MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Sep 10 2019, 8:52 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marianne Woolbert                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         September 10, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: D.O. (Minor                             19A-JT-693
Child)                                                   Appeal from the Madison Circuit
L.H. (Mother),                                           Court
                                                         The Honorable G. George Pancol,
Appellant,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         48C02-1805-JT-129
Indiana Department of Child
Services,
Appellee.



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019              Page 1 of 19
[1]   L.H. (“Mother”) appeals the involuntary termination of her parental rights with

      respect to her child, D.O. We affirm.


                                      Facts and Procedural History

[2]   D.O. was born on December 15, 2003, and is a Type I Diabetic with Celiac

      Disease. In December 2011, the Indiana Department of Child Services

      (“DCS”) alleged that D.O. was a child in need of services (“CHINS”), and

      Mother later admitted that D.O. was a CHINS. In October 2013, DCS again

      alleged that D.O. was a CHINS, and Mother later admitted that he was a

      CHINS. In July 2014, the court dismissed the cause.


[3]   In November 2014, DCS again alleged that D.O. was a CHINS and that his

      condition was seriously endangered as a result of the inability, refusal, or

      neglect of Mother to supply him with necessary food, medical care, or

      supervision. It also alleged that Mother was arrested for outstanding warrants

      related to charges for contempt of court, violation of probation, failure to

      appear, and driving while suspended and that D.O.’s father was incarcerated

      until approximately 2018 for felony dealing in cocaine or a narcotic drug. D.O.

      was removed from the home.


[4]   In February 2015, Mother entered an admission that D.O. was a CHINS and

      that he had medical needs to which she did not properly attend. In April 2015,

      the court entered a dispositional order requiring Mother to participate in certain

      services and provide for the medical needs of D.O. in a timely and complete

      manner including attending all scheduled appointments, following


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 2 of 19
      recommendations of medical personnel, and ensuring medications are taken in

      the recommended dosages and frequencies specified in the prescription.


[5]   In March 2016, the court issued an Order Approving Permanency Plan stating

      that D.O. was in foster placement. The order found that DCS had provided

      referrals for in-home based services, parenting classes, substance abuse

      counseling, random urinalysis, and supervised visitation for Mother. It found

      that Mother was not in compliance with the planning ways. She started a

      substance abuse assessment on October 23, 2015, but left before a drug screen

      could be performed; she was closed out of a substance abuse referral for

      noncompliance; she completed a home-based assessment on August 12, 2015,

      but was closed out for noncompliance; she completed a parenting assessment

      on October 6, 2015, but was closed out due to not being able to be contacted by

      phone or address; she refused nine out of eleven random drug screens; she

      tested positive in December 2015 for Morphine 21.8 ng/mL; she had recently

      screen tested positive for heroin; and she was closed out of supervised visitation

      in February 2016 due to no shows. The order provided that, of the permanency

      planning options available, the plan most appropriate and consistent with the

      best interests of D.O. was that he be placed for adoption.


[6]   On May 30, 2018, DCS filed a petition to terminate the parent-child

      relationship of Mother and D.O. A “TPR Summons and Notice of Hearing

      and Notice of Possible Default Judgment,” file-stamped on June 4, 2018, was

      sent to Mother at an address on West Main Street in Chesterfield, Indiana, and

      stated that she was required to appear for an initial hearing on June 27, 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 3 of 19
      Appellant’s Appendix Volume II at 55. An affidavit of service on June 14,

      2018, indicates the notice was served at the Chesterfield address. On June 27,

      2018, the court held an initial hearing at which Mother appeared in person and

      with her court appointed counsel and scheduled a factfinding hearing for

      August 27, 2018. 1 On August 22, 2018, the court appointed special advocate

      for D.O., Nellie Elsten (“CASA Elsten”), filed a report with the court which

      summarized D.O.’s admissions to Community Hospital and St. John’s Hospital

      and provided that the foster parents reported that D.O. was not hospitalized at

      all since he has been in foster care.


[7]   On August 27, 2018, the court held a hearing at which Mother appeared in

      person and the court appointed new counsel, Marianne Woolbert, to represent

      her, and scheduled a hearing for October 23, 2018. An entry in the

      chronological case summary (“CCS”) dated September 28, 2018, states that

      DCS requested a continuance; an October 2, 2018 entry states the factfinding

      hearing was set for “10/23/2018 . . . , choice 2”; an October 10, 2018 entry

      states the hearing was continued until “12/4/2018 at 9:00 AM (Event was

      rescheduled)”; and a second entry on October 10, 2018, states: “Comes now the

      Court and resets the fact-finding hearing currently scheduled for 12-4-18 to 11-

      19-18 at 2:00 p.m.” Id. at 3. A docket entry detail for the second October 10,

      2018 entry states that notices were sent to “Marianne Woolbert (Service by



      1
        At the initial hearing, after appointing counsel for Mother, the court asked “[s]o, she has received the
      termination Petition and has now consulted with Counsel,” and her counsel replied “[y]es.” Transcript
      Volume I at 6.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019                  Page 4 of 19
      Email - Sent successfully)” and to “[Mother] (Service by Standard service for

      notices - Printed) Notice printed at 10/11/2018 12:02:25 AM to . . . W. Main

      Street, Chesterfield, IN . . . .” Id. at 36. A November 8, 2018 CCS entry states

      “11/8/2018 4:00:02 PM (Filed) - Created 11/8/2018 3:50:19 PM - TPR Notice

      of Hearing (10 day),” and lists Mother’s name and her address on West Main

      Street in Chesterfield. Id. at 3. The “Notice of Hearing to Terminate the

      Parent-Child Relationship” file-stamped “11/08/2018 4:00:02 PM” was signed

      by counsel for DCS, indicates “To: [Mother] . . . W. Main Street Chesterfield,

      IN . . . ,” states the notice was provided in accordance with Ind. Code § 31-35-

      2-6.5, and sets forth the date, time, and location of the scheduled November 19,

      2018 factfinding hearing. Id. at 32.


[8]   On November 19, 2018, the court held the factfinding hearing. At the start,

      DCS’s counsel noted that Attorney Woolbert and counsel for D.O.’s father

      were present and that the parents were not present. The court asked Attorney

      Woolbert if she was ready to proceed, and she replied affirmatively. The court

      asked counsel for D.O.’s father if he was ready to proceed, he replied that he

      had not had contact with his client and asked for a continuance, and the court

      denied the motion. DCS presented the testimony of CASA Elsten and family

      case manager Brandy Sorrell (“FCM Sorrell”).


[9]   CASA Elsten testified that D.O. was originally removed by DCS in November

      2014 for medical neglect, he was repeatedly admitted to the hospital, “the

      Hospital finally said he would die if . . . the neglect didn’t stop,” and “[t]he kind

      of neglect he was facing could cause his life to end.” Transcript Volume I at 22.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 5 of 19
       She testified that “there’s a [] very detailed [] food supply he has got to have to

       be safe,” he is a Type I Diabetic and has Celiac disease, “a lot of the things he

       can have for one, won’t work for the other,” and D.O.’s parents were failing to

       meet those needs. Id. She indicated that D.O.’s parents were also supposed to

       be very closely monitoring his blood sugar levels and they were not doing so.

       She indicated that D.O. had been removed from the home since the

       dispositional hearing in April 2015, the last time she had contact with Mother

       was approximately May 2017, the court stopped all visitation in June 2017, and

       Mother was living with her mother. She indicated that D.O.’s father was in

       prison twice during the pendency of the case.


[10]   When asked about the major barriers to reunification, CASA Elsten replied that

       D.O. believes “that if he goes home, and he is with his parents, he will die. He

       doesn’t believe that they can take care of him and he can say based on what

       forty two times that he was admitted to Community and St. John’s Hospital . . .

       [p]rior to the . . . [r]emoval.” Id. at 26. She indicated that she did not believe

       the reason for D.O.’s removal and continued placement outside the home has

       been or will be remedied, it poses a threat to D.O.’s well-being for the parent-

       child relationship to continue, “he doesn’t have any bond or relationship with

       either parent [] at all and he doesn’t want to be with them,” “he is afraid for his

       safety with them,” and she believes D.O. is reasonable in his fear for his safety

       and that it is in his best interests that the parent-child relationship be ended. Id.

       at 27.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 6 of 19
[11]   CASA Elsten indicated that D.O. was placed in a pre-adoptive home, he had

       been there for a couple of years, his grades were excellent and he was on the

       basketball team, and the foster family had received training on how to care for a

       child with D.O.’s diseases and they demonstrated the ability to properly care for

       him. She testified that D.O. had individual counseling for a long time, he and

       Mother had counseling together for a period of time but he simply would not

       talk or participate so that was terminated, and the therapist reports that D.O.

       does not need counseling when he is not under the stress of having to visit his

       parents. She testified that the stress of visiting his parents has a negative impact

       on his blood sugar levels and that a letter from a doctor in the CHINS case

       stated that his blood sugars are “around two twenty five” but that stress “can

       cause him to go to four hundred very easily.” Id. at 30. On cross-examination

       by Attorney Woolbert, CASA Elsten indicated that she did not know if Mother

       ever started the ordered parenting assessment, that she thought Mother was

       taking her drug screens and they were clean, and that the house in which she

       lived was crowded but clean. Upon questioning by counsel for D.O.’s father,

       she indicated that there were five other children who had been reunified with

       Mother and were living with her.


[12]   FCM Sorrell indicated that she had been assigned the case for two years and

       three months and testified as to D.O.’s medical conditions and that the

       conditions require that he carefully manage the foods that he eats. When asked

       the reason for his removal, she replied “because of his sugar levels being

       completely out of control” and the lack of medical attention. Id. at 37. When


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 7 of 19
       asked about the services provided, she testified that she believed Mother

       participated to a certain degree and was able to have the other children returned

       to her care but that since then she has not complied with any services. She

       testified Mother “has not done anything since I have been involved,” that the

       last contact she had with Mother was the last court meeting, that she had given

       her card to Mother and asked her to stay in contact, and that Mother had not

       responded to any of her calls or messages. Id. at 39. She indicated that services

       were offered to help Mother learn how to deal with D.O.’s medical conditions

       and that to her knowledge Mother did not participate in and complete those

       services. She stated that the court discontinued visitation in June of 2017 and

       that Mother and D.O. had not had contact with each other since then.


[13]   When asked about the major barriers for reunification, FCM Sorrell testified:

               [W]hen I first took this case, I sat down with [D.O.] and tried to sit
               down with [Mother] but [D.O.] had stated that he did not want any
               contact with [Mother.] I asked about sibling visitation. He had no
               desire to even see his siblings . . . his stress levels go up anytime you
               even bring up [Mother], which also . . . causes his sugar levels to
               arise when he is completely stressed out. [H]e told me that he
               would talk about it the one time . . . as far as . . . visitation with
               [Mother] or siblings but then he didn’t want to talk about it
               anymore. [H]e stated that . . . he didn’t feel that [Mother] cared
               about him enough to protect him when she had him and that his
               siblings do nothing but make fun of him and tease him and he just
               doesn’t feel comfortable or a part of the family.

       Id. at 40-41. When asked to describe the cooperation and participation in

       services of each of D.O.’s parents since the filing of the TPR petition, she

       testified “I have . . . not been able to get either parent to sit down for a child

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 8 of 19
       family team meeting . . . to talk about services or what could be offered since I

       have been able to take over the case” and “it’s my knowledge that the parents

       haven’t done anything since the other children were returned back into their

       home.” Id. at 42. When asked if she believed the reason for the removal and

       continued placement of D.O. outside the home has been remedied, she replied

       “I do not,” “if Mother would have taken the time to go to the Doctor’s

       appointments or learn about her child’s illness in order to care for him, I think

       that would have been a little different but she hasn’t taken the time out,” “[s]he

       hasn’t asked about her child,” “[s]he hasn’t even asked if he is okay,” and “at

       this point [Mother] has not reached out for any contact.” Id.


[14]   FCM Sorrell indicated there has not been a significant change in the

       circumstances since the beginning of the CHINS case. She testified that Mother

       has not gone to the doctor appointments, has not tried to educate herself, and

       was offered education and has not complied with any of it. She indicated she

       believed the continuation of the parent-child relationship poses a threat to

       D.O.’s well-being and testified, “[i]f this child was returned back into the care of

       his Mother, with her not having any knowledge of how to care for him and his .

       . . celiac disease and his diabetes, . . . this child could potentially end up very

       very ill or possibly even be killed.” Id. at 44. She indicated she believed it was

       in D.O.’s best interests that the parent-child relationship be terminated. She

       testified that D.O. was in a pre-adoptive placement, played sports, was doing

       well in school, and has really blended into the placement family who monitors

       his sugar levels and diet. She further testified “when I did talk to [D.O.] about


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 9 of 19
       his parents and about his siblings, the fear that overcome [his] face was

       something that I don’t think that I have seen since I have been a caseworker,”

       “he was petrified that I was gonna re-start his visitation,” and “I was just trying

       to get a better understanding from his point of view when I was asking him

       these questions, but I think that the Court should know that this child is really

       scared that we would have anything uh he has to have anything to do with his

       parents or siblings.” Id. at 45. She also testified “I have reason to believe that if

       [D.O.] was to be placed back with . . . either parent, he would in turn run

       away” and “I have reason to believe that he is so fearful for his life that he

       would not remain in the care of his parents.” Id. at 48. The court admitted the

       filings and orders in the CHINS actions.


[15]   On March 6, 2019, the court issued an eighteen-page order terminating the

       parent-child relationship of Mother and D.O. which includes numerous

       findings of fact in accordance with the above testimony and provides in part:

                                                     *****

               q.       The Dispositional Decree was entered on April 2, 2015 in the
                        underlying CHINS case.

               r.       The child has been continuously removed from the parents since the
                        date of the Dispositional Decree.

                                                     *****

               q.       Since the filing of the TPR Petition, the parents have done nothing to
                        cooperate and participate in the CHINS proceeding or care of the
                        child. This has been the case since the other children were returned
                        to [Mother’s] care.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 10 of 19
                                              *****

        s.       There has not been a significant change in circumstances since the
                 outset of the CHINS case.

        t.       Since the FCM has had the case, neither parent has demonstrated the
                 ability to properly care for the child with his special medical needs.

                                              *****

        b.       DCS originally became involved with the family through an informal
                 adjustment; however, the child’s medical condition only continued to
                 worsen. Riley Children’s Hospital reported that if the child’s medical
                 condition worsened further due to lack of care, it would be fatal to
                 [D.O.]. [D.O.] was then placed in the hospital for medical treatment.
                 He was, upon his release from the hospital placed in Foster Care to
                 be sure that his medical needs were met.

        c.       Medical records were obtained from Community Hospital and show
                 his admissions as: 2-2-2005, 2-20-2005, 5-2-2005, 3-4-2007, 4-4-2007,
                 11-1-2007, 7-18-2009, 9-27-2009, 11[-]12[-]2010, 10-21-2009, 12-26-
                 2010, 10-15-201l, 10-22-2011, 10-10-2011, 12-19-201l, 12-31-2011, 4-
                 8-2012, 3-27-2012, 1-10-2013, 12-6-2013, 11-24-2013, 1-27-2014, 1-
                 24-2015, and 1-12-2015. Medical records show that [D.O.] was
                 admitted to St. Johns Hospital on 5-18-2010, 10-l2-2013, 11-30-2014,
                 and 12-8-2014. This list was not all-inclusive as the child had also
                 been hospitalized at Riley Children’s Hospital.

        d.       The Foster Parents reported to CASA that the minor child has not
                 been hospitalized at all since he has been in foster care.

Appellant’s Appendix Volume II at 17-21. The court concluded that there is a

reasonable probability that the continuation of the parent-child relationship

poses a threat to the child’s well-being, there is a reasonable probability that the

conditions that resulted in the child’s removal from and continued placement

outside the care and custody of the parents will not be remedied, termination of

the parent-child relationship between Mother and D.O. is in the best interests of
Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 11 of 19
       the child, and the plan of DCS for the care and treatment of the child, adoption,

       is acceptable and satisfactory.


                                                    Discussion

[16]   Mother claims that DCS failed to show by clear and convincing evidence that

       her parental rights to D.O. should be terminated. She argues “[i]t seems

       illogical that an agency, a court or a therapist would allow a child to dictate his

       relationship with his parent let alone the direction of a court case,” that D.O.’s

       medical condition has stabilized, that she completed services, that DCS failed

       to produce D.O.’s therapist or admit records about his medical situation, and

       that she provides care for her other five children. Appellant’s Brief at 12. She

       also cites Ind. Code § 31-35-2-6.5, argues the trial court and DCS violated her

       due process rights by proceeding with the factfinding hearing in her absence,

       and asserts that, while the CCS reflects that DCS filed “a ten-day letter,” there

       is no receipt of service for that letter. Appellant’s Brief at 14. DCS responds

       that Mother does not specifically challenge any of the trial court’s findings of

       fact, that she has a long history of not adequately caring for D.O.’s serious

       medical needs, that D.O. was admitted to the hospital forty-two times while in

       Mother’s care, that Mother’s participation in services was sporadic and she did

       not complete services provided to help her learn how to care for D.O.’s

       specialized needs, and that, once she regained custody of her other children, she

       became uncooperative with DCS and CASA. It also argues that it sent the

       required notice to Mother at least ten days before the hearing and that she

       received sufficient notice of the hearing to satisfy due process.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 12 of 19
[17]   Ind. Code § 31-35-2-6.5 provides in part that, at least ten days before a hearing

       on a petition under the chapter, the person or entity who filed the petition to

       terminate the parent-child relationship “shall send notice of the review” to the

       child’s parent. A fundamental requirement of due process is the opportunity to

       be heard at a meaningful time and in a meaningful manner. In re T.W., 831

       N.E.2d 1242, 1245 (Ind. Ct. App. 2005) (citation omitted). To comply with the

       statute, one need only meet the requirements of Ind. Trial Rule 5, which

       governs service of subsequent papers and pleadings in an action and authorizes

       service by United States mail “by delivering or mailing a copy of the papers to

       him at his last known address.” 2 In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App.

       2003) (citing Ind. Trial Rule 5(B)), trans. denied. Further, this court has

       observed in discussing Ind. Code § 31-35-2-6.5 that statutory notice is a

       procedural precedent but not an element of the plaintiff’s claim, that failure to

       comply with a statutory notice is a defense that must be asserted, and that, once

       placed in issue, the plaintiff bears the burden of proving compliance with the

       statute. See In re T.W., 831 N.E.2d at 1246 (citations omitted).




       2
           We explained:
                 Indiana Code § 31-35-2-6.5 does not require compliance with Indiana Trial Rule 4, which governs
                 service of process and incorporates a jurisdictional component. . . . To require service of subsequent
                 papers, such as hearing notices, to rise to the level of service of process would permit a parent or
                 other party entitled to notice to frustrate the process by failing to provide a correct address and
                 would add unnecessarily to the expense and delay in termination proceedings when existing
                 provisions adequately safeguard a parent’s due process rights.
       In re C.C., 788 N.E.2d at 851 (citation and internal quotation marks omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019                 Page 13 of 19
[18]   The record reveals that a summons and notice with respect to the June 27, 2018

       initial hearing was sent to Mother at her address on West Main Street in

       Chesterfield and that she appeared for the initial hearing. On October 10, 2018,

       the court rescheduled the factfinding hearing for November 19, 2018, and an

       October 10, 2018 docket entry detail indicates that notice of the November 19,

       2018 hearing was sent to Mother, again to the address in Chesterfield. On

       November 8, 2018, a notice of the factfinding hearing signed by DCS’s counsel

       was filed which listed Mother and the Chesterfield address. At the start of the

       scheduled hearing on November 19, 2018, it was noted that Attorney Woolbert

       and counsel for D.O.’s father were present but that the parents were not

       present. When asked if she was ready to proceed, Attorney Woolbert replied

       affirmatively. She did not request a continuance. Attorney Woolbert

       represented Mother at the hearing and cross-examined DCS’s witnesses.

       Mother does not point to the record to show that her counsel objected to

       proceeding in her absence or argue that the Chesterfield address was not her last

       known address. In light of the record, Mother has not established that DCS

       failed to provide notice of the final hearing or that she was denied due process.

       See In re C.C., 788 N.E.2d at 852-853 (holding that, as notice of the final

       termination hearing was mailed to the alleged father’s last known address at a

       homeless shelter, the notice complied with Ind. Code § 31-35-2-6.5, observing

       the alleged father’s rights were not significantly compromised in that he was

       represented by counsel throughout the proceedings and at the final termination

       proceeding, and that his counsel was able to and did cross-examine the State’s

       witnesses, and concluding that the trial court’s denial of his counsel’s request
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 14 of 19
       for a continuance and decision to proceed in the alleged father’s absence did not

       deny him due process).


[19]   We next turn to the evidence. In order to terminate a parent-child relationship,

       DCS is required to allege and prove, 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). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[20]   A finding in a proceeding to terminate parental rights must be based upon

       “clear and convincing evidence.” Ind. Code § 31-37-14-2. This is “a

       heightened burden of proof reflecting termination’s serious social

       consequences.” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (citation and internal

       quotation marks omitted). We do not reweigh the evidence or determine the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 15 of 19
       credibility of witnesses, but consider only the evidence that supports the

       judgment and the reasonable inferences to be drawn from the evidence. Id. We

       confine our review to two steps: whether the evidence clearly and convincingly

       supports the findings, and then whether the findings clearly and convincingly

       support the judgment. Id. Reviewing whether the evidence clearly and

       convincingly supports the findings, or the findings clearly and convincingly

       support the judgment, is not a license to reweigh the evidence. Id. Our review

       must give due regard to the trial court’s opportunity to judge the credibility of

       the witnesses firsthand, and not set aside its findings or judgment unless clearly

       erroneous.’” Id. (citation omitted). “Because a case that seems close on a ‘dry

       record’ may have been much more clear-cut in person, we must be careful not

       to substitute our judgment for the trial court when reviewing the sufficiency of

       the evidence.” Id. at 640.


[21]   The involuntary termination statute is written in the disjunctive and requires

       proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

       In determining whether the conditions that resulted in a child’s removal will not

       be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

       First, we identify the conditions that led to removal, and second, we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. at 643. In the second step, the trial court must judge a parent’s

       fitness as of the time of the termination proceeding, taking into consideration

       evidence of changed conditions, balancing a parent’s recent improvements

       against habitual patterns of conduct to determine whether there is a substantial


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 16 of 19
       probability of future neglect or deprivation. Id. We entrust that delicate

       balance to the trial court, which has discretion to weigh a parent’s prior history

       more heavily than efforts made only shortly before termination. Id. Requiring

       trial courts to give due regard to changed conditions does not preclude them

       from finding that a parent’s past behavior is the best predictor of future

       behavior. Id. The statute does not simply focus on the initial basis for a child’s

       removal for purposes of determining whether a parent’s rights should be

       terminated, but also those bases resulting in the continued placement outside

       the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may

       consider evidence of a parent’s prior criminal history, history of neglect, failure

       to provide support, lack of adequate housing and employment, and the services

       offered by DCS and the parent’s response to those services. Id. Where there

       are only temporary improvements and the pattern of conduct shows no overall

       progress, the court might reasonably find that under the circumstances the

       problematic situation will not improve. Id.


[22]   To the extent Mother does not challenge the court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge the trial court’s findings resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[23]   The trial court found that D.O. was removed from the home due to medical

       neglect, that he was a Type I Diabetic and has Celiac Disease, and that prior to the

       removal he had been repeatedly admitted to the hospital. It found that there is a

       detailed list of foods that D.O. cannot eat, Mother failed to accommodate his

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 17 of 19
       needs, and she was supposed to closely monitor his blood glucose levels but did

       not do so. The court found that D.O. believes that he will die if he returns home,

       that he has no desire to have contact with Mother or his siblings, and that his stress

       level increases when Mother is brought up which causes his sugar levels to rise. It

       further found that Mother has done nothing to cooperate and participate with DCS

       since the TPR petition was filed and there has not been a significant change in

       circumstances since the outset of the CHINS case. The testimony and evidence

       admitted at the factfinding hearing as set forth above and in the record supports

       the court’s findings. Based upon the court’s findings and the record, we

       conclude that clear and convincing evidence supports the trial court’s

       determinations that there is a reasonable probability that the conditions leading

       to D.O.’s removal will not be remedied and that there is a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to his well-being.


[24]   In determining the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). The court must subordinate the interests of the parent to those of

       the child. Id. The recommendation of 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. A.D.S. v. Ind. Dep’t of

       Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 18 of 19
       CASA Elsten and FCM Sorrell testified that termination of the parent-child

       relationship is in D.O.’s best interests. Based on the totality of the evidence, we

       conclude that the trial court’s determination that termination is in D.O.’s best

       interests is supported by clear and convincing evidence.


[25]   For the foregoing reasons, we affirm the trial court’s judgment.


[26]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-693 | September 10, 2019   Page 19 of 19
