In the Matter of the Involuntary Term. of the Parent-Child Relationship of V.F. and S.F. (Minor Children) and S.C. (Mother) and J.F. (Father) v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Apr 18 2016, 8:34 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Derick W. Steele Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary April 18, 2016
Termination of the Parent-Child Court of Appeals Case No.
Relationship of V.F and S.F. 34A05-1508-JT-1291
(Minor Children) Appeal from the Howard Circuit
Court
and The Honorable Lynn Murray,
Judge
S.C. (Mother) and J.F. (Father), Trial Court Cause Nos.
34C01-1502-JT-27, -28
Appellants-Respondents,

v.

Indiana Department of Child
Services,

Court of Appeals of Indiana | Memorandum Decision 34A05-1508-JT-1291 | April 18, 2016 Page 1 of 15
 Appellee-Petitioner

Crone, Judge.

Case Summary
[1] S.C. (“Mother”) and J.F. (“Father”) (collectively “Parents”) appeal the trial

court’s order involuntarily terminating their parental relationship with their

minor children V.F. and S.F. (collectively “the children”). The sole issue raised

for our review is whether the trial court clearly erred in terminating the parent-

child relationship. Finding no clear error, we affirm.

Facts and Procedural History
[2] The Howard County Division of Child Services (“DCS”) originally became

involved with this family in 2012 when the children were adjudicated children

in need of services (“CHINS”) after Father was arrested, Mother was struggling

with substance abuse, and Parents lacked stable housing. The children were

returned to Parents’ care for three months in 2014 because Parents had met the

objectives of the dispositional decree. However, a mere five days after the prior

DCS wardship was terminated, DCS again became involved when the children,

then ages four and three, were found outside their home with no supervision.

Specifically,

On March 2, 201[4], the Kokomo Police Department (“KPD”)
located the Parents passed out inside the home and they had to
be forcefully awakened. KPD also found drug syringes and

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 needles in the Parent[s’] bedroom. Father admitted to using
heroin and stated that Mother was using methamphetamine and
oxycontin. The home was observed to have approximately six
(6) syringes, two (2) of which were filled with a clear substance,
and a spoon with a clear substance on it. A Crown Royal
Whiskey bag containing several vials containing rock like
substances of different colors and a pill crusher with white
powdery residue and several razor blades, commonly used to
crush pills for injection. Mother admitted that the liquid
substance in the spoon and syringes were oxycodone. The house
was cluttered throughout with clothes, trash and dirty dishes.
Both Parents were arrested on charges of Possession of a
Controlled Substance, a Class D Felony; Unlawful Possession of
a Syringe, a Class D Felony; and Neglect of a Dependent, a Class
D Felony.

Appellants’ App. at 134.

[3] The children were removed from Parents’ care and placed in foster care. DCS

filed CHINS petitions and, following a factfinding hearing during which

Parents stipulated to the allegations in the petitions, the children were

adjudicated CHINS and placed with their paternal aunt. Following a

dispositional hearing, Parents were ordered to participate in a multitude of

services including: attend and participate in the visitation plan subject to

providing DCS with negative drug screens; complete a parenting program;

obtain and maintain gainful employment; obtain clean, suitable, and stable

housing and allow DCS access to the home; refrain from illegal activity; not use

any drugs or alcohol; successfully complete an intensive outpatient program;

submit to random drug screens; attend and participate in individual therapy;

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 and complete parenting assessments and complete all recommendations

developed as a result of the assessment. Id. at 136.

[4] During a six-month review hearing on August 11, 2014, the trial court found

that DCS had made reasonable efforts to provide services and reunify the

family. Although Mother had initially shown motivation to participate in

services, she had recently shown disinterest. Mother also had periods of

infrequent visitation with the children due to positive drug screens for

oxycodone. Father participated in several services and showed great interest in

cooperating with DCS. However, Father’s visitation with the children was

suspended due to positive drug screens for oxycodone and hydrocodone.

[5] During a three-month review hearing in November 2014, the trial court found

that Mother was inconsistent in attending visitation and that visitation was

eventually suspended after she tested positive for oxycodone and

buprenorphine. The court found that although Father was cooperative at the

beginning of August 2014, he became noncompliant by the end of that month.

Father was incarcerated during September 2014 and was released in October

2014. After his release, Father’s visitation was suspended when he tested

positive for alcohol, oxycodone, and hydrocodone on several drug screens.

DCS stated its intent to pursue termination of parental rights if progress toward

reunification was not made.

[6] On February 2, 2015, DCS filed an emergency motion for change of placement

because the children’s paternal aunt was moving to Alabama. The trial court

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 granted the motion and the children were placed in foster care. DCS filed

petitions for the involuntary termination of parental rights on February 3, 2015.

The trial court conducted a permanency hearing on February 9, 2015. Neither

Mother nor Father appeared at the hearing, but counsel for each parent

appeared. The court concluded that the children should remain out of the

Parents’ home. The court found that neither parent was in compliance with the

case plan and that neither parent had consistently attended visitation or

participated in services. Although Parents had obtained employment, both quit

after only four days. In addition to extensive criminal histories, each parent

also had pending criminal matters at the time of the permanency hearing.

[7] A termination factfinding hearing was held on June 22, 2015. Mother failed to

appear and Father appeared in the custody of the Howard County Sheriff.

Following the hearing, the trial court made sixty-two detailed findings of fact

and conclusions thereon, some of which state in relevant part:

31. …. At the time of the termination hearing, [V.F.] was five (5)
years of age and [S.F.] was four (4) years of age. Of the past
thirty-five (35) months, the children have been removed from the
care and custody of their parents for total of thirty-two (32)
months.

32. Since the children’s removal, the Parents have made minimal
progress towards their ability to provide for the children. The
Parents have largely failed to participate with DCS and service
providers and have failed to show an ability to remain clean and
sober due to their refusals to submit to random drug screens
when requested or submitting positive screens. The Parents[’]
visitation has been extremely inconsistent with the children due

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 to the numerous times their visitation has been suspended. Both
parents have continued to show ambivalence towards
reunification with the children and have shown no initiative to be
a custodial parent to the children. This is the second time the
children have been removed from the Parents and the children
deserve to have a safe, stable, permanent home. The Parents
have been provided extensive services towards reunification
through the two (2) CHINS cases, and have been unable to
remain drug free and provide a safe, stable, home for the
children.

….

44. The children require the security of safe, nurturing
environment and routine providing them with stability. Most
importantly, the children need and require permanency in their
lives.

45. The Court finds that DCS made reasonable efforts to reunify
the children with [Parents].

46. In the judgment of the Court, the Parents are likely to never
adequately care and provide for the children as custodial parents.

….

57. The Court further finds by clear and convincing evidence
that the continuation of the parent-child relationship between the
children and their parents poses a threat to the well[-]being of the
children. A termination of the parent-child relationship is in the
best interest of the children because the children need
permanency with caregivers who can provide them with a
nurturing environment that is secure and free of abuse and
neglect and meets the children’s needs until the children reach
the age of majority.

….

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 61. The Court further finds by clear and convincing evidence
that termination of the parent-child relationships of the [P]arents
to the children is in the best interests of the children in that
further efforts to reunite the parents and children are unlikely to
succeed. The failure to terminate the relationship will deny the
children the stability and permanency to which they are entitled,
and have too long been denied. It is in the children’s best
interests to have permanency, not perpetual foster care and
uncertainty in their lives.

62. The Court further finds by clear and convincing evidence
that the DCS has a satisfactory plan for the care and treatment
for the children, which plan is to place them for adoption.

Id. at 140-49. This appeal ensued.

Discussion and Decision
[8] “The purpose of terminating parental rights is not to punish the parents but,

instead, to protect their children. Thus, although parental rights are of a

constitutional dimension, the law provides for the termination of these rights

when the parents are unable or unwilling to meet their parental

responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

omitted). “[T]ermination is intended as a last resort, available only when all

other reasonable efforts have failed.” Id. A petition for the involuntary

termination of parental rights must allege in pertinent part:

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

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 (i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement
outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the
child.

…

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

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

Ind. Code § 31-35-2-4(b)(2). DCS must prove “each and every element” by

clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

Ind. Code § 31-37-14-2. If the trial court finds that the allegations in a petition

are true, the court shall terminate the parent-child relationship. Ind. Code § 31-

35-2-8(a).

[9] “We have long had a highly deferential standard of review in cases involving

the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

85, 92 (Ind. Ct. App. 2014).

We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
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 Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

do not support the trial court’s conclusions or the conclusions do not support

the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

Section 1 – The trial court’s conclusion that there is a
reasonable probability that the continuation of the parent-
child relationship poses a threat to the children’s well-being is
not clearly erroneous. 1
[10] While their argument is somewhat unclear, Parents appear to challenge the trial

court’s conclusion that there is a reasonable probability that the continuation of

the parent-child relationship poses a threat to the children’s well-being. Our

supreme court recently explained that a trial court “need not wait until a child is

irreversibly influenced by a deficient lifestyle such that [his or] 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) (citation omitted). “In determining whether the continuation of a

parent-child relationship poses a threat to the children, a trial court should

consider a parent’s habitual pattern of conduct to determine whether there is a

1
We note that Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive and DCS was required to
establish only one of the three requirements of subparagraph (B). While our review of the record reveals
clear and convincing evidence supporting the trial court’s conclusion pursuant to subsection (B)(i) that there
is a reasonable probability that the conditions that resulted in the children’s removal will not be remedied, we
rely on much of the same evidence to address only whether there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the children’s well-being. Ind. Code § 31-35-2-
4(b)(2)(B)(ii); see In re A.K., 924 N.E.2d 212, 221 (Ind. Ct. App. 2010) (explaining that evidence
demonstrating that parent posed a threat to child’s well-being was also used to support conclusion that
mother remained unable to adequately care for child as well as conclusion that termination was in child’s
best interests), trans. dismissed.

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 substantial probability of future neglect or deprivation.” In re A.P., 981 N.E.2d

75, 81 (Ind. Ct. App. 2012). “At the same time, however, a trial court should

judge a parent’s fitness to care for [his or her] child as of the time of the

termination proceedings, taking into consideration evidence of changed

conditions.” Id.

[11] Here, the trial court found that a mere five days after a prior DCS wardship

concerning these children concluded, DCS again became involved with this

family after the children, then ages four and three, were found outside their

home with no supervision. After authorities discovered a drug-filled home in

squalid condition, the children were removed and placed in the care of their

paternal aunt. Parents were ordered to complete a multitude of services, all

with the goal of providing the children with a safe, stable, and drug-free

environment. The record indicates that although Parents were each initially

motivated to participate in the court-ordered services, each eventually became

wholly noncompliant. Parents have each consistently tested positive for drugs

and/or refused to submit to random drug screens, and each has failed to

consistently attend visitation with the children and/or has had that visitation

suspended.

[12] The record also indicates that both Parents have extensive criminal histories

and continue to refuse to live-law abiding lives. At the time of the termination

hearing, Mother had an active warrant for her arrest on a petition to revoke

suspended sentence due to alleged probation violations, and Father was

incarcerated on a pending petition to revoke suspended sentence. Mother failed

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 to even appear at the termination hearing while Father appeared in the custody

of the Howard County Sheriff.

[13] Despite the ample evidence of their habitual pattern of conduct indicating a

substantial probability of future neglect or deprivation, Parents compare their

situation with Bester v. Lake County Office of Family & Children, 839 N.E.2d 143

(Ind. 2005). In Bester, our supreme court reversed a trial court's order

terminating a father's parental rights because there was not clear and convincing

evidence to support the trial court’s conclusion that the father posed a threat to

the child's well-being. Id. at 153. The Bester court considered a variety of

factors that indicated that the father did not pose a threat to the child, which

included: (1) the father's full compliance with the reunification plan, such as

attending therapy, parenting classes, and drug testing; (2) the loving, caring,

and happy interactions between the father and the child during visitations; (3)

that there was “no causal connection between [the] [f]ather’s living

arrangements and any adverse impact those arrangements may have on the

[c]hild,” or that the homes of the father’s relatives were unsuitable; and (4) the

father’s current improvements demonstrated a desire to provide a healthy and

drug-free environment, and a past criminal history was not enough to

demonstrate that the father was a threat to the child. Id. at 149-53; K.E., 39

N.E.3d at 650-51.

[14] Parents’ situation here is nothing like Bester. Unlike the father in Bester, Parents

have failed to consistently participate in services and each continues to show

total ambivalence toward reunification. Significantly, Parents have made no

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 improvements that demonstrate a desire to provide a healthy and drug-free

environment for their children. Indeed, Parents’ drug abuse and criminal

behavior are not simply things of the past, but remain current threats to the

stability and well-being of these children.

[15] Based upon the clear and convincing evidence presented, we defer to the trial

court's determination that Parents’ habitual patterns of conduct support a

conclusion that there is a substantial probability of future neglect. The children

were removed from an unstable, unsafe, and drug-filled environment, and

Parents have done virtually nothing to remedy any of those conditions. 2 The

trial court did not clearly err in concluding that there is a reasonable probability

that continuation of the parent-child relationship poses a threat to the children.

Section 2 – The trial court’s conclusion that termination of the
parent-child relationship is in the children’s best interests is
not clearly erroneous.
[16] In the last sentence of their brief, Parents mention for the first time that

termination of their parental rights was not in the children’s best interests.

Because they offer no real argument, Parents have waived our review of this

issue. See 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

2
We note that the trial court found that prior to the births of V.F. and S.F., Mother had been provided
extensive services during CHINS cases involving her three older children. Mother’s parental rights were also
terminated as to those children because she failed to take the necessary steps required for reunification.

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 waiver on appeal), trans. denied; see also Ind. Appellate Rule 46(A)(8)(a)

(requiring that each contention be supported by cogent reasoning and citations).

[17] Waiver notwithstanding, in determining the best interests of a child, the trial

court must look beyond the factors identified by DCS and consider the totality

of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In so

doing, the trial court must subordinate the interests of the parent to those of the

child.” Id. Children have a paramount need for permanency, which our

supreme court has deemed a central consideration in determining a child's best

interests. In re E.M., 4 N.E.3d 636, 647-48 (Ind. 2014). As noted earlier, courts

need not wait until a child is harmed irreversibly before terminating the parent-

child relationship. Id. The testimony of service providers may support a finding

that termination is in the child’s best interests. In re A.K., 924 N.E.2d 212, 224

(Ind. Ct. App. 2010), trans. dismissed.

[18] Here, both the family case manager (“FCM”) and the court-appointed special

advocate (“CASA”) recommended termination of Parents’ parental rights.

FCM Khristen Scircle emphasized that the children need consistency and safety

and a “permanent home to grow up in[,]” but Parents had done nothing to

show that they “are willing to [provide] that at this time.” Tr. at 57. Similarly,

CASA Dominique Hayes testified that the children had essentially been

removed from Parents’ home for almost three full years and have had to be

moved between two different foster/relative-care homes. She opined that the

children had “already suffered” enough, and they now need consistency. Id. at

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 66. Indeed, the record indicates that the children are thriving and have made

great progress since their removal from Parents’ care. 3

[19] The evidence presented clearly and convincingly shows that Parents are

unwilling and/or unable to alter their irresponsible and criminal behavior for

the good of the children. This is hardly a case where it arguably could be said

that the termination of parental rights was based solely on the grounds that the

children need permanency. See In re V.A., No. 02S04-1602-JT-93, 2016 WL

661748 at *9 (Ind. Feb. 18, 2016) (explaining that a child’s need for immediate

permanency is not reason enough to terminate parental rights where the parent

has an established relationship with his/her child and has taken positive steps

toward reunification). It is well settled that a parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do

the same supports a finding that termination of parental rights is in the child’s

best interests. A.P., 981 N.E.2d at 82. Based upon the record before us, the trial

court’s conclusion that termination of parental rights is in the children’s best

interests is not clearly erroneous.

3
The record indicates that S.F. has been diagnosed with reactive attachment disorder and post-traumatic
stress disorder and, when she was first removed from the home, she was nonverbal and would crouch near
the door during therapy sessions. S.F. has made exceptional progress since removal and is now more verbal
and social. V.F. has also been diagnosed with post-traumatic stress disorder and he shows some signs of
reactive attachment disorder. He has described to his therapist in detail the traumatic events that occurred in
Parents’ home. He has also made substantial progress since removal.

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[20] Affirmed.

Riley, J., and Pyle, J., concur.

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