In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.A. Jr. (Minor Child) S.G. (Mother), and D.J.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Apr 07 2017, 8:16 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 S.G. ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT D.J.A. James D. Boyer
Deputy Attorneys General
Anthony C. Lawrence
Indianapolis, Indiana
Anderson, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary April 7, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of D.A. Jr. (Minor 33A05-1610-JT-2501
Child) Appeal from the Henry Circuit
S.G. (Mother), Court
The Honorable Jack A. Tandy,
and Senior Judge
D.J.A. (Father), Trial Court Cause No.
Appellants-Respondents, 33C01-1604-JT-13

v.

Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017 Page 1 of 16
 The Indiana Department of
Child Services,
Appellee-Petitioner

Crone, Judge.

Case Summary
[1] S.G. (“Mother”) and D.J.A. (“Father”) each appeal the trial court’s order

involuntarily terminating their parental relationship with their minor son, D.A.

Jr. We affirm.

Facts and Procedural History
[2] In April 2016, the Henry County Department of Child Services (“DCS”) filed a

petition to terminate both Mother’s and Father’s parental rights to D.A. Jr.

Following a termination hearing on September 8, 2016, the trial court made the

following relevant findings of fact:1

1. The child D.A. Jr. was born on April 2, 2015. Mother is D.A.
Jr.’s mother. Father is D.A. Jr.’s father. The parents and D.A.
Jr. are residents of Henry County, Indiana.

2. D.A. Jr. was the subject of a Child in Need of Services
[(“CHINS”)] Case under Cause Number 33C01-1507-JC-000064.
D.A. Jr. was removed from [parents’] care on July 17, 2015 and

1
The trial court’s termination order refers to the parties by their full names. We use “Mother,” “Father,”
and the child’s initials where appropriate.

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 has not been placed back in either parent’s care. D.A. Jr. was
detained because Mother was impaired due to the use of drugs
while caring for D.A. Jr. and Father was incarcerated.

3. On July 30, 2015, D.A. Jr. was adjudicated a [CHINS].

4. On August 20, 2015, Mother submitted a drug screen that was
positive for cocaine.

5. On August 28, 2015, a Dispositional Hearing was held. The
Mother and Father were ordered to do the following:

a. Contact the Family Case Manager [(“FCM”)] weekly;

b. Notify the FCM of any changes in address, household
composition, employment, and phone number within five (5)
days of said change.

c. Keep all appointments with DCS, service providers, [court-
appointed special advocate], or give advance notice and good
cause for missed appointments.

d. Maintain suitable, safe, stable housing with adequate
bedding, functional utilities, adequate supplies of food and food
preparation facilities, and keep the family residence in a manner
that is structurally sound, sanitary, clean, free from clutter, and
safe for the child.

e. Not use, consume, manufacture, trade, sell or possess or
distribute any illegal controlled substance, and only take
prescription medications in accord with how they are prescribed,
and not permit the possession, use or consumption of any illegal
controlled substances in the home or in the presence of the child.

f. Obey the law.

g. Ensure the family becomes engaged in home based

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 counseling, and participate to the extent recommended by the
provider and DCS, and show positive changes.

h. Complete a substance abuse evaluation and comply with
all treatment recommendations.

6. On December 11, 2015, a Review Hearing was held in the
CHINS case and the following findings were made:

a. Mother did not comply with the child’s case plan.

b. Father did not comply with the child’s case plan due to his
incarceration.

c. Mother and Father had not visited the child.

d. Mother and Father did not cooperate with DCS.

e. Mother did not participate in any services since the
Disposition.

f. Father had been incarcerated since September 27, 2015 after
testing positive for illegal substances while at the House of Hope
treatment facility.

7. On March 4, 2016, Father submitted a drug screen that was
positive for methamphetamine.

8. On April 14, 2016, a Review Hearing was held in the CHINS
case. The Court made the following findings:

a. Mother was not in compliance with the case plan in that
she had submitted positive drug screens and failed to participate
in substance abuse treatment. Jill Barnes, Mother’s therapist at
Lifeline Services, had attempted to provide services to Mother
regarding employment, transportation and budgeting, but Mother
failed to show for appointments after the initial appointment in

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 January 2016.

b. Father was not in compliance with the case plan. Father
spent most of 2015 incarcerated but was not in custody from
December 2015 through March 2016. During this later period,
Father failed to participate in services offered by DCS. Father
submitted a drug test on March 4, 2016 that was positive for
methamphetamine and was arrested on March 6, 2016.

c. The Court approved a permanency plan of termination of
parental rights and adoption.

9. Both Mother and Father have multiple criminal convictions in
their lifetime. Mother has been convicted of Criminal
Conversion, Theft, and has pending charges of Possession of a
Controlled Substance and Possession of Methamphetamine.
Father has been convicted of Operating A Motor Vehicle While
Intoxicated, Criminal Confinement, Criminal Recklessness,
Battery Resulting in Bodily Injury and Possession Of A
Controlled Substance.

10. Mother and Father’s criminal lifestyle and substance abuse
issues have prevented them from being appropriate parents to
D.A. Jr.

11. Mother and Father are not bonded to D.A. Jr. D.A. Jr. has
been in the care of foster care and his maternal grandmother for a
great majority of his life. D.A. Jr. has been placed with his
maternal grandmother since August 2015. D.A. Jr. has been
removed from his [parents’] care under a Dispositional Decree in
the CHINS case for more than six months. Maternal
grandmother desires to adopt D.A. Jr.

….

13. The Court Appointed Special Advocate is in favor of the
granting of the termination of the parents’ rights as she believes

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 termination and adoption to be in the child’s best interests.

14. DCS proposes that maternal grandmother adopt the child if
the termination petition is granted.

Mother’s App. Vol. 2 at 52-56.

[3] Based upon these findings of fact, the trial court concluded that: (1) there is a

reasonable probability that the conditions that resulted in D.A. Jr.’s removal

and continued placement outside the home will not be remedied by either

parent; (2) termination of the parent-child relationship between both parents

and D.A. Jr. is in his best interests; and (4) DCS has a satisfactory plan for the

care and treatment of D.A. Jr., which is adoption by the maternal grandmother.

Accordingly, the trial court determined that DCS had proven the allegations of

the petition to terminate parental rights by clear and convincing evidence and

therefore terminated Mother’s and Father’s parental rights. Each parent now

appeals.

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

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

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

when the parents are unable or unwilling to meet their parental

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

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

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

termination of parental rights must allege in pertinent part:

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

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

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

…

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

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

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

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

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

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

35-2-8(a).

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

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

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

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

Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

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

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

[6] Mother and Father filed separate briefs on appeal raising some of the same and

some different issues. Both parents challenge the sufficiency of the evidence to

support the trial court’s conclusions that there is a reasonable probability that

the conditions that resulted in D.A. Jr.’s removal from and continued

placement outside the home will not be remedied and that termination of their

parental rights is in D.A. Jr.’s best interests. Father alone asserts that his due

process rights were violated. We will address these arguments in turn.2

2
We note that Mother also challenges three of the trial court’s findings of fact, or portions thereof, as being
unsupported by the evidence. Specifically, she challenges findings number 10, 11 and 13. However, even if
we disregard the challenged portions of each of those findings, the evidence underlying the remaining
unchallenged findings, which we discuss more fully below, provides ample support for the trial court’s
ultimate conclusions regarding a reasonable probability of nonremedied conditions and that termination of
Mother’s parental rights is in D.A. Jr.’s best interests. See Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct.
App. 2015) (observing that appellate court need not separately analyze challenged findings if unchallenged
findings amply support trial court’s ultimate conclusions), trans. denied; see also Riehle v. Moore, 601 N.E.2d
365, 369 (Ind. Ct. App. 1992) (explaining that erroneous finding is grounds for reversal only if it constitutes
sole support for any conclusion of law necessary to sustain judgment), trans. denied. Consequently, we need
not separately analyze the challenged portions of the findings as, at most, they are surplusage that did not
prejudice Mother.

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 Section 1 – The record supports the trial court’s conclusion
that there is a reasonable probability of nonremedied
conditions.
[7] Mother and Father both contend that DCS failed to present clear and

convincing evidence that there is a reasonable probability that the conditions

that led to D.A. Jr.’s removal and continued placement outside the home will

not be remedied. In determining whether there is a reasonable probability that

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

the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must

ascertain what conditions led to [his] 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 1132,

1134 (Ind. 2010) (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App.

1997))). In the second step, the trial court must judge a parent’s fitness at the

time of the termination proceeding, taking into consideration evidence of

changed conditions, and 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) (quoting K.T.K., 989 N.E.2d at 1231). “A pattern of unwillingness

to deal with parenting problems and to cooperate with those providing social

services, in conjunction with unchanged conditions, support a finding that there

exists no reasonable probability that the conditions will change.” Lang v. Starke

Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.

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 denied. The evidence presented by DCS “need not rule out all possibilities of

change; rather, DCS need establish only that there is a reasonable probability

that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242

(Ind. Ct. App. 2007).

[8] It is undisputed that then three-month-old D.A. Jr. was initially removed from

the home due to Mother’s erratic behavior caused by methamphetamine use

and her inability to safely care for her young child. Father was incarcerated at

the time, so he also was unable to provide care or support for D.A. Jr. During

the underlying CHINS matter, both parents acknowledged that they each had

substance abuse problems that needed to be addressed. Regarding Mother, the

record indicates that she was referred for a substance abuse assessment, which

she never completed. DCS also referred Mother to a residential treatment

program, which Mother began but was expelled from only a few days later due

to noncompliance and rule violations. Case management services were also

referred to help Mother obtain employment and suitable housing, but those

services were discontinued due to Mother’s failure to participate. The record

further indicates that Mother submitted positive drug screens on at least two

occasions.

[9] Regarding Father, although he was incarcerated during much of the pendency

of the CHINS proceedings,3 upon his release from incarceration, he took no

3
The record indicates that Father was incarcerated at the time of D.A. Jr.’s removal from the home, but was
then released and admitted to inpatient drug treatment at House of Hope treatment facility. He was again

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 action to begin services. The FCM testified that Father failed to contact her

upon his release from incarceration in December 2015 or during the several

months that he remained free. When he finally did encounter her at a court

hearing in March 2016, he submitted to a drug screen in which he tested

positive for methamphetamine. Father was immediately referred for services to

help him with substance abuse, transportation, housing, budgeting, and

employment. Father failed to follow through with any of those referrals and

was arrested shortly thereafter for possession of a controlled substance. The

record indicates that Father was released again, but then rearrested within a few

days on additional charges.

[10] Both parents have criminal histories, and at the time of the termination hearing,

both parents were incarcerated. Mother had pending charges of drug

possession, disorderly conduct, and a probation violation in another county.

Father had pending charges of possession of methamphetamine, possession of a

hypodermic syringe, and maintaining a common nuisance.

[11] Mother and Father each assert that the trial court erroneously considered only

their past behavior and failed to consider their respective parental fitness at the

time of the termination hearing. We disagree. If there had been even the

slightest of recent improvements by either one of these parents, we are confident

that the trial court would have balanced those improvements with their habitual

incarcerated on September 27, 2015, after “providing a dirty drug screen while at the House of Hope.” DCS
Ex. 5.

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 patterns of drug abuse and criminal conduct. However, the trial court was

simply faced with more of the same from both Mother and Father. Each

parent’s unwillingness to deal with parenting problems and cooperate with

those providing services, and their apparent inability to refrain from criminal

behavior, supports the trial court’s conclusion that there is a reasonable

probability that the conditions that led to D.A. Jr.’s removal and continued

placement outside of both parents’ care will not be remedied.

Section 2 – The record supports the trial court’s conclusion
that termination is in D.A. Jr.’s best interests.
[12] Mother and Father next assert that the evidence does not support the trial

court’s conclusion that termination of their parental rights is in D.A. Jr.’s best

interests. In considering whether termination of parental rights is in the best

interests of a child, the trial court is required to look beyond the factors

identified by DCS and look to the totality of the evidence. McBride v. Monroe

Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In

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

the child involved. Id. Further, this Court has previously determined that the

testimony of the caseworker, a guardian ad litem, or a court-appointed special

advocate regarding the child's need for permanency supports a finding that

termination is in the child’s best interests. Id.; see also Matter of M.B., 666

N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

[13] FCM Amy Banta testified that she had worked with this family since the very

beginning of the CHINS proceedings and was most concerned about “the

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 ongoing inability for either parent to provide a stable home, a steady income,

the ability to parent this child, there’s ongoing concerns with substance abuse

issues.” Tr. at 45. She further noted, “There’s been a lack of treatment,

ongoing criminal charges, just that instability that would provide a young

child.” Id. She opined that, due to D.A. Jr.’s young age, a permanency plan of

adoption was in his best interests. Banta stated that D.A. Jr. was doing quite

well and was very bonded with his maternal grandmother, and that she believed

that maternal grandmother’s permanent adoption of D.A. Jr. was in his best

interests.

[14] This testimony regarding D.A. Jr.’s need for permanency and stability, when

considered with the trial court’s unchallenged factual findings regarding

Mother’s unwillingness to complete services and Father’s failure to contact

DCS or attempt to participate in services during his release from incarceration,

as well as evidence of each parent’s failure to refrain from drug-related criminal

activity, was sufficient to support the trial court’s conclusion that termination of

both Mother’s and Father’s parental rights is in D.A. Jr.’s best interests.

Mother’s and Father’s claims to the contrary merely amount to invitations for

this Court to reweigh the evidence, which we will not do. See C.A., 15 N.E.3d

at 92-93.

[15] This Court has recognized that “[i]ndividuals who pursue criminal activity run

the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” Castro v. State Office of Family & Children, 842

N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting Matter of A.C.B., 598 N.E.2d

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 570, 572 (Ind. Ct. App. 1992)), trans. denied. Both parents have historically been

unable to provide stability for their infant son, and their incarceration at the

time of the termination hearing was strong evidence of their current inability to

do the same. The trial court did not have to wait until D.A. Jr. becomes

harmed irreversibly such that his physical, mental, and social development is

permanently impaired before terminating Mother’s and Father’s parental rights.

See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997). The evidence

supports the trial court’s conclusion that termination of both Mother’s and

Father’s parental rights is in D.A. Jr.’s best interests.4

Section 3 – Father has waived his due process claim and,
waiver notwithstanding, he has shown no violation.
[16] As a final matter, Father argues that his due process rights were violated

because he was never given a meaningful opportunity to participate in services

and work towards reunification with D.A. Jr. due to his incarceration. Father

does not direct us to any point in the record where he raised this due process

issue before the trial court. Issues not raised at the trial court, including

constitutional claims, are waived on appeal. McBride, 798 N.E.2d at 194. “In

order to properly preserve an issue on appeal, a party must, at a minimum,

‘show that it gave the trial court a bona fide opportunity to pass upon the merits

of the claim before seeking an opinion on appeal.’” Cavens v. Zaberdac, 849

4
Father likens his situation to that of the incarcerated fathers in In re R.S., 56 N.E.3d 625 (Ind. 2016) and
Rowlett v. Vanderburgh County Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2005), trans.
denied, (2006). We see very few similarities and find both cases inapposite.

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 N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State Police, 809 N.E.2d 320,

322 (Ind. 2004)). Thus, this issue is waived.

[17] Waiver notwithstanding, Father’s argument fails. First, contrary to Father’s

assertions, DCS is not required to offer a parent services aimed at reunification

with the child when the parent is incarcerated. See Castro, 842 N.E.2d at 377

(determining DCS’s failure to offer incarcerated parent services did not

constitute deprivation of due process rights). Indeed, “the law concerning

termination of parental rights does not require [DCS] to offer services to the

parent to correct the deficiencies in childcare.” In re B.D.J., 728 N.E.2d 195,

201 (Ind. Ct. App. 2000). “Rather, while a participation plan serves as a useful

tool in assisting parents in meeting their obligations, and while county

departments of public welfare routinely offer services to assist parents in

regaining custody of their children, termination of parental rights may occur

independently of them, as long as the elements of Ind. Code § 31-35-2-4 are

proven by clear and convincing evidence.” Id.

[18] Moreover, it is undisputed that Father appeared at the CHINS initial hearing,

during which he was advised by the trial court regarding the parental

participation plan and the possible consequences for failure to comply, and that

he also appeared at the CHINS dispositional hearing, during which the trial

court ordered him to participate in specific services. It is similarly undisputed

that, although Father was incarcerated for a period of time and unable to

participate in some services, he was not in custody for several months and could

have participated in services but failed to do so. “A parent may not sit idly by

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 without asserting a need or desire for services and then successfully argue that

he was denied services to assist him with his parenting.” Id. Father has not

shown that he was denied due process.

[19] In sum, we will reverse a termination of parental rights only upon a showing of

clear error – that which leaves us with a definite and firm conviction that a

mistake has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

Based on the record before us, we cannot say that the trial court’s termination

of Mother’s and Father’s parental rights to D.A. Jr. was clearly erroneous.

Therefore, we affirm.

[20] Affirmed.

Baker, J., and Barnes, J., concur.

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