MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 30 2019, 8:55 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
Danielle O. Sheff                                        Curtis T. Hill, Jr.
Sheff Law Office                                         Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 30, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of E.B. and W.B.                            18A-JT-3021
(Minor Children),                                        Appeal from the Marion Superior
      and                                                Court
                                                         The Honorable Marilyn A. Moores,
A.C. (Father),                                           Judge
Appellant-Respondent,                                    The Honorable Larry E. Bradley,
                                                         Magistrate
        v.
                                                         Trial Court Cause Nos.
                                                         49D09-1807-JT-803
The Indiana Department of                                49D09-1807-JT-804
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019                    Page 1 of 20
                                               Case Summary
[1]   A.C. (“Father”) appeals1 the trial court’s order involuntarily terminating his

      parental rights to E.B. and W.B. (collectively, “the Children”), twins born on

      May 11, 2017.


[2]   We affirm.



                                                          Issues
[3]   Father raises several due process and statutory issues which we consolidate and

      restate as follows:


                 (1)      Whether the State violated Father’s due process rights by
                          failing to follow statutorily required procedures in the
                          Child in Need of Services (“CHINS”) proceedings;


                 (2)      Whether the trial court erred when it denied Father’s
                          Motion to Dismiss the termination proceedings for failure
                          to hold a timely fact-finding hearing; and


                 (3)      Whether the trial court clearly erred when it terminated
                          Father’s parental rights.




      1
          Mother, J.B., voluntarily relinquished her parental rights and does not actively participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019                          Page 2 of 20
                            Facts and Procedural History
[4]   On May 17, 2017, the Indiana Department of Child Services (“DCS”) filed

      CHINS petitions in which it alleged that the Children were born testing positive

      for amphetamine, benzodiazepines, methamphetamine, and opiates, and that

      J.B. (“Mother”) tested positive for those same drugs. The petitions further

      alleged that Father was incarcerated and unable to ensure the Children’s safety

      and well-being. In September of 2016, Father had been charged with various

      counts of burglary, criminal mischief, and criminal trespass. Father had been

      arrested and incarcerated for those charges on or around January 3, 2017.

      Father has remained incarcerated since that date. He ultimately pled guilty to

      four counts of burglary and was sentenced accordingly. Father is not scheduled

      to be released from prison until approximately December of 2020.


[5]   On October 3, 2017, the trial court conducted a CHINS fact-finding hearing at

      which Mother failed to appear and Father appeared by counsel. Father’s

      counsel notified the court that Father “waive[d] his right to fact-finding, noting

      that he is incarcerated.” Ex. at 60. In an October 12 order on “administrative

      rule hearing,” the court reset the “administrative Ruling to 10/27/17” for the

      purpose of consulting with the magistrate judge “regarding potential

      adjudication of the children to be a Child [sic] in Need of Services on the basis

      of father’s admission on or about 10/3/07,” because the October 3 “order is not

      specific to whether the Court adjudicated the children [as CHINS], and this

      matter is reset to clarify whether the acceptance of father’s admission is a de



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 3 of 20
      facto adjudication.” Id. at 63. On October 27, the trial court issued an order

      finding the Children to be CHINS, stating:


              On October 3, 2017[,] [Father] waived his right to factfinding.
              The Court accepted the waiver but did not adjudicate the
              children to be in [need of] services. [Mother] could not be
              located and a Default hearing was held for her.


              The Court hereby adjudicates the children, [E.B. and W.B.,] to
              be in need of services.


      Id. at 71. The Children were placed in relative care where they have remained.


[6]   On July 2, 2018, DCS filed two separate petitions to terminate parental rights as

      to the two children. Mother executed a waiver of her parental rights and was

      dismissed from the termination cases. The trial court appointed a public

      defender for Father and set a pretrial conference for August 3. At the August 3

      pretrial hearing, Father requested mediation and the court granted that request.

      The court also, sua sponte, set the matter for a final pretrial hearing on October

      12 and a final hearing on November 15. At the October 12 pretrial hearing,

      DCS notified the court that mediation had been canceled, and Father stated

      that he wanted “to proceed with the termination hearing.” Father’s App. at 63.

      Father’s attorney also “confirm[ed] the trial dates in this matter.” Id.


[7]   On October 23, 2018, Father filed a Motion to Dismiss the termination case

      because the fact-finding hearing had not been commenced within ninety days of

      the date of the petition as required by Indiana Code Section 31-35-2-6(a)(1). In



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 4 of 20
      an order dated October 24, the trial court denied 2 the Motion to Dismiss, noting

      “that IC 31-35-2-6(a) states ‘when a hearing is requested.’ Mediation was

      requested on August 3, 2018, and the Court also set this matter for trial sua

      sponte on that date.” Id. at 68.


[8]   On November 15, 2018, the trial court conducted the fact-finding hearing on

      the termination petitions. The State produced evidence that, in addition to the

      crimes for which Father was currently incarcerated, Father also had been

      convicted and incarcerated for various crimes in November 2014, June 2015,

      May 2016, and October 2016. On November 27, 2018, the trial court issued its

      order terminating Father’s parental rights to the Children and noted that

      Father’s “pattern of criminal activity and convictions” made it “reasonable to

      believe that he would not be available to parent after his current incarceration.”

      Appealed Order at 2. This appeal ensued.



                                   Discussion and Decision
                               Due Process/Procedural Errors
[9]   Father maintains that the trial court’s termination of his parental rights violated

      his procedural due process rights because DCS failed to follow the procedures

      required by state law.




      2
        The order contains a scrivener’s error in that it initially states that it “GRANTS” the motion to dismiss. Id.
      at 68. However, that statement is immediately followed by the statement that “The Court denies respondent
      father’s Motion to Dismiss…,” and Father concedes that the motion was denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019                       Page 5 of 20
               When the State seeks to terminate the parent-child relationship, it
               must do so in a manner that meets the requirements of the due
               process clause. J.T. v. Marion County Office of Family and Children,
               740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied.
               Although due process has never been precisely defined, the
               phrase embodies a requirement of “fundamental fairness.” Id.
               Our legislature has enacted an interlocking statutory scheme
               governing CHINS proceedings and the involuntary termination
               of parental rights proceedings. A.P. v. Porter County Office of
               Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000),
               trans. denied. This statutory scheme is designed to protect the
               rights of parents in raising their children while allowing the State
               to effect its legitimate interest in protecting children from harm.
               Id. The CHINS and involuntary termination statutes are not
               independent of each other. Id.


       L.N. v. Boone Cty. Div. of Family & Children (In re L.V.N.), 799 N.E.2d 63, 67

       (Ind. Ct. App. 2003) (superseded by statute on other grounds).


[10]   First, Father contends that the trial court violated his due process rights by

       failing to adjudicate the Children as being CHINS “as to” him. Father’s Br. at

       32. However, “[b]ecause a CHINS determination regards the status of the

       child, a separate analysis as to each parent is not required in the CHINS

       determination stage.” N.L. v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d

       102, 106 (Ind. 2010).


[11]   Second, Father asserts that DCS violated his due process rights by failing to

       provide him with services the court deemed necessary. However, that assertion

       is factually inaccurate. The evidence shows that, on October 31, 2017, the trial

       court ordered Father to participate in the Father Engagement Program; DCS


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 6 of 20
       referred Father to that program; Father participated in that program for

       approximately one month; and Father then chose to cease participation in the

       program before completion.3


                               Timing of Fact-Finding Hearing
[12]   Father maintains that the trial court erred in denying his Motion to Dismiss the

       termination petitions on the grounds that a fact-finding hearing was not

       commenced within ninety days of those petitions. Indiana Code Section 31-35-

       2-6 states:


                (a) Except when a hearing is required after June 30, 1999, under
                section 4.5 of this chapter, the person filing the petition shall
                request the court to set the petition for a hearing. Whenever a
                hearing is requested under this chapter, the court shall:


                         (1) commence a hearing on the petition not more than
                         ninety (90) days after a petition is filed under this chapter;
                         and


                         (2) complete a hearing on the petition not more than one
                         hundred eighty (180) days after a petition is filed under
                         this chapter.


                (b) If a hearing is not held within the time set forth in subsection
                (a), upon filing a motion with the court by a party, the court shall




       3
         Father initially maintained on appeal that DCS also violated his due process rights by failing to file a
       termination petition as to E.B. However, Father withdrew that contention in his reply brief because the
       evidence shows that such a petition was filed. Reply Br. at 5.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019                       Page 7 of 20
               dismiss the petition to terminate the parent-child relationship
               without prejudice.


[13]   The State contends—and the trial court appears to have held—that Father

       invited the error of an untimely fact-finding hearing by requesting mediation on

       August 3, 2018. The State also raises the issue of waiver. Invited error

       typically forecloses appellate review, whereas waived claims generally may still

       be reviewed for fundamental error. Batchelor v. State, 119 N.E.3d 550, 556 (Ind.

       2019). We hold that Father did not invite the error by requesting mediation,

       but he did waive the error by failing to timely object to the date of the

       factfinding hearing.


                                                   Invited Error


[14]   Generally, a party’s failure to object to, and thus preserve, an alleged trial error

       results in waiver of that claim on appeal. Id. at 558. However, when a failure

       to object is accompanied by the party’s affirmative requests of the court, “it

       becomes a question of invited error.” Brewington v. State, 7 N.E.3d 946, 974

       (Ind. 2014).


               This doctrine—based on the legal principle of estoppel—forbids a
               party from taking “advantage of an error that she commits,
               invites, or which is the natural consequence of her own neglect or
               misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005).


       Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). To establish invited error,


               there must be some evidence that the error resulted from the
               appellant’s affirmative actions as part of a deliberate, well-
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 8 of 20
               informed trial strategy. A passive lack of objection, standing
               alone, is simply not enough. And when there is no evidence of
               counsel’s strategic maneuvering, we are reluctant to find invited
               error based on the appellant’s neglect or mere acquiescence to an
               error introduced by the court or opposing counsel.


       Batchelor, 119 N.E.3d at 558 (quotation and citations omitted).


[15]   Father did not invite the error of an untimely fact-finding hearing by requesting

       mediation. At the time Father requested mediation, there were still

       approximately two months left within which to conduct the fact-finding hearing

       pursuant to state law. Father’s request for mediation in no way prevented DCS

       from requesting the scheduling of, or the court from commencing, a timely fact-

       finding hearing.


[16]   Moreover, to the extent the trial court based its order on its belief that the

       statute does not require that the fact-finding hearing be commenced within

       ninety days of the date of the petition unless and until a party requests such a

       hearing, the trial court erred. When interpreting a statute,


               [w]e must first determine whether the statutory language is clear
               and unambiguous. [Dykstra v. City of Hammond, 985 N.E.2d
               1105, 1107 (Ind. Ct. App. 2013), trans. denied.] If it is, “we will
               not apply any rules of construction other than to require that
               words and phrases be given their plain, ordinary, and usual
               meanings.” Id. However, if a statute is susceptible to multiple
               interpretations, it is deemed ambiguous and open to judicial
               construction. Id. In interpreting the statute, “we will attempt to
               determine and give effect to the intent of the legislature, and to
               that end, we read provisions of a statute together so that no part


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 9 of 20
                is rendered meaningless if it can be harmonized with the
                remainder of the statute.” Id.


       Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014). Statutes must be

       construed in a logical and reasonable way, “with each section being considered

       with reference to all other sections.” Gibson v. Ind. Dep’t of Correction, 899

       N.E.2d 40, 58 (Ind. Ct. App. 2008), trans. denied. And “[i]t is well settled that

       the use of the word ‘shall’ is construed as mandatory language.” Taylor, 7

       N.E.3d at 365 (quotations and citation omitted).


[17]   First, we note that the statute clearly and unambiguously provides that it is the

       responsibility of the DCS attorney, a court-appointed special advocate, or a

       Guardian ad Litem (“GAL”)—not the parents—to request a fact-finding

       hearing. Indiana Code Section 31-35-2-6(a) provides that “the person filing the

       [termination] petition shall[4] request the court to set the petition for a hearing.”

       (emphasis added); see also I.C. § 31-35-2-4(a) (defining who may file a

       termination petition). DCS cannot rely on its own failure to fulfill its statutory

       duty of requesting a hearing to excuse the untimely fact-finding hearing in this

       case. See Durden, 99 N.E.3d at 651.




       4
         We note that, prior to a July 1, 2012, amendment, the statute contained permissive language; it stated that
       the person filing the termination petition “may request the court to set the petition for a hearing.” I.C. § 31-
       35-2-6(a) (2012). Our legislature evinced a clear intent to make that request mandatory when it subsequently
       changed the word “may” to “shall.” See P.L. 48-2012, SEC. 68.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019                       Page 10 of 20
[18]   Second, the statute also unambiguously requires that the requested hearing be

       commenced “not more than ninety (90) days after a [termination] petition is filed,”

       rather than ninety days after a hearing is requested, as the State maintains. I.C.

       § 31-35-2-6(a)(1) (emphasis added). Moreover, we observe that the

       commencement of the hearing is triggered by the mandatory filing of a request

       for such a hearing. I.C. § 31-35-2-6(a)(1) (providing that “whenever” a DCS

       attorney, a special advocate, or a GAL has fulfilled his/her mandatory duty to

       request a hearing, “the court shall” commence the hearing not more than ninety

       days after the petition was filed). Construing the statute logically and with all

       its parts in harmony, we conclude that the statute requires that whoever filed

       the termination petition must also file a request for a fact-finding hearing in

       time for the hearing to be held in compliance with the statutory deadlines.

       Taylor, 7 N.E.3d at 365.


                                                      Waiver


[19]   Although Father did not invite the error of an untimely hearing, he did fail to

       object to the untimely fact-finding hearing date both when it was set—i.e.,

       August 3, 2017—and again at the October 12 pretrial hearing. To preserve a

       claim for review, “counsel must object to the trial court’s ruling and state the

       reasons for the objection.” Durden, 99 N.E.3d at 651. Moreover, the objection

       must be made “at the earliest opportunity when [the] trial is set beyond the time

       limitations.” Hampton v. State, 754 N.E.2d 1037, 1029 (Ind. Ct. App. 2001)

       (discussing the requirement to file a timely objection in the analogous context of

       a request for a speedy criminal trial), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 11 of 20
               This gives the court an opportunity to cure the alleged error,
               which, in turn, can result in enormous savings in time, effort and
               expense to the parties and the court, including avoiding an
               appeal and retrial. If the trial court overrules the objection, the
               appellate court benefits from a sufficiently-developed record on
               which to base its decision.


       Durden, 99 N.E.3d at 651 (quotation and citations omitted). There are

       exceptions to the general waiver rule, such as where the error was fundamental.

       Id. at 652. An error is fundamental, and thus reviewable on appeal, if it “made

       a fair trial impossible or constituted a clearly blatant violation of basic and

       elementary principles of due process presenting an undeniable and substantial

       potential for harm.” Id.


[20]   Because Father failed to timely object to the date of the fact-finding hearing, he

       waived his appeal on the issue of an untimely hearing. See C.G.G. v. Ind. Dep’t of

       Child Servs. (Matter of N.C.), 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (finding

       parent waived his right to challenge the date of the fact-finding hearing by

       agreeing and failing to object to the setting of that hearing date beyond ninety

       days). Moreover, Father has not shown that any error in the date the fact-

       finding hearing was commenced was fundamental. The fundamental error

       exception to the waiver rule is “an extremely narrow one, available only when

       the record reveals clearly blatant violations of basic and elementary principles of

       due process, and the harm or potential for harm [from the error] cannot be

       denied.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (quotation and

       citation omitted); see also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 12 of 20
       (Ind. Ct. App. 2006) (“It is a cardinal rule of appellate review that the appellant

       bears the burden of showing reversible error by the record, as all presumptions

       are in favor of the trial court’s judgment.”).


[21]   Father has not shown that the evidence presented at—or the outcome of—the

       termination proceeding would have been any different if it had taken place

       within the statutory deadline; that is, he has shown no harm that he suffered

       from the untimely commencement of the fact-finding hearing.


                              Termination of Parental Rights
                                               Standard of Review


[22]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous. We begin our review of this issue by acknowledging that

       “[t]he traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.”

       Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.

       Ct. App. 1996), trans. denied. However, a trial court must subordinate the

       interests of the parents to those of the child when evaluating the circumstances

       surrounding a termination. Schultz v. Porter Cty. Off. of Family & Children (In re

       K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

       relationship is proper where a child’s emotional and physical development is

       threatened. Id. Although the right to raise one’s own child should not be

       terminated solely because there is a better home available for the child, parental



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 13 of 20
       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.


[23]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things:


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


                                                  ***


                    (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 child in need of services or a delinquent child;


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


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

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

                        (iii) The child has, on two (2) separate occasions,
                        been adjudicated a child in need of services.

                                                       ***



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 14 of 20
               (C) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       DCS’s “burden of proof in termination of parental rights cases is one of ‘clear

       and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

       N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).


[24]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

       Family & Children (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       Judy S. v. Noble Cty. Off. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[25]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Off. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 15 of 20
       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 trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[26]   Father challenges several of the trial court’s findings of fact and conclusions of

       law. Father does not challenge the conclusion that he had failed to remedy the

       conditions that resulted in the Children’s removal; rather, he asserts that the

       court erred in determining that his parent/child relationship is a threat to the

       Children and that termination is in the Children’s best interests. However,

       because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,

       DCS need only establish either that Father failed to remedy conditions or that

       the parent/child relationship posed a threat. The trial court held that DCS

       established the former, Father does not challenge that conclusion, and that

       conclusion is sufficient to satisfy Indiana Code Section 31-35-2-4(b)(2)(B).

       Thus, we proceed to Father’s challenge to the findings of fact and the

       conclusion that termination was in the Children’s best interests.

                                                 Findings of Fact


[27]   Father asserts that the evidence did not support the following findings of fact:


               9.       [Father] has never seen the children, and has no
                        experience at being a father;


               10.      [Father] wrote the family case manager five to six times
                        inquiring about the children.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 16 of 20
               11.      Although [Father] has been incarcerated continuously for
                        approximately two years, no evidence was presented of his
                        undergoing any prison classes or programs to better
                        himself.


               12.      A Father Engagement Program was referred for [Father]
                        who did not engage in the program for a month prior to
                        refusing to continue because he no longer saw the point.


       Appealed Order at 2. However, with respect to each of those findings except

       number nine, Father does not dispute that the findings are correct statements,

       only that they are taken out of context and/or leave out other pertinent

       information. His contentions amount to requests that we reweigh the evidence,

       which we will not do. In re D.D., 804 N.E.2d at 265.


[28]   Regarding finding number nine, Father does not dispute that he has never seen

       the Children, but he points out that he does have experience fathering his older

       child who lived with him in Texas for a time. However, even assuming the

       latter portion of the court’s finding number nine is clearly erroneous, the

       decision of the trial court is supported by the remainder of the findings. Thus,

       we may treat the portion of finding number nine challenged by Father as

       surplusage. Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004).

       Moreover, Father has shown no prejudice from the finding that would warrant

       reversal of the court’s judgment on appeal. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 17 of 20
                                          Best Interests of the Children


[29]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Off. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224; see also A.M. v. Ind.

       Dep’t of Child Servs. (In re A.G.), 45 N.E.3d 471, 479 (Ind. Ct. App. 2015) (stating

       the recommendation by both the case manager and child advocate to terminate

       parental rights, in addition to evidence that the conditions resulting in removal

       will not be remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests), trans. denied.


[30]   Here, Father was incarcerated and therefore unavailable to parent the Children

       at the time they were initially removed from Mother’s care, and he remained

       incarcerated and unavailable to parent at the time of the termination hearing.

       Those facts support the conclusion that termination was in the Children’s best

       interests. Castro, 842 N.E.3d at 374; see also K.T. v. Marion Cty. Dep’t of Child

       Servs. (In re C.T.), 896 N.E.2d 571, 585 (Ind. Ct. App. 2008) (quotation and

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 18 of 20
       citation omitted) (noting that “[i]ndividuals who pursue criminal activity run

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

       relationships with their children”), trans. denied.


[31]   Further, there was evidence that, in addition to his current convictions and

       incarceration, Father had been convicted and incarcerated in November 2014,

       June 2015, May 2016, and October 2016. Thus, the trial court found that

       Father “has a pattern of criminal activity and convictions.” Appealed Order at

       2. That finding supports the trial court’s conclusion that “it is reasonable to

       believe that [Father] would not be available to parent after his current

       incarceration.” Id.; see In re C.T., 896 N.E.2d at 578 (noting DCS need not rule

       out every possibility that a parent will not change his behavior; rather it need

       establish only that there is a reasonable probability that the parent will not do

       so).


[32]   And, finally, both the GAL and the Family Case Manager testified that they

       believed termination of Father’s parental rights was in the Children’s best

       interests given that Father had never met the Children; he was unavailable to

       parent the Children due to his incarceration; the Children needed stability; and

       the Children were well-bonded with their preadoptive family.


[33]   The trial court did not clearly err when it concluded that termination of Father’s

       parental rights is in the Children’s best interests. Father’s contentions to the

       contrary amount to requests that we reweigh the evidence, which we cannot do.

       In re D.D., 804 N.E.2d at 265.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 19 of 20
                                               Conclusion
[34]   There were no procedural errors that denied Father due process of law. And,

       by failing to lodge a timely objection, Father waived his contention that the

       termination proceedings should have been dismissed for failure to commence a

       fact-finding hearing within ninety days of the filing of the petitions. Finally, the

       evidence supported the trial court’s findings, and its findings supported its

       judgment terminating Father’s parental rights.


[35]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019   Page 20 of 20
