treatment in a timely manner” for Child is what led FCM Starr to believe that Mother was not able to provide the care that Child needs. Id. at 68. FCM Starr testified that, although the original reason for removal, Parents’ substance abuse, had been rectified, Parents had continued to fail to meet Child's medical needs throughout the case. CASA Personett opined that it was in Child's best interests for parental rights to be terminated based on Parents’ track record of not getting him to medical appointments, Child's absences from preschool, and Parents’ inability to provide a stable life for him.

[17] At the conclusion of the termination hearing, the trial court took the matter under advisement. On March 20, 2025, the trial court issued its order terminating Parents’ parental rights to Child. Mother and Father now appeal.

Discussion and Decision

[18] While the Fourteenth Amendment to the United States Constitution protects the traditional right of a parent to establish a home and raise their children, the law allows for the termination of parental rights based on a parent's inability or unwillingness to meet parental responsibilities. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005); In re D.P., 994 N.E.2d 1228, 1231 (Ind. Ct. App. 2013). Thus, parental rights are subordinated to the child's interests in resolving a petition to terminate the parent-child relationship. In re. J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013). The purpose of terminating parental rights is not to punish the parent but to protect the child. In re D.P., 994 N.E.2d at 1231. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The trial court need not wait until the child is irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.

[19] As our Supreme Court has observed, “[d]ecisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts ․” E.M. v. Ind. Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014). In evaluating the trial court's findings and conclusions in an order terminating parental rights, we review only for clear error, and we apply a two-tiered standard of review. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). First, we must determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. “A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment.” Id. If the evidence and reasonable inferences support the trial court's decision, we must affirm. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

I. Findings Supported by the Evidence

[20] Parents assert that several of the trial court's findings were not supported by the evidence presented at the hearing. A finding is clearly erroneous when there are no facts or reasonable inferences drawn therefrom which support it. Stewart v. Randolph Cnty. Off. of Fam. & Child., 804 N.E.2d 1207, 1212 (Ind. Ct. App. 2004), trans. denied. Even erroneous findings are not reversible error if they are harmless. See, e.g., In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“We may reverse a trial court's judgment ․ only if its findings constitute prejudicial error ․ A finding of fact is not prejudicial to a party unless it directly supports a conclusion.”), trans. denied. An erroneous finding is “merely harmless surplusage” when the unchallenged findings “provide ample support for the trial court's ultimate conclusion.” Id.

[21] Mother and Father both assert that Finding 14 was not supported by the record. Finding 14 stated:

14. Throughout the more than three years since [Child] was first removed from their care, both Mother and Father have consistently failed to demonstrate compliance with the dispositional order and the case plan, and failed to provide a safe and stable home for [Child] to return.

Appellant Father's App. Vol. II p. 116. Mother contends that this finding was not supported by the record because the evidence established that she had rectified her substance abuse issues that were the reason that Child was initially removed from her care and that she was “fully compl[ia]nt with the case plan” at the time of the hearing. Appellant Mother's Br. p. 16. Likewise, Father argues that Parents have substantially complied with the dispositional orders and were compliant with services at the time of the hearing.

[22] The evidence presented at the termination hearing demonstrated that, although Parents had substantially rectified their substance abuse issues, Mother was still testing positive for THC, albeit through vaping legal products, and evidence was presented that such products could still have “psychoactive effects” and “cause impairment” when ingested. Tr. Vol. II pp. 22, 25. Further, in their dispositional orders, Parents were ordered to provide Child with “a safe, secure, and nurturing environment that is free from abuse and neglect.” Ex. Vol. III pp. 38, 42. The evidence revealed that Parents delayed getting Child evaluated for autism when alerted to the presence of symptoms, refused to take Child to the doctor after he was sick for several weeks during the THV, failed to take Child to his therapy appointments during the THV, and missed attending multiple therapy appointments with Child when not in the THV. This was sufficient evidence to support Finding 14.

[23] Mother and Father also both challenge Finding 15 as not being supported by the record. Finding 15 stated:

15. A clear pattern has emerged, wherein Mother and Father repeatedly failed to provide medical care to [Child], make and/or attend appointments, refrain from using illegal substances, and Father repeatedly ran afoul of the criminal justice system. These recurring patterns of behavior disrupt [Child's] visits with Mother and Father, disrupt reunification efforts, and have disrupted a trial home visit with [M]other and [F]ather, leading to significant instability for [Child].

Appellant Father's App. Vol. II p. 116. Mother argues this finding was not supported by the evidence because she had rectified her substance abuse issues. Father asserts that the evidence did not establish a “clear pattern” of failing to provide medical care for Child or failing to attend medical appointments because Child was not in their care for a substantial period of time while the case was pending. Father also argues that there is no clear pattern of him running afoul of the criminal justice system because there is no evidence of any criminal activity after September 2021.

[24] As stated above, the evidence presented at the termination hearing demonstrated that Mother continued to test positive for THC throughout the case, which could still affect her judgment and cause impairment. Additionally, the evidence revealed that Parents repeatedly failed to provide medical care to Child by delaying getting Child evaluated for autism, refusing to take Child to the doctor after he was sick for several weeks during the THV, and failing to attend Child's therapy appointments both while the THV was in place and when it was not. Further, there was evidence that Father was arrested on multiple felonies at the time Child was removed and that he remained incarcerated for a significant time during the CHINS case as he was re-arrested after being bonded out because he failed to appear at a hearing. All of these circumstances contributed to disrupting Child's reunification efforts and the THV, which in turn led to instability for Child. There was sufficient evidence to support Finding 15.

[25] Father individually asserts that additional findings were not supported by the evidence. Specifically, he points to Findings 16 and 18, which stated:

16. The criminal history of [Father], as evidenced by court record[s] introduced by DCS at this hearing, highlight this pattern [of running afoul of the criminal justice system].

18. Father's ongoing pattern of criminal behavior, and the effects that patterns [sic] has on Father's relationship with [Child], has undoubtedly impacted [Child] over the three plus years the CHINS has remained open.

Id. Father contends that the record did not support that he had an ongoing pattern of criminal behavior and that there was no evidence of criminal activity after September 2021. The evidence at the hearing established that at the time of Child's removal, Father had been arrested for multiple drug related offenses. As a result of these offenses, he was incarcerated for almost six months before he bonded out of jail in March 2022. However, he failed to appear for a hearing and was re-arrested in May 2023, resulting in him being incarcerated until September 2023. FCM Starr testified that Father was incarcerated for the majority of the CHINS case. This incarceration clearly impacted Father's ability to parent Child and to maintain a stable relationship with Child. Sufficient evidence was presented to support Findings 16 and 18.

[26] Father next challenges Finding 21, which stated:

21. The Court heard testimony from FCM Jennifer Starr that she has been the FCM for the majority of the case. When [Child] was removed, he was placed with paternal grandmother. Visits between [P]arents and [Child] were in the home of the paternal grandmother. Parents only attended 6% of the scheduled visits but visits were moved to the DCS office.

Id. at 117. Father argues that the evidence did not support this finding, asserting that Parents’ “visitation attendance improved tremendously in February of 2024” and that they “demonstrate[d] exemplary parenting during visits” at the time of the hearing. Appellant Father's Br. p. 29. However, it seems that Father reads this finding as setting out their visitation attendance over the life of the case. However, the finding merely sets out their attendance at the beginning of the case. Testimony from FCM Starr established that, when the case first began, Parents did not engage in services and only “participat[ed] in visitations sporadically” and that, between October 2021 and February 2022, there were eighteen visits offered and Mother only “attended six percent of those.” Tr. Vol. II pp. 43–44. At that time, Father was incarcerated and therefore did not attend the visits. The evidence supported Finding 21.

[27] Lastly, Father argues that Findings 24 and 25 were not supported by the evidence. Those findings provided:

24. When FCM Starr became [Child's] family case manager [Child] was difficult to engage and had no social skills. [Child] would not make eye contact, would not acknowledge her if she spoke to him, and was usually engaged in watching some kind of media whether it be TV, a phone, or on an i[P]ad. [DCS] suggested getting [Child] evaluated for Autism Spectrum Disorder but the family was adamant that [Child] did not need to be evaluated. [Child's] pediatrician advised [P]arents that he should evaluated for [autism spectrum disorder] after he failed the MC[H]AT a second time.

25. Parents did not have [Child] evaluated, FCM Starr broached the subject with parents again and they did not think it was a priority and failed to schedule an assessment, [DCS] was forced to ask the court to order placement (paternal grandmother) and [P]arents to allow [DCS] to have [Child] evaluated. [Child] was scheduled for an evaluation in September 2023 but was placed on a cancelation listed. In June 2023, Dr. Ross's office contacted [DCS] with a cancellation appointment and would be able to see [Child] that June. Placement advised the doctor's office that they would keep the appointment in September. When FCM spoke with placement she stated that she would not take [Child] to his evaluation until September and if [DCS] wanted him evaluated prior to that FCM Starr would have to take[Child] herself. FCM Starr transported [Child] to his evaluation and he was diagnosed with language disorder, and autism spectrum disorder.

Appellant Father's App. Vol. II p. 117. Father's challenge to these findings seems to focus on the inference to be drawn from the findings that they were to blame for the delay in getting Child evaluated for autism and argues that Child was not in their care when the delay in evaluation occurred. The evidence established all of the operative facts contained in the challenged findings and that, although Parents did not have custody of Child during this time, they were opposed to Child getting evaluated and “did not feel like he needed it.” Tr. Vol. II pp. 47–48. Such opposition to obtaining medical care and evaluation for Child when not in their care, bears on their ability to parent and obtain medical care for Child without DCS involvement. Findings 24 and 25 were supported by the evidence.

II. Sufficient Evidence for Judgment

[28] Both Mother and Father challenge the sufficiency of the evidence supporting the trial court's decision terminating their parental rights to Child. Before an involuntary termination of parental rights may occur, the State must allege and prove:

(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). As stated above, a petition must allege the existence of one or more of the circumstances contained in subsection (d). Here, the pertinent alleged circumstance was:

(2) That:

(A) 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; 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.

I.C. § 31-35-2-4(d)(2). The State's burden of proof for establishing these allegations is one of clear and convincing evidence. In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). Moreover, “if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a) (emphasis added).

[29] Parents first argue that DCS failed to prove the alleged circumstance under subsection (d)(2). The trial court concluded that Child had been “removed from [Parents] and ha[d] been under the supervision of [DCS] for a least fifteen of the last twenty-two months” and “despite reasonable efforts being made by DCS, [Parents] have been unable to remedy the circumstances that led to his removal.” Appellant Father's App. Vol. II pp. 116, 121. Parents do not argue that DCS failed to prove that Child had been removed from them and under the supervision of DCS for at least fifteen of the most recent twenty-two months under subsection (d)(2)(A). Instead, Parents argue that DCS did not prove that they had been unable to remedy the circumstances that resulted in Child's removal form their care and that DCS made reasonable efforts to preserve and reunify Child's family under subsection (d)(2)(B).

[30] Although subsection (d)(2) is worded differently than subsection (d)(3), both subsections focus on the parent's ability to remedy the circumstances that resulted in the child being removed from the home or placed in care outside the home, and we therefore, take guidance from case law applying subsection (d)(3) in how to determine if sufficient evidence was presented to prove subsection (d)(2). In making a determination regarding whether a parent has been unable to remedy the circumstances that led to a child's removal or ongoing placement outside the home, the trial court must judge a parent's fitness at the time of the termination hearing, taking into consideration evidence of changed conditions and balancing a parent's recent improvements against “ ‘habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.’ ” E.M., 4 N.E.3d at 643 (quoting K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013)). Trial courts can “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.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct. App. 2011). “We entrust th[e] delicate balance to the trial court, which has [the] 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. When determining whether the conditions that impeded reunification with parents have been remedied, the trial court may consider the parent's response to the offers of help from DCS or the service providers. D.B., 942 N.E.2d at 873.

[31] Here, Child was removed because of Parents’ substance abuse. Parents both argue that the evidence established that they had both remedied this circumstance and were in compliance with services at the time of the hearing. Although there was evidence that the original reason for removal had been rectified, as Parents had completed inpatient treatment and had mostly clean drug screens at the time of the hearing, Mother was still frequently testing positive for THC, which could still have “psychoactive effects” and “cause impairment” when ingested. Tr. Vol. II pp. 22, 25. More troubling, when Parents were allowed a THV in September 2023, Child was again removed from their care. Child's second removal from the home occurred in February 2024. FCM Starr testified that the THV ended because at that time, Parents were not fully engaged in services, Child had missed therapy appointments, Father's sister was residing in the home without a background check, and Child had been sick for a significant period of time without Parents taking him to the doctor. FCM Starr also testified that, when the THV ended, Child, who was over four years old, was still not “making very good eye contact,” did not have age-appropriate communication and social skills, and was not potty trained. Id. at 63. She said that Child had been in DCS custody for more than three years and Parents were not able to provide the type of environment that Child currently needed. FCM Starr stated that, although Parents were doing well in their sober lifestyle, they were not able to “demonstrate that they can ․ obtain medical care when needed” or get Child to his necessary appointments for his therapies or pediatrician appointments. Id. at 65. This evidence established that the “inability or refusal to seek medical treatment in a timely manner” was what DCS believed demonstrated that Parents had been unable to remedy the circumstances that resulted in Child being placed in care outside their home. Id. at 68, 81, 109.

[32] Father also argues that the evidence did not prove that DCS made reasonable efforts to preserve and reunify the family as required under subsection (d)(2)(B). Father asserts that DCS did not fulfill this requirement because it made no effort to provide services to Father while he was incarcerated and because DCS refused to decrease the supervision level of visits when it was recommended by the visitation supervisor in October 2024. Under Indiana Code section 31-34-21-5.4, if a child has been removed from the parents’ home, DCS shall make reasonable efforts to preserve and reunify families by making “it possible for the child to return safely to the child's home as soon as possible.” I.C. § 31-34-21-5.5(b)(2). Here, the evidence revealed that DCS did allow Child to return home under the terms of the THV which began in September 2023. DCS even extended the THV when Father bonded out of jail and allowed him to return to the home with certain conditions of obtaining transportation and employment and remaining drug free. However, as explained above, the THV ended in February 2024 because of Parents’ inability and refusal to obtain medical assistance when Child was sick for multiple weeks, failure to maintain engagement in services and attend Child's therapy appointments, and acquiescence to Father's sister residing in the home without a background check.

[33] DCS provided Parents an opportunity to demonstrate their ability to care for Child in their home and to ensure that Child was well taken care of and safe in their care. However, the evidence showed that Parents failed this opportunity. It was reasonable for the trial court to infer from Parents’ failure to take medical action for Child's fever and illness while in their care during the THV that Child will not receive the necessary medical care in light of his autism diagnosis. Ample evidence was presented that Parents did not take Child's medical and therapeutic needs as seriously as his diagnosis required as they missed numerous appointments and allowed Child to miss twenty-two days of his developmental preschool during the THV. Evidence was presented that Child rapidly progressed when he consistently attended preschool and attended his therapy appointments. Based on the foregoing, we conclude that there was sufficient evidence supporting the trial court's conclusion that despite DCS's reasonable efforts to preserve and reunify the family, Parents had been unable to remedy the circumstances that resulted in Child being placed in care outside Parents’ home.²

[34] Parents next argue that DCS failed to present clear and convincing evidence that termination of the parent-child relationship was in Child's best interests. In determining what is in the best interests of the child, a trial court is required to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed. In doing so, the trial court must subordinate the interests of a parent to those of the child. Id. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied). A parent's historical inability to provide a suitable, stable home environment along with the parent's current inability to do so supports a finding that termination is in the best interests of the child. In re A.P., 981 N.E.2d at 82. Testimony of the service providers, in addition to evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child's best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied. Before terminating the parent-child relationship, the trial court need not wait until a child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired. In re A.K., 924 N.E.2d at 224. Additionally, a child's need for permanency is an important consideration in determining the best interests of a child. Id. (citing McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

[35] Our review of the totality of the evidence reveals that, at the time of the termination hearing, although Parents were substantially maintaining their sobriety, they had not been able to maintain compliance with their responsibility to provide Child with “a safe, secure, and nurturing environment that is free from abuse and neglect.” Ex. Vol. III pp. 38, 42. Their failure to ensure Child receive necessary medical care and attend the necessary appointments demonstrated their inability to do so. Further, at the time of the hearing, Child has been removed from Parents’ home for over three years. Both FCM Starr and CASA Personett testified that it was their belief that termination was in Child's best interests. FCM Starr testified that Parents were not able to provide Child with the environment that Child needed because of their demonstrated unwillingness to get Child to his therapy appointments and other medical appointments and to provide him with the stability he needs to thrive. She further stated that Parents had continued to fail to meet Child's medical needs throughout the case. CASA Personett opined that it was in Child's best interests for parental rights to be terminated because of Parents’ history of not getting him to medical appointments, Child's absences from school while on the THV, and Parents’ inability to provide stability for him. The evidence also revealed that Child was thriving in his foster placement, and while he did not have age-appropriate communication skills and was not potty trained at the time the THV ended, by February 2025, Child was making eye contact, was potty trained, had progressed in his social skills, and no longer needed occupational therapy or speech therapy.

[36] The trial court “need not wait until a child is irreversibly influenced by a deficient lifestyle such that her physical, mental, and social growth is permanently impaired before terminating the parent-child relationship.” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 649 (Ind. 2015). Looking at the totality of the evidence, the trial court's conclusion that termination of Parents’ parental rights was in Child's best interests was supported by clear and convincing evidence.

Conclusion

[37] We, therefore, conclude that the challenged findings were supported by sufficient evidence, and the trial court did not err in its judgment terminating Parents’ parental rights to Child.

[38] Affirmed.

FOOTNOTES

1.   Although the twins and Child were initially removed at the same time and subject to a CHINS petition at the same time, the twins are not part of this appeal as they were not subject to the termination petition at issue.

2.   Father also raises an argument that DCS failed to make reasonable efforts to preserve the parent-child relationship as a “separate and independent ground requiring reversal of the termination of Father's parental rights.” Appellant Father's Br. p. 36. However, Father has waived this argument for failure to develop a cogent argument or cite to supportive legal authority. See Ind. Appellate Rule 46(A)(8)(a) (requiring each contention be supported by cogent reasoning and citations); A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1156 n. 4 (Ind. Ct. App. 2013) (failure to support arguments with cogent reasoning results in waiver on appeal), trans. denied.

Foley, Judge.

May, J. and Altice, J., concur.