MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Sep 10 2019, 9:52 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          September 10, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of Z.B. and I.B. (Children) and                           19A-JT-581
A.B. (Mother);                                            Appeal from the Vigo Circuit
A.B. (Mother),                                            Court
                                                          The Honorable Sarah K. Mullican,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Daniel W. Kelly,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           84C01-1712-JT-1603
                                                          84C01-1712-JT-1604
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019                 Page 1 of 18
[1]   A.B. (“Mother”) appeals the involuntary termination of her parental rights to

      Z.B. and I.B. (collectively, “Children”). Mother presents three arguments for

      our review, which we restate as:


                 1. Whether Mother’s fundamental rights were violated when the
                 trial court allowed the termination fact-finding hearing to occur
                 in Mother’s absence without first confirming sua sponte that the
                 Department of Child Services had given Mother notice of the
                 hearing pursuant to Indiana Code section 31-35-2-6.5;


                 2. Whether the trial court abused its discretion when it admitted
                 Exhibit 14 into evidence; and


                 3. Whether Mother’s trial counsel rendered ineffective
                 assistance.


[2]   We affirm.



                                 Facts and Procedural History
[3]   Mother and I.J.B. (“Father”) 1 are the biological parents of Z.B. and I.B., born

      March 16, 2014, and April 25, 2015, respectively. On October 14, 2016, the

      Department of Child Services (“DCS”) investigated a report from the Terre

      Haute Police Department indicating they had observed cocaine on the counter

      at Mother and Father’s home while arresting Father’s friend. Police had also

      arrested Father on outstanding warrants. Mother submitted to a drug screen




      1
          Father’s parental rights to Children were also terminated, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019                     Page 2 of 18
      and admitted she had recently used methamphetamine. Maternal

      Grandmother was also present in the home and admitted recent

      methamphetamine use. Children were removed from the home and placed in

      foster care, where they have remained during the proceedings.


[4]   On October 17, 2016, DCS filed petitions alleging Children were Children in

      Need of Services (“CHINS”) based on the presence of drugs in the home,

      Father’s arrest, and Mother’s drug use. On November 1, 2016, Mother and

      Father admitted Children were CHINS, and the trial court adjudicated them as

      such. On November 26, 2016, the trial court held a dispositional hearing. On

      December 9, 2016, the trial court ordered Mother to complete a parenting

      assessment and complete all recommended services, complete a substance

      abuse assessment and complete all recommended services, submit random drug

      screens, and visit with Children.


[5]   Over time, Mother was non-compliant with several services, and on December

      15, 2017, DCS filed petitions to terminate Mother’s and Father’s parental rights

      to Children. On January 23, 2018, the trial court held an initial hearing on the

      matter, at which Mother’s CHINS counsel was appointed as her counsel in the

      termination matter. On May 21, 2018, the trial court conducted a fact-finding

      hearing on DCS’s termination petitions. Mother did not attend the hearing;

      however, her counsel was present, provided argument on her behalf, and cross-

      examined witnesses. On August 10, 2018, the trial court issued an order

      terminating Mother’s and Father’s parental rights to I.B. On August 17, 2018,



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 3 of 18
      the trial court issued an order terminating Mother and Father’s parental rights

      to Z.B. 2


[6]   On March 11, 2019, Mother moved for permission to file a belated appeal. On

      March 18, 2019, we granted her motion.



                                     Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge 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 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’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “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 trial court must

      subordinate the interests of the parents to those of the children, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d




      2
          It is unclear from the record why the orders were issued on separate dates.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 4 of 18
      at 837. The right to raise one’s own children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet parental

      responsibilities. Id. at 836.


                                                    Notice
[9]   Mother contends DCS did not prove she was given proper notice of the final

      fact-finding hearing. Mother directs us to Indiana Code section 31-35-2-6.5,

      which states, in relevant part:


              (b) At least ten (10) days before a hearing on a petition or motion
              under this chapter:


                       (1) the person or entity who filed the petition to terminate
                       the parent-child relationship under section 4 of this
                       chapter; or


                       (2) the person or entity who filed a motion to dismiss the
                       petition to terminate the parent-child relationship under
                       section 4.5(d) of this chapter;


              shall send notice of the review to the persons listed in subsections
              (c) and (d).


              (c) Except as provided in subsection (h), the following persons
              shall receive notice of a hearing on a petition or motion filed
              under this chapter:


                       (1) The child’s parent, guardian, or custodian.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 5 of 18
       “Compliance with the statutory procedure of the juvenile code is mandatory to

       effect termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind.

       Ct. App. 2005). Although statutory notice “is a procedural precedent that must

       be performed prior to commencing an action,” it is not “an element of

       plaintiff’s claim.” Id. Failure to comply with statutory notice is thus “a defense

       that must be asserted.” Id. Once placed in issue, “the plaintiff bears the burden

       of proving compliance with the statute.” Id.


[10]   Mother did not appear at the May 21, 2018, termination fact-finding hearing,

       however, her counsel was present. At the beginning of the hearing, Mother’s

       counsel stated, “I represent the mom, your honor, and she’s not here.” (Tr.

       Vol. II at 4.) Mother’s counsel did not request a continuance. The hearing

       went on as scheduled. Therefore, the issue of notice presented here on appeal is

       waived because Mother did not present the issue to the trial court. See In re

       E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006) (father waived notice issue

       when he did not first present it before the trial court), trans. denied.


[11]   To escape waiver, Mother argues the alleged noncompliance with Indiana Code

       section 31-35-2-6.5 was fundamental error. Fundamental error occurs when

       there exists “egregious trial errors. In order for this court to reverse based on

       fundamental error, the error must have been a clearly blatant violation of basic

       and elementary principles, and the harm or potential for harm must be

       substantial and appear clearly and prospectively.” In re E.E., 853 N.E.2d at

       1043 (internal citation omitted).



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 6 of 18
[12]   While it is unclear from the record whether Mother received notice of the

       termination fact-finding hearing pursuant to Indiana Code section 31-35-2-6.5,

       we conclude Mother was given notice of the hearing at least twice prior to the

       hearing. Despite Mother’s contention that “the record reveals no advisement

       that she needed to attend a hearing May 21, 2018, or suffer permanent

       termination of parental rights[,]” (Br. of Mother at 17), the following

       conversation occurred involving the trial court, Mother, and Father at the

       January 23, 2018, hearing:


               [Court]:     And did you guys get a copy of the petition that
               DCS filed recently requesting the termination of the parent/child
               relationship? Did you guys get served with that?


               BOTH PARENTS RESPOND AFFIRMATIVELY


               [Court]:     Okay. Obviously, it’s a very important matter so
               you both have the right to be represented by lawyers if you wish
               in these proceedings.


               [Court appoints attorneys for Mother and Father]


               [Court]:      . . . I’ll set a date in the near future when [Father]
               can consult with his attorney confidentially and just discuss the
               case kind of in preparation and then we’ll set another date much
               further down the road that would be the actual like fact-finding
               hearing or trial on the issue, okay. And the Department of Child
               Services has the burden in proving their allegations by clear and
               convincing evidence in order to prevail. But we’ll write down the
               two dates that we’re giving here.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 7 of 18
           [Court Reporter]: February 6th at 9:30. Do you just want a half
           day for this too?


           [Father’s Counsel]: Yeah.


           [Court Reporter]: May 21st at 9 o’clock.


           [Court]:       And the bailiff’s in the back and will write down
           both of these dates down [sic] for you. All right, we’ll see you on
           that first date and we’ll take it from there. Thank you.


(Tr. Vol. I at 4-5.) 3 The Chronological Case Summary (“CCS”) indicates

“Automated ENotice Issued to Parties” on January 24, 2018. (App. Vol. II at

169.) 4 Additionally, during the May 21, 2018, fact-finding hearing, the Family

Case Manager (“FCM”) testified:


           I didn’t hear from her from March 23rd until May 1st, she texted
           me and asked when the TPR hearing was. She said that she was
           out of Terre Haute getting sober and wanted to know what her



3
  The record indicates the trial court held a hearing on February 6, 2018, but a transcript of those proceedings
is not in the record before us.
4
    Regarding the CCS entry, Mother argues in her brief:

           Mother’s counsel contacted the clerk of the juvenile division of the Vigo Circuit Court to
           determine whether that entry resulted in any mailing of notice to Mother. The clerk of
           the juvenile division of the Vigo Circuit Court reported no documents were issued by the
           clerk’s office as a result of that entry, which is an automatic entry generated by Odyssey
           whenever a hearing is set. According the clerk’s office, the clerk’s office sends notice of a
           hearing by mail only when the trial court enters a written order setting the hearing,
           although Odyssey automatically sends email service of entries to those with email
           addresses attached to that case number. No email address is reflected on the CCS.
(Mother’s Br. at 14-5.) While a compelling explanation of events, Mother does not provide us with any
citation to the record where this alleged conversation between Mother’s counsel and the court clerk occurred
or was memorialized in any way.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019                      Page 8 of 18
               options were at this point. I told her the TPR hearing details, the
               date, time and location, and I asked her to come into the office
               and asked her what time she could come in and she never
               responded after that and I texted her back three minutes after she
               had texted me. And I have not heard from her since then and
               that was May 1st.


       (Tr. Vol. II at 23-4.) Finally, the trial court noted in its findings the Mother

       “fails to appear after being notified of this hearing date in open court.” (App.

       Vol. II at 6.)


[13]   Mother also argues DCS’s alleged failure to notify her pursuant to Indiana

       Code section 35-31-2-6.5 is fundamental error because the lack of notice meant

       she was unable to be present at the May 21, 2018, hearing and could not,

       therefore, mount a defense to DCS’s allegations. However, Mother does not

       have an absolute right to be present at a termination hearing, she was

       represented by counsel at the fact-finding hearing, and her counsel cross-

       examined DCS’s three witnesses. See In re E.E., 853 N.E.2d at 1044 (parent

       does not have constitutional right to be present at termination hearing and

       parent’s due process rights were thus not violated when he did not attend final

       termination hearing but was represented by counsel who cross-examined DCS’s

       witnesses).


[14]   Finally, Mother asserts she was prejudiced by the trial court’s actions because

       her “side of the story was never told.” (Br. of Mother at 21.) However, the trial

       court’s order notes Mother’s participation in services, albeit scarce, in its

       findings that Mother “tested clean [for drugs] one time while in a rehabilitation

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 9 of 18
       center . . . [and that Mother] attended 74 of 114 scheduled visits with her

       children.” (App. Vol. II at 9.) 5 Mother has not indicated what her testimony

       would have been except to claim she


                never had a chance to explain what efforts she had made toward
                completing the court-ordered services or why she was unable to
                complete certain services. She was unable to explain why she
                may have missed visitations with the children - for instance,
                revealed whether transportation challenges prevented her from
                attending. She could not inform the court of any housing
                arrangements or employment she had obtained or planned to
                obtain. Most importantly, she was unable to explain why it was
                in the children’s best interests to continue the parent-child
                relationship.


       (Br. of Mother at 22.) However, evidence regarding Mother’s participation in

       services and Children’s best interests was presented at trial, (see Tr. Vol. II at 22

       (services) & 36 (best interests)), and her counsel had the opportunity to cross-

       examine those witnesses.


[15]   Based on the facts that Mother was given notice of the date of the fact-finding

       hearing at least twice; that she did not have an absolute right to be present at the

       fact-finding hearing; that the trial court made findings regarding her

       participation in services; and that her counsel presented argument, cross-

       examined witnesses, we cannot say that any error in alleged noncompliance




       5
         The orders terminating Mother’s and Father’s parental rights to Children are virtually identical except for
       identifying information specific to each child. We cite the findings from the order regarding Z.B.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019                 Page 10 of 18
       with Indiana Code section 35-31-2-6.5 was fundamental. See J.T. v. Marion Cty.

       Ofc. of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000) (no

       fundamental error when father not physically present at termination hearing

       because father was represented by counsel who presented argument and cross-

       examined witnesses), reh’g denied, trans. denied, abrogated on other grounds by Baker

       v. Marion Cty. Ofc. of Family & Children, 810 N.E.2d 1035, 1039 (Ind. 2004).


                            Admission of Mother’s Drug Screens
[16]   We review decisions concerning admission of evidence for an abuse of

       discretion. Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind. Ct. App. 2004). An

       abuse of discretion occurs if the trial court’s decision was clearly against the

       logic and effect of the facts and circumstances before the court. Id. A trial court

       also abuses its discretion if its decision is without reason or is based on

       impermissible considerations. Id. Even if a trial court errs in a ruling on the

       admissibility of evidence, we will reverse only if the error is inconsistent with

       substantial justice. Id.


[17]   Mother argues the trial court abused its discretion when it admitted Exhibit 14,

       which consisted of seventy-eight pages of drug test results that DCS testified

       belonged to Mother. Mother did not object to the admission of this evidence,

       and thus her argument is waived. See Cavens v. Zaberdac, 849 N.E.2d 526, 533

       (Ind. 2006) (“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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 11 of 18
       upon the merits of the claim before seeking an opinion on appeal.’”) (quoting

       Endres v. Indiana State Police, 809 N.E.2d 320, 322 (Ind. 2004)).


[18]   Waiver notwithstanding we conclude any error in the admission of Exhibit 14

       was harmless. “In general, the admission of evidence that is merely cumulative

       of other evidence amounts to harmless error as such admission does not affect a

       party’s substantial rights.” In re Paternity of H.R.M., 864 N.E.2d 442, 450-1 (Ind.

       Ct. App. 2007). Here, DCS provided testimony of Mother’s non-compliance

       with services, her failed attempts at substance abuse treatment, and her inability

       to maintain appropriate housing and employment. Additionally, Exhibit 9, to

       which Mother also did not object, was a prior permanency report in which DCS

       provided much of the same information contained in Exhibit 14, including the

       results of some of Mother’s drug tests.


                               Ineffective Assistance of Counsel
[19]   Finally, Mother contends her trial counsel was ineffective for failing to ask for a

       continuance when she did not appear at the May 21, 2018, hearing and for

       failing to object to the admission of Exhibit 14. Regarding this issue our

       Indiana Supreme Court has held:


               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 12 of 18
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.


       Baker, 810 N.E.2d at 1041. Therefore, based on the standard set forth in Baker,

       we must examine the evidence presented to support the termination of Mother’s

       parental rights to Children to determine if any alleged deficiencies in her

       attorney’s performance were so egregious as to leave us with the conclusion

       that termination was error. In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App.

       2008), reh’g denied.


[20]   To terminate a parent-child relationship, the State must allege and prove:


               (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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 13 of 18
       Ind. Code § 31-35-2-4(b)(2). The State 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. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[21]   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

       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. Mother does not

       challenge the trial court’s findings, and thus we accept them as true. See

       Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not

       challenge the findings of the trial court, they must be accepted as correct.”).


[22]   Regarding the termination of Mother’s parental rights to Children, the trial

       court found:


               6. There is a reasonable probability that the conditions that
               resulted in the children’s removal or the reasons for placement
               outside the home of the parents will not be remedied, and that
               the continuation of the parent-child relationship would pose a
               threat to the well-being of the children in that:


                        A. On or about October 14, 2016, the Indiana
                        Department of Child Services (DCS) received a report that
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 14 of 18
                 both children were victims of neglect in that there was
                 drug use in their home and that law enforcement was there
                 making arrests of adults in the home.


                 B. FCMs Deborah Seifert and Linda Airhart responded
                 promptly to the report. [Father] had outstanding warrants
                 and was arrested at the home. Two other individuals were
                 also arrested and taken to jail. A substance later identified
                 as cocaine was found in the home and tagged as evidence
                 by police.


                 C. [Mother] admitted to recent use of methamphetamine.


                 D. Maternal grandmother was in the home and also
                 admitted to recent use of methamphetamine.


                 E. [Father] had a previous substantiation for domestic
                 violence with [Mother].


                 F. Due to the deep family involvement with drugs and
                 domestic violence, the children were placed in foster care
                 and have remained in foster care for nearly two years.


                 G. After receiving services for the entirety of the CHINS
                 cases, Mother was still homeless at the time of the fact-
                 finding hearing held on May 21, 2018. She had resided in
                 public housing for awhile, but was evicted.


                 H. Mother has been unemployed throughout the entire
                 CHINS proceedings and had no legal source of income
                 with which to support her children.


                 I. After being court-ordered to submit to drug screens,
                 Mother was closed out of services with Redwood
Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 15 of 18
                 Toxicology several times for non-compliance. Out of all
                 of the drug screens Mother did take, she only tested clean
                 one time while in a rehabilitation center. Eight screens
                 were positive for marijuana only, and all others were
                 positive for methamphetamine and amphetamine. The
                 last screen to which Mother submitted prior to the
                 termination hearing was on March 21, 2018, when she
                 tested positive for methamphetamine, amphetamine and
                 marijuana. This screen was given at the time she had
                 come for a supervised visit with her children.


                 J. Mother had failed to show up for two scheduled
                 substance abuse assessments and eventually entered an in-
                 patient rehabilitation program from July 18, 2017 to
                 August 8, 2017. Although she had tested negative when
                 she entered in-patient rehab, she tested positive for THC
                 on the day of her release. She was supposed to follow up
                 that treatment with an outpatient drug treatment program
                 which she failed to do.


                 K. DCS had recommended and the court had ordered
                 Mother to participate in home-based case management.
                 However, despite repeated efforts by DCS to get Mother to
                 participate, she only attended a total of three home-based
                 case sessions.


                 L. Mother was arrested on a warrant for failure to appear
                 on January 11, 2018, and again on February 28, 2018, for
                 unlawful possession of a syringe and possession of
                 methamphetamine.


                 M. Mother only attended 74 of 114 scheduled visits with
                 her children through December, 2017. She scheduled two
                 additional visits for late January, 2018, and failed to
                 appear for either. After attending court on March 15,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 16 of 18
                 2018, Mother scheduled two more visits for late March,
                 2018, which she did attend. Although the FCM tried to
                 contact Mother to come to the office for additional visits,
                 she failed to respond and has had no further contact with
                 DCS or her children.


                                              *****


                 V. During the visits that Mother attended, she was often
                 lethargic and tended to fall asleep and was not involved
                 with the children. The supervisors of the visits observed to
                 [sic] demonstrable bond.


                 W. To date, neither parent has addressed the substance
                 abuse issue that got DCS involved with their children on
                 October 14, 2016.


                                              *****


        7. Termination of the parent-child relationship between the
        parents and both children is in the best interest of the children, as
        testified by the Family Case Manager and CASA [Court
        Appointed Special Advocate].


(App. Vol. II at 7-9.) While Mother’s trial counsel could have employed a

more aggressive stance in Mother’s favor, Mother’s counsel presented argument

and cross-examined witnesses on Mother’s behalf during the termination fact-

finding hearing on May 21, 2018. Coupled with the overwhelming evidence to

support the termination of Mother’s parental rights to Children, we cannot say

that any alleged error her trial counsel made rendered the counsel’s assistance

ineffective. See In re A.P., 882 N.E.2d at 808 (despite some “troubling aspects”

Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 17 of 18
       of mother’s representation, mother’s trial counsel was not ineffective when

       there was substantial evidence to support termination of parental rights and

       counsel’s errors did not deprive mother of a fundamentally fair hearing).



                                               Conclusion
[23]   Mother has waived her argument regarding the sufficiency of notice under

       Indiana Code section 31-35-2-6.5 because she did not argue the issue before the

       trial court. Waiver notwithstanding, she received notice in various forms at

       least twice prior to May 21, 2018, and thus any violation of the statute was not

       fundamental error. Further, Mother waived her argument regarding the

       admission of Exhibit 14 because she did not object to its admission before the

       trial court. Waiver notwithstanding, any error in the admission of Exhibit 14

       was harmless because it was cumulative of other evidence properly admitted

       that supported the involuntary termination of Mother’s parental rights to

       Children. Finally, Mother did not receive ineffective assistance of counsel

       because counsel’s performance was not so defective to deny Mother a

       fundamentally fair trial, and the evidence supporting the termination of

       Mother’s parental rights was overwhelming. Accordingly, we affirm the

       decision of the trial court.


[24]   Affirmed.


       Najam, J., and Bailey, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-581 | September 10, 2019   Page 18 of 18
