MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
court except for the purpose of establishing                            Apr 10 2019, 6:58 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Dorothy Ferguson                                          Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          David E. Corey
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA
In re the Termination of the                              April 10, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
D.P. and X.P. (Minor Children)                            18A-JT-2404
and                                                       Appeal from the Madison Circuit
T.G. (Father),                                            Court

Appellant-Respondent,                                     The Honorable G. George Pancol,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          48C02-1802-JT-19
Indiana Department of Child                               48C02-1802-JT-20
Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019                   Page 1 of 20
[1]   T.G. (“Father”) appeals the Madison Circuit Court’s order terminating his

      parental rights to his two minor children. Father argues violations of due

      process and a lack of evidence to support the trial court’s termination order.

      Concluding that Father has not established that he was denied due process and

      that clear and convincing evidence supports the trial court’s order involuntarily

      terminating his parental rights, we affirm.


                                      Facts and Procedural History
[2]   Father is the biological father of D.P., born in March 2012, and X.P., born in

      January 2013. Father has never been the children’s primary caretaker and had

      not established paternity for the children until after the Child In Need of

      Services (“CHINS”) proceedings commenced. Father had minimal interaction

      with D.P. and questioned whether he was X.P.’s father.


[3]   The Department of Child Services (“DCS”) removed the children from

      biological mother’s care in August 2015. Mother was mentally unstable and

      lacked appropriate housing for the children. On the date the children were

      removed, Father’s whereabouts were unknown. At the initial hearing held on

      August 12, 2015, biological mother admitted that the children were CHINS.1

[4]   Father appeared at a dispositional hearing held on the CHINS petition on

      September 21, 2015. Therefore, the court held an initial hearing for Father and

      appointed counsel. Father waived a fact-finding hearing. Father was ordered to



      1
          Mother’s parental rights to the children were involuntarily terminated in 2018 in a separate proceeding.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019                      Page 2 of 20
      complete certain services, including staying in contact with the family case

      manager, securing safe housing, completing a parenting assessment, and

      attending all scheduled visitation. Father was also ordered to establish paternity

      of the children. Father requested placement of the children with his parents, but

      biological mother objected to the request. The court ordered the children to

      remain in foster care, but also ordered DCS to investigate paternal grandparents

      as a possible placement option.


[5]   A review hearing was held on March 16, 2016. The court determined that

      Father was compliant with the case plan but had not enhanced his ability to

      fulfill his parental obligations. Appellant’s App. Vol. II, p. 10. DCS referred

      Father to Fatherhood Engagement and continued supervised visitation between

      Father and the children.


[6]   Another review hearing was held on February 27, 2017, and Father appeared.

      The court determined that Father was no longer in compliance with the case

      plan. Father “was closed out of Fatherhood Engagement services, has not

      contacted DCS about placement of the children, had visitation reduced from

      twice a week (4 hours) to once a week (2 hours) due to his inability to provide

      structure, discipline, and hygiene for the children during visits, and he has made

      no effort to find housing suitable and sufficient to take placement of the

      children.” Id. at 11. Father was also unaware of the children’s welfare on the

      date of the hearing and continued to request placement with paternal

      grandparents. Father resided with his grandmother in a two-bedroom home.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 3 of 20
[7]    Paternal grandmother met with DCS prior to the February 2017 review hearing

       and informed DCS that Father “touched his sister,” Father was removed from

       his parents’ home after they learned of the contact between Father and his

       sister, and Father is only allowed in parents’ “home under supervision to

       prevent him from hurting his siblings.” Id. at 12. Father’s parents informed

       DCS that they never leave Father alone with his siblings. Id.


[8]    The trial court held a placement hearing on April 11, 2017, and Father

       appeared at the hearing in person and by counsel. DCS stated that paternal

       grandparents were “disqualified as placement . . . due to a substantiation

       against [Father] for sexually abusing his sisters.” Id. at 13. The 311 report,

       which was admitted into evidence without objection, contained evidence that

       Father admitted to law enforcement officials that he inappropriately touched

       and engaged in sex acts with his adolescent sister. Id.


[9]    The trial court held an additional placement hearing on July 24, 2017, at which

       Father appeared in person and by counsel. Father continued to request that his

       children be placed with paternal grandparents. The trial court determined that

       paternal grandparents “had not demonstrated a sufficient reason to change

       placement” and ordered the children to remain in the care of their foster

       parents. Id. at 14.


[10]   A permanency hearing was held on September 6, 2017, at which Father

       appeared in person and by counsel. The court found that Father had completed




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 4 of 20
       a parenting assessment, “but due to behavioral issues with the children,

       visitation was reduced from twice a week to once weekly[.]” Id.


[11]   Father later obtained new counsel, who filed a motion to change placement to

       either Father or his parents. A placement hearing was held on January 8, 2018.

       The trial court denied Father’s placement motion. Father never informed that

       DCS case manager that he wanted the children placed in his home. At the

       hearing, Father denied engaging in inappropriate conduct or sexual acts with

       his sister.

[12]   A final review hearing was held in the CHINS proceedings on February 21,

       2018. Father appeared at the hearing in person and by counsel. DCS presented

       evidence that Father was still unable to fulfill his parental obligations. But

       Father received a new referral for Fatherhood Engagement. And Father was

       still attending supervised visitation with the children once a week.

[13]   On February 23, 2018, DCS filed a petition to terminate Father’s rights to his

       children. An initial hearing was held on May 9, 2018, but Father did not appear

       due to lack of service. Therefore, the hearing was continued to June 5, 2018.

       Father’s counsel entered her appearance in the termination proceedings on June

       4, 2018, and Father’s initial hearing was held the next day. The trial court reset

       the fact-finding hearing for August 13, 2018, without objection.

[14]   On August 9, 2018, Father filed a motion to dismiss the petition to terminate

       his parental rights because no hearing was held within ninety days of the filing

       of the petition. DCS argued that Father had acquiesced to the hearing date by

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 5 of 20
       failing to object when it was set at the initial hearing. The trial court denied

       Father’s motion. The court then proceeded with the fact-finding hearing on

       August 13 and 15, 2018.


[15]   On September 7, 2018, the trial court issued an order terminating Father’s

       parental rights to D.P. and X.P. The trial court made numerous findings in

       support of its judgment, including that Father did not know his children’s ages,

       birth dates, or which school they attended. Father did not request placement of

       the children in his home until the month before DCS filed the petition to

       terminate his parental rights. The court found that Father’s statement denying

       that he told Elwood police officers that he touched his six-year-old sister in a

       sexual manner lacked credibility in light of the testimony of paternal

       grandmother who testified that Father touched his sister. Father’s mother

       removed him from her home as a result and only allows Father in the home

       when he is supervised “to prevent him from hurting his siblings.” Id. at 16.

       Father’s stepfather also testified that he never leaves Father alone in his home

       with stepfather’s children. The 311 Report from February 2013 also contradicts

       Father’s denials during these termination proceedings that he confessed to law

       enforcement officials that he had sexually molested his sister. Ultimately, the

       trial court found that “the greater weight of evidence is that [Father] had sexual

       contact with a younger sibling.” Id. at 17.


[16]   Father moved from his grandmother’s home in December 2017. However, he

       did not provide his new address to the case manager until June 2018. Father

       also missed child-family team meetings that he was ordered to attend. Father

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 6 of 20
       failed to complete the Fatherhood Engagement programming. During

       visitations, Father struggled to care for the children’s needs, particularly the

       children’s hygiene and behavior.


[17]   The children have never been placed in Father’s care. D.P. avoids Father

       during visitation, but X.P. engages with Father. D.P. has screamed and cried to

       avoid visits with Father. She also picks at her skin and bullies her younger half-

       sibling. D.P. leaves visitation in a stupor.


[18]   The visitation supervisor changed in 2018 because the case manager decided

       that visitation should occur in a facility as opposed to public places. The new

       visitation supervisor repeatedly called Father to set up visitation. Father failed

       to return her calls for over a month and did not visit with the children during

       that time. But Father regularly exercised visitation once it resumed. X.P. had

       minimal behavioral issues while visitation ceased for approximately six weeks.

       When visitation resumed, he began masturbating again several times a day.


[19]   Both children have severe behavioral problems. D.P. cannot control her mood

       and is aggressive toward others, particularly her younger half-sibling. D.P.

       refuses to speak about visitation with Father. X.P. masturbates excessively and

       began wetting his bed again even though he has been potty-trained for over a

       year. On the date of fact-finding hearing, the children’s behaviors were more

       extreme than prior behavioral problems they have exhibited throughout these

       proceedings. During a period of time when there was no visitation in Spring

       2018, the children’s behavioral problems were not evident, but the issues


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 7 of 20
       resurfaced with a greater intensity than was previously observed when visitation

       with Father began again.

[20]   The trial court concluded that based on the children’s behaviors, “their

       escalation around visitation, and [Father’s] history of sexual issues, the

       continuation of the parent-child relationship poses a threat to the children’s

       well-being.” Id. at 20. The court also found that Father “has shown very little

       interest in the children’s lives and the improvements that have occurred over the

       three years of the case have come from the children becoming potty-trained by

       their foster parents and visits being moved into a facility alleviating concerns

       from earlier in the CHINS case of [Father] returning the children filthy and in

       soiled diapers and his inability to control the children’s behavior in public.” Id.

       at 23. The trial court also found that D.P. and X.P. “are entirely different

       children when they visit” Father, and termination of the parent-child

       relationship is in their best interests. Id.


[21]   Father appeals the termination of his parental rights to both D.P. and X.P., and

       our court granted his motion to consolidate the cause numbers for the purposes

       of appeal.


                                           Standard of Review
[22]   “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).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 8 of 20
               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 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).


                                                 Due Process
[23]   Father argues that his due process rights were violated because he was not

       served with the termination petition in a timely manner, the fact-finding hearing

       was scheduled beyond the times limits established in Indiana Code section 31-

       35-2-6, DCS did not comply with the notice requirements enumerated in

       Indiana Code section 31-35-2-6.5, and the trial court improperly limited

       Father’s cross-examination of the family case manager. In response, DCS

       contends that Father was not harmed or prejudiced by any of the claimed due

       process violations.


[24]   “When the State seeks to terminate the parent-child relationship, it must do so

       in a manner that meets the requirements of due process.” In re C.G., 954 N.E.2d

       910, 917 (Ind. 2011). “Due Process has never been defined, but the phrase

       embodies a requirement of ‘fundamental fairness.’” Id. (citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 9 of 20
       “‘[T]he fundamental requirement of due process is the opportunity to be heard

       at a meaningful time and in a meaningful manner.’” Id. (quoting Mathews v.

       Eldridge, 424 U.S. 319, 333 (1976)).


[25]   “The process due in a termination of parental rights proceeding turns on the

       balancing of three factors: (1) the private interests affected by the proceeding;

       (2) the risk of error created by the State’s chosen procedure; and (3) the

       countervailing governmental interest supporting use of the challenged

       procedure.” Id. Because both a parent’s and the State’s countervailing interests

       are substantial, when faced with a claim of denial of due process in a

       termination of parental rights, we focus on the second factor, the risk of error

       created by the State’s chosen procedure in the case. Id. at 918.


[26]   First, Father claims he was not served with the petition to terminate his parental

       rights when it was initially filed on February 23, 2018. Neither the petition nor

       the chronological case summary establish that DCS attempted to serve the

       petition on Father. At the initial hearing held on May 9, 2018, at which only

       DCS appeared, DCS told the trial court that it had communicated with Father

       and he was aware of the hearing. Tr. Vol. I, p. 5. The trial court entered a

       denial of the petition for Father and set the fact-finding hearing for June 5,

       2018. Father appeared at the June 5th hearing without counsel. Father told the

       trial court he did not receive notice of the petition to terminate his parental

       rights. Id. at 11.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 10 of 20
[27]   However, Father did not file a motion to dismiss the petition for lack of notice

       and has therefore waived his claim that his due process rights were violated. See

       Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind.

       Ct. App. 2006) (“It is well established that we may consider a party’s

       constitutional claim waived when it is raised for the first time on appeal.”).

       Furthermore, Father did receive notice of the petition before the fact-finding

       hearing, which was continued, and he was aware of DCS’s allegations

       concerning the termination of his parental rights.


[28]   Next, Father filed a motion to dismiss the termination petition because the

       initial hearing was not held within ninety days of February 23, 2018, the date

       the petition was filed. Pursuant to Indiana Code section 31-35-2-6, the trial

       court was required to commence a hearing on the petition not more than ninety

       days after it was filed, in this case, May 24, 2018, and complete a hearing not

       more than 180 days after the petition was filed, or August 22, 2018. An initial

       hearing was not held until June 5, 2018, but the hearings in this case were

       completed on August 15, 2018, which is within the statutory timeframe.

       Father’s motion to dismiss was filed on August 9, 2018, just four days before

       the fact-finding hearing commenced.


[29]   Importantly, Father appeared at the June 5, 2018 initial hearing in person and

       was heard in a meaningful time and manner. Father does not argue that he was

       harmed or that there was error in the proceedings because the initial hearing

       was held on June 5, 2018, which was 102 days after the petition was filed.

       Therefore, we cannot conclude that this procedural irregularity, a twelve-day

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 11 of 20
       delay outside the proscribed ninety-day time limit, created a significant risk of

       error in the proceedings.

[30]   Thirdly, Father argues that DCS failed to send him notices of the June 5, 2018

       initial hearing and the August 13, 2018 fact-finding hearing at least ten days

       prior to those hearings. Indiana Code section 31-35-2-6.5 provides, in relevant

       part, that at least ten days before a hearing on a petition to terminate parental

       rights “the person or entity who filed the petition to terminate the parent-child

       relationship under section 4 of this chapter … shall send notice of the review

       to” the child’s parent. See also In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App.

       2012) (holding that while formal service of process is not required, DCS is

       required to send notice of a termination hearing to the parent’s last known

       address at least ten days before the hearing).


[31]   Again, Father does not claim that these procedural irregularities caused him

       harm or created a significant risk of error in the proceedings. Father appeared at

       both hearings, was represented by counsel, testified, thoroughly cross-examined

       DCS’s witnesses, and challenged the admission of DCS’s evidence.


[32]   Finally, we address Father’s argument that his due process rights were violated

       when the trial court limited his cross-examination of the family case manager.

       During her cross-examination of the witness, the trial court informed counsel

       that she had five more minutes to conduct her examination “so make it useful

       and not the same questions, please.” Tr. Vol. I, p. 247. Father objected to the

       time restriction. When the trial court ended Father’s cross-examination of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 12 of 20
       case manager seven minutes later, counsel stated, “I would like to note though

       for the record that I was not finished with my cross-examination of the family

       case manager.” Tr. Vol. II, p. 7–8.


[33]   In his brief, Father argues only that, in termination proceedings, parents are

       “‘entitled to cross-examine witnesses . . . and to introduce evidence on his or

       her behalf. In fact, cross examination is fundamental and essential to a fair

       trial.’” Appellant’s Br. at 15 (citing Indiana Code § 31-32-2-3(b); Parker v. State,

       773 N.E.2d 867, 869 (Ind. Ct. App. 2002), trans. denied). During his cross-

       examination, Father repetitively questioned the family case manager about

       family team meetings and services that had or had not been provided to Father.


[34]   Indiana Rule of Evidence 611(a) provides that “[t]he court should exercise

       reasonable control over the mode and order of examining witnesses and

       presenting evidence so as to: (1) make those procedures effective for

       determining the truth; (2) avoid wasting time; and (3) protect witnesses from

       harassment or undue embarrassment.” Rule 611(a) acknowledges that the

       process of examining witnesses, while conducted by counsel, is subject to the

       control of the trial court, “‘which has a wide discretion therein. Phases of the

       examination, such as the length and time that a witness shall be examined, and

       the manner and mode of [ ] examination, are under the control of, and within

       the discretion of, the trial court.’” S.E. v. Ind. Dept. of Child Servs., 15 N.E.3d 37,

       (Ind. Ct. App. 2014) (quoting Sowders v. Murray, 151 Ind. App. 518, 525, 280

       N.E.2d 630, 635 (1972), trans. denied); see also Akiwumi v. Akiwumi, 23 N.E.3d

       734, 739 (Ind. Ct. App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 13 of 20
[35]   Father does not argue that there were any specific areas of inquiry that he was

       unable to address on cross-examination due to the trial court’s time limitation.

       Moreover, we agree that Father asked repetitive questions concerning the

       scheduling of team meetings and service referrals. The trial court also limited

       DCS’s re-direct examination of Father because the court gave DCS “ample

       time with that witness[.]” Tr. Vol. I, p. 176. For these reasons, the trial court

       acted within its discretion when it limited the time allowed for Father to cross-

       examine the family case manager.


[36]   None of the complained of procedural irregularities, taken as a whole, have

       established a risk of error that would require reversal of the trial court’s

       judgment. Father was notified of DCS’s allegations in the petition to terminate

       his parental rights well before the fact-finding hearings took place in August

       2018. He appeared at all hearings and had the opportunity to be heard.

[37]   DCS’s recent struggles with due process compliance are well documented in

       our court’s recent opinions. See A.A. v. Ind. Dep't of Child Servs., 100 N.E.3d 708,

       708–09 (Ind. Ct. App. 2018) (order condemning the “repeated, significant

       violations of due process occurring in termination of parental rights cases

       throughout this state” and formally admonishing “DCS for its failure to afford

       litigants throughout this state the due process rights they are owed”). However,

       the risk of error in these particular proceedings was not significant, and

       therefore, we conclude that there was no reversible error. See In re T.W., 831

       N.E.2d 1242, 1247 (Ind. Ct. App. 2005) (holding that a procedural irregularity

       is not automatically a violation of a parent’s due process rights).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 14 of 20
                                                 Judicial Notice
[38]   Next, Father argues that the trial court erred when it took judicial notice of the

       CHINS proceedings, including the transcripts of the placement hearings.2

       Specifically, Father challenges the findings in which the trial court addressed

       the prior allegations that Father sexually molested his six-year-old sister. Father

       argues that the evidence supporting this finding was only available to the

       termination court because the testimony was elicited during the placement

       hearings in the CHINS proceedings.


[39]   However, Father specifically asked the trial court “to take judicial notice of all

       [] CHINS proceedings that occurred prior to this termination matter including

       placement hearings and the testimonies that have been provider [sic] there.” Tr.

       Vol. II, p. 24. The trial court agreed to take judicial notice of those proceedings.

       Id. at 25.


[40]   Father cannot now complain that the trial court erred by considering the

       testimony and evidence elicited during the CHINS placement hearings in

       determining whether his parental rights should be terminated.3 See Bell v. State,




       2
         Indiana Evidence Rule 201(b)(5) “now permits courts to take judicial notice of ‘records of a court of this
       state,’” and that such records are presumptively sources of facts “that cannot reasonably be questioned.” See
       Horton v. State, 51 N.E.3d 1154, 1160–61 (Ind. 2016).
       3
         Father specifically challenges the findings that reference the testimony from the CHINS placement
       hearings. He argues that because the trial court inappropriately took judicial notice of the testimony, the
       findings are not supported by the evidence. Because Father invited the alleged error, we do not separately
       address his claims concerning Findings 11, 13, 25, and 26. The remainder of Father’s challenges to the
       findings are simply a request to reweigh the evidence or a recharacterization of the evidence presented at the
       termination hearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019                   Page 15 of 20
       31 N.E.3d 495, 499–500 (Ind. 2015) ( citing Wright v. State, 828 N.E.2d 904, 907

       (Ind. 2005) (“[A] party may not take advantage of an error that she commits,

       invites, or which is the natural consequence of her own neglect or

       misconduct.”) (quotation omitted)).


                                           Sufficient Evidence
[41]   Finally, Father argues that the trial court’s order terminating his parental rights

       is not supported by clear and convincing evidence. Father claims that he

       completed and participated in all court-ordered services, obtained his own

       home and had maintained employment, and that his interactions with the

       children had improved. Father also contends that DCS failed to present clear

       and convincing evidence that termination of his parental rights was in the

       children’s best interests.


[42]   “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

       other reasonable efforts have failed.” Id.


[43]   A petition for the involuntary termination of parental rights must allege in

       pertinent part:

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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 16 of 20
                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.

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

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

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

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

       Ind. Code § 31-35-2-4(b)(2).

[44]   DCS must prove that termination is appropriate by a showing of clear and

       convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). 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). Finally, because Indiana

       Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need

       only find that one of the three requirements of that subsection has been

       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,

       987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[45]   The trial court found that DCS proved both requirements enumerated in section

       31-35-2-4(b)(2)(i) and (ii) by clear and convincing evidence, but we will limit

       our analysis to whether DCS proved that “[t]here is a reasonable probability



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 17 of 20
       that the continuation of the parent-child relationship poses a threat to the well-

       being of the child[ren].” Ind. Code § 31-35-2-4(b)(2)(ii).

[46]   To evaluate whether continuation of the parent-child relationship poses a threat

       to the child, a trial court “should consider a parent’s habitual pattern of conduct

       to determine whether there is a substantial probability of future neglect or

       deprivation” while also judging a parent’s fitness to care for his child as of the

       time of the termination proceedings. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct.

       App. 2012). Moreover, the trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that his physical, mental, and social

       growth is permanently impaired before termination of the parent-child

       relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).


[47]   First, we observe that Father has never been the children’s primary caretaker

       and had not established paternity for the children when the CHINS proceedings

       commenced. Moreover, Father had minimal interaction with D.P. and

       questioned whether he was X.P.’s father. The CHINS proceedings also pended

       for over two years before Father requested placement of the children in his

       home. Because Father did not request placement, the services that he was

       offered throughout the CHINS proceedings were limited.


[48]   The children have behavioral issues that Father does not understand how to

       address. Father has shown minimal interest in the children’s lives and does not

       understand how to care for the children. Father’s visits with the children were

       reduced to once a week because of the children’s unhealthy and extreme


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 18 of 20
       behavior during the visits and Father’s inability to control or address those

       behaviors. The children’s behaviors intensify during and after visitation. And

       while X.P. engages with Father during visitation, D.P plays separately, avoids

       Father, and leaves visitation in a stupor. D.P. is unable to control her emotions,

       picks at her skin, and bullies her younger sibling. X.P. soils himself and

       masturbates several times a day.

[49]   Importantly, Father has not improved his ability to parent the children

       throughout these proceedings and the CHINS proceedings. The children have

       been in foster care for over three years and need stability that Father is unable

       to provide. Finally, the trial court credited the testimony of Father’s mother and

       stepfather that Father is never left alone with his siblings because he molested

       his six-year-old sister.


[50]   Father also argues that DCS failed to prove that termination of his parental

       rights was in the children’s best interests. In considering whether termination of

       parental rights is in the best interests of the children, 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 children involved. Id. The trial court need not wait

       until the children are irreversibly harmed before terminating parental rights. Id.

       “[T]he historic inability to provide adequate housing, stability, and supervision,

       coupled with the current inability to provide the same, will support a finding

       that continuation of the parent-child relationship is contrary to the child[ren]’s

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 19 of 20
       best interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The

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

       child[ren]’s best interests. McBride, 798 N.E.2d at 203.


[51]   The children are bonded to their foster parents, who are also the foster parents of

       the children’s half-brother. They intend to adopt all three children. The court-

       appointed special advocate (“CASA”) testified that Father has not shown much

       interest in the children’s lives. Further, when visitation did not occur, the

       children’s behavior was excellent, but when visitation began again the children’s

       unhealthy and extreme behaviors resumed. Father is unable to parent the

       children and does not know how to control or address the children’s unhealthy

       behaviors. Finally, both the CASA and family case manager concluded that

       termination of Father’s parental rights was in the children’s best interests. Tr.

       Vol. I, pp. 86, 217. For all of these reasons, the evidence is sufficient to establish

       that termination of Father’s parental rights is in the children’s best interests.


                                                  Conclusion
[52]   Although there were procedural irregularities in these proceedings, Father has

       not established that those errors were significant enough to constitute a denial

       of due process. And the trial court’s order terminating Father’s parental rights is

       supported by clear and convincing evidence.


[53]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2404 | April 10, 2019   Page 20 of 20
