P.F. (Mother) and L.J. (Father), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] S.J. was born with cocaine in his system and a serious heart defect. His mother, P.F. (Mother), admitted that she used alcohol, THC, and cocaine on the day she went into labor. During the subsequent investigation by the Indiana Department of Child Services (DCS), Mother and S.J.’s father, L.J. (Father), tested positive for cocaine. S.J. was placed in foster care and declared a Child in Need of Services (CHINS).

[2] In the 17 months that followed S.J.’s removal, neither Mother nor Father resolved their substance use, despite receiving treatment. They arrived at visits smelling of cigarette smoke despite orders to the contrary from S.J.’s doctor and the court, and they did not attend a single cardiology appointment for S.J. Even after DCS petitioned to terminate Mother's and Father's parental rights, they both tested positive for cocaine. The trial court terminated their parental rights, and Mother and Father each appeal. We affirm.

Facts

[3] S.J. was born in late January 2024, a few weeks premature and weighing 4 pounds, 13 ounces. He had a serious congenital heart defect. A blood sample from his umbilical cord was collected for testing, and S.J. was released into the care of Mother and Father (collectively, Parents) with instructions to bring S.J. back to the hospital in a few weeks for a cardiac surgery.

[4] A few days later, DCS was notified that S.J.’s cord blood had tested positive for cocaine, cocaine metabolites (benzoylecgonine), and THC. DCS initiated an investigation. Mother told the DCS investigator that, on the day she went into labor, she consumed two shots of alcohol, cocaine, and THC. Mother also admitted that during her pregnancy, she consumed marijuana in the morning and evening to help with nausea. She attended only two prenatal appointments, during which she was warned that S.J. might have a heart defect. It was recommended that she travel to Riley Children's Hospital to deliver in case S.J. needed surgery, but she did not go to Riley.

[5] The DCS investigator administered multiple drug screens to Parents. On February 9, 2024, Mother tested positive for cocaine and Father refused the screen. On February 12 and 17, Parents both tested positive for cocaine.

[6] Meanwhile, S.J. had been scheduled for a cardiac surgery on February 19 at Riley, but doctors requested Parents bring S.J. in on February 17 to prepare for surgery. Parents instead decided to visit relatives and told the investigator that they had no concerns about getting to the hospital on February 19. But on the morning of the surgery, Parents told the investigator that they were having car issues. Parents eventually arrived at Riley, but S.J. could not undergo surgery that day because he was underweight.

[7] A few days later, DCS removed S.J. because DCS was “unable to locate a sober caregiver.” Tr. Vol. II, p. 28. Soon after, DCS petitioned to adjudicate S.J. as a CHINS based on Mother's active substance use, Father's history of drug-related offenses, and S.J.’s medical needs. Parents entered into a CHINS mediation agreement, in which they admitted to the relevant allegations.¹ Parents also agreed that, with support and services, they were willing to provide S.J. with “appropriate care and supervision at all times and a safe and stable home free from substance/drug abuse.” Exhs. Vol. I, p. 124.

[8] The trial court deemed S.J. a CHINS based on the mediation agreement and later entered its dispositional order. Among other things, the order required that Mother and Father: (1) complete a diagnostic assessment and follow its recommendations; (2) complete a drug and alcohol assessment and follow its recommendations; (3) submit to random drug screens; (4) refrain from the use of alcohol, illegal drugs, and other substance abuse; and (5) engage in visitation.

[9] Parents began visitation with S.J. through Lifeline around March 2024, with visits occurring at the Lifeline office twelve hours per week. Around this same time, Mother began substance use treatment and therapy through the Bowen Center. She was diagnosed with cocaine use disorder, alcohol use disorder, and major depressive disorder. She attended group and individual therapy regularly for a few months but cancelled her July 2024 individual therapy session and lost contact with her therapist.

[10] At a CHINS case review hearing a few months later, in August 2024, Mother was found to be participating in services and visitation but had “tested positive for illegal substances during the current reporting period.” App. Vol. II, p. 20. Father's engagement in services could not be confirmed, though he claimed that he also was working with the Bowen Center. The court found that both Parents “deny every positive screen received by the Department.” Id.

[11] By the fall of 2024, medical providers recommended another cardiac surgery for S.J. But Mother and Father refused to consent to the procedure until DCS gave them in-home visitation with S.J. After DCS agreed to their request, Parents gave their consent. In the weeks leading up to the surgery, visits occurred in Parents’ home. The visitation supervisor reported that Parents were engaged with S.J. and that their home was generally appropriate, though it smelled strongly of cigarette smoke, with cigarette butts in the trash and bathroom sink.

[12] Then, in mid-November 2024, S.J. underwent a complex cardiac surgery. His heart muscle had become extremely thick, and the surgeon had to carve out large portions of it. A second hole in S.J.’s heart was identified. As the surgery was ending, unoxygenated blood began to leak into S.J.’s heart, and surgeons had to conduct another emergency operation. S.J. remained on ventilation for weeks while surgeons figured out how to resolve the issue, as S.J.’s heart tissue was too weak to sew together. He was emergently intubated several times and suffered a vocal cord injury as a result, requiring a feeding tube. S.J. eventually had a second procedure, about four weeks after the first, during which a small device was inserted to hold the repair in place. Still, a leak remained, which required further monitoring.

[13] S.J. spent 74 total days in the hospital during this round of surgeries. During this time, S.J.’s foster parents stayed with S.J. at all times. Lifeline also provided visitation services for Parents. However, visits were complicated by miscommunications and logistical challenges, including Parents’ refusal to walk past S.J.’s foster parents in the hallways. The foster mother reported that interactions with Parents were “difficult and unpleasant.” Id. at 33. When visits occurred, Parents appeared to be careful with S.J. and aware of his condition. But on multiple occasions, Parents left the visit early, leaving S.J. alone.

[14] In January 2025, S.J. was discharged from the hospital into the care of his foster parents. Supervised visitation resumed with Parents through Lifeline. Visits were moved back to the Lifeline office because it was closer to the foster parents’ home and because Parents’ home smelled strongly of cigarette smoke. S.J.’s pediatrician had directed that S.J. not be exposed to cigarette smoke, including passive smoke. However, even at the Lifeline facility, the odor of smoke remained an issue.

[15] After a case review hearing in mid-February 2025, the trial court found that Parents “continue to appear at visits smelling of smoke, which is contrary to [S.J.’s] discharge instructions.” Exhs. Vol. I, p. 160. The court further found that Parents “have not participated in [S.J.’s] treatment and have not followed his treatment recommendations.” Id. It ordered Parents to change their clothes and wash their hands before visits, warning that visits “shall be cancelled” if the visitation supervisor smells smoke on either parent. Id. The court also changed the permanency plan to termination with adoption.

[16] A week later, Parents arrived for a visit smelling strongly of smoke, and the visit was ended. Lifeline offered Parents the option to leave an extra set of clothes at the office, but they declined. The next day, the visitation supervisor noticed a faint smell of smoke on Parents that appeared to be covered up with perfume. She reported it to DCS staff, who instructed her to end the visit. Father became “very aggressive” and called the supervisor “a f**king liar.” Tr. Vol. II, p. 48. He asked the supervisor's manager to smell S.J.’s car seat to see if the smell had come from his foster placement. The manager responded that she did not need to because the room smelled of cigarette smoke. Parents left, and Lifeline cancelled the referral.

[17] On April 8, 2025, DCS petitioned to terminate Mother's and Father's parental rights as to S.J., and the trial court scheduled a fact-finding hearing for late July 2025. In the meantime, Parents were assigned a new visitation provider, and supervised visits proceeded without any reported issues. Father then tested positive for cocaine twice in May 2025. Mother tested positive for cocaine twice in June 2025 and tested positive for THC twice in early July 2025.

[18] At the outset of the fact-finding hearing on July 28, 2025, the parties stipulated to the admission of exhibits. These exhibits included records of Father's prior convictions for offenses such as possession of a controlled substance and dealing in a synthetic drug. The exhibits also included records of Mother's prior conviction for possession of marijuana. Additionally, the exhibits included numerous drug screens: 22 tests from January to March 2025, privately obtained by Parents showing negative results; and 8 screens performed by Cordant, DCS's provider, from March to July 2025 showing positive results for both Mother and Father.

[19] DCS's Family Case Manager (FCM) testified that, although Parents had participated in services, they had not achieved sustained sobriety. She concluded that termination was in S.J.’s best interests. The FCM explained that Parents repeatedly tested positive for cocaine on DCS's screens and never took responsibility for the results, claiming they were falsified. She observed that DCS's oral drug screens have a lower cutoff for substances than urine screens. The FCM added that the practice of DCS's drug screen provider is to conduct a second test to verify a positive result.

[20] Father's counselors from the Bowen Center testified that he had engaged in treatment and completed the group counseling program. However, he tested positive for alcohol on all but one of the 8 or 10 screens administered. Father tested negative for cocaine on the Bowen Center's urine screens and told his counselors that the positive tests from DCS were inaccurate or falsified. The counselor concluded that Father's recovery status was “uncertain.” Id. at 123.

[21] Mother's counselors from the Bowen Center similarly testified that Mother had participated somewhat regularly in programs but had not reached her goal of sobriety. Mother's individual counselor testified that she worked with Mother from April to June 2024 and then went eight months without meeting before sessions resumed in March 2025. She opined that Mother was “at the action stage” of recovery because Mother “knows what to do but she's not implementing the skills that she's learning.” Id. at 64, 66. Mother's recent screens were positive for alcohol, but she blamed the results on cold medication and declined medication-assisted treatment for her alcohol use.

[22] Lifeline's visitation supervisor testified that Parents were engaged with S.J. during visits, then recounted the disagreement with Parents over the cigarette smoke which resulted in the closure of the referral. The supervisor testified that she was concerned by Parents’ lack of understanding of S.J.’s medical condition and their resistance to his surgery.

[23] S.J.’s pediatrician testified that S.J. “has a very complex congenital heart disease” that “has complicated his health.” Id. at 87. The pediatrician explained that S.J.’s condition was being managed but needed “very close follow up with a pediatric cardiologist” and medications. Id. at 90. He recounted that he had met Parents at three of S.J.’s pediatric appointments and had no concerns about Parents being around S.J. at that time. The pediatrician testified that S.J. should not be around secondhand cigarette smoke or even the smell of smoke on clothing.

[24] S.J.’s current foster mother (Foster Mother), who is a registered nurse, testified that the child, then eighteen months old, was doing well in her care but still medically fragile. He had a significant leak in his heart that needed to be monitored, three holes that surgeons hoped would eventually scar over, and a permanent ventricular defect. She explained that S.J. will require future surgery, is still not eating well or walking, and “has to have an eye on him all the time.” Id. at 107. Foster Mother testified that Parents had not attended any of the five cardiology appointments for S.J. She also testified that she was considering adopting S.J. even though she does not typically foster to adopt, stating that she will “be there for that child for his life.” Id.

[25] The court-appointed special advocate (CASA) testified that termination was in S.J.’s best interest. She explained that Mother and Father continued to test positive for drugs while denying their use, which is especially “concerning” given S.J.’s “very complex[ ] medical needs.” Id. at 147.

[26] Finally, Mother and Father each testified that they disputed the accuracy of DCS's positive drug screens. Father denied ever using cocaine. Mother claimed that she was “sober since this case has started besides the minor slip-ups with drinking.” Id. at 154. She acknowledged that she had been diagnosed with depression and was not taking any medication to treat it, stating: “I know I don't need medication.” Id. at 156.

[27] The trial court ultimately terminated Mother's and Father's parental rights as to S.J., and Parents separately appealed.

Discussion and Decision

[28] A parent's right to establish a home and raise their children is protected under the Fourteenth Amendment to the United States Constitution. In re A.L., 223 N.E.3d 1126, 1137 (Ind. Ct. App. 2023), trans. denied. However, these parental rights “must be subordinated to the child's interests” when determining whether termination is warranted. Id. Termination is appropriate when parents are “unable or unwilling to meet their parental responsibilities.” Id.

[29] To terminate the parent-child relationship, DCS must prove three elements by clear and convincing evidence: (1) that termination is in the child's best interests; (2) that there is a satisfactory plan for the child's care; and (3) that one or more of the circumstances described in Indiana Code § 31-35-2-4(d) exists. Ind. Code § 31-35-2-4(c) (2024) (elements for termination); In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (clear and convincing evidence standard). Here, DCS alleged that two subsection (d) circumstances existed:

• that there is a reasonable probability the conditions that resulted in S.J.’s removal or placement outside the home will not be remedied, and

• that there is a reasonable probability the continuation of the parent-child relationship poses a threat to S.J.’s well-being and safety.

See generally Ind. Code § 31-35-2-4(d)(3), (4) (2024).

[30] The trial court determined that both subsection (d) circumstances existed and that all three termination elements were proven by clear and convincing evidence as to both Parents. In turn, the court terminated Mother's and Father's parental rights as to S.J. and entered findings of fact and conclusions of law in support of its determination.

[31] Accordingly, we apply a two-tiered standard of review: we first determine whether the evidence supports the findings and then whether the findings support the judgment. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). We consider only the evidence and reasonable inferences supporting the judgment, without reweighing evidence or judging witness credibility. Id. We accept the unchallenged findings as true. Matter of De.B., 144 N.E.3d 763, 772 (Ind. Ct. App. 2020). The trial court's judgment will be set aside only if it is clearly erroneous. In re V.A., 51 N.E.3d at 1143.

[32] On appeal, Father challenges only the determination that both subsection (d) circumstances exist.² Mother also disputes this determination as well as the trial court's conclusion that termination was in S.J.’s best interests.³ Neither parent disputes that there is a satisfactory plan for S.J.’s care. We address the two challenged elements in turn and affirm.

I. Subsection (d) Circumstances

[33] The trial court found both alleged subsection (d) circumstances existed here: (1) a reasonable probability that the conditions resulting in the child's removal will not be remedied; and (2) a reasonable probability that the continuation of the parent-child relationship poses a threat to the child's well-being. Ind. Code § 31-35-2-4(d)(3), (4) (2024). Because Indiana Code § 31-35-2-4(d) is written in the disjunctive, proof of one subsection (d) circumstance is sufficient to support termination. In re J.W., 259 N.E.3d 1039, 1045 (Ind. Ct. App. 2025), trans. denied. Here, we address only subsection (d)(3), which is dispositive.

[34] In determining whether there is a reasonable probability the conditions resulting in removal will not be remedied, we engage in a two-step inquiry. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we identify the reasons for removal or continued placement outside the home before determining whether there is a reasonable probability those conditions will not be remedied. Id. The trial court assesses parental fitness “as of the time of the termination proceeding.” Id. (quoting Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 152 (Ind. 2005)). However, the court must ultimately balance a parent's recent improvements against “habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Id. (quoting K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013)).

[35] At removal, S.J. was underweight with a serious heart condition requiring medical treatment. During DCS's initial investigation, Parents both tested positive for cocaine multiple times. They had also failed to follow the hospital's directive to bring S.J. to the hospital ahead of his scheduled surgery, and the operation was delayed. DCS thereafter removed S.J. because he had “no sober caregiver” and serious medical concerns. Exhs. Vol. I, p. 115. In the subsequent CHINS proceeding, Parents agreed that, with support, they were willing to provide S.J. with “appropriate care and supervision at all times and a safe and stable home free from substance/drug abuse.” Id. at 124.⁴

[36] By the time of the termination hearing, Parents had participated in services and visited with S.J. regularly, but neither had achieved sustained sobriety. Parents each tested positive for illicit substances not long before the termination hearing but adamantly denied their drug use.

[37] Father tested positive for cocaine twice in May 2025, just two months before the July 2025 fact-finding hearing. He repeatedly tested positive for alcohol at the Bowen Center, even though the CHINS dispositional order required him to abstain from various substances, including alcohol. Though Father engaged in treatment and completed group counseling, this participation was not sufficient for Father to achieve sobriety or even acknowledge his substance use.

[38] Mother tested positive for cocaine twice in June 2025 and for THC twice in July 2025—mere weeks before the fact-finding hearing. Though she was also engaged in counseling services, she remained in the “action stage” of recovery because she was not implementing the skills she was learning. Tr. Vol. II, p. 64. Mother also repeatedly tested positive for alcohol at the Bowen Center and blamed it on cold medicine. She later admitted at the fact-finding hearing that she had “minor slip ups with drinking.” Id. at 154.

[39] Though Parents presented records of their privately-obtained drug screens showing negative results from January to March 2025, these do not rebut the positive screens from DCS, which occurred months later. In any case, it was the trial court's role to weigh the evidence surrounding Parents’ drug use, and we will not reweigh that evidence on appeal. See In re G.Y., 904 N.E.2d at 1260.

[40] Parents’ substance use is particularly concerning given S.J.’s serious medical condition. The child “has to have an eye on him all the time” and has a leak in his heart that requires close monitoring. Tr. Vol. II, p. 107. Parents “have not been actively involved with [S.J.’s] medical care,” as they failed to attend any of S.J.’s cardiology appointments, left visits with S.J. at the hospital early, withheld consent for procedures, and did not comply with the court's order prohibiting S.J. from exposure to indirect cigarette smoke. App. Vol. II, p. 34. Parents’ visitation supervisor was concerned that Parents did not appear to understand S.J.’s medical condition.

[41] Considering this evidence of Parents’ continued drug use and minimal involvement in supporting S.J.’s complex medical needs, the trial court did not err in concluding that there exists a reasonable probability the conditions resulting in S.J.’s removal will not be remedied.

II. Best Interests of the Child

[42] Mother also appeals the trial court's determination that termination was in S.J.’s best interests. When determining the best interests of a child, the trial court must consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013). In so doing, the court “must subordinate the interests of the parent to those of the child” and “need not wait until a child is harmed irreversibly before terminating the parent-child relationship.” Id. at 290.

[43] Here, both the FCM and the CASA testified that termination was in S.J.’s best interest. Both cited concerns about Parents’ continued substance use and S.J.’s complex heart condition, which requires close monitoring and ongoing treatment. “Recommendations of the case manager and court-appointed advocate, in addition to evidence 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.” Id.

[44] As discussed in the previous section, the concern that prompted S.J.’s removal—the lack of a sober caregiver for S.J. and his complex medical needs—had not been remedied in the 17 months between removal and the termination fact-finding hearing. Neither Mother nor Father had achieved sustained sobriety, as both had recent positive drug tests for cocaine. Parents had not attended a single cardiology appointment for S.J. despite S.J.’s need for ongoing care. “A parent's historical inability to provide a suitable environment, along with the parent's current inability to do the same, supports finding termination of parental rights is in the best interests of the children.” Id.

[45] Mother's best-interests argument centers largely on the cigarette smoke directive—whether it extended to odor on clothing and whether such exposure posed a risk to S.J. But when S.J.’s pediatrician was asked if S.J. should be around “secondhand smoke or even ․ the smell of smoke on clothing,” he responded that “he shouldn't be[,] no.” Tr. Vol. II, p. 90. Moreover, when the court ordered Parents not to smell of smoke at visits, they failed to comply or accept Lifeline's accommodation. This reflects that Parents “have demonstrated an inability and/or refusal to put their child's needs first.” App. Vol. II, p. 32.

[46] Finally, Mother essentially asks that S.J. wait in foster care as she continues to work through her substance abuse treatment, citing In re G.Y., 904 N.E.2d 1257, and In re J.M., 908 N.E.2d 191 (Ind. 2009). But both cases involve incarcerated parents who made good faith efforts in services despite the restrictions of their incarceration. Here, no such restrictions prevented Mother's progress. Mother has already had over a year to progress through her treatment program and still tested positive for multiple substances just weeks before the termination hearing. “[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification.” In re E.M., 4 N.E.3d at 648.

Conclusion

[47] We find no error in the trial court's determination that there is a reasonable probability the conditions resulting in S.J.’s removal—the lack of a sober caregiver for the child with complex medical needs—will not be remedied. Parents were unable to achieve sustained sobriety over the 17 months of the CHINS case and tested positive for cocaine a few months before the fact-finding hearing. Parents did not attend S.J.’s cardiology appointments. We also find no error in the court's determination that termination was in S.J.’s best interests. We affirm the termination of Mother's and Father's parental rights as to S.J.

FOOTNOTES

1.   Per the CHINS mediation agreement, Father did not admit to the allegations that he tested positive for cocaine twice in February 2025.

2.   DCS argues that Father waived his challenge to the termination order because his appellate brief fails to comply with Indiana Appellate Rule 46(A)(8)(a). That rule requires that the appellant's argument be supported by cogent reasoning and citations to authority and the record. App. R. 46(A)(8)(a). DCS's concern is well-taken. Father's brief simply asserts, without citation to the record or any legal authority, that visits went well, the smoke issue was resolved, his home was appropriate, and his substance use was not the reason for removal. Bare conclusions disputing the trial court's findings are not a legal argument, and they are particularly inadequate here: to prevail, Father must show the trial court's judgment is clearly erroneous, which requires identifying specific findings alleged to be unsupported and citing authority demonstrating why no reasonable factfinder could have made them. Because Father does neither, his argument section does not constitute cogent reasoning under Rule 46(A)(8)(a). While Father's appeal could be dismissed due to this lack of cogent briefing, this Court prefers to decide appeals on their merits where possible, especially when claims have a constitutional dimension. See Hoback v. State, 225 N.E.3d 208, 211 (Ind. Ct. App. 2023).

3.   Mother also purports to challenge four factual findings. However, three are not factual findings but conclusions on the termination elements, which she separately challenges. Mother challenges the portion of Finding 17 which states that she has not benefitted from therapy, but she provides no further argument as to why that finding is erroneous. This failure to make a cogent argument constitutes waiver. See App. R. 46(A)(8)(a). Waiver aside, Finding 17 is supported by Mother's continued substance use and the testimony of Mother's counselor, who stated that Mother is still in the “action stage” of recovery because “she knows what to do but she's not implementing the skills that she's learning.” Tr. Vol. II, pp. 64, 66.

4.   Father makes the conclusory assertion that his “substance abuse was not the reason that the child was removed.” Father's Br., p. 18. But S.J. was explicitly removed due to the lack of a sober caregiver. Father was drug tested during DCS's initial investigation, making clear his substance use was at issue. The CHINS mediation agreement stated that Mother and Father would provide a stable home “free from substance/drug abuse,” and the dispositional order required Father to follow the recommendations of a drug and alcohol assessment and submit to random drug tests. Exhs. Vol. I, p. 120.

Weissmann, Judge.

Bailey, J., and Brown, J., concur.