In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.M. (Minor Child) and K.M. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 16 2020, 10:02 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Deidre L. Monroe Monika Prekopa Talbot
Lake Superior Court, Juvenile Division Deputy Attorney General
Public Defender’s Office Indianapolis, Indiana
Crown Point, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary June 16, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of E.M. (Minor 19A-JT-2868
Child) Appeal from the Lake Superior
and Court
The Honorable Thomas P.
K.M. (Father), Stefaniak, Jr., Judge
Appellant-Respondent, Trial Court Cause No.
45D06-1906-JT-164
v.

Indiana Department of Child
Services,
Appellee-Petitioner

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 1 of 16
 Case Summary
[1] K.M. (Father) appeals the trial court’s order terminating his parent-child

relationship with his son, E.M. (Child). He challenges the trial court’s

conclusions that there is a reasonable probability that the conditions that led to

Child’s removal and continued placement outside the home will not be

remedied and that termination of the parent-child relationship is in Child’s best

interests. We affirm.

Facts and Procedural History
[2] Child was born to N.M. (Mother) on May 17, 2013. 1 For the first year of

Child’s life, Mother was romantically involved with Father. After the two

broke off their relationship, Father had very little contact with Child. In

December 2016, Mother gave birth to Child’s half sibling, who tested positive

for marijuana at birth. As a result, the Indiana Department of Child Services

(DCS) opened an informal adjustment, also citing Mother’s failure to supervise

Child. Child remained in Mother’s home throughout the informal adjustment.

During that time, Mother tested positive for marijuana and a controlled

substance for which she did not have a prescription. Meanwhile, DCS received

a report that Child, who showed signs of autism, had been wandering away

from Mother’s home. See Petitioner’s Ex. A (DCS report stating Child is

believed to be autistic and has been “diagnosed with Adjustment Disorder, with

1
Mother voluntarily relinquished her parental rights and is not participating in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 2 of 16
 mixed disturbance of emotions and conduct.”). DCS also discovered that

Mother had ceased taking Child to therapy. As a result, the informal

adjustment was discharged as unsuccessful.

[3] Shortly thereafter, on February 6, 2018, DCS filed a petition seeking to have

Child adjudicated a child in need of services (CHINS), based on Mother’s drug

use and unsuitable living conditions. The trial court entered a CHINS finding

following a hearing. DCS’s assessment division visited Mother’s home and

found Child in a filthy condition with bruises and a swollen arm. The intake

officer’s report listed Father’s identity by his first name only, with last name

unknown. Once identified, Father expressed an interest in establishing

paternity and visiting Child. On February 9, 2018, Child was removed from

Mother’s care due to Mother’s positive drug screen for methamphetamine and

marijuana. He was initially placed in foster care, but two months later he was

moved to relative care with his maternal aunt (Aunt), where he and his half

sibling have remained since.

[4] Father’s paternity ultimately was confirmed by a DNA test. DCS made

referrals for services, which included working with Real Fathers Initiative to

establish paternity and set up home-based services, participating in weekly

supervised visitation and domestic violence services, completing clinical,

substance abuse, and parenting assessments and following all

recommendations, and submitting to random drug screens. He attended

approximately ten weekly visits during the first six months of the CHINS case.

After that time, Father pled guilty to level 6 felony counterfeiting and had his

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 3 of 16
 probation revoked in connection with his 2017 convictions for level 6 felony

domestic battery in the presence of a child and class A misdemeanor invasion of

privacy. Pet. Exs. AA, CC, DD. He was incarcerated for approximately six

months from the fall of 2018 through February 2019. He visited Child

approximately ten times in the four months immediately following his February

2019 release.

[5] In June 2019, DCS changed the permanency plan from reunification to

termination and adoption and filed a petition to terminate Father’s parental

rights. DCS held open all of Father’s service referrals, including weekly

supervised visitation. The trial court conducted a factfinding hearing on

October 31, 2019. DCS Family Case Manager (FCM) Shannon Huffman

testified that termination and adoption were in Child’s best interests. She

indicated that Father “has worked cash jobs, so they’re untraceable,” and had

unsuccessfully applied for several jobs. Tr. Vol. 2 at 13. Regarding Father’s

housing, she testified that he lives at the home of his girlfriend (Girlfriend).

FCM Huffman stated that she had been to the property a few times, and

although Father and/or Girlfriend did not permit her to come inside, she could

observe from the doorway that the residence was cluttered and bore a strong

odor of mold and animals. She described the front yard as littered with tools,

old cars, and laundry washers and dryers. With respect to services, she testified

that Father completed the parenting and clinical assessments but did not

complete the services and programs recommended as a result. She expressed

particular concern that he did not complete the court-ordered psychological

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 4 of 16
 evaluation, because he suffers from anxiety and Attention Deficit Disorder. Id.

at 18. Father’s drug screens had to be changed from home-based screens to

clinic-based screens at Redwood Laboratory “due to issues of non-compliance

and incident reports.” Id. at 19. He completed only about half of them. His

attendance at weekly supervised visits was “very, very, very sporadic ….

Throughout the case, he’s not been compliant with visitations.” Id. at 20.

Although the visits were offered up until the factfinding hearing, Father had not

visited Child since June. Id. at 21. FCM Huffman summarized Father’s

progress as “[n]oncompliance,” stating that “[t]here’s very little bond” and “[a]

lot of cancellations, because he had to tend to his girlfriend’s children’s needs or

she was ill etc.” Id.

[6] On November 6, 2019, the trial court issued an order with findings of fact and

conclusions thereon, specifically finding that Father had not achieved the case-

plan goals concerning suitable housing and employment and that he

participated in his court-ordered services only sporadically, was persistently

noncompliant with drug screens, failed to follow through with the

recommendations of his substance abuse, parenting, and clinical assessments,

failed to complete a psychological assessment or address his mental health

issues, refused to allow DCS caseworkers to enter his home to provide services,

and failed to participate in domestic violence counseling, weekly home-based

therapy, or parenting education. Appealed Order at 2. With respect to

visitation, the court found that although Father was offered weekly visits with

Child up until the date of the factfinding hearing, he “continuously cancelled

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 5 of 16
 the visits due to various reasons,” had not visited Child since June 2019, and

had not established a bond with Child. Id. As a result, the trial court

terminated Father’s parental relationship with Child.

[7] Father now appeals. Additional facts will be provided as necessary.

Discussion and Decision2
[8] Father contends that the trial court erred in terminating his parental relationship

with Child. When reviewing a trial court’s findings of fact and conclusions

thereon in a case involving the termination of parental rights, we first determine

whether the evidence supports the findings and then whether the findings

support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We will set

aside the trial court’s judgment only if it is clearly erroneous. Bester v. Lake Cty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “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 A.G., 45 N.E.3d 471, 476

2
The summary of argument and argument sections of Father’s brief include invective against the trial court
and DCS. See, e.g., Appellant’s Br. at 7, 14 (characterizing certain trial court findings as “blatant disregard
for the termination laws,” claiming that the “direct assault” and “continued destruction of the family
structure should not be tolerated by this Court,” and alleging that “DCS’s objective should not be to cause
measurable pain and suffering on a young child.”). We remind counsel that the purpose of an appellate brief
is to present us with concise argument supported by statutory law, case law, and the record. Ind. Appellate
Rule 46(A)(8). “Invectives are not argument, and have no place in legal discussion.” Brill v. Regent
Commc’ns, Inc., 12 N.E.3d 299, 301 n.3 (Ind. Ct. App.2014) (citation omitted), trans. denied. Additionally,
Father’s statement of the case and statement of facts sections improperly contain argument. See, e.g.,
Appellant’s Br. at 5-6 (“Sadly, it appears that the DCS never intended to reunite E.M. with his FATHER,”
and “[Father] worked tirelessly to complete his case plan.”). Indiana Appellate Rule 46(A)(5) and -(6), limit
the information to be included in these sections, and they should not contain argument. See, e.g., K.S. v. D.S.,
64 N.E.3d 1209, 1216 (Ind. Ct. App. 2016) (“[T]he statement of facts should be devoid of argument.”).
Father also has included in his appendix a reproduction of portions of the transcript in violation of Indiana
Appellate Rule 50(F).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 6 of 16
 (Ind. Ct. App. 2015), trans. denied (2016). Unchallenged findings stand as

proven, and we simply determine whether the unchallenged findings are

sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d

104, 110 (Ind. Ct. App. 2012), trans. denied; see also McMaster v. McMaster, 681

N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged findings are accepted as

true). In conducting our review, we neither reweigh evidence nor judge witness

credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and

inferences most favorable to the judgment. Id. “[I]t is not enough that the

evidence might support some other conclusion, but it must positively require

the conclusion contended for by the appellant before there is a basis for

reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).

[9] “Parents have a fundamental right to raise their children – but this right is not

absolute. When parents are unwilling to meet their parental responsibilities,

their parental rights may be terminated.” Matter of Ma.H., 134 N.E.3d 41, 45-46

(Ind. 2019) (citation omitted), cert denied (2020). To obtain a termination of a

parent-child relationship, DCS is required to establish in pertinent part:

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

(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.

….

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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 7 of 16
 (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.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(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).

[10] In recognition of the seriousness with which we address parental termination

cases, Indiana has adopted a clear and convincing evidence standard. Ind.

Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

not reveal that the continued custody of the parents is wholly inadequate for the

child’s very survival. Rather, it is sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

2013) (citation omitted). “[I]f the court finds that the allegations in a

[termination] petition … are true, the court shall terminate the parent-child

relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 8 of 16
 Section 1 – Father has failed to establish that the trial court
clearly erred in concluding that there is a reasonable
probability that the conditions that resulted in Child’s removal
and continued placement outside the home will not be
remedied.
[11] Father asserts that the trial court clearly erred in concluding that a reasonable

probability exists that the conditions that led to Child’s removal and continued

placement outside the home will not be remedied. 3 When assessing whether

there is a reasonable probability that conditions that led to a child’s removal

will not be remedied, we must consider not only the initial basis for the child’s

removal but also the bases for continued placement outside the home. In re

A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Moreover, “the

trial court should judge a parent’s fitness to care for his children at the time of

the termination hearing, taking into consideration evidence of changed

conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

“Requiring trial courts to give due regard to changed conditions does not

preclude them from finding that parents’ past behavior is the best predictor of

their future behavior.” E.M., 4 N.E.3d at 643. “Due to the permanent effect of

termination, the trial court also must evaluate the parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the

3
Father briefly raises, but does not develop, an argument concerning the trial court’s conclusion that there is
a reasonable probability that the continuation of the parent-child relationship poses a threat to Child’s well-
being. We note that Indiana Code Section 31-35-2-4(b)(2)(B) requires DCS to prove only one of the three
circumstances listed. Because we find no error concerning the reasonable probability that the conditions
prompting Child’s removal will not be remedied, we need not address the threat to Child’s well-being.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 9 of 16
 child.” J.T., 742 N.E.2d at 512. In making its case, “DCS need not rule out all

possibilities of change; rather, [it] need establish only that there is a reasonable

probability that the parent’s behavior will not change.” In re Kay.L., 867

N.E.2d 236, 242 (Ind. Ct. App. 2007). The court may properly consider

evidence of a parent’s substance abuse, criminal history, lack of employment or

adequate housing, history of neglect, and failure to provide support. McBride v.

Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

2003).

[12] The conditions that prompted Child’s initial removal pertained to Mother’s

shortcomings, not Father’s. At that time, DCS did not know Father’s identity.

However, after his identity and paternity were established, Father’s actions and

inactions throughout the remainder of the CHINS and termination proceedings

contributed to Child’s continued placement outside the home. The trial court

summarized these actions and inactions as follows: 4

The services in the case plan always remained available for
Father to participate in, but Father failed to make himself
available for the services. Father has shown no interest in
participating in the services in an effort to gain custody of his
child. Father continues with his lack of stability and lack of
employment. Father has made no progress in the case plan for
reunification…. Father refuses drug treatment, therapies, and
rarely participates in the visitations.

4
To the extent that the trial court uses different terms or initials to identify Father and Child, we refer to
them as designated throughout this decision.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 10 of 16
 Appealed Order at 2.

[13] Father maintains that by the time of the factfinding hearing, he was in

substantial compliance with his case plan. He specifically challenges the trial

court’s finding that he continued to lack stable employment and housing. He

told FCM Huffman that he was employed on a cash basis; however, he did not

provide documentation to verify his cash-basis earnings. He also maintains that

his living arrangements with Girlfriend were suitable; however, the record

shows that he refused to allow DCS to enter the home to provide services and

that he and Girlfriend had a history of breakups and domestic violence and had

a troubled child in the home whose abuse of a sibling had precipitated visits

from police. Tr. Vol. 2 at 74. Mother testified that one time she received a call

from one of Girlfriend’s children saying that Girlfriend had a knife and had

locked Child and Father in a closet. Id. at 58. She described Girlfriend’s house

as having holes in the floor and animal feces everywhere. Id. at 61; see also

Petitioner’s Exs. W, X, Y (photos depicting clutter and squalor in Girlfriend’s

front and side yard). The frequent breakups between Father and Girlfriend

ordinarily resulted in Father being kicked out of Girlfriend’s house and in need

of shelter. Yet, he continued to return to the relationship and the house. In

short, Father’s tumultuous relationship with Girlfriend made his living

arrangements unstable and unsafe.

[14] This, in turn, negatively affected Father’s participation in his court-ordered

services. His home-based drug screening service provider had to stop going to

his house due to safety issues with the dog and other physical incidents. Tr. Vol.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 11 of 16
 2 at 33. Because Father’s residence shifted between two counties, DCS had to

make several switches to ensure that Father would have continuous access to

service providers throughout the pendency of the proceedings. DCS went the

extra mile in facilitating these changes by providing transportation to services

and holding his services open up until the date of the factfinding. Even then,

Father did not complete the services recommended following the three

assessments that he underwent and would often refuse to submit to drug

screens. See id. at 73 (Father’s testimony regarding drug screens: “At some

point out of principal [sic], I said, I’m not doing this,” even though he was told

that refusal is “a fail”); see also Petitioner’s Ex. Z (list of Father’s drug test no-

shows from Redwood).

[15] Father also challenges the trial court’s finding that he did not participate in

services to address his mental health issues. He claims that he did address his

mental health issues through Edgewater, a provider connected with his

probation. FCM Huffman addressed this in her testimony, indicating that

Father had informed her about Edgewater and signed a records release for 2017

and 2018. However, “when his probation case was dismissed, he said he was

done” at Edgewater. Tr. Vol. 2 at 35. He did not present any documentation

to show that he had participated in these services in 2019. Id. at 36.

[16] Father also asserts that his incarceration hindered his ability to participate in

services and should not be held against him. He analogizes his circumstances

to those in K.E. v. Indiana Department of Child Services, 39 N.E.3d 641, 643 (Ind.

2015). There, the father was incarcerated and upon his release began

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 12 of 16
 participating in his court-ordered services. The trial court nevertheless

terminated his parental rights, emphasizing the effects of his incarceration. Id.

In reversing the termination order, our supreme court reiterated its earlier

holding that incarceration is an insufficient basis upon which to terminate a

parent’s rights. Id. (citing In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009)).

Here, the trial court mentioned Father’s criminal record in its termination order

and articulated its concern about the nature of his offenses, particularly his

conviction for domestic violence in the presence of a child. However, the court

in no way emphasized Father’s incarceration as a basis for terminating his

parental rights. If anything, the record shows that DCS gave Father

accommodations for his lost time in jail by holding open his service referrals up

until the October 2019 factfinding hearing. In so doing, DCS afforded Father

approximately eight months after his release to complete services that otherwise

might not have been available to him. Father’s arguments with respect to

housing, employment, and services are merely requests to reweigh evidence and

reassess credibility, which we may not do. E.M., 4 N.E.3d at 642.

[17] With respect to visitation, DCS’s extension of services resulted in many

additional opportunities for Father to visit Child and demonstrate that he was

earnest in his desire to establish a parent-child bond. He did not do so. See Tr.

Vol. 2 at 47 (home-based caseworker Deanna Howard’s testimony that she

“texted and texted” Father to facilitate visits but never heard back from him).

The trial court summarized Father’s visitation and bonding efforts as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 13 of 16
 Father was offered weekly visitations with Child, but Father
failed to visit. Father has not visited Child since June 2019.
Father has not established a bond with Child due to Father’s lack
of participation in the visits. Father continuously cancelled the
visits due to various reasons. Father has had very minimal
contact with Child due to the lack of participation in the
visitations by Father.

Father was offered transportation services through the home[-]based
services. Father would utilize the service to attend doctor[] appointments
and lawyer appointments, but not to attend the visitations with his
Child.

Appealed Order at 2 (emphasis added).

[18] We find it especially troubling that despite having been provided transportation

to facilitate his weekly court-ordered visits with Child, Father did not visit Child

at all in the four months immediately preceding the factfinding hearing. A

parent’s failure to exercise his visitation rights demonstrates a lack of

commitment to the parent-child relationship and the plan to preserve it. See

Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App.

2007) (failure to exercise right to visit one’s children demonstrates lack of

commitment to complete actions necessary to preserve parent-child

relationship), trans. denied. Father has failed to meet his burden of establishing

clear error in the trial court’s conclusion that there is a reasonable probability

that the conditions that led to Child’s removal and continued placement outside

the home will not be remedied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 14 of 16
 Section 2 – Father has failed to establish that the trial court
clearly erred in concluding that termination is in Child’s best
interests.
[19] Father also challenges the trial court’s conclusion that termination of the

parent-child relationship is in Child’s best interests. To determine what is in the

best interests of a child, we must look at the totality of the circumstances. In re

A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). The trial court “need not

wait until a child is irreversibly harmed before terminating the parent-child

relationship.” S.E. v. Ind. Dep’t of Child Servs., 15 N.E.3d 37, 47 (Ind. Ct. App.

2014), trans. denied. Although not dispositive, permanency and stability are key

considerations in determining the child’s best interests. G.Y., 904 N.E.2d at

1265. “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 best interests of the children.” In re A.P.,

981 N.E.2d 75, 82 (Ind. Ct. App. 2012) (quoting Lang, 861 N.E.2d at 373).

Likewise, “the testimony of the 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.

[20] Here, FCM Huffman testified that termination and adoption are in Child’s best

interests. When she expressed her concern about Child being placed with

Father, she addressed Father’s living conditions, which included not only the

physical condition of the property, e.g., the clutter, odors, and close proximity

to a highway, but also other environmental circumstances such as the domestic

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 15 of 16
 violence, alcohol use, and substance abuse occurring there. She contrasted the

environment at Aunt’s house, in which Child is thriving, playing sports, loving

school, and bonded with Aunt, Aunt’s children, and his half sibling. Tr. Vol. 2

at 26. 5 She observed Child’s apparent lack of disappointment when Father

cancelled their visits and his eagerness to return to Aunt’s home after the visits

that did take place. Id. at 24. She recounted a particular visit when the police

were called due to an altercation between Father and Girlfriend, and Child

matter-of-factly stated, “Well, this is cancelled.” Id. She emphasized Child’s

need for “permanency officially” and summed up her observations by stating,

“He likes how things are …. He’s ready to be adopted by his Aunt.” Id. at 26.

[21] The totality of the circumstances supports the trial court’s conclusion that

termination of the parent-child relationship is in Child’s best interests. Father

has failed to meet his burden of establishing clear error in the trial court’s

judgment terminating his parental rights. Accordingly, we affirm.

[22] Affirmed.

Bailey, J., and Altice, J., concur.

5
Father submits that the trial court clearly erred when it “failed to address the pain and suffering that the
child will indeed experience when they realize that she [sic] will not have any further contact with their
father.” Appellant’s Br. at 14. The record is devoid of any evidence to support this argument. In fact, FCM
Huffman’s testimony underscores the absence of a meaningful relationship between Father and Child. See
Tr. Vol. 2 at 24 (“Child has really no bond with Father. He doesn’t ask about Father. He’s not disappointed
when visits are cancelled.”).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2868 | June 16, 2020 Page 16 of 16