In the Matter of the Termination of the Parent-Child Relationship of K.A. (Minor Child) and B.A. (Father) B.A. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                                 FILED
    regarded as precedent or cited before any
    Nov 05 2020, 8:56 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                               CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                                    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    G. Allen Lidy                                            Curtis T. Hill, Jr.
    Lidy Law, PC                                             Attorney General of Indiana
    Mooresville, Indiana
    Monika Prekopa Talbot
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                         November 5, 2020
    of the Parent-Child Relationship                         Court of Appeals Case No.
    of K.A. (Minor Child) and B.A.                           20A-JT-812
    (Father);                                                Appeal from the Morgan Circuit
    B.A. (Father),                                           Court
    The Honorable Matthew Hanson,
    Appellant-Respondent,
    Judge
    v.                                               Trial Court Cause No.
    55C01-1909-JT-349
    The Indiana Department of
    Child Services (DCS),
    Appellee-Petitioner
    May, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020           Page 1 of 25
    [1]   B.A. (“Father”) appeals the involuntary termination of his parental rights to
    K.A. (“Child”). Father challenges a number of the trial court’s findings, and he
    also argues that the trial court’s findings do not support its conclusions that the
    conditions that led to Child’s removal would not be remedied and that the
    continuation of the Father-Child relationship would pose a threat to Child’s
    well-being. We affirm.
    Facts and Procedural History                                 1
    [2]   Child was born to J.G. (“Mother”) on August 28, 2018. Child tested positive
    for “THC, fentanyl, codeine, Tramadol, and morphine” at birth. (App. Vol. II
    at 44.) Mother admitted using heroin and cocaine in the past. She also told the
    Department of Child Services (“DCS”) that she used unprescribed Percocet and
    marijuana while pregnant. Father, who was required to wear an ankle bracelet
    “due to possession charges[,]” was found “in the hospital cafeteria vomiting
    with a syringe in his arm” and was treated at the hospital for an accidental
    overdose. (Id.) After he was treated, police arrested Father because they found
    his drug paraphernalia in Mother’s hospital room.
    [3]   On August 29, 2018, DCS removed Child from Parents’ care and placed Child
    with a foster family. At some point shortly thereafter, DCS placed Child with
    his paternal grandmother. On August 31, 2018, DCS filed a petition alleging
    1
    We remind Father’s counsel that Indiana Appellate Rule 46(A)(6)(c) requires the Statement of Facts be in
    narrative form.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020                Page 2 of 25
    Child was a Child in Need of Services (“CHINS”) based on Parents’ drug use
    and Father’s incarceration. On October 1, 2018, Mother and Father admitted
    Child was a CHINS and the trial court adjudicated Child as such. From
    September 20, 2018, to October 29, 2018, Father was enrolled in a substance
    abuse treatment program in Florida. Father failed to appear for a hearing in
    one of his criminal cases on October 22, 2018, and the criminal court issued a
    warrant for his arrest.
    [4]   On December 12, 2018, the trial court held its dispositional hearing. Father did
    not appear. At some point in the winter of 2018, Father returned to Florida to
    participate in substance abuse treatment, but he left the program after testing
    positive for illegal drugs. On January 31 or February 1, 2019, Mother died of a
    drug overdose. On February 2, 2019, police arrested Father on a bench warrant
    from the possession case stemming from Father’s heroin use at the hospital
    during Child’s birth on February 2, 2019. On February 4, 2019, Father pled
    guilty to Level 6 felony unlawful use of a syringe. The criminal court sentenced
    him to 365 days in home detention.
    [5]   On March 13, 2019, the trial court held a review hearing and removed Child
    from the Child’s placement with paternal grandmother because “there were
    several issues with the placement (paternal grandmother) surrounding
    [Mother’s] life support issues, comments to social workers at the hospital,
    visitations that were permitted with various non-approved people and/or the
    parents, and other issues[.]” (Id. at 23.) DCS then placed Child with maternal
    grandmother. On March 13, 2019, the trial court entered its dispositional
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 3 of 25
    order, requiring Father to, among other things: contact DCS, notify DCS of a
    change in address or employment, notify DCS of any new criminal charges,
    allow DCS to make unannounced visits to Father’s residence, participate in all
    recommended services, maintain safe and appropriate housing, secure and
    maintain stable employment, refrain from using illegal drugs or alcohol, submit
    to random drug screens, complete a parenting assessment, and attend all
    scheduled visits with Child. On April 1, 2019, DCS placed Child with maternal
    aunt, where he has remained for the pendency of these proceedings.
    [6]   After the trial court’s dispositional order in the CHINS case, Father completed
    his substance abuse evaluation and enrolled in the Fatherhood Engagement
    program as ordered by the trial court. From March 13 until May 28, 2019,
    Father participated in two supervised visits with Child per week. On March 13
    and April 8, 2019, Father tested negative for illegal drugs. He tested positive for
    THC, morphine, and fentanyl on May 6, 2019, and for morphine and fentanyl
    on May 20, 2019.
    [7]   From May 28 through October 4, 2019, Father was in and out of jail for various
    violations of his home detention placement. At some point in those four
    months, Father left Indiana without the permission of DCS or his probation
    officer, reportedly to engage in substance abuse treatment services in Florida.
    On June 18, 2019, the trial court suspended Father’s supervised visits with
    Child. Because Father was non-compliant with services, on August 15, 2019,
    the trial court changed Child’s permanency plan from reunification to adoption.
    On September 11, 2019, DCS filed its petition to terminate Father’s parental
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 4 of 25
    rights to Child. After his release from incarceration on October 4, 2019, Father
    began to re-engage in services such as substance abuse treatment and the
    Father’s Engagement program.
    [8]    In November 2019, Father began group therapy sessions to address substance
    abuse and parenting skills. The service provider suggested Father participate in
    a recovery process group prior to the substance abuse and parenting skills group
    sessions because Father tested positive for illegal drugs. Father did not return to
    the service provider for the recovery group, substance abuse group, or the
    parenting group. On November 4, 2019, he tested positive for THC and
    cocaine. Father continued his participation with Fatherhood Engagement. On
    November 21, 2019, Father tested positive for THC and cocaine. Father did
    not complete some requested screens in December 2019. Father did not
    complete some of the requested screens in January 2020.
    [9]    The trial court held fact-finding hearings on DCS’s termination petition on
    February 27 and March 4, 2020. On March 8, 2020, the trial court entered its
    order terminating Father’s parental rights to Child.
    Discussion and Decision
    [10]   We review termination of parental rights with great deference. In re K.S., 
    750 N.E.2d 832
    , 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
    the credibility of witnesses. In re D.D., 
    804 N.E.2d 258
    , 265 (Ind. Ct. App.
    2004), trans. denied. Instead, we consider only the evidence and reasonable
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 5 of 25
    inferences most favorable to the judgment. 
    Id.
     In deference to the juvenile
    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. In re L.S.,
    
    717 N.E.2d 204
    , 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 
    534 U.S. 1161
     (2002).
    [11]   “The traditional right of parents to establish a home and raise their children is
    protected by the Fourteenth Amendment of the United States Constitution.” In
    re M.B., 
    666 N.E.2d 73
    , 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court
    must subordinate the interests of the parents to those of the child, however,
    when evaluating the circumstances surrounding a termination. In re K.S., 
    750 N.E.2d at 837
    . The right to raise one’s own child should not be terminated
    solely because there is a better home available for the child, 
    id.,
     but parental
    rights may be terminated when a parent is unable or unwilling to meet his or
    her parental responsibilities. 
    Id. at 836
    .
    [12]   To terminate a parent-child relationship in Indiana, DCS must allege and
    prove:
    (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.
    (ii)   A court has entered a finding under IC 31-34-21-5.6
    that reasonable efforts for family preservation or
    reunification are not required, including a
    description of the court’s finding, the date of the
    finding, and the manner in which the finding was
    made.
    (iii) The child has been removed from the parent and
    has been under the supervision of a county office of
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 6 of 25
    family and children or probation department for at
    least fifteen (15) months of the most recent twenty-
    two (22) months, beginning with the date the child
    is removed from the home as a result of the child
    being alleged to be a child in need of services or a
    delinquent child;
    (B)     that one (1) of the following is true:
    (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). DCS must provide clear and convincing proof of
    these allegations. In re G.Y., 
    904 N.E.2d 1257
    , 1260-61 (Ind. 2009), reh’g denied.
    “[I]f the State fails to prove any one of these statutory elements, then it is not
    entitled to a judgment terminating parental rights.” 
    Id. at 1261
    . Because
    parents have a constitutionally protected right to establish a home and raise
    their children, the State “must strictly comply with the statute terminating
    parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 
    631 N.E.2d 16
    , 18
    (Ind. Ct. App. 1994).
    1. Challenged Findings
    [13]   When, as here, a judgment contains specific findings of fact and conclusions
    thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 7 of 25
    Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). We determine whether the
    evidence supports the findings and 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.” Quillen v. Quillen, 
    671 N.E.2d 98
    ,
    102 (Ind. 1996). If the evidence and inferences support the juvenile court’s
    decision, we must affirm. In re L.S., 
    717 N.E.2d at 208
    . Unchallenged findings
    “must be accepted as correct.” Madlem v. Arko, 
    592 N.E.2d 686
    , 687 (Ind.
    1992). Father challenges a number of the trial court’s findings.
    A. Findings Regarding Father’s Drug Screens
    [14]   Father challenges five findings regarding the drugs screens required of him as
    part of the trial court’s dispositional order. Regarding the outcomes of his drug
    screens, Father challenges the following findings:
    121. That [Father] missed several drug tests in October, which
    were deemed positive, failed two others and passed two others.
    *****
    140. That on both 12/11 and 12/17 [Father] had positive drug
    screens for THC and simply failed to show up for any other
    screens.
    *****
    143. That [Father] had positive drug screens on 1/14 for
    Cocaine and THC, on 1/20 for THC and on 1/23. [Father]
    failed all other screens for simply not showing up and was
    negative for the two he did appear for.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 8 of 25
    144. That [Father] was negative for drugs on the two screens he
    took in February of 2020.
    (App. Vol. II at 29-31.) Father contends these findings are not supported by
    evidence in the record.
    [15]   Regarding Father missing drug screens, the family case manager testified Father
    missed drug screens, but she did not give any specific dates that those screens
    were missed. (See Tr. Vol. II at 12) (when asked if Father missed drug screens,
    family case manager answered in the affirmative). DCS concedes “[i]t is
    unclear from the record where the trial court obtained this information[.]” (Br.
    of Appellee at 20.) Nevertheless, there were several other unchallenged findings
    regarding Father’s drug use.
    [16]   Father does not challenge the following findings regarding his drug use:
    8. That the main reasons for filing [the CHINS] petition were
    based upon drugs found in [Child’s] system at birth and both
    parents’ use of illegal substances.
    9. That in addition to these issues, at the hospital where [Child]
    was born, [Father] had an overdose on drugs and eventually
    ended up in Marion County Jail.
    *****
    15. That a hearing [on the CHINS petition] was held on
    September 21, 2018 at which [Father] did not appear as he had
    apparently been released from jail and had flown to Florida to
    seek drug treatment.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 9 of 25
    *****
    18. That [Father] filed an affidavit admitting he was father of the
    [Child], and that he had drug issues and could not care for
    [Child] due to being out of state in treatment.
    *****
    59. That it was indicated at one visit [with Child] that the
    provider believed that [Father] showed signs of intoxication and
    other providers surmised [Father] may have relapsed.
    *****
    61. That [Father] had two positive drug screens on May 6, 2019
    for THC, Morphine and Fentanyl and again on May 29, 2019 for
    Morphine and Fentanyl, and he cancelled a meeting with the
    FCM [family case manager] when she was to meet with him
    about the screens.
    62. That by text [Father] admitted to relapsing.
    *****
    77. That [at a review hearing on June 18, 2019, during which
    Father did not appear, but was represented by counsel] the
    parties discussed [Father’s] whereabouts, concerns for his lack of
    progress on any of the recommendations from this case and the
    CASA [court-appointed special advocate] raised concerns about
    [Father’s] recent visits where she believed he was clearly under
    the influence of drugs.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 10 of 25
    78. That these worrisome visits preceded [Father’s] return to the
    Florida drug treatment facility so it is not a far stretch to find that
    CASA’s concerns and beliefs were likely true in regards with [sic]
    [Father] being under the influence of drugs at the visits.
    79. That showing up high to visits is a clear and apparent danger
    to [Child].
    *****
    97. That during the month of July [2019] [Father] also avoided
    taking drug screens.
    *****
    122. That on November 4, 2019 [Father’s] drug test was positive
    for THC and Cocaine.
    *****
    136. That [Father,] the FCM and others testified that [Father]
    was confronted in November of 2019 with having to drop his
    IOP [intensive outpatient program] class to attend an “active
    users” group until he could get clean, and only then return to the
    IOP class.
    *****
    163. That this case began just two (2) days after [Child’s] birth
    when [Child] was born drug positive and [Father] was arrested
    and overdosed on drugs.
    *****
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 11 of 25
    171. Here, however, [Father] was discovered high in the hospital
    cafeteria, admitted to throwing a needle and spoon with heroin
    into the bushes and was clearly overdosing on drugs.
    172. Therefore, it became apparent quite early in this case that
    [Father] has a serious drug issue that needed to be addressed.
    *****
    184. That over the next several months [Father] did eventually
    complete an assessment, did none of the recommended drug
    services thereafter, and was eventually back using drugs in the
    late spring of 2019.
    *****
    194. That within a matter of days or [sic] reengaging in services
    [in Fall 2019], however, [Father] failed two (2) more drug tests.
    *****
    196. That on November 21, 2019 [Father] had a positive test for
    THC, Cocaine, BZE and EME.[ 2]
    *****
    2
    Donna McCoy, the certified toxicologist from the laboratory that processed Father’s drug screens, testified
    BZE is “benzoylecgonine . . . a metabolite of cocaine” and EME is “ecgonine methyl ester . . . which is
    another metabolite of cocaine[.]” (Tr. Vol. II at 75.)
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020                 Page 12 of 25
    202. Likewise, [Father] claimed he has been drug free despite
    simply skipping out on almost all of the drug tests from
    November to the date of the termination hearing.
    *****
    212. That in whole, it is clear that [Father] continues to use
    drugs and has an ongoing drug abuse issue.
    (Id. at 21-36.) As there are multiple unchallenged findings documenting
    Father’s drug abuse issues, any trial court error created by including findings
    121, 140, 143, and 144 was harmless. See Lasater v. Lasater, 
    809 N.E.2d 380
    ,
    397 (Ind. Ct. App. 2004) (“To the extent that the judgment is based on
    erroneous findings, those findings are superfluous and are not fatal to the
    judgment if the remaining valid findings and conclusions support the
    judgment.”).
    [17]   Additionally, Father contends Finding 123, which pertains to his drug use, is
    not supported by evidence. Finding 123 states: “That [Father] had previously
    admitted to the case worker using several weeks prior to this test [on November
    4, 2019].” (App. Vol. II at 29.) However, the family case manager testified
    Father indicated to her “[d]uring the team meeting in November” that he “does
    have a problem and does need help.” (Tr. Vol. II at 115.) Father’s argument is
    an invitation for us to reweigh the evidence and judge the credibility of
    witnesses, which we cannot do. See In re D.D., 
    804 N.E.2d at 265
     (appellate
    court cannot reweigh evidence or judge the credibility of witnesses). Finding
    123 is supported by the evidence.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 13 of 25
    B. Findings Regarding Father’s Participation in Services
    [18]   Father contends two of the court’s findings are “directly in conflict[.]” (Br. of
    Appellant at 20.) He points to Finding 139, which states, “That in December
    the case worker attempted to engage [Father] in all of the services he was
    supposed to [be] working [on] but he otherwise did not engage,” (App. Vol. II
    at 30), and Finding 138, which states, “that in December [Father] did become
    engaged with Fatherhood Engagement.” (Id.) He also asserts the evidence
    does not support the finding that his case worker attempted to engage him in
    December 2019 because she testified that she had only communicated with
    Father “thru [sic] text messaging and phone calls.” (Tr. Vol. II at 129.)
    [19]   Additionally, with regard to visitation, Father challenges Finding 191, which
    states “[t]hat [Father’s] visitations were suspended completely in June of 2019
    until he could show three (3) months of clean screens and reengage in services.”
    (App. Vol. II at 34.) Father does not argue the record fails to support this
    finding, but instead argues the trial court’s order suspending Father’s visitation
    did not include the requirement that he produce three months of negative drug
    screens and reengage in services.
    [20]   As an initial matter, Father’s arguments are invitations for us to reweigh the
    evidence and judge the credibility of witnesses, which we cannot do. See In re
    D.D., 
    804 N.E.2d at 265
     (appellate court cannot reweigh evidence or judge the
    credibility of witnesses). Further, “under Indiana law, even a complete failure
    to provide services cannot serve as a basis to attack the termination of parental
    rights[,]” Stone v. Daviess Cty. Div. of Children & Family Servs., 
    656 N.E.2d 824
    ,
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 14 of 25
    830 (Ind. Ct. App. 1995), trans. denied, and it is well settled that “a parent may
    not sit idly by without asserting a need or desire for services and then
    successfully argue that he was denied services to assist him with his parenting.”
    In re B.D.J., 
    728 N.E.2d 195
    , 201 (Ind. Ct. App. 2000). Thus, Father’s
    arguments regarding the trial court’s findings about the services, visitation, and
    communication during these proceedings fail.
    C. Findings Regarding Court Proceedings
    [21]   Father challenges a number of findings pertaining to the court proceedings,
    specifically:
    114. That while the court could have perhaps defaulted [Father]
    on the entire hearing, the court chose instead to keep [Father’s]
    denial [of DCS’s petition to terminate his parental rights] in place
    and set up a fact-finding hearing.
    115. This particular fact finding was set since [Father] had
    clearly caused delay and had not even appeared at the November
    12, 2019 hearing to inform the court of the progress of his search
    for counsel.
    *****
    152. This denial [of Father’s motion to continue] was based on
    the fact that this matter had often been delayed by [Father’s]
    actions throughout this case and even once new counsel was
    finally hired after the start of the termination hearing, just a few
    days before the main hearing, [Father] fired and hired another
    new counsel.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 15 of 25
    153. Simply put, this case had been delayed enough and due to
    timelines and consideration for permanency, and through the
    review hearings the court was aware [Father] was not
    participating in any services anyway making a continuance
    request seem more [like] another tactic to delay/stall the hearing.
    (App. Vol. II at 29, 31.) Father contends Findings 114 and 115 indicate the trial
    court’s “predilection to find against [Father].” (Br. of Appellant at 16.)
    Similarly, he argues Findings 152 and 153 are further examples of the “the
    procedure [the trial court] used in ramming this [termination of parental rights
    petition] through to conclusion [which] strikes at the heart of essential fairness
    in the litigation process.” (Id. at 24.)
    [22]   The record indicates Father refused court-appointed counsel after DCS filed its
    petition to terminate his parental rights, did not hire private counsel for two
    months, and then changed counsel again before the termination fact-finding
    hearing. During the termination proceedings, Father was participating in
    Fatherhood Engagement, but was not consistently engaged with any other
    service, including those to address his substance abuse problem. Father’s
    arguments are invitations for us to reweigh evidence and judge the credibility of
    witnesses, which we cannot do. See In re D.D., 
    804 N.E.2d at 265
     (appellate
    court cannot reweigh evidence or judge the credibility of witnesses). Further,
    Father has not indicated how the trial court’s characterization of the
    proceedings before it affected his substantial rights, and thus any error in their
    inclusion was harmless. See Indiana Appellate Rule 66(A) (harmless error
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 16 of 25
    occurs when, in light of all of the evidence in the case, the error is sufficiently
    minor so as not to affect the substantial rights of a party).
    D. Other Challenged Findings
    [23]   Father challenges Finding 190, which states in relevant part, that he was
    released from jail on October 28, 2019. He also challenges Finding 233, which
    states in relevant part that he was released from jail on September 4, 2019. The
    parties do not dispute that Father was released from jail on October 4, 2019.
    However, these two clerical errors are harmless because the correct date Father
    was released from jail is stated multiple times elsewhere in the order. See S.M.
    v. Elkhart Cty. Ofc. of Family & Children, 
    706 N.E.2d 596
    , 598 (Ind. Ct. App.
    1999) (“When a trial judge makes an erroneous fact finding that is superfluous
    to the judgement the error does not warrant reversal.”).
    [24]   Father also argues Finding 178, which states “[t]hat within days of arriving at
    the [rehabilitation] facility [in Florida] [Father] spoke about the corruption of
    the Indiana DCS system, how his mother was attempting to gain custody of his
    son[,]” (App. Vol. II at 33), is not supported by the evidence. He maintains the
    record indicates, “[c]lient informed therapist that his mother feels that she will
    be able to gain custody of his son soon and that the system up in Indiana is
    corrupt” (State’s Ex. Vol. II at 84), “39 days after he was admitted” (Br. of
    Appellant at 24), not “within days” of his admission at the Florida
    rehabilitation facility. Father’s arguments are invitations for us to reweigh
    evidence and judge the credibility of witnesses, which we cannot do. See In re
    D.D., 
    804 N.E.2d at 265
     (appellate court cannot reweigh evidence or judge the
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 17 of 25
    credibility of witnesses). Further, even if the characterization of the time frame
    in which Father expressed his displeasure with DCS is incorrect, that error does
    not warrant reversal. See S.M., 
    706 N.E.2d at 598
     (“When a trial judge makes
    an erroneous fact finding that is superfluous to the judgement the error does not
    warrant reversal.”).
    [25]   Finally, Father challenges a number of findings that are conclusory in nature:
    204. That as is clearly evident to anyone reviewing the history of
    this case [Father] refuses to accept any path to redemption other
    than his own.
    205. That from the very start of this case [Father] has always
    taken his own steps, [has] refused the aid of those trying to help
    him, and has refused to maintain sobriety for any long period of
    time.
    206. While some could say that putting yourself into [a] rehab
    facility back in the fall of 2018 was a positive step, the rehab did
    not hold, [Father] skipped out on his criminal case which
    resulted in a warrant and [Father] has refused to let anyone in
    Indiana assist him with his drug use.
    *****
    213. Likewise, it is clear that [Father] refuses to get the help he
    needs to overcome this addiction and will not seek out this help
    as it has awaited him since the case started.
    214. It is clear beyond a reasonable doubt that there is a
    reasonable probability that [Father] has not and will not remedy
    the drug issues he has faced for over ten years of his life.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 18 of 25
    *****
    241. Instead [Father] did his own thing, thumbed his nose at the
    system and the state, and this criminal behavior is one that has
    been in play for most of his life and continues to this day.
    *****
    269. [Father] lacks any ability to care for or provide for [Child]
    as he has not done so consistently while under the dictates of this
    case.
    (App. Vol. II at 35-40.) Father contends these findings are irrelevant and
    conclusory in nature, and that they change the standard under which Father
    may be reunified with Child from whether Father may remedy the situation
    which resulted in Child’s removal to whether Father can be “redeemed.” (Br.
    of Appellant at 27.) Father also argues “there is no requirement that the only
    path to remedying the situation is through DCS intervention.” (Id.) Further,
    regarding Finding 269, Father asserts that the trial court’s finding attempts to
    impose a new standard, “to wit: Because the child has been removed from the
    Appellant the entire time the case was pending, then termination must occur
    because the Appellant could not provide care and custody for the child during
    the case.” (Id. at 30.)
    [26]   Father’s entire appellate argument, but especially the portion regarding the
    conclusory findings, meanders and nitpicks at language in the findings that has
    absolutely no relevance. He cites very few cases, and those cases he cites are
    often not on point or properly cited. At best, Father’s arguments regarding the
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 19 of 25
    trial court’s conclusory findings are invitations for us to reweigh the evidence or
    judge the credibility of witnesses, which we cannot do. See In re D.D., 
    804 N.E.2d at 265
     (appellate court cannot reweigh evidence or judge the credibility
    of witnesses). At worst, they lack cogency and are waived for our review. See
    In re B.R., 
    875 N.E.2d 369
    , 373 (Ind. Ct. App. 2007) (waiving argument for lack
    of cogency), trans. denied. Nevertheless, we hold the trial court did not err in
    making these findings as they are supported by the record as discussed supra.
    2. Conditions Under Which Child Was Removed Would Not
    Be Remedied
    [27]   The trial court found the conditions that resulted in Child’s removal would not
    be remedied. In making such a determination, a trial court must judge a
    parent’s fitness to care for his child 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. It must evaluate the
    parent’s habitual patterns of conduct to determine whether there is a substantial
    probability of future neglect or deprivation. 
    Id.
     Pursuant to this rule, courts
    have properly considered evidence of a parent’s prior criminal history, drug and
    alcohol abuse, history of neglect, failure to provide support, and lack of
    adequate housing and employment. A.F. v. Marion Cty. Office of Family &
    Children, 
    762 N.E.2d 1244
    , 1251 (Ind. Ct. App. 2002), trans. denied.
    [28]   The trial court may also properly consider, as evidence of whether conditions
    will be remedied, the services offered to the parent by DCS and the parent’s
    response to those services. 
    Id.
     A trial court need not wait until a child is
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 20 of 25
    irreversibly influenced by a deficient lifestyle such that his or her physical,
    mental, and social growth are permanently impaired before terminating the
    parent-child relationship. In re E.S., 
    762 N.E.2d 1287
    , 1290 (Ind. Ct. App.
    2002). Father argues the trial court’s conclusion that the conditions that
    resulted in Child’s removal would not be remedied was “not reliable” “based
    upon . . . the evidence actually introduced at the TPR Trial.” (Br. of Appellant
    at 30.)
    [29]   The trial court entered a plethora of unchallenged findings that support its
    conclusion that the conditions that resulted in Child’s removal would not be
    remedied, including:
    95. The DCS caseworker quite accurately points out in the
    report that [Father] has continued to make excuses, essentially
    lie, and continue to put off any work towards services in this
    case.
    96. The DCS caseworker reset several meeting times at
    [Father’s] requests, however he most often did not show up for
    those meetings.
    *****
    98. That in July [2019] [Father] began to accuse the caseworker
    and others involved of lying and essentially making up things
    about him.
    *****
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 21 of 25
    135. That at the end of November [2019] [Father] ceased all
    services with Centerstone [the service provider for substance
    abuse rehabilitation services].
    136. That [Father], the FCM and others testified that [Father]
    was confronted in November of 2019 with having to drop his
    IOP [Intensive Outpatient] class to attend an “active users”
    group until he could get clean, and only then return to the IOP
    class.
    *****
    141. In January [2020] [Father] continued to work with
    fatherhood engagement, however since he was not seeing
    [Child], the meetings focused more on support and advice during
    the pending termination proceedings.
    *****
    157. Initially it should be stated that at no time in [Child’s] life
    has he ever lived with [Father].
    *****
    177. Father admitted to the [Florida rehabilitation] facility that
    he had been abusing drugs since age 16, was willing and ready to
    change, was willing to get involved in the 12 step programs and
    find sponsors, admitted to a long history of legal troubles and
    violence, and had clear control issues.
    *****
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 22 of 25
    180. It should be noted this [Florida rehabilitation] facility was
    not approved for services by the DCS and until late December
    [2018] the DCS did not even know where [Father] was located
    while in Florida.
    *****
    209. That [Father] has refused to utilize any consistent treatment
    or help from the DCS to overcome his drug addiction which is as
    prevalent today as it was when this case started.
    *****
    215. Second, [Father] has issues with criminal activity.
    *****
    237. That this case started with criminal behaviors and such
    behaviors have continued over the life of this case.
    238. That [Father] showed a complete inability to tackle his legal
    issues, chose to remove himself from the state on two occasions
    knowing he was not to leave, and continued to violate the simple
    dictates placed upon him by community corrections without
    regard for the rules.
    239. That [Father] admitted to a long history of criminal
    behaviors and although this most recent criminal charge in
    Marion County is just one of several, the behaviors by [Father]
    show a complete disregard for authority or the law.
    240. That [Father] was given chance after chance, perhaps even
    more chances than this court has ever seen in a criminal case, to
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020   Page 23 of 25
    get out on the streets, seek help and find a direction other than a
    criminal one.
    *****
    249. Overall, however, it is clear [Father] lacks any real stability
    and has not had an ability to have a home or hold a job over the
    duration of this case and up until months after the termination
    case was filed.
    250. That despite this recent alleged stability at home and work,
    [Father] has refused to return to any of the DCS services
    available to him to fix all of the issues in his life.
    *****
    256. Whether due to a complete lack of maturity, being
    emboldened by others that did not insist [Father] get a home, job
    or treatment, or by simply not having a care [sic] to see the real
    dangers here, [Father] cannot seem to remedy his complete lack
    of stability and ability to care for himself, let alone a young child.
    (App. Vol. II at 27-39.) The trial court’s unchallenged findings about Father’s
    drug use, noncompliance with services, criminal behavior, and lack of stability
    are sufficient to support its conclusion that the conditions that resulted in
    Child’s removal would not be remedied. 3 See In re G.M., 
    71 N.E.3d 898
    , 908
    3
    Father also argues the trial court’s findings do not support its conclusion that the continuation of the parent-
    child relationship posed a threat to the well-being of Child. However, as the trial court’s findings supported
    its conclusion that the conditions under which Child was removed would not be remedied, we need not
    address that argument. See In re L.S., 
    717 N.E.2d 204
    , 208 (Ind. Ct. App. 1999) (because statute written in
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020                     Page 24 of 25
    (Ind. Ct. App. 2017) (affirming the trial court’s conclusion that the conditions
    under which child was removed from mother’s care would not be remedied
    based on mother’s continued drug use and noncompliance with services).
    Conclusion
    [30]   With the exception of Findings 121, 140, 143, and 144, the findings Father
    challenges were supported by evidence, the findings were superfluous, or his
    challenge thereto was waived. Regarding Findings 121, 140, 143, and 144, the
    trial court’s inclusion of findings not seemingly supported by evidence was
    harmless because there existed several other unchallenged findings to
    demonstrate Father’s drug use. Additionally, the trial court’s findings support
    its conclusion that the conditions that resulted in Child’s removal would not be
    remedied. Accordingly, we affirm the involuntary termination of Father’s
    parental rights to Child.
    [31]   Affirmed.
    Riley, J., and Altice, J., concur.
    disjunctive, court needs to find only one requirement to terminate parental rights), reh’g denied, trans. denied,
    cert. denied 
    534 U.S. 1161
     (2002).
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-812 | November 5, 2020                      Page 25 of 25