Termination: C S v. Indiana Department of Child Services

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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Nov 15 2021, 8:12 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Indianapolis, Indiana Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In re the Termination of the Parent-Child Relationship of Ch.S., M.S. and R.S. (Minor Children) November 15, 2021 Court of Appeals Case No. 21A-JT-1064 and Appeal from the Vigo Circuit Court C.S. (Father), The Honorable Daniel W. Kelly, Magistrate Appellant-Respondent, Trial Court Cause No. 84C01-2007-JT-902 84C012007-JT-903 84C012007-JT-904 v. Indiana Department of Child Services, Appellee-Petitioner. Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 1 of 21 [1] The Vigo Circuit Court terminated C.S.’s (“Father’s”) parental rights to his three children and Father appeals. Father challenges several of the trial court’s factual findings claiming that they are not supported by the evidence. Father also argues that the trial court’s order terminating his parental rights to his children is not supported by clear and convincing evidence. [2] We affirm. Facts and Procedural History [3] Father and J.S. (“Mother”) have three children: Ch.S, who was born in August 2010; M.S., who was born in May 2016; and R.S., who was born in June 2017.1 Mother and Father are married but have not lived in the same household for several years. Both Parents and Ch.S. are hearing impaired. [4] DCS’s involvement with the family began in early 2019 after it received a report that R.S. was diagnosed as failure to thrive and Mother did not follow up with R.S.’s medical appointments. DCS filed a petition alleging that the children were Children in Need of Services (“CHINS”) in March 2019. The next month, after Mother abandoned the children and left them with her roommate, DCS removed the children from Mother’s care. The children were placed in a foster 1 Parents have a fourth child, Mh.S., who was removed from their care due to medical neglect. The termination of parental rights proceedings occurred in Kentucky where Mh.S. was living, with paternal grandparents, when the neglect was alleged. The Parents did not comply with Kentucky child services. Their parental rights to Mh.S. were terminated in July 2019. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 2 of 21 home in Marion, Indiana. DCS’s initial attempts to communicate with Father were unsuccessful. [5] When the family case manager established contact with Father, Father was still living in Indiana. Father was offered visitation with the children, but he did not make any attempt to do so. Tr. pp. 125–26. Father appeared in person at the CHINS fact-finding hearing on May 6, 2019. He admitted that the children were CHINS and that his home was not suitable for children. The trial court adjudicated the children as CHINS and issued its dispositional order on June 25, 2019. [6] On some date after the CHINS fact-finding hearing, Father moved to Kansas City, Missouri and then to Kentucky. He failed to participate in services and DCS service providers explained to him that it is difficult to arrange services for a parent living in another state. Father was told to search for equivalent services where he was living. Ex. Vol. 3, p. 140. [7] Due to lack of communication with DCS, his failure to participate in services, and residential instability, Father did not participate in visitation with the children until December 2019. When Father finally participated in supervised visitation, he behaved appropriately and engaged with the children. But, despite having been offered thirty-nine visitations between Winter 2019 and Spring 2021, Father only attended eighteen of them. Some visitations occurred virtually, and others occurred in-person. Father missed both virtual and inperson visitations. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 3 of 21 [8] Moreover, throughout these proceedings, Father’s communication with the family case manager and other service providers was sporadic. He did not attend most of the family child team meetings. [9] DCS filed petitions to terminate Father’s rights to his children on July 21, 2020. The court held the fact-finding hearing on May 3, 2021. Father appeared via Zoom because he was unable to travel to Indiana for the hearing, but the certified American Sign Language interpreter appeared in person. Mother voluntarily consented to the termination of her parental rights to the children. [10] During the hearing, Father expressed difficulty exercising visitation with his children and participating in services because he lived in Kentucky. But when the children were removed from Mother’s care, Father lived in Indiana— approximately forty minutes away from the children’s placement. Father and his girlfriend moved to Kentucky after the CHINS proceedings commenced. Father moved because his home in Indiana was not suitable for children; however, there is no evidence that Father attempted to find a home near his children. Father could not provide a reason for moving so far away from his children. [11] Father is employed as a dishwasher in a restaurant. He also receives Social Security disability. Father is reluctant to move to Indiana because he likes living in Kentucky and is not certain he could find employment in Indiana. But he also did not try to find housing or employment in or near Marion, Indiana, where the children are living with their foster family. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 4 of 21 [12] Father did not complete any court-ordered reunification services. Father met with one service provider in Kentucky but refused to continue services because he was not comfortable with that individual. Father missed over twenty visitations with his children and often failed to inform DCS or the service provider that he would be unable to attend the visit. [13] Father’s failure to attend visits has had a negative impact on the children, particularly Ch.S. In the days leading up to and after a scheduled visitation, Ch.S. displayed extreme anger and behavioral issues. Ch.S.’s therapist believes that Father’s failure to attend visitation makes Ch.S. feel that he is not valued by his father. Father missed the last three visits prior to the termination factfinding hearing. [14] On May 4, 2021, the trial court issued its order terminating Father’s parental rights to the children. Ultimately, the court found that [T]he care that these children require greatly exceeds what the Father is able or willing to provide to them. His actions in moving away from his children while they are in care and his unwillingness to engage in any court-ordered reunification services make it clear to the court that there is a reasonable probability that the reasons for placement outside of Father’s home will not be remedied. Appellant’s App. pp. 172, 181, 190. The court also found that termination of Father’s parental rights was in the children’s best interests “as testified to by DCS, the child’s therapist, two CASAs and the foster father.” Id. [15] Father appeals the termination of his parental rights. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 5 of 21 Standard of Review [16] Indiana appellate courts have long adhered to a highly deferential standard of review in cases involving the termination of parental rights. In re S.K., 124 N.E.3d 1225, 1230–31 (Ind. Ct. App. 2019). In analyzing the trial court’s decision, we neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the court’s judgment. Id. 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. Id. [17] To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the trial court’s findings of facts and conclusions of law. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings; and second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” In re A.D.S., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. If the evidence and inferences support the court's termination decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Findings of Fact [18] Father challenges several findings of fact, claiming the findings are not supported by the evidence. We address each in turn. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 6 of 21 Finding Number 2 [19] Father challenges the following fact from Finding Number 2, which recounts the facts surrounding termination of Parents’ parental rights to their fourth child in Kentucky: “Services were ordered in that case and parents made progress until Father perpetrated domestic violence upon Mother, resulting in the cessation of unsupervised visits.” Appellant’s App. pp. 168, 177, 186. Father argues that this finding is not supported by the evidence because Father was not arrested for domestic violence, and the Kentucky caseworker testified that, to the best of her knowledge, Mother claimed there was a “domestic violence incident.” Tr. pp. 39, 42. Father also notes Mother’s testimony that Father was not physically violent toward her. Tr. pp. 33–34. [20] Mother testified that Father was verbally violent and argumentative. Id. at 33– 34. She also described an incident where Father pinned Ch.S. against a wall. Tr. p. 34. She stated that Father has a bad temper and that “his family has domestic violence, too.” Id. The caseworker involved in the child’s case in Kentucky testified that Father was asked to do a “domestic violence perpetrators assessment,” and he completed some assessments. Tr. p. 39. The Kentucky case worker testified that unsupervised visitation was stopped because a domestic violence incident occurred. She only had a vague recollection of the incident but stated that Mother was the victim and Father was the perpetrator. Id. Mother’s testimony only partially conflicts with the caseworker’s testimony. Therefore, we conclude that Father’s argument is Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 7 of 21 merely a request to reweigh the evidence, which our court will not do. See In re S.K., 124 N.E.3d at 1230-31. Finding Number 8 [21] The trial court made the following factual findings in Finding Number 8: At the time that the children became wards of the State and placed in foster care in Marion, Indiana, Father was living a mere 40-minute drive from the children, but [he] moved at some point to the State of Kansas for four months and then to Kentucky. Despite numerous requests to explain why Father and his girlfriend left the state to the specific destinations they chose which placed them a great distance from the children who were in care, Father gave no coherent explanation. However,[ ]the evidence indicated that Father’s home in Indianapolis would not have been suitable because “bad people were constantly in and out of their home doing bad things, including attempting suicide,” according to Father’s girlfriend of the past nine years. Appellant’s App. pp. 170, 179, 189. [22] Father claims that the evidence does not support the trial court’s finding that he has been in a romantic relationship with his girlfriend for nine years or that he knew that the children were in Marion, Indiana, when he moved to Kansas City, Missouri, or when he lived in Bluffton, Indiana. Father also claims that the section of the finding in quotation marks is not a direct quote from the testimony at the hearing. We agree that the quoted fact is not a direct quote from testimony; however, the fact is supported by testimony elicited at the hearing. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 8 of 21 [23] Father’s girlfriend testified that they have lived together for nine years. Tr. p. 150. When asked if they have lived together for nine years “romantically,” his girlfriend replied “Oh, yes, uh, we’ve been fine.” Tr. pp. 151–52. Also, Father lived in Indiana after the children were removed from Mother’s care and attended the CHINS fact-finding hearing. The family case manager testified that he was able to speak to Father after the children were removed from Mother’s care, while Father was still living in Indiana. The case manager testified that he told Father that Father could have visitation with the children. Tr. p. 124. Father did not make any attempt to see the children while he was still living in Indiana. Tr. pp. 124–25. For these reasons, it was appropriate for the trial court to infer that Father knew the children were in foster care in Marion, Indiana, when he moved to Kansas City, and then to Kentucky. Finding Number 9 [24] Father argues that Finding Number 9 is misleading because it implies that he and his girlfriend had illegal substances in their home in Kansas City. Father also claims there is no evidence to support the factual finding that he knew the children were located in Marion, Indiana, when he chose to move to Kentucky. [25] We agree that there is no evidence that Father had drugs in his home, and to the extent the finding could be read to imply that fact, we will not do so. But as we stated above, the trial court reasonably inferred that Father knew the children were in foster care in Marion, Indiana, when he chose to relocate to Kentucky. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 9 of 21 Finding Number 10 [26] Finding Number 10 discusses the fact that Father’s girlfriend had seven children, and her rights to four of those children were terminated. Father argues that the evidence does not support the finding that his girlfriend’s parental rights were not terminated because she testified that the children live with their uncle in Ohio under a guardianship. [27] Father’s girlfriend testified that her four children live with her brother in Ohio under a guardianship due to DCS involvement. Tr. p. 154. She stated that they moved there “for safety reasons.” Id. When asked about the safety concerns, she replied “[a] lot of people called CPS on me[.]” Id. But then the trial court experienced technically difficulties with Zoom. The trial court’s finding that girlfriend’s parental rights were terminated is therefore not supported by the evidence, but we will consider the evidence that Father’s girlfriend arranged for the children’s uncle to care for her children due to safety concerns in her home. Finding Number 13 [28] This finding states: “Mother testified that Father has a very bad temper and that there is a lot of domestic violence in his family.” Appellant’s App. pp. 171, 180, 189. Father does not challenge the evidence to support this finding. However, he argues that our court should decline to consider this a factual finding because “[a] court or an administrative agency does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z.” Appellant’s Br. at 20–21 (citing Parks v. Delaware Ct. Dep’t of Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 10 of 21 App. 2007)); see also Van-Scyoc v. Mid-State Paving, 787 N.E.2d 499 (Ind. Ct. App. 2003) (explaining that the trier of fact must adopt the testimony of the witness before the “finding” may be considered a finding of fact). [29] Mother’s testimony was consistent with testimony from family case workers. And the trial court made appropriate findings concerning the evidence presented from those individuals. Therefore, we will not consider Finding Number 13 a “finding of fact,” but we are also not required to ignore Mother’s testimony concerning Father’s and his family’s behavior. 2 Finding Number 15 [30] Father argues that the trial court’s finding that he only attended 18 of the 39 visits offered “[w]ith the latest provider” is misleading because Father only had 39 offered visits total throughout these proceedings. Appellant’s App. pp. 171, 180, 189. Father is correct. The uncontradicted evidence at trial established that Father was offered 39 visits total. Finding Number 16 [31] Finding Number 16 discusses the trauma the children have suffered as the result of a “pattern of abuse and neglect throughout their lives prior to DCS involvement.” Id. at 171, 180, 189. Father argues that the finding “is technically 2 We may affirm the trial court’s judgment without considering Finding Number 13. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 11 of 21 true but misleading where it implies that the ‘pattern of neglect’ is attributable to something Father did.” Appellant’s Br. at 21. [32] There is ample evidence in the record that both Mother and Father neglected the children, and a reasonable inference can be made that the children suffer from trauma as a result of both parents’ neglect. Moreover, Father neglected the children by failing to show for scheduled visitations. DCS presented evidence that Ch.S. has suffered significant trauma as a result of Father’s failure to attend visitations. Father’s argument is merely a request to reweigh the evidence and credibility of the witnesses, which our court will not do. See In re S.K., 124 N.E.3d at 1230–31. Finding Number 17 [33] The trial court found that “[Ch.S] has been especially affected by the trauma he has experienced. Mother testified about one time she recalled Father pinning [Ch.S.] against the wall in 2018.” Appellant’s App. pp. 171, 180, 189. Father argues this finding is misleading because “it implies [Ch.S’s] trauma is connected to the event described in mother’s testimony.” Appellant’s Br. at 21. [34] Again, this is a request to reweigh the evidence. It was reasonable to infer that this event would cause trauma to a child. Therefore, we do not agree that the finding is misleading. Finding Number 18 [35] In Finding Number 18, the trial court found that Ch.S. would like to live permanently with his foster parents. Father argues this is misleading because Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 12 of 21 Ch.S. also expressed a desire to maintain contact with Father. The finding is accurate and supported by the evidence. The trial court’s omission of Ch.S.’s stated desire to have a relationship with Father does not affect the accuracy of the finding. Finding Number 20 [36] Father challenges Finding Number 20, in which the trial court found that it was difficult for DCS to get Father to participate in family team meetings. This finding is supported by evidence that Father only participated in one child and family team meeting shortly before the termination fact-finding hearing. Finding Number 22 [37] In this finding, the trial court incorrectly found that Father missed his last visit with the children prior to the fact-finding hearing because he had a toothache. Father presented evidence that he missed the last visit due to transportation issues, but he missed an earlier visit due to a toothache. Tr. pp. 87–88, 122, 129. Clear and Convincing Evidence Supports the Trial Court’s Judgment. [38] It is well-settled that the parent-child relationship is one of society’s most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind. Ct. App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove four elements by clear and convincing evidence. Ind. Code § 31-35-2-4(b)(2) (2021). Two of those elements are at issue here: (1) whether there is a reasonable probability that the conditions that resulted in the Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 13 of 21 children’s removal or the reasons for placement outside the home will not be remedied; and (2) whether termination is in the children’s best interests. 3 I.C. § 31-35-2-4(b)(2)(B)(i), (C). [39] Clear and convincing evidence need not establish that the continued custody of the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show that the child’s emotional and physical development are put at risk by the parent’s custody. Id. If the court finds the allegations in a petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). [40] Father argues that DCS failed to present clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children’s removal or reasons for placement outside of Father’s home will not be remedied and that termination of his parental rights is in the children’s best interests. I. Clear and convincing evidence supports the trial court’s finding that the conditions that resulted in the children’s removal or reasons for placement outside Father’s home will not be remedied. [41] When we review whether there is a reasonable probability that the conditions that resulted in the children’s removal or reasons for placement outside the 3 Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that only one prong of subsection 4(b)(2)(B) has been established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). In this case, the trial court did not issue a specific finding that continuation of the parent-child relationship poses a threat to the children’s well-being. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 14 of 21 parent’s home will not be remedied, our courts engage in a two-step analysis. See In re K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions led to their placement and retention in foster care.” Id. Second, we “determine whether there is a reasonable probability that those conditions will not be remedied.” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). In making the latter determination, we “evaluate the parent’s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child[ren].” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. [42] Father argues that the children were solely in Mother’s care when they were removed and placed in foster care, and therefore, the reasons for the initial removal are irrelevant as to Father. Appellant’s Br. at 24 (citing In re I.A., 934 N.E.2d 1127, 1133–34 (Ind. 2010)). We agree. [43] Focusing only on the reasons the children were placed outside Father’s home, we observe that Father admitted that the children were CHINS. He did not request that the children be placed in his care because, by his own admission, he lacked a suitable home. Father argues that within months of the CHINS factfinding hearing, he obtained a suitable and stable home in Kentucky. Father also claims that he was not required to present any evidence that he attempted to find housing or employment near Marion, Indiana. See id. at 26 (stating “[n]o law requires Father to live in the same state as his children in order to prove his fitness as a parent”). Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 15 of 21 [44] In support of his argument, Father cites In re the Matter of M.P., 162 N.E.3d 585 (Ind. Ct. App. 2021). In that case, we reversed a CHINS adjudication because the children’s father was willing to provide a safe and stable living environment, he was gainfully employed, and was compliant and willing to do whatever DCS required so that he could take care of his children. Id. at 592. Although the father did not have any contact with the children for several years and lived in Georgia, the father communicated with the children regularly in the year prior to their removal from their mother’s care and had a positive relationship with his children. Id. [45] The facts of this case are easily distinguished from those in Matter of M.P. DCS presented evidence that Father did not have a positive relationship with his children. In fact, the two younger children did not understand who Father was during visitations. Father had not maintained communication with his children in the months leading up to these proceedings. And DCS presented evidence that the children, and particularly Ch.S., have suffered trauma because of their relationship with Father. Contrary to Father’s claims, his parental rights were not terminated simply because he resides in Kentucky. [46] Father also concedes that he failed to consistently attend visitation but argues that “a parent’s failure to attend every scheduled visit offered … is not clear and Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 16 of 21 convincing evidence that the parent is uninterested or unwilling.” 4 Appellant’s Br. at 27 (citing R.S. v. Marion Cty. Dep’t of Child Servs., 56 N.E.3d 625, 630 (Ind. 2016)). Father attended just eighteen of thirty-nine offered visitations. Father often missed several visitations in a row. Father blames transportation issues and work commitments for missing his scheduled visitation. But Father also missed virtual visitations for which transportation obviously was not an issue.5 For example, Father missed every scheduled visitation in April 2020. And there is no evidence that Father requested to reschedule visitations that he could not attend due to his employment. In fact, Father testified that he worked overtime when his co-workers were absent from work instead of attending visitation with his children. Tr. p. 173. 4 Again, the facts of this case are easily distinguished from R.S. v. Marion Cty. Dep’t of Child Servs, 56 N.E.3d 625 (Ind. 2016), the case Father relies on in support of his argument. In that case, the father and child had a close bond and Father exercised parenting time with the child two to three times per week. Id. at 629–30. Therefore, our supreme court concluded that Father’s failure to attend every scheduled supervised visitation or attend hearings during the course of the CHINS proceedings is not clear and convincing evidence that Father is uninterested or unwilling to parent R.S. While we strongly encourage parents to comply with the procedures and practices set out by the court and DCS when a child has been found a CHINS, we cannot ignore the fostered relationship, parenting, and individual improvement efforts that Father has personally undertaken. Id. at 630. 5 Father claims that his “non-compliance with virtual visitation seems to have stemmed from the special challenges the hearing impaired faced during the pandemic.” Appellant’s Br. at 28. We are certain that Father’s and Ch.S.’s hearing impairments had a significant impact on the quality of their virtual visitation. But the difficulty posed by virtual visitation is not an excuse for Father’s failure to attend, often without advance notice that he would not attend the visit. Moreover, contrary to Father’s claim in his brief, it was not Father’s hearing impairment, but was his move to Kentucky that was the most significant factor in DCS’s inability to connect Father with appropriate service providers. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 17 of 21 [47] DCS also presented evidence that Father was abusive toward Mother and Ch.S., at least on one occasion. Father was ordered to participate in services to address these issues but failed to comply with the court’s order. Father did not complete any court-ordered services. He found a service provider to work with in Kentucky but stopped participating in services because he was not “comfortable with that person” and it “just wasn’t [his] bag.” Tr. p. 173. [48] Father has consistently demonstrated a lack of commitment to his children as well. He failed to attend the termination of parental rights hearing in Kentucky for his fourth child. He did not respond to DCS’s attempts to communicate with him until shortly before the CHINS fact-finding hearing. Father was offered visitation with the children after they were removed from Mother’s care while he was still living in Indiana but did not make any attempt to do so. Tr. pp. 125–26. Father’s decision to move from Indiana and relocate to Kentucky, a five-hour drive from his children where he does not have consistent transportation, is further evidence of his lack of commitment to and disinterest in his children. This is particularly true in this case where Father failed to provide any “coherent explanation” for his move to Kentucky. See Appellant’s App. p. 188. Father also failed to attend hearings during these proceedings and child and family team meetings. [49] Father lacks the necessary commitment and willingness to care for his children. For all of these reasons, we conclude that DCS presented clear and convincing evidence to support the trial court’s finding that there is a reasonable probability Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 18 of 21 that the conditions that resulted in the children’s removal from the home will not be remedied. II. Clear and convincing evidence supports the trial court’s finding that termination of parental rights is in the children’s best interests. [50] A court’s consideration of whether termination of parental rights is in a children’s best interests is “[p]erhaps the most difficult determination” a trial court must make in a termination proceeding. In re E.M., 4 N.E.3d 636, 647 (Ind. 2014). When making this decision, the court must look beyond the factors identified by DCS and examine the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate the interests of the parent to those of the child. Id. at 1155. Central among these interests is a child’s need for permanency. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Indeed, “children cannot wait indefinitely for their parents to work toward preservation or reunification.” E.M., 4 N.E.3d at 648. Further, the recommendation from service providers and the children’s guardian ad litem to terminate parental rights accompanied by evidence that the conditions resulting in removal will not be remedied can be sufficient to establish that termination is in the children’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied. [51] Arguing that termination of his parental rights was not in the children’s bests interests, Father cites to Ch.S.’s desire to maintain a relationship with him. He also claims we should not consider the family case manager’s “unsupported and Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 19 of 21 unsubstantiated claim” that Father physically abused Ch.S. Appellant’s Br. at 32. [52] First, we observe that the two youngest children did not understand who Father was during their visitations. The children were almost two and three years old when they were removed from Mother’s care. It is reasonable to infer that the youngest two children do not share a significant bond with Father. Moreover, before removal, R.S. was failing to thrive, and foster parents have reported that M.S. has engaged in concerning sexualized behaviors. [53] Although much of the testimony concerning the domestic violence and abuse perpetuated by Father was generally vague, DCS presented evidence of at least one specific incident of physical abuse that Father inflicted on Ch.S. Moreover, the children engage in behaviors that suggest that they have been subjected to abuse. [54] Ch.S. suffers from trauma and has significant behavioral issues. When Ch.S. was first placed with his foster family he was unable to sleep in the dark and he would scream out in the middle of the night. He was also admitted to a facility overnight for mental health treatment. Tr. p. 145. Ch.S.’s therapist diagnosed him with post-traumatic stress disorder. Id. at 66. And Father’s consistent failure to attend visitation caused Ch.S. to suffer additional trauma. Id. at 67, 71. [55] The children’s CASA believes that the children require consistency and structure that Father cannot provide. Tr. p. 105. Ch.S.’s therapist testified that Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 20 of 21 he “thrives” on structure. Tr. p. 74. Father’s failure to participate in consistent visitation with his children supports the service providers’ conclusions that Father is not able to provide the children with the stability and structure they need. Finally, the children’s current and former CASAs and the family case manager testified that termination of Father’s parental rights was in the children’s best interests. Tr. pp. 96–97, 101, 105, 121. [56] For all of these reasons, we conclude that DCS presented clear and convincing evidence to support the trial court’s finding that termination of Father’s parental rights is in the children’s best interests. Conclusion [57] Clear and convincing evidence supports the trial court’s order terminating Father’s parental rights. [58] Affirmed. Tavitas, J., and Weissmann, J., concur. Court of Appeals of Indiana | Memorandum Decision 21A-JT-1064 | November 15, 2021 Page 21 of 21

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