MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 18 2020, 10:53 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT AF                                ATTORNEY FOR APPELLEE
Justin R. Wall                                           Robert J. Henke
Wall Legal Services                                      Deputy Attorney General
Huntington, Indiana                                      Indianapolis, Indiana
ATTORNEY FOR APPELLANT DF
Daniel J. Vanderpool
Vanderpool Law Firm, PC
Warsaw, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             May 18, 2020
Parent-Child Relationship of:                            Court of Appeals Case No.
D.F., S.F., and J.F. (minor                              19A-JT-2837
children) and A.F. (Mother) and                          Appeal from the
D.F., Sr. (Father)                                       Wabash Circuit Court
A.F. (Mother) and D.F., Sr.                              The Honorable
(Father),                                                Robert R. McCallen III, Judge

Appellants-Respondents,                                  Trial Court Cause No.
                                                         85C01-1904-JT-006
        v.                                               85C01-1904-JT-007
                                                         85C01-1904-JT-008

Indiana Department of Child
Services,
Appellee-Petitioner


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                       Page 1 of 27
      Vaidik, Judge.



                                             Case Summary
[1]   D.F., Sr. (“Father”) and A.F. (“Mother”) (collectively, “Parents”) appeal the

      termination of their parental rights to their three children. We affirm.



                              Facts and Procedural History
[2]   The facts that follow are taken primarily from the trial court’s findings of fact,

      none of which Parents challenge on appeal.1 Parents are the biological parents

      of three children: D.F., born in 2006; S.F., born in 2007; and J.F., born in 2009

      (collectively, “Children”). In July 2013, the Wabash County Sheriff’s

      Department responded to a domestic-violence call at Parents’ house. When

      officers arrived, they discovered that Father had hit Mother in the back of her

      head with a “Mag light.” Father’s App. Vol. II p. 52; see also Tr. p. 23. Father

      had left the scene. Mother had a “significant injury to the back of her head” and

      was transported to a nearby hospital. Tr. p. 23. Because Children were present

      and witnessed the incident, the Department of Child Services (DCS) was called.

      When Family Case Manager (FCM) Valerie Eiler arrived, she went inside

      Parents’ house and found that the home conditions were “deplorable.” Father’s

      App. Vol. II p. 52. The basement was filled with “standing water and sewage,”




      1
       Because neither Father nor Mother challenge the trial court’s findings of fact, we accept them as true. See
      Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                      Page 2 of 27
      and there were dirty dishes, piles of clothes, and animal feces throughout the

      house. Tr. p. 23. Father was later located “hiding in a house” and was arrested

      and charged with Class D felony domestic battery. Father’s App. Vol. II p. 52.

      He would remain in custody until early 2014.2 Children were removed from

      Parents’ care and placed together in foster care. Shortly after, DCS filed

      petitions alleging that Children were in need of services (CHINS).3

[3]   In October 2013, the trial court found that Children were CHINS and ordered

      that Children continue to be detained. Following a dispositional hearing in

      November, the court ordered that Parents participate in services, including

      home-based case work services, parenting assessments, psychological

      assessments, substance-abuse assessments, and supervised visitation. At the

      time, Father was still incarcerated and was ordered to begin services as soon as

      he was released. The trial court also authorized a trial home visit with Mother,

      which began in December 2013.

[4]   In January 2014, the trial court held a review hearing and found that Mother

      was complying with Children’s case plan and that Father had recently been

      released from incarceration but had not yet begun services.




      2
          In January 2014, the State dismissed the case against Father. See Father’s App. Vol. IV p. 49.
      3
       DCS had contact with Parents before July 2013. The outcome was that a guardianship over D.F. and S.F.
      was granted 2008. Despite this guardianship, Children were in Parents’ care in July 2013.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                         Page 3 of 27
[5]   A month later, law-enforcement officers were called to Parents’ house on a

      report that Mother was threatening to harm Father. When officers arrived,

      Father refused to speak with them “other than to say ‘F**k you,’” and Mother

      was found locked in a bathroom with J.F. Father’s App. Vol. III p. 56. Mother

      yelled at the officers to “get the f**k out of my house,” and when they tried to

      open the door to get J.F. out, Mother screamed that “she was going to stab

      herself if law enforcement came in.” Id. Eventually, officers were able to force

      their way in, and Mother grabbed “a large butcher knife and pointed it

      downwards stating she would stab herself.” Id. Officers ordered Mother to drop

      the knife, and when she refused, they tased her. See id. Mother was arrested and

      charged with Class A misdemeanor resisting law enforcement, Class A

      misdemeanor intimidation, and Class B misdemeanor disorderly conduct. She

      later pled guilty to Class A misdemeanor resisting law enforcement and was

      sentenced to one year, which was suspended to probation. Children were again

      removed from Parents’ care and placed together in foster care. The next day,

      the court held a detention hearing and ordered that Children continue to be

      removed from Parents’ care.

[6]   In May 2014, the court modified the dispositional decree and ordered that

      Parents participate in additional services, including submitting to random drug

      screens and participating in the “Alternative Batterers Program” and

      “therapeutic Supervised Visitation.” Id. at 64.


[7]   By December, Parents were consistently engaging in services and asked the

      court to change the case to “an In-home CHINS.” Id. at 71. The trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 4 of 27
      found that “progress ha[d] occurred” but not sufficient enough “to jump from

      the beginning of community visits, to In-home CHINS, at this time.” Id. The

      court did find, however, that Parents could have an extended visit with

      Children over the Christmas holiday.

[8]   At the February 2015 CHINS review hearing, the court found that Parents had

      stopped complying with Children’s case plan and that neither was cooperating

      with DCS. See id. at 73. The court ordered that Mother’s current substance-

      abuse treatment be reevaluated and that Father complete a new substance-abuse

      assessment “to determine the need for services.” Id. at 74. Children’s placement

      outside Parents’ home was also continued. In May, Father filed a petition for

      dissolution of marriage. At a July permanency hearing (which Parents failed to

      appear for), the court found that Parents were only partially complying with

      Children’s case plan and ordered that Children’s permanency plan be changed

      to a concurrent plan of reunification and termination. The court also appointed

      a Court-Appointed Special Advocate (CASA) for Children around that same

      time.

[9]   Parents failed to appear for a January 2016 CHINS review hearing. The court

      found that Parents were not in compliance with Children’s case plan and were

      not cooperating with DCS. Parents also had not been visiting Children. Id. at

      84. By August, however, Parents re-engaged in supervised visitation. In late

      October 2016, Mother was granted another trial home visit with Children.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 5 of 27
[10]   Three days into the second trial home visit, Children were removed from

       Parents’ care for the third time. They were placed together in foster care. Father

       had just been released from jail and returned to Parents’ house. Law

       enforcement was called when Father became intoxicated and began arguing

       with Mother in front of Children. Father was arrested and later charged with

       Level 6 felony domestic battery and Class A misdemeanor intimidation. He

       later entered into an agreement with the State to plead guilty to Level 6 felony

       intimidation and was sentenced to two years, with one year to be served in

       either the Department of Correction or local jail and the other year suspended

       to probation. After Children were removed, the court held another detention

       hearing and ordered their continued placement outside Parents’ home. Id. at 91.

       In its order, the court noted that Mother had “attempted to prevent her son

       [D.F.] from seeking help relating to the domestic violence incident by hanging

       up on a 911 operator and instructing him not to speak to law enforcement

       officers.” Id. at 92.


[11]   In late 2016, Father posted bail and was released from custody. After his

       release, he did not contact DCS or reengage in services. Instead, Father went to

       Georgia.

[12]   In January 2017, following a CHINS review hearing, the court found that

       Parents had “partially complied with [Children’s] case plan” and “have been

       inconsistent with services and have not benefitted from the services to a point

       where reunification would be safe.” Id. at 94. Parents’ divorce was finalized in

       February. See Tr. Vol. III p. 170.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 6 of 27
[13]   In March, DCS filed petitions to terminate Parents’ parental rights to Children.

       Then, in May, based on the recommendation of Children’s therapist, the court

       modified the CHINS dispositional decree so that family therapy could begin “as

       soon as possible.” Father’s App. Vol. III p. 99. After a permanency hearing in

       July, the court found that family therapy occurred five times but that the family

       was not engaged. Specifically, the court found that Mother “was cooperative in

       attending the sessions, however, the family as a whole ha[d] little to no insight

       about how the trauma has impacted them.” Id. at 104. Regarding Father (who

       did not appear for the hearing), the court found that he was not in compliance

       with Children’s case plan, was “residing out of state,” and was “not

       participating in any services or in person visitation.” Id. The court ordered that

       Children’s permanency plan be that “of adoption with a concurrent plan of

       reunification.” Id. at 105.


[14]   In November 2017, Mother filed a motion to modify the dispositional order.

       Following a hearing on Mother’s motion, the court found that “Father is no

       longer a part of [Mother’s] life and she is attempting to go it alone, albeit with

       some financial assistance from him.” Id. at 108. Although the court found that

       “[w]hile not necessarily apparent, progress, at least on a personal level for

       [M]other, has occurred,” it denied her motion to modify the dispositional order.

       Id.


[15]   At the January 2018 CHINS review hearing, the court found that Mother was

       in partial compliance with supervised visitation, random drug screens, and

       family therapy, and ordered her to participate in the “Seeking Safety and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 7 of 27
       Batterers Intervention Program.” Id. at 111. As for Father, the court found that

       he “ha[d] not participated in any services since moving to Georgia in November

       2016.” Id. at 110.


[16]   The trial court held a fact-finding hearing on DCS’s termination petitions over

       three days in February and March 2018. Father did not appear, and the court

       found that “[h]e has been and remains in Georgia, choosing to appear only by

       counsel.” Father’s App. Vol. II p. 50. Following the hearing, the court denied

       DCS’s petitions to terminate Parents’ parental rights to Children. The trial court

       explained:

               While the Court could easily have made a different
               determination as to [Father] only, terminating his obligation to
               pay support would not be in [Children’s] best interests. Of
               course, should [Mother] and [Father] renege on their promises to
               go it alone, the Court will very likely to re-visit the issue of
               termination of parental rights.


               At first blush, it may appear absurd that after such a long
               removal, the parent’s rights are not terminated. However, many
               different factors attributed to the long removal, including changes
               in foster placements and service providers, DCS personnel, the
               behaviors of [Mother] and [Father] and the lack of evidence. The
               Court must make its determination based upon the evidence
               presented in Court. The evidence fell short of supporting
               termination. In that regard, [Mother] should count her lucky
               stars that she is being given what is very likely one last chance to
               step up to the plate and be the parent she needs to be, including
               doing whatever it takes to do so. Her recent behavior offers a
               glimmer of hope. That glimmer can be quickly tarnished if she
               falls back into her old ways. That would be a terrible tragedy for
               her children who deserve much better.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 8 of 27
       Id. at 54.


[17]   At a CHINS permanency hearing in July, the court found that Mother was in

       compliance with Children’s case plan. The court further found that she was

       “participating in all required services on a consistent basis” and had

       “consistently [drug] screened as requested with no positive screens.” Father’s

       App. Vol. III p. 115. In August, Father was extradited to Indiana from Georgia

       on warrants out of Wabash and Howard counties. See Tr. pp. 51-52.


[18]   In December 2018, DCS filed a “Motion for Approval of Trial Home Visit” for

       all three children in Mother’s home. Father’s App. Vol. II p. 117. The court

       found that Mother had made progress in services and “appeared to engage

       meaningfully to remedy the reason for out of home placement.” Id. The court

       also found that while D.F. and J.F. wished to return to Mother’s home, S.F. “is

       adamant that she does not wish to return to [Mother’s] home or visit in-home

       on Christmas.” Id. The court ordered that D.F. and J.F. participate in a trial

       home visit with Mother and that S.F. participate in a four-hour in-home visit on

       Christmas. See id.


[19]   Father, who by then had been in and out of jail since August 2018, was placed

       on work release in early 2019. In February, DCS filed a motion to terminate

       Mother’s trial home visit. DCS alleged that there was recently an incident

       where Parents were found extremely intoxicated at Mother’s house. Mother

       had “neglected to pick up [D.F. and J.F.] from school and did not know their

       whereabouts, and [D.F. and J.F.] witnessed yet another incident of violence


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 9 of 27
       involving one of their parents when [Father] was forcibly restrained by law

       enforcement to prevent an attack on a case manager.” Mother’s App. Vol. III p.

       220. Father was charged with Level 6 felony resisting law enforcement, Class A

       misdemeanor intimidation, and Class B misdemeanor disorderly conduct. He

       was incarcerated from February 2019 to March 2019 and again from May 2019

       to October 2019. He later pled guilty to Level 6 felony resisting law

       enforcement and Class A misdemeanor intimidation and was sentenced to two-

       and-a-half years in the DOC. The trial court granted DCS’s motion to terminate

       the trial home visit, and D.F. and J.F. were once again removed from Mother’s

       care. See id. at 225. They were placed together in the same foster home as their

       sister, S.F. At the April 2019 CHINS permanency hearing, the trial court

       changed Children’s permanency plan to termination. Later that month, DCS

       filed new petitions to terminate Parents’ parental rights to Children.

[20]   In May, the court held the initial hearing on the termination petitions. Father,

       who was incarcerated at the time, refused to appear for the hearing, telling

       officers at the jail “that he was not going to court th[at] morning.” Tr. Vol. II p.

       5. His attorney appeared on his behalf and participated in the hearing.

       Following the initial hearing, the court set the fact-finding hearing to begin on

       June 28. Mother filed a motion for a change of judge on June 26. At the

       beginning of the fact-finding hearing, the court addressed Mother’s motion.

       Mother, through counsel, admitted that her motion was not timely for an

       automatic change of judge but alleged that “given the history, and the length of

       time we’ve gone through this case, and the prior termination cases, and some of


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 10 of 27
       the comments, um, about that prior termination hearing, that, perhaps, the

       Court has, um, some preconceived notions about the outcome of the current

       termination proceedings.” Id. at 18. Father joined Mother’s motion and

       explained that “the fact that the Court has given chances, uh, probably above

       and beyond what would normally be done, uh, and – and I think expressed

       some understandable frustration. But going forward, I think we want to make

       sure that that’s not going to be something that would color the proceedings.” Id.

       at 19. The trial court denied Mother’s motion for a change of judge and stated,

       “I think I can be fair and impartial. I think I have tried to do that. I think I’ll

       stick with what the facts are in that particular case.” Id. at 20. The trial court

       then started the termination fact-finding hearing, and FCM Gary Spratt testified

       regarding the conditions that led to Children’s initial removal from Parents’

       care. After a few minutes, the trial court concluded the hearing, stating “we will

       resume the testimony due to inadequate time [on] October 29th, 30th, and

       31st.” Id. at 24.


[21]   Less than two weeks before the termination fact-finding hearing was set to

       resume on October 29, Father filed several pro se motions, even though he was

       still represented by counsel. On October 17, Father filed a “Motion for

       Appearance,” stating that he “files his appearance” in the case. Father’s App.

       Vol. II p. 75. On October 18, he filed a motion for continuance and a “Motion

       to Raise Issues At Trial Level for Appeal.” Id. at 77, 79. Three days later, he

       filed two more motions: a second motion for a continuance and a motion to

       proceed in forma pauperis. Id. at 82, 85. The next day, Father filed four more


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 11 of 27
       motions: (1) a third motion for a continuance, (2) a request for production, (3)

       another “Motion to Raise Issues At Trial Level for Appeal,” and (4) a “Request

       For Bonding Assessment.” Id. at 88, 90, 92, 95. That same day, October 22,

       Father’s attorney since 2015 filed a motion to withdraw his appearance, stating

       he was doing so “at the instruction of the Natural Father.” Id. at 98. The next

       day, the trial court granted Father’s attorney’s motion to withdraw. On October

       24, Father filed a request “seeking the assistance of second chair.” Id. at 100.


[22]   On October 25, the court held a hearing on Father’s various motions. During

       the hearing, the court confirmed that Father wished to represent himself and

       was only “seeking a second chair.” Tr. Vol. II p. 28. Father confirmed that is

       what he wanted, and the trial court appointed “second chair.” Id. at 30. The

       trial court commented, “I doubt very much that person is going to be able to

       attend given your last minute requests. They have busy lives and schedules as

       well. I’m going to appoint Attorney Sharon Breitenbach. . . . Whether she can

       meet with you, assist you, I do not know.” Id. at 31. The court then moved on

       to Father’s request for production, and DCS provided Father a copy of the

       documents he requested (which had previously been provided to his former

       attorney) in open court. See id. at 29-30. Then, the court stated that it was taking

       judicial notice of the first termination proceeding and stated:

               In that proceeding, I did deny termination. I indicated I’d have
               no problem terminating your parental rights based upon the
               evidence and history, um, and your apparent acquiescence to
               that. But I did not because I decided based upon the evidence
               presented, at that time, not to terminat[e] [Mother’s] rights.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 12 of 27
               As my order indicated, you were, at least for a period of time, a
               source of income for [Mother] and [Children]. And given
               [Mother’s] work history, I believed terminating your rights would
               deprive her of a financial support that she would need going
               forward.


               Your recent termination of your attorney, your pro se
               appearance, your request for production of documents, and all
               other pro se filing herein, in my opinion are merely an attempt to
               underly [sic] and delay these court proceedings in what I think
               you believe is going to somehow aid [Mother]. I’m not going to
               allow that. Your children deserve better. You should be ashamed
               of yourself.


                                                     ******


               Given my prior position not to terminate your rights, if I don’t
               terminate her rights, you’re adequately represented by [Mother’s
               attorney], who is not your attorney of record. But the issues she
               will preserve and raise would benefit you as well.


       Tr. Vol. II pp. 30-31. The court then denied Father’s remaining motions,

       including his three motions to continue, finding “them a sham on the Court.”

       Id. at 31. The court closed the hearing by confirming that the termination

       hearing would resume, as scheduled, on October 29 and commenting to Father,

       “these children deserve the attention and the life they ar[e] entitled to. They’ve

       certainly not been getting it in the last several years. You’ve actually played

       zero role.” Id. at 34.


[23]   On October 28, the day before the termination hearing was set to resume,

       Father filed a motion for change of judge, asking the judge to recuse himself

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 13 of 27
       because he had been involved in the prior termination case and made

       comments about what happened in that case during the October 25 hearing. See

       Father’s App. Vol. II pp. 105-112. Later that same day, the trial court denied

       Father’s motion for a change of judge.

[24]   On October 29, the termination hearing resumed. At the start of the hearing,

       Father and his attorney objected to the hearing, alleging that they did not have

       enough time to prepare. Tr. Vol. II pp. 41, 43. The court denied any

       continuance, stating, “there’s been adequate time, [Father] just made a

       conscious decision to terminate his attorney, conveniently right . . . on the eve

       of trial.” Id. at 41, 43. The trial court also noted that the dates for the

       termination hearing had been set since May 2019. See id. at 43.


[25]   Therapist Annette Dubois testified that she worked with D.F. to address his

       anxiety issues and obsessive-compulsive disorder. Therapist Dubois testified

       that D.F. needs a home that provides structure, understanding, patience, “no

       surprises,” and stability. Id. at 63. Therapist Terri Valentine testified that she

       worked with S.F. on her belief that she had “to parent her younger brother and

       sister” and to address her lack of trusting adults. Id. at 79-80. Therapist

       Valentine said that S.F. needs a home that provides her “challenge, enrichment,

       and opportunities to learn, opportunities to be in the community and be

       involved.” Id. at 81. Therapist Valentine stated that S.F. had expressed to her

       that she does not want to live with Parents and does not “want to have a close

       relationship” with them. Id. at 87. Therapist Alexandria Minkler testified that

       she worked with J.F. on “processing her trauma.” Id. at 92. Therapist Minkler

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 14 of 27
       said that J.F. needs a home where “she can establish safety, have support, and

       have structure,” because “support helps with her safety, the feeling of safety,”

       “where she can come out of feeling as though she has to fend for herself

       emotionally and physically.” Id. at 93-94.


[26]   Therapist Janet Shull testified that she worked with Mother. Regarding Parents’

       relationship, Therapist Shull said that Mother “had a long relationship with

       [Father]. He’s the father of her children. They’ve had a close relationship for

       years. She cares about him and for him. She believes that he has potential also.

       She wants him to have influence in the lives of her children.” Tr. Vol. III p.

       120. Therapist Shull explained that Mother “thinks she will save [Father].”

       Therapist Shull stated that she was aware that Mother used methamphetamine

       in September 2019 and thought that Mother did so because she was lonely.

       Mother admitted that she used methamphetamine over Labor Day weekend.

       See id. at 148. Mother explained that she did it because she “just wanted to be

       numb.” Id. at 149. Father testified that “at whatever cost to [him],” Mother’s

       parental rights should not be terminated. Id. at 173. When asked what he meant

       by that, Father responded, “I am more than suggesting that I would do

       whatever it takes to make sure that happens for their peace.” Id.


[27]   FCM Eiler testified that DCS had been providing the family services for “over

       six years . . . And every time [Children] go back home, something happens

       between [Mother] and [Father] that results in DCS having to re-remove

       [Children] again.” Tr. Vol. II p. 153. FCM Eiler said that Children “deserve

       stability, they deserve permanency, and they haven’t had that. . . . Most of their

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 15 of 27
       childhood has been lived in foster care.” Id. FCM Eiler stated that adoption was

       DCS’s plan and that she believed termination of Parents’ parental rights is in

       Children’s best interests. Id. FCM Gary Spratt also testified that Parents were

       “given plenty of time, plenty of opportunities, nearly every service at [DCS’s]

       disposal. But every time we get close, we come right back to the same issues

       that got [DCS] involved in the first place.” Tr. Vol. III p. 16. FCM Spratt said

       that he thought that termination of Parents’ parental rights is in Children’s best

       interests. See id. at 17. CASA Robert Cole testified that “it’s been over six years

       and there’s been very little substantial progress.” Id. at 54. CASA Cole said that

       Mother has “admitted to having taken methamphetamine and . . . her reason

       for doing it is she just didn’t want to feel pain anymore . . . it seems that she just

       falls back on her old habits.” Id. at 56-57. CASA Cole supported DCS’s plan for

       adoption and believed that termination of Parents’ parental rights is in

       Children’s best interests. See id. at 53-54. In November 2019, the trial court

       issued its order terminating Parents’ rights to Children.

[28]   Father and Mother separately appeal.



                                  Discussion and Decision
[29]   Parents make two separate arguments on appeal. Father argues that the trial

       court abused its discretion by denying his motion for change of judge and

       motions to continue. Mother argues that there is insufficient evidence to

       support the trial court’s termination order.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 16 of 27
                                          I. Father’s Appeal
[30]   Father contends that the trial court abused its discretion in two ways: (1) by

       denying his motion for a change of judge and (2) by denying his motions to

       continue.


                              A. Motion for Change of Judge
[31]   First, Father argues that “[t]he trial court was not the neutral and detached

       magistrate required by due process to afford [Father] a fair hearing, and should

       have granted his Motion for Change of Judge. It was an abuse of discretion for

       the court not to do so.” Father’s Br. p. 15. A ruling upon a motion for a change

       of judge rests within the sound discretion of the trial judge and will be reversed

       only upon a showing of an abuse of that discretion. Carter v. Knox Cty. Office of

       Family & Children, 761 N.E.2d 431, 434 (Ind. Ct. App. 2001). Reversal is

       appropriate only where a record discloses actual bias and prejudice against a

       party. Id.


[32]   The law presumes that a judge is unbiased and unprejudiced. Carter, 761

       N.E.2d at 435. To overcome this presumption, the moving party must establish

       that the judge has personal prejudice for or against a party. Id. Such bias or

       prejudice exists only where there is an undisputed claim or the judge has

       expressed an opinion on the merits of the controversy before him. Id. Adverse

       rulings and findings by the trial judge do not constitute bias per se. Id. Instead,

       prejudice must be shown by the judge’s trial conduct; it cannot be inferred from

       his subjective views. Id. Moreover, Indiana courts credit judges with the ability

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 17 of 27
       to remain objective notwithstanding their having been exposed to information

       which might tend to prejudice lay persons. Id. Thus, the mere fact that a party

       has appeared before a certain judge in a prior action or the judge has gained

       knowledge of the party by participating in other actions does not establish the

       existence of bias or prejudice. Id. Indeed, our courts have recognized that in the

       area of termination proceedings, a judge is very likely to have knowledge of

       previous proceedings because the juvenile court’s jurisdiction over a child in

       need of services or their parent continues until the child reaches their twenty-

       first birthday, unless the court discharges the child or their parent at an earlier

       time. Id.


[33]   Father says that the following remarks made by the trial court at the October 25

       hearing show bias:


                   • When referring to the prior termination proceeding, the
                     court commented, “in that proceeding, I did deny
                     termination. I indicated that I’d have no problem
                     terminating your parental rights based upon the evidence
                     and history, um, and your apparent acquiescence to that.
                     But I did not, because I decided based upon the evidence
                     presented at that time, not to terminate Mom’s rights.”


                   • When discussing Father’s request for a second chair, the
                     court noted, “given my prior position not to terminate
                     your rights, if I don’t terminate [Mother’s] rights, you’re
                     adequately represented by [Mother’s attorney], who is not
                     your attorney of record. But the issues she will preserve
                     and raise would benefit you as well.”



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 18 of 27
                     • After denying Father’s motions to continue, when
                       confirming that the termination hearing would resume as
                       scheduled, the court said, “these children deserve the
                       attention and the life they ar[e] entitled to. They’ve
                       certainly not been getting it in the last several years.
                       You’ve actually played zero role.”


       Tr. Vol. II pp. 30-31, 34.4

[34]   At the outset, we note that Father knew that the same judge who heard the first

       termination proceeding would be presiding over this one long before he filed his

       motion for change of judge. In fact, at the June 28 hearing, where Father was

       present, he joined Mother’s motion for change of judge. The fact that he knew

       that the judge would be the same for this length of time supports the trial court’s

       conclusion that Father’s motions, made on the eve of trial, were a “sham” to

       give Mother more time. Father’s App. Vol. II p. 45. Moreover, Father does not

       establish how the above comments show that the trial court had a personal

       prejudice against him. Instead, the above comments show that the trial court

       was making an observation about the prior termination proceeding and Father’s

       participation in the current proceedings, not prejudging any future termination.

       As discussed above, the mere fact that a judge has gained knowledge of the

       party by participating in other actions does not establish the existence of bias or




       4
         Indiana Appellate Rule 46 provides that every contention in the argument section of a brief “must be
       supported by citations to . . . the Appendix or parts of the Record on Appeal relied on[.]” The argument
       section of Father’s brief does not include a single citation to the record. Needless to say, this lack of citations
       substantially hindered our review.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                          Page 19 of 27
       prejudice. See Carter, 761 N.E.2d at 435. Accordingly, the trial court did not

       abuse its discretion in denying Father’s last-minute motion for a change of

       judge.


                                     B. Motions to Continue
[35]   Father also argues that the trial court abused its discretion when it denied his

       motions to continue. Generally, the decision to grant or deny a motion to

       continue is within the sound discretion of the trial court, and we will reverse

       only for an abuse of discretion. In re J.E., 45 N.E.3d 1243, 1246 (Ind. Ct. App.

       2015), trans. denied. An abuse of discretion occurs when the trial court’s

       conclusion is clearly against the logic and effect of the facts and circumstances

       before the court or the reasonable and probable deductions to be drawn

       therefrom. Id. When a motion to continue has been denied, an abuse of

       discretion will be found if the moving party has demonstrated good cause for

       granting the motion, but we will reverse the trial court’s decision only if the

       moving party can show that he was prejudiced by the denial. Id.


[36]   Here, the record shows that Father fired his longtime attorney and filed three

       motions to continue less than two weeks before the termination hearing was to

       resume. The trial court did not believe “for one second” that Father needed a

       continuance and instead thought that his motions to continue and slew of other

       motions were a “sham,” designed to delay the proceedings and give Mother

       more time to work toward reunification. Father’s App. Vol. II pp. 45-46.

       Indeed, Father admitted during trial that he would “do whatever it takes” to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 20 of 27
       ensure Mother’s parental rights to Children were not terminated. Tr. Vol. III p.

       173. The trial court did not believe that Father required a continuance and

       therefore denied his motion. We do not second-guess the trial court’s credibility

       determination on appeal. As such, we conclude that the trial court did not

       abuse its discretion.

[37]   To the extent that Father argues that his due-process rights were violated

       because “his right to have counsel represent his interests was significantly

       impaired,” Father’s Br. p. 23, we find no merit to this argument. When the

       State seeks to terminate the parent-child relationship, it must do so in a manner

       that meets the requirements of due process. Hite v. Vanderburgh Cty. Office of

       Family & Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006). Due process in

       termination cases involves 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 government interest supporting use of the

       challenged procedure. Id. There is no doubt that Father’s private interest in his

       parental relationship with Children is substantial. See id. Likewise, the

       government’s countervailing interest in protecting the welfare of Children is

       also substantial. See id. As for the risk of error, the record shows that Father,

       with the assistance of an attorney, was able to testify, cross-examine DCS’s

       witnesses, and call his own witnesses. And our review of the record shows that

       Father’s “second chair” adequately represented his interests. To the extent that

       Father complains that his “second chair” was under prepared, that was due to

       his own dilatory tactics. First, Father was very clear that he wanted to represent


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 21 of 27
       himself and was only seeking a “second chair” to assist him. Next, Father’s

       request for a “second chair” was part of a last-minute slew of motions made just

       before the termination hearing was scheduled to resume. Finally, the trial court

       found that Father’s many motions were a “sham” designed to delay the

       proceedings to give Mother more time to work toward reunification. For all of

       these reasons, we do not think that the trial court’s denial of Father’s motions to

       continue created a substantial risk of error.5



                                            II. Mother’s Appeal
[38]   Mother contends that there is insufficient evidence to support the trial court’s

       termination order.6 When reviewing the termination of parental rights, we do

       not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d

       1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable

       inferences that are most favorable to the judgment of the trial court. Id. When a

       trial court has entered findings of fact and conclusions of law, we will not set

       aside the trial court’s findings or judgment unless clearly erroneous. Id. To

       determine whether a judgment terminating parental rights is clearly erroneous,




       5
         To the extent that Father argues that “resetting the hearing within thirty days would have allowed for
       preparation by counsel, in light of the late submission of discovery,” we find no merit to this argument.
       Father’s Br. p. 23. Father made it clear that he was going to represent himself and concedes that he received
       the State’s discovery “in open court,” “no more than ten days” before the termination hearing. Id. at 22.
       Accordingly, any claim that he now makes that his “second chair” did not have time to review the State’s
       discovery was because of his own doing.
       6
           Father does not challenge the sufficiency of the evidence supporting the trial court’s termination order.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                         Page 22 of 27
       we review whether the evidence supports the trial court’s findings and whether

       the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[39]   A petition to terminate parental rights must allege, among other things:

               (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.


       Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by clear

       and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the 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).

[40]   Mother first challenges the trial court’s conclusion that there is a reasonable

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 23 of 27
       remedied. In determining whether there is a reasonable probability that the

       conditions that resulted in a child’s removal will not be remedied, the trial court

       engages in a two-step analysis. First, the trial court must ascertain what

       conditions led to the child’s placement and retention in foster care. In re K.T.K.,

       989 N.E.2d at 1231. Second, the trial court determines whether there is a

       reasonable probability that those conditions will not be remedied. Id. “The trial

       court must consider a parent’s habitual pattern of conduct to determine whether

       there is a substantial probability of future neglect or deprivation.” Id. The trial

       court has discretion to weigh a parent’s prior history more heavily than efforts

       made only shortly before termination, and the court may find that a parent’s

       past behavior is the best predictor of her future behavior. In re A.W., 62 N.E.3d

       1267, 1273 (Ind. Ct. App. 2016).

[41]   Here, even after six years, Mother failed to demonstrate that she was any closer

       to providing Children a safe, stable home than she was at the beginning of the

       CHINS case in July 2013. The trial court’s unchallenged findings on this issue

       support its conclusion that there is a reasonable probability that the conditions

       resulting in Children’s removal will not be remedied. See, e.g., In re E.M., 4

       N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-compliance with

       services supported trial court’s conclusion that conditions resulting in children’s

       removal from father’s care would not be remedied). That is, the trial court

       found:

               The children have been removed from their parents since July 20,
               2013, which is over six (6) years. [Mother] has changed her

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 24 of 27
                residence at least six (6) times. [Father] has changed his residence
                at least five (5) times. [Father] has been in and out of jail
                numerous times and was “on the lam” in Georgia before being
                arrested and extradited back to Indiana earlier this year. For both
                [Mother] and [Father], drug use and alcohol abuse continue. The
                children’s exposure to their parent[s’] bizarre behaviors continue.
                The events that occurred on and immediately before February
                15, 2019, were the last straw. As a result of those events, [D.F.]
                and [J.F.] were, again, removed. [S.F.] was still in foster care.
                Even after that, [Mother] ingested methamphetamine in
                September of this year.


       Father’s App. Vol. II p. 40. Accordingly, the trial court did not err when it

       concluded that there is a reasonable probability that the conditions resulting in

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

       remedied.7

[42]   Mother also challenges the trial court’s conclusion that termination is in

       Children’s best interests. To determine what is in the child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the child. Id. The trial court

       need not wait until the child is irreversibly harmed before terminating the




       7
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationships poses a threat to the well-being
       of Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B)
       is written in the disjunctive and requires the trial court to find that only one of the two requirements of
       subsection (B) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                       Page 25 of 27
       parent-child relationship. Id. Moreover, we have previously held that 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. Id. at 1158-59.


[43]   Here, FCMs Eiler and Spratt as well as CASA Cole all testified that termination

       of Parents’ parental rights is in Children’s best interests. See Tr. Vol. II p. 153;

       see also Tr. Vol. III pp. 17, 53-54. Furthermore, all of Children’s therapists

       expressed that the child they worked with suffered trauma and needed

       permanency. See Tr. Vol. II pp. 63, 81, 93-94; see also In re A.D.S., 987 N.E.2d at

       1159 (“permanency is a central consideration in determining the best interests

       of a child”). The trial court found that Children “need to be in safe and secure

       surroundings. History show [Parents] cannot and will not provide that. None of

       the services [Mother] has engaged in will change that.” Father’s App. Vol. II p.

       45; see also In re K.T.K., 989 N.E.2d at 1230 (finding that “children have an

       interest in terminating parental rights that prevent adoption and inhibit

       establishing secure, stable, long-term, continuous relationships”). As such, the

       trial court did not err by finding that termination is in Children’s best interests.

[44]   Finally, Mother argues that the trial court erred in concluding that there is a

       satisfactory plan for Children’s care and treatment. In order for the trial court to

       terminate a parent-child relationship, it must find that there is a satisfactory

       plan for the care and treatment of the child. See Ind. Code § 31-35-2-4(b)(2)(D).

       Such a plan need not be detailed, so long as it offers a general sense of the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 26 of 27
       direction the child will go after the parent-child relationship is terminated. Lang

       v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App.

       2007), trans. denied. Adoption is generally a satisfactory plan, even when a

       potential adoptive family has not been identified. See id. at 375. Part of the

       reason for this is that it is within the authority of the adoption court, not the

       termination court, to decide whether an adoptive placement is appropriate. In re

       A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied.


[45]   Here, DCS’s plan is adoption. FCM Eiler agreed with this plan. Mother

       contends that adoption is not a satisfactory plan. Instead, she argues that

       “maintaining the status quo, i.e. the Children remaining in foster placement

       while Mother completes additional services is a very satisfactory plan.”

       Mother’s Br. p. 35. The trial court found that Mother was provided services for

       over six years but failed to benefit from them and that Children “should suffer

       no more.” Father’s App. Vol. II p. 45; see also In re S.P.H., 806 N.E.2d 874, 883

       (Ind. Ct. App. 2004) (children’s needs are too substantial to force them to wait

       while determining if their parents will be able to parent them). Therefore, the

       trial court did not err in concluding that adoption is a satisfactory plan for

       Children.

[46]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 27 of 27
