Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JT-684 | December 13, 2016 Page 1 of 22

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Mark F. James

Anderson Agostino & Keller, PC

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henki

Abigail R. Recker

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Termination of the ParentChild Relationship of:

E.S., Ed.B and El.B (Minor 

Children),

And

B.B. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

December 13, 2016

Court of Appeals Case No.

71A03-1603-JT-684

Appeal from the St. Joseph Probate 

Court

The Honorable James Fox, Judge

Trial Court Cause Nos. 71J01-

1402-JT-7, 71J01-1402-JT-8, and 

71J01-1402-JT-9
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Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Respondent, B.B. (Father), appeals the termination of his parental 

rights to his two minor children, Ed.B. and El.B.

[2] We reverse.

ISSUE

[3] Father raises one issue on appeal, which we restate as follows: Whether the 

trial court clearly erred in terminating Father’s parental rights.

FACTS AND PROCEDURAL HISTORY

[4] In early 2012, Father and his wife, S.B. (Mother), were living in Mishawaka, St. 

Joseph County, Indiana, with their children: E.S., born on January 4, 2005, 

and Ed.B., born on September 3, 2010. Father is not the biological parent of 

E.S.; however, E.S. was never made aware of this fact, and Father always 

treated her as if she was his biological child.1

 Around this time, the Indiana 

Department of Child Services (DCS) became involved with the family 

regarding allegations of domestic violence between Father and Mother. In 

 

1

 As E.S. is neither biologically nor legally Father’s child, he did not have any parental rights with respect to 

her, and she is therefore not a subject of this appeal. With respect to E.S., on February 29, 2016, the trial 

court terminated the parental rights of Mother and E.S.’s biological father. Additional facts pertaining to 

E.S. are included where appropriate. We further note that while Mother’s parental rights to the three 

children involved in this case were terminated, she is not a party to this appeal.
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September of 2012, DCS closed the case due to the parents’ successful 

compliance with their case plans.

[5] However, just two months later, on November 5, 2012, DCS received a report 

that Father and Mother were both being arrested—Father for growing 

marijuana in the backyard and Mother on outstanding warrants, thus leaving 

nobody to care for E.S. and Ed.B. Accordingly, DCS intervened and placed 

E.S. and Ed.B. in the care of Father’s mother (a licensed foster care provider). 

During DCS’ investigation, Father reported that he grew the marijuana so that 

he and Mother could smoke it, but he claimed that he did not sell it to others. 

DCS observed that the family home was in disarray, with food and soiled

diapers littering the floor. On November 7, 2012, DCS filed a petition alleging 

E.S. and Ed.B. to each be a child in need of services (CHINS), and the trial 

court adjudicated them as such the same day.

[6] On December 10, 2012, the trial court, following a dispositional hearing, issued 

a dispositional order in which it directed Father to participate in parental 

reunification services. In particular, the trial court ordered Father to complete a 

substance abuse assessment and follow all recommendations; submit to random 

drug screens; abstain from drug and alcohol use; and participate in home-based 

parent-aide services. Also that day, because both Father and Mother had 

already been actively participating in the services recommended by DCS since 

the children’s removal, the trial court ordered that E.S. and Ed.B. be returned to 

the care of Father and Mother for a trial home visit. 
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[7] On January 8, 2013, Mother gave birth to her second child with Father, El.B. 

At the time, parents were compliant with their DCS services. However, on 

April 16, 2013, DCS received a new report of concerns regarding Father and 

Mother. In particular, the report alleged that Father had yelled at three-monthold El.B. for refusing to take her bottle, slapped eight-year-old E.S., and pushed 

two-year-old Ed.B. to the ground. Father had also reportedly pushed Mother 

hard enough that Mother fell onto E.S.

2

 The report further indicated that 

Mother was continuing to abuse alcohol. Thus, on April 17, 2013, DCS 

removed the children from their parents’ custody and placed them, again, with 

Father’s mother. On April 18, 2013, DCS filed a petition alleging El.B. to be a 

CHINS, and she was adjudicated as such the same day. On April 29, 2013, the 

trial court issued a new dispositional order as to El.B. and modified the 

dispositional order concerning E.S. and Ed.B., directing Father to participate in 

individual and family therapy; submit to random drug screens; abstain from 

drug and alcohol use; participate in home-based parent-aide services; and 

participate in visitation. Father’s visits were to be supervised.

[8] On May 9, 2013, DCS discovered that Father had been living with the children 

in his mother’s home and that Father’s mother had also allowed both parents to 

have unsupervised access to the children contrary to the court’s mandate. 

 

2 DCS’ reports contain allegations of Father’s physical aggression toward the three children; however,

testimony from the DCS family case manager indicates that while Father and Mother were physically 

abusive to each other, this conduct did not extend to the children. No criminal charges were filed or 

protective orders obtained against either Father or Mother.
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Accordingly, DCS removed the children from their relative placement and on

May 15, 2013, placed them in a foster home, where they currently reside. Since 

being placed in foster care, Ed.B. has received therapies to deal with his 

behavioral issues and speech difficulties, and E.S. has also been involved in 

therapy. El.B., who was only four months old at the time she was placed with 

the foster parents, has developed normally. The foster parents have enrolled the 

children in activities, and they maintain a structured routine for them. 

Although the children—particularly E.S. and Ed.B.—miss their parents, all 

three are doing well in their foster placement, and the foster parents wish to 

adopt them. 

[9] Following the children’s placement in foster care, Father fully participated in 

his case plan with DCS and was progressing toward reunification. He 

completed his substance abuse assessment and treatment, and all of his drug 

screens were negative. Father also completed a batterer’s intervention program. 

He regularly attended his therapy sessions and consistently visited with the 

children. DCS noted that Father interacted appropriately with the children, 

and he was bonded to all three. On multiple occasions, the foster parents 

invited Father to their home to interact with the children and to work on his 

parenting skills in preparation for caring for the children on his own, which 

Father accepted. Father also maintained employment, and in June of 2013, he 

purchased a home in the Village Green Mobile Home Park in Mishawaka. On 

the other hand, Mother struggled with her sobriety and eventually became non-
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compliant with her DCS services. As a result, Mother’s visitation with the 

children was suspended. 

[10] Based on the time the children had been removed from the home, on February 

4, 2014, DCS filed petitions to terminate Father’s parental rights to Ed.B. and 

El.B. Nevertheless, DCS continued to offer services to Father with a 

concurrent goal of reunification. On April 28, 2014, the trial court reduced the 

supervision level of Father’s visitation to an intermittent basis. On June 16, 

2014, Father’s visitation with all three children was increased to include an 

overnight visit on the weekends with intermittent supervision. At DCS’ 

request, the trial court agreed that if these visits went well, Father could begin 

unsupervised visits on July 16, 2014.

[11] Despite his apparent progress, Father never reached the level of unsupervised 

visits. Although Father was excited about the visits and “was really putting 

forth the effort in making sure he was more engaged with the children” and 

“was willing to try to learn different parenting techniques,” various issues 

would arise during the visits that caused DCS and the visitation supervisor to be 

skeptical about Father’s ability to keep all three children safe without any 

assistance. (Tr. pp. 64, 67). As the visitation supervisor described, Father

kind of had tunnel vision. You tell him an incident that he 

needed to work on and he would work on that particular 

incident, but he would seem to have difficulty in just knowing 

when the next incident arrives, and you talk to [Father] and he’d 

work on that incident.
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(Tr. p. 64). For instance, DCS and the visitation supervisor had to instruct 

Father on certain safety issues, such as securing paint supplies (after El.B. got 

into a bucket of paint) and not leaving power tools within reach of the children. 

Father also became overwhelmed, and he struggled to give proper attention to 

all three children as his attempts to redirect Ed.B.’s misbehavior consumed a 

large portion of the visits. In fact, the foster parents noticed that El.B. would 

sometimes return from visits with a diaper rash. On at least one occasion, 

Father threatened Ed.B. with physical discipline despite the DCS safety plan’s 

prohibition of this form of punishment. There were also concerns about 

Father’s inability to set appropriate boundaries for the children, such as being 

able to “tell[] the children no about something.” (Tr. p. 177). In addition, it 

was apparent to the foster parents that E.S. was not getting a sufficient amount 

of sleep. It was later discovered that Father allowed E.S. to sleep on the couch, 

and she would stay up late watching television. Also, given that E.S. was 

maturing, the visitation supervisor had to coach Father about not bathing the

three children together.

[12] Father also demonstrated struggles in his relationship with Mother. In 

particular, Father’s therapist identified co-dependency as a significant issue. 

Although noting that co-dependency is difficult to define, Father’s therapist 

described it as

[a] way to appease your own anxiety by making those around 

you happy. It’s being controlled while controlling others. It is 

the extreme need for approval. You struggle to find happiness if 

you’re not tied to someone who is in need of you, needing 
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rescue. They receive satisfaction in helping others and feeling 

needed.

(Tr. p. 32). As a result, Father prioritized Mother’s needs and desires over the 

needs of himself and the children. To illustrate, when Mother had been 

drinking prior to a scheduled visit with the children, Father declined to notify 

the service providers of the situation, thereby “let[ting] [her] put the children in 

jeopardy.” (Tr. p. 179). Because his relationship with Mother was detrimental 

to his relationship with the children, DCS repeatedly made it clear to Father 

that he needed to become independent of Mother by working with his therapist 

on the co-dependency issues and by ceasing contact with her. On June 23,

2014, Father and Mother divorced. However, even after the divorce, Father 

continued to pay Mother’s bills and would call her “obsessively.” (Tr. p. 34). 

When Mother would attempt to move on with a new relationship, Father 

“would do what he could to” sabotage that relationship in order “to turn the 

attention back to him” and to “be there for her.” (Tr. p. 34). Moreover, it was 

discovered that Father was surreptitiously allowing Mother to be present during 

his visits with the children, and he instructed E.S. to lie to DCS and the service 

providers about this fact. On November 19, 2014, the trial court suspended 

Father’s visitation with the caveat that visitation would resume if recommended 

by his therapist and E.S.’s therapist. With the exception of one therapeutic visit 

in December of 2014, during which Father apologized to E.S. because of “the 

position that he had put her in” by having her lie for him, Father has not had 

any contact with the children. (Tr. p. 168).
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[13] On October 22, 2015, November 5, 2015, and November 6, 2015, the trial court 

conducted a hearing on DCS’ termination petitions. On the first day of the 

hearing, before the presentation of any evidence, Father filed a motion to 

dismiss DCS’ termination petitions. Father asserted that DCS had not 

presented a prima facie case to support the elements required for terminating a 

parent’s rights. Father also alleged that he “was denied his constitutional right 

to due process by [DCS], both substantively, through its use of arbitrary and 

subjective measures throughout its handling of the CHINS case, and 

procedurally, through its failure to afford Father opportunities to confront 

evidence, or lack thereof, of conduct that caused [DCS] to take those actions.” 

(Appellant’s App. p. 28). The trial court denied Father’s motion and proceeded 

with the hearing.

[14] The DCS family case manager and the children’s court appointed special 

advocate (CASA) both recommended terminating Father’s parental rights as 

being in the best interests of Ed.B. and El.B. The CASA’s opinion was based 

on her belief that Ed.B. and El.B. were well-settled in the foster home. DCS 

acknowledged that Father had remedied the issues that initially led to the 

children’s removal from the home—i.e., the marijuana growing operation and 

the domestic violence; however, Father’s therapist testified that he had failed to 

resolve his co-dependency issues and had only acknowledged that his codependency was a detriment in the two weeks immediately preceding the 

termination hearing. Father’s therapist opined that Father’s co-dependency 

would affect his ability to make good decisions for Ed.B. and El.B. At the close 
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of DCS’ case-in-chief, Father moved for judgment on the evidence, repeating 

his earlier assertion “that DCS has not presented a prima faci[e] case and that 

there is no clear and convincing evidence to support its claims that [F]ather’s 

parental rights should be terminated.” (Tr. p. 259) (Italics added). After 

hearing argument from all parties, the trial court denied Father’s motion. On 

February 29, 2016, the trial court issued its Order, terminating Father’s parental 

rights to Ed.B. and El.B. In its Order, the trial court determined that “it is 

unlikely that the reasons for the removal of the child[ren] will be remedied”; the 

“continuation of the parent child relationship would pose a threat to the 

child[ren]”; termination is in the children’s best interests; and DCS has 

established a satisfactory plan of adoption following the termination of parental 

rights. (Appellant’s App. p. 57).

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

DISCUSSION AND DECISION

I. Standard of Review

[16] “A parent’s interest in the care, custody, and control of his or her children is 

‘perhaps the oldest of the fundamental liberty issues.’” S.L. v. Ind. Dep’t of Child 

Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (quoting Troxel v. Granville, 

530 U.S. 57, 65 (2000)). As a matter of fact, “the parent-child relationship is 

‘one of the most valued relationships in our culture.’” Id. (quoting In re I.A., 

934 N.E.2d 1127, 1132 (Ind. 2010)). As such, the Fourteenth Amendment to 

the United States Constitution protects “the traditional right of parents to 

establish a home and raise their children.” Id. Yet, “parental rights are not 
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absolute and must be subordinated to the child’s interests.” Id. (internal 

quotation marks omitted) (quoting In re I.A., 934 N.E.2d at 1132). Thus, 

parental rights may be terminated if the “parents are unable or unwilling to 

meet their parental responsibilities.” In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 

2009). We recognize that “termination of parental rights remains an extreme 

measure and should only be utilized as a last resort when all other reasonable 

efforts to protect the integrity of the natural relationship between parent and 

child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind. 

2015) (internal quotation marks omitted).

[17] On review of the termination of parental rights, our court does not reweigh 

evidence or assess the credibility of witnesses. Id. We consider the evidence 

and any reasonable inferences that are favorable to the judgment. Id. 

Furthermore, the trial court issued specific findings of fact and conclusions 

thereon in granting DCS’ petition to terminate Father’s parental rights. 

Accordingly, our review is two-fold: “[f]irst, we determine whether the 

evidence supports the findings, and second we determine whether the findings 

support the judgment.” In re G.Y., 904 N.E.2d at 1260. We “shall not set aside 

the findings or judgment unless clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge the credibility of the witnesses.” 

Ind. Trial Rule 52(A). We will find clear error only “if the findings do not 

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

judgment.” In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office of 

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).
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II. Termination of Parental Rights Statute

[18] In order to terminate a parent’s rights, DCS must 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 [Indiana Code 

section] 31-34-21-5.6 that reasonable efforts for family 

preservation or reunification are not required . . . .

(iii) The child has been removed from the parent and has 

been under the supervision of a local office 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 [CHINS] . . . ;

(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 [CHINS];
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(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 bears the burden of establishing each of these 

elements by clear and convincing evidence. In re G.Y., 904 N.E.2d at 1260. 

“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.” 

Id. at 1261 (citation omitted) (internal quotation marks omitted) (quoting Bester, 

839 N.E.2d at 148).

[19] On appeal, Father does not dispute that the children were removed from the 

home for the requisite period of time or that DCS has established a satisfactory 

plan for the care and treatment of the children. Instead, he disputes the trial 

court’s determinations that the conditions resulting in the children’s removal 

will not be remedied and that the continuation of the parent-child relationship 

poses a threat to the children’s well-being. He also appears to challenge the trial 

court’s determination that termination of his parental rights is in the best 

interests of Ed.B. and El.B.

A. Remediation of Conditions

[20] In determining whether there is a reasonable probability that conditions will not 

be remedied, we engage in a two-step analysis: first, we must identify what 
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conditions led to the children’s “placement and retention in foster care”; 

second, we must determine whether there is a reasonable probability that those 

conditions will not be remedied. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 

1225, 1231 (Ind. 2013). In making these decisions, “the trial court must judge a 

parent’s fitness as of the time of the termination proceeding, taking into 

consideration evidence of changed conditions—balancing a parent’s recent 

improvements against habitual pattern[s] of conduct to determine whether there 

is a substantial probability of future neglect or deprivation.” In re E.M., 4 

N.E.3d 636, 643 (Ind. 2014) (citation omitted) (internal quotation marks 

omitted) (quoting Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). 

“Habitual conduct may include ‘criminal history, drug and alcohol abuse, 

history of neglect, failure to provide support, and lack of adequate housing and 

employment.’” K.E., 39 N.E.3d at 647. DCS “is not required to provide 

evidence ruling out all possibilities of change; rather, it need only establish that 

there is a reasonable probability that the parent’s behavior will not change.” 

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013) 

(internal quotation marks omitted), trans. denied.

[21] In this case, the trial court concluded that “it is unlikely that the reasons for the 

removal of the child[ren] will be remedied.” (Appellant’s App. p. 57). In 

support of this determination, the trial court made sparse findings.3

 The trial 

 

3

 Although not an issue raised by Father, we are troubled by the trial court’s paltry findings and conclusions. 

Indiana Code section 31-35-2-8(c) requires a trial court to “enter findings of fact that support the entry of the 

conclusions.” A trial court’s findings of fact and legal conclusions are crucial to our ability to conduct a 
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court simply noted that the children were adjudicated CHINS and removed 

from the home based on allegations of Father growing and using marijuana and 

due to domestic violence between the parents. The trial court also found that 

Father, based on the fact that he allowed Mother to visit with the children and 

“admitted to an ongoing sexual relationship with Mother,” “demonstrates a codependent attitude[] and does not appear likely to change.” (Appellant’s App. 

p. 56). Finally, the trial court found that while Father has “made some progress 

in therapy, [he is] unlikely to progress to the point where reunification is 

possible.” (Appellant’s App. p. 57). 

[22] Father does not challenge the sufficiency of the trial court’s findings. Instead, 

he points out that

the children were removed initially because of allegations of 

substance use. Subsequently there was an allegation of domestic 

violence. Several witnesses for DCS testified that Father 

completed [the batterer’s intervention program], completed 

parenting classes, was attentive to the children’s needs, and that 

the conditions that led to removal of the children had been 

remedied.

 

proper review, and without adequate findings and conclusions, we are unable to discern whether the court 

terminated a parent’s rights based on a thorough consideration of the statutory requirements. “A parent’s 

interest in the accuracy and justice of the decision to terminate his or her parental status is . . . a commanding 

one.” In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (quoting Santosky v. Kramer, 455 U.S. 745, 759 (1982)). In 

fact, our court recently remanded a case in which the same trial court terminated a mother’s parental rights 

because the trial court’s findings were even more inadequate than in the present case. See In re Involuntary 

Termination of Parent-Child Relationship of N.G., 2016 WL 5852896 (Ind. Ct. App. Oct. 6, 2016). Here, the trial 

court’s cursory assertions that the grounds for termination have been satisfied are unsupported by specific 

facts based in the evidence. However, in light of judicial efficiency and the interests at stake, we elect to 

address this case on its merits rather than remand.
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(Appellant’s Br. p. 9) (citations omitted). Because “the factors identified by the 

trial court as conditions that will not be remedied [i.e., Father’s co-dependency]

aren’t the same conditions that led to DCS’ decision to place the children in 

foster care in the first place,” Father insists that the trial court erred in its 

determination. (Appellant’s Br. p. 10). Furthermore, Father posits that “any 

conditions imposed by DCS regarding the co-dependency relationship were 

never part of a court order.” (Appellant’s Br. p. 8).

[23] Father relies on our supreme court’s recent decision of In re V.A., 51 N.E.3d at

1148, in which it mentioned that “the factors identified by the trial court as 

conditions that will not be remedied are relevant only if those conditions were 

factors in DCS’ decision to place [the child] in foster care in the first place.” 

(alteration in original) (quoting In re I.A., 934 N.E.2d at 1134). We agree that 

there is no dispute that Father remedied the conditions which initially led to the 

children’s removal from the home. However, the plain language of Indiana’s 

termination statute makes it clear that “it is not just the basis for the initial 

removal of the child that may be considered for purposes of determining 

whether a parent’s rights should be terminated, but also those bases resulting in 

the continued placement outside of the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. 

Ct. App. 2005) (emphasis added), trans. denied; see I.C. § 31-35-2-4(b)(2)(B)(i). 

Here, as the case progressed, DCS discovered that Father, at times, exercised 

poor judgment in light of his co-dependent relationship with Mother. Thus, 

during the regular meetings to discuss the case plan, DCS repeatedly informed 

Father that, as a condition to reunification, he needed to address the impact of 
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his co-dependency on his ability to appropriately parent the children. 

Specifically, DCS advised Father to work with his therapist on this matter and 

to discontinue his contact with Mother.

[24] Although the trial court specifically articulated that the “reasons for the 

removal of the children” are unlikely to be remedied, its finding that Father 

“demonstrates a co-dependent attitude” suggests that the trial court also 

considered the reasons for the children’s continued placement outside of the 

home. (Appellant’s App. p. 57). Based on the trial court’s identification of 

Father’s co-dependency as the lone condition resulting in the children’s 

continued placement outside of the home, we turn to the second step of our 

analysis, which requires a consideration as to whether there is a reasonable 

probability that this condition will be remedied.4

 Here, we cannot say that the 

record clearly and convincingly supports the trial court’s conclusion that Father 

is unlikely to remedy this condition.

[25] The trial court’s sparse findings indicate that it did not take into account any 

evidence of changed conditions or the significant efforts Father made in 

complying with his DCS services. With respect to the co-dependency, Father’s 

therapist testified that Father regularly attended therapy and made progress in 

 

4

 The State contends that Father’s “inability to provide [the children] with a safe and stable environment” 

was also a reason for their continued removal from Father’s care. (State’s Br. p. 26). We note that DCS and 

the visitation supervisor testified that they were skeptical of Father’s ability to safely parent the children based 

on a few issues that popped up during Father’s visits—such as the fact that El.B. accessed a bucket of paint. 

However, the trial court’s Order does not mention any of these issues in support of its termination decision.
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various issues; she testified that it was “significant” that Father had completed 

the batterer’s intervention program and other DCS-recommended classes, and 

she added that she was “very proud” of Father for finally taking care of some of 

his own needs because “that’s a part of an issue with co-dependency.” (Tr. p. 

39). However, the therapist also stated that Father had an “unwillingness to 

really work with the co-dependency and admit that there were co-dependency 

behaviors.” (Tr. p. 32). While the therapist explained that co-dependency 

“[does not] necessarily mean that you [cannot] parent a child[,]” she believed 

that Father’s history of exercising poor judgment (i.e., allowing Mother to have 

access to the children) established that his co-dependency would affect his 

ability to parent. (Tr. p. 44).

[26] Nevertheless, the therapist also testified that she was unaware of any current 

facts or circumstances that would lead her to think that Father was still involved 

in a co-dependent relationship with Mother at the time of the termination 

hearing. Furthermore, even though he had not been permitted to see the 

children in more than a year, Father continued to attend therapy on a weekly 

basis. Within the two weeks preceding the termination hearing, the therapist 

stated that Father had finally begun to address the matter of his co-dependent 

tendencies. While it is well within the discretion of a trial court to accord less 

weight to the efforts of parents made only shortly prior to the termination 

hearing, the trial court in this case entirely disregarded all of the undisputed 

efforts and progress Father demonstrated throughout the case. See In re E.M., 4 

N.E.3d at 643. 
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[27] As to the trial court’s finding that Father admitted to an ongoing sexual 

relationship with Mother, we are unable to find any evidence of such an

admission. Rather, the only evidence indicates that a year prior to the 

termination hearing, in October of 2014, the visitation supervisor arrived at 

Father’s house in order to conduct an intermittent check, having forgotten that 

the children were not at Father’s home that day. Instead, the visitation 

supervisor discovered that Mother was there. When the visitation supervisor 

confronted Father, “with his head hanging low [he] said he’d messed up. He 

shouldn’t have had her there. They should have gone to a hotel. He explained 

that he was lonely, you know, and wanted to have sex and that’s why she was 

there.” (Tr. p. 70). It was around this time that DCS discovered that Father 

was allowing Mother to visit with the children, and his own visitation rights 

were subsequently suspended. However, there is nothing else in the record to 

support a finding of an ongoing sexual relationship. Accordingly, we find that 

the trial court clearly erred in determining that the conditions leading to the 

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

remedied.

B. Threat to Children’s Well-Being

[28] As to whether there is a reasonable probability that the continuation of the 

parent-child relationship would pose a threat to a child’s well-being, a trial court 

is not obligated to “wait until a child is irreversibly influenced by a deficient 

lifestyle such that [his or] her physical, mental, and social growth is 

permanently impaired before terminating the parent-child relationship.” K.E., 
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39 N.E.3d at 649. It is also true that a trial court should not terminate a 

parent’s rights “solely because there is a better home available for the children.” 

Id.

[29] Father contends that DCS failed to present any evidence that he poses a threat 

to the children, and maintains that “speculation that Father might cause harm 

to the children, without evidence of a pattern of conduct that overwhelms the 

pattern of responsible behavior Father has demonstrated for several years, is not 

clear and convincing evidence sufficient to support a decision to terminate 

Father’s parental rights.” (Appellant’s Br. p. 11). The State, however, asserts 

that Father has failed to set forth a cogent argument by making bald claims of 

error. We agree that Father’s argument is murky in light of the fact that he 

combines his arguments regarding any threat to the children’s well-being and 

whether termination is in their best interests. Ordinarily, the failure to develop 

a cogent argument with proper citations to authority results in a waiver of the 

issue. See Ind. Appellate Rule 46(A)(8)(a). Here, however, with the exception 

of the scant findings already discussed regarding the remediation of conditions, 

the trial court simply noted that Father consistently placed his own desires 

ahead of the children’s best interests and failed to issue any additional findings 

to support a determination that the continuation of the parent-child relationship 

would pose a threat to the children’s well-being. “[T]he certainty of a trial 

court’s decision to terminate a parent’s parental rights to his or her child is 

paramount.” In re V.A., 51 N.E.3d at 1144. Based on the complete lack of 

findings to support its conclusion, the trial court clearly erred.
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[30] Furthermore, we cannot say that the evidence clearly and convincingly 

establishes that Father would pose any threat to the children’s emotional or 

physical well-being. As already discussed, Father complied with all of the 

services required by DCS in an effort to reunite with the children, and although 

he had not fully remedied his co-dependency issues, he was still engaged in 

therapy for this issue at the time of the termination hearing. Father expressed 

an interest in learning appropriate parenting skills, and he made a consistent 

effort. Moreover, the evidence established that the children were bonded to 

Father and he was able to provide the care they needed. See Bester, 839 N.E.2d

at 149-53 (finding a lack of clear and convincing evidence that the father posed 

a threat to his child’s well-being where the father, in significant part,

demonstrated improvements and complied with his reunification plan and

interacted lovingly with the child). Father undoubtedly had lapses in judgment 

with respect to Mother, but the therapist testified that she did not have any 

information that Father was still maintaining a relationship with Mother. DCS 

expressed concern that Father needed support in order to apply his parenting 

skills and that he struggled with implementing structure. There is no dispute 

that Father made some parenting errors, but no parent is perfect. Certainly any 

parent, especially a newly-single parent, could benefit from additional support 

when caring for multiple children, but this evidence does not establish that he 

would threaten the emotional or physical development of the children. Based 

on the lack of clear and convincing evidence that there is either a reasonable 

probability that the conditions resulting in the children’s removal will not be 

remedied or a reasonable probability that the continuation of the parent-child 
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relationship poses a threat to the children’s well-being, we need not address the 

remaining elements of the termination statute.

CONCLUSION

[31] Based on the foregoing, we conclude that the trial court’s Order terminating 

Father’s parental rights is clearly erroneous.

[32] Reversed.

[33] Crone, J. and Altice, J. concur