MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Feb 19 2019, 10:14 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Katherine N. Worman                                       Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 19, 2019
Child Relationship of: H.A.,                              Court of Appeals Case No.
A.A., Ri.A., and Ro.A. (Minor                             18A-JT-2107
Children),                                                Appeal from the Vanderburgh
and                                                       Superior Court
                                                          The Honorable Brett J. Niemeier,
R.A. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Renee A.
                                                          Ferguson, Magistrate
        v.                                                Trial Court Cause No.
                                                          82D04-1711-JT-2195
The Indiana Department of                                 82D04-1711-JT-2196
Child Services,                                           82D04-1711-JT-2197
                                                          82D04-1711-JT-2198
Appellee-Plaintiff.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019                Page 1 of 25
      Tavitas, Judge.


                                              Case Summary
[1]   R.A. (“Father”) appeals the trial court’s termination of his parental rights to

      H.A., A.A., Ri.A., and Ro.A. We affirm.


                                                      Issue
[2]   Father raises several issues, which we restate as:


              I.       Whether the trial court properly admitted certain evidence
                       at the termination hearing.

              II.      Whether the evidence is sufficient to support the
                       termination of Father’s parental rights.


                                                      Facts
[3]   Father and As.A. (“Mother”) are the parents of Ro.A., who was born in

      October 2007; A.A., who was born in July 2009; H.A., who was born in

      October 2010; and Ri.A., who was born in June 2014 (collectively, “the

      Children”). On July 8, 2016, the State charged Father with two counts of child

      molesting, as Class A felonies, for molesting H.A. and A.A. In November

      2016, Mother left the three older Children with a friend and refused to take the

      Children back.


[4]   On November 23, 2016, the Vanderburgh County Department of Child Services

      (“DCS”) filed petitions alleging that each of the Children were children in need

      of services (“CHINS”) due to: (1) Father’s incarceration for sexually abusing


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 2 of 25
      two of the Children; (2) Mother’s refusal to take custody of the Children; (3)

      Mother’s failure to address the Children’s medical needs; and (4) Mother’s

      failure to provide the Children with a safe and appropriate home. After a

      hearing, the trial court found that the Children were CHINS. A January 2017

      dispositional order required Father to notify DCS upon his release from

      incarceration and ordered Mother to participate in certain services. The

      Children have resided in foster homes since the November 2016 removal from

      Mother’s care.


[5]   In November 2017, DCS filed petitions to terminate Father’s and Mother’s

      parental rights. 1 A hearing was held in February and May 2018. At that time,

      Father remained incarcerated on the pending child molestation charges. Father

      participated in the hearing by telephone.


[6]   Tarita Moore, a family case manager for DCS, testified that she first met the

      Children in 2016 when DCS received a hotline call about the family. Over

      Father’s objection, Moore testified that, upon arriving, H.A. and A.A. almost

      immediately told Moore that “their Dad was in jail for molesting them.” Tr.

      Vol. II p. 66.


[7]   Hilary Bemis, a family case manager for DCS, testified that Ri.A. goes to a

      therapeutic preschool, where “he receives most of his services, which includes




      1
        Mother’s parental rights were terminated by default. On appeal, DCS conceded that the case should be
      remanded to the trial court for further proceedings. See A.A. v. Ind. Dep’t of Child Services, No. 18A-JT-527
      (Ind. Ct. App. July 9, 2018).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019                   Page 3 of 25
       speech therapy, physical therapy, [and] occupational therapy.” Id. at 56. He

       also sees physicians at Riley Hospital due to his club feet. H.A. and A.A.

       receive weekly skills training and individual therapy. Ro.A. receives weekly

       individual therapy.


[8]    Stephanie Whalen, a community resource specialist with Southwestern

       Behavioral Healthcare (“Southwestern”), testified regarding the skills training

       that she provided to H.A. and A.A. beginning in January 2017. Whalen

       worked with H.A. and A.A. on social skills, coping skills, personal boundaries,

       personal space, and how to follow rules and directions. Over Father’s

       objection, Whalen testified that, according to the foster mothers, one of the girls

       exposed or pulled down another foster child’s underwear and one of the girls

       got on another girl in a “humping position.” Id. at 44.


[9]    Mendy Martin, social worker and therapist with Southwestern, also testified

       regarding her work with H.A. and A.A. Over Father’s objection, Martin

       testified that H.A. and A.A. had separately disclosed that Father “had touched

       their bad spot.” Id. at 49. Through Martin’s testimony, the State also sought to

       admit Exhibit F and Exhibit G, which were H.A.’s and A.A.’s medical records

       from Southwestern. Over Father’s objection, the trial court admitted the

       exhibits.


[10]   Ashley Williams, a therapist with Maglinger Behavioral Health Services,

       testified that she has provided therapy to Ro.A. Ro.A. told Williams that

       Ro.A. “should be in jail” because Father “made him have sex with his sisters.”


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 4 of 25
       Id. at 81. Ro.A. described watching videos of people having sex, described

       Mother and Father having sex, and reported that Father had sex with his

       sisters. Ro.A. also reported that Father “made him put his privates . . . on his

       sister’s privates and made him move around.” Id. Ro.A. told Williams that

       Mother and Father “rubbed his penis at the same time and they made him pee

       in a cup [and] the pee was different than when it’s in [a] toilet.” Id. at 82.

       Father also made Ro.A. touch Father’s penis, and Mother videotaped these

       acts. Finally, Ro.A. reported that Father made him “kiss his sister’s vagina”

       and that Father also “kissed his sister’s vagina.” Id.


[11]   Ro.A. stated that seeing his sisters “triggered” him and made him feel “weird

       and itchy.” Id. at 83. As a result, sibling visitations with his sisters were

       stopped, and Ro.A. has made progress. According to Williams, “[Ro.A.] has

       made the statement that his real Mom and real Dad should be in prison. This

       child went from idolizing [them] to taking the blame to recognizing that his real

       Mom and Dad broke the law and they should be in prison. That’s significant

       progress in a child.” Id. at 86. Williams testified that it is not in Ro.A.’s best

       interest to have contact with Father.


[12]   Father denied sexually molesting H.A., A.A., and Ro.A. and denied observing

       Mother engage in inappropriate sexual activity with the Children. Father

       claimed that Ro.A. had a “history of deceptive problems” and “has exaggerated

       and made up a lot of stories over the years.” Id. at 28. Father testified that he

       touched A.A. and Ro.A. only in the “medical sense.” Id. at 33, 35.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 5 of 25
[13]   After the hearing, the trial court issued findings of fact and conclusions of law

       as follows:


                                                     *****


               17. Father is currently in the Daviess County Jail. He is charged
               with sexually molesting [H.A.] and [A.A.].


               18. Father is denying the charges.


               19. Father stated that he had no idea who could have molested
               the children.


               20. [Ro.A.] has also reported sexual molestation at the hands of
               mother and father.


               21. Father reports that [Ro.A.] has a chromosomal disorder,
               mild autism, and is mildly mentally handicapped.


               22. Father denies [Ro.A.’s] allegations as well.


               23. Father testified that the children have referred to “touching”
               in their allegations and father can show that he has been the
               primary caregiver and has had cause to touch the children in
               their genital area.


               24. Father does not know when his criminal case will end and
               when he would be available to parent his children.


               25. When asked how long the children should have to wait for
               permanency, father replied that, “he doesn’t have an answer”.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 6 of 25
        26. Father went on to state that there isn’t any guarantee that the
        children would not be molested in an adoptive home.


        27. All of the children have been in therapy.


        28. [H.A.] and [A.A.] have been reported by a therapist to have
        boundary issues and have exhibited sexualized behavior.


        29. [H.A.] and [A.A.] have trouble expressing feelings and show
        feelings through aggressive behavior.


        30. [Ro.A.] stated to his therapist that he was forced by father to
        engage in sexual acts with his sisters, watch pornography, watch
        his father have sex with his sisters, and watch mom and dad
        engage in sexual acts.


        31. This trauma has resulted in [Ro.A.’s] sisters being a sexual
        trigger to him.


        32. [Ro.A.] stated that both his mother and father should be in
        prison.


        33. The therapist for [Ro.A.] has stated in her opinion [Ro.A.]
        should not have any further contact with his father.


        34. The Department of Child Services Case Managers along
        with the children’s Court Appointed Special Advocate have all
        testified that termination of father’s parental rights and adoption
        are in the best interest of the children.


                                              *****




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 7 of 25
               7. The Court now finds by clear and convincing evidence that
               the allegations of the petition to terminate parental rights are true
               in that:


                        a. All four children have been removed from the care and
                        custody of their parents for at least six (6) months after the
                        dispositional decree was placed in the order book.


                        b. There is a reasonable probability that the conditions
                        that resulted in the removal of the [Children] will not be
                        remedied.


                        c. There is [a] reasonable probability that the continuation
                        of the parent-child relationship between the father and his
                        children poses a threat to the well-being of the children.


                        d. Termination of the parent-child relationship between
                        [the Children] and their father is in the best interest of the
                        children.


                        e. The plan of the Department of Child Services for the
                        care and treatment of the children upon termination of
                        father’s parental rights is adoption, which is acceptable
                        and satisfactory.


       Appellant’s App. Vol. II pp. 32-34.


                                                    Analysis
                                          I. Admission of Evidence

[14]   Father first challenges the admission of certain evidence during the termination

       hearing. The admission of evidence is entrusted to the sound discretion of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 8 of 25
       trial court. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct. App. 2008).

       Evidentiary rulings of a trial court are afforded great deference on appeal and

       are overturned only upon a showing of an abuse of discretion. Id. We will find

       an abuse of discretion if the trial court’s decision is against the logic and the

       effect of the facts and circumstances before the court. Id. Moreover, not all trial

       court error is reversible. In re Termination of Parent-Child Relationship of E.T., 808

       N.E.2d 639, 645 (Ind. 2004) (citing Ind. Trial Rule 61). Indiana Trial Rule 61

       provides that we must “disregard any error or defect in the proceeding which

       does not affect the substantial rights of the parties.” Our Supreme Court has

       held that “[t]he improper admission of evidence is harmless error when the

       judgment is supported by substantial independent evidence to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the judgment.” E.T., 808 N.E.2d at 645-46.


                                        A. Testimony of Therapists

[15]   Father challenges the admission of certain testimony by the Children’s

       therapists, Martin and Williams. Martin was the therapist for H.A. and A.A.,

       and Williams was the therapist for Ro.A. Over Father’s hearsay objection,

       Martin testified regarding H.A.’s and A.A.’s statements to her regarding

       Father’s alleged molestation of the girls. Over Father’s hearsay objection,

       Williams testified regarding Ro.A.’s statements to her regarding Father’s and

       Mother’s alleged molestations of him.


[16]   A hearsay statement is one “other than one made by the declarant while

       testifying at the trial or hearing, offered in evidence to prove the truth of the
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 9 of 25
       matter asserted.” Ind. Evidence Rule 801(c). Hearsay statements are not

       admissible, except pursuant to certain exceptions within the Rules of Evidence.

       Ind. Evidence Rule 802. One such exception, which DCS argues is applicable

       here, “generally permits statements made for the purpose of medical diagnosis

       or treatment to be admitted into evidence, even when the declarant is

       available.” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013) (citing Ind.

       Evidence Rule 803(4)). The statements must be “made by persons who are

       seeking medical diagnosis or treatment and describing medical history, or past

       or present symptoms, pain, or sensations, or the inception or general character

       of the cause or external source thereof insofar as reasonably pertinent to

       diagnosis or treatment.” Id. “Rule 803(4)’s exception is grounded in a belief

       that the declarant’s self-interest in obtaining proper medical treatment makes

       such a statement reliable enough for admission at trial—more simply put, Rule

       803(4) reflects the idea that people are unlikely to lie to their doctors because

       doing so might jeopardize their opportunity to be made well.” Id.


[17]   “This belief of reliability, though, necessitates a two-step analysis for admission

       under Rule 803(4).” Id. “First, ‘is the declarant motivated to provide truthful

       information in order to promote diagnosis and treatment,’ and second, ‘is the

       content of the statement such that an expert in the field would reasonably rely

       on it in rendering diagnosis or treatment.’” Id. (quoting McClain v. State, 675

       N.E.2d 329, 331 (Ind. 1996)). “Statements made by victims of sexual assault or

       molestation about the nature of the assault or abuse—even those identifying the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 10 of 25
       perpetrator—generally satisfy the second prong of the analysis because they

       assist medical providers in recommending potential treatment . . . .” Id.


               But in cases like the one here, where the declarant is a young
               child brought to the medical provider by a parent, we have
               acknowledged that such an inference may be less than obvious.
               Such young children may not understand the nature of the
               examination, the function of the examiner, and may not
               necessarily make the necessary link between truthful responses
               and accurate medical treatment. In that circumstance, “there
               must be evidence that the declarant understood the professional’s
               role in order to trigger the motivation to provide truthful
               information.” This evidence does not necessarily require
               testimony from the child-declarant; it may be received in the
               form of foundational testimony from the medical professional
               detailing the interaction between him or her and the declarant,
               how he or she explained his role to the declarant, and an
               affirmation that the declarant understood that role. But whatever
               its source, this foundation must be present and sufficient.


       Id. at 261 (internal citations omitted).


[18]   Father argues that H.A. and A.A. did not understand Martin’s role in order to

       trigger the motivation to provide truthful information. Martin testified that she

       explained her role as therapist to H.A. and A.A., explained what therapy was,

       and explained the importance of telling the truth. Martin stated that the girls

       seemed to understand the importance of telling the truth. When asked if the

       girls understood the purpose and goal of therapy, Martin responded: “[Y]es and

       no. I think just with their ages sometimes it’s hard for them to understand what

       therapy is. But I think that they understood that I was someone there that was

       supposed to be able to help them process things.” Tr. Vol. II p. 47. Although
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 11 of 25
       the girls’ young age made it difficult for them to completely understand therapy,

       according to Martin, they understood that Martin was there to help them

       process events that happened to them and understood the need to be truthful.

       Under these circumstances, the girls’ statements were reliable, and the trial

       court did not abuse its discretion by admitting Martin’s testimony regarding the

       girls’ statements to her.


[19]   As for Williams’ testimony, Father argues that Ro.A. had no concept of

       truthfulness and did not understand the purpose of therapy. Williams testified

       that she explained her role as a therapist to Ro.A. in terms of being a “helper

       coming to help him feel better.” Id. at 77. Ro.A. often colored pictures for

       Williams and addressed them as: “For my therapist.” Id. at 85. Williams had

       discussions with Ro.A. about the importance of being truthful, and Ro.A.

       “seem[ed] to understand” the concept of truth. Id. at 77-78. Williams played a

       game with Ro.A. to explain the difference between a truth and a lie. Williams

       explained that, prior to meeting with her, it did not appear that Ro.A. “had any

       understanding of truth and lie.” Id. at 87.


[20]   Father’s argument focuses on Williams’ testimony regarding Ro.A.’s lack of

       understanding of truthfulness prior to working with Williams; Williams,

       however, made it clear that she worked with Ro.A. to explain truthfulness to

       him, and he seemed to understand. Under these circumstances, Ro.A.’s

       statements were reliable, and the trial court did not abuse its discretion by

       admitting Williams’ testimony regarding Ro.A.’s statements to her.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 12 of 25
                                           B. Whalen’s Testimony

[21]   Father argues that the trial court abused its discretion by admitting Whalen’s

       testimony regarding the foster mother’s statements to her. Whalen, a

       community resource specialist with Southwestern, testified that, according to

       the foster mothers, one of the girls exposed or pulled down another foster

       child’s underwear and one of the girls got on another girl in a “humping

       position.” Tr. Vol. II p. 44.


[22]   Father argues that this evidence is not admissible under the medical diagnosis

       or treatment exception of Evidence Rule 803(4) because the information came

       from the foster mother, not the girls. DCS “does not dispute this.” Appellee’s

       Br. p. 24. DCS, however, argues that the evidence is admissible because “the

       purpose is to show the effect that the statement had on the listener.” Id. at 25

       (citing Whited v. State, 645 N.E.2d 1138, 1140 (Ind. Ct. App. 1995); Bottoms v.

       B&M Coal Corp., 405 N.E.2d 82, 96 (Ind. Ct. App. 1980)).


[23]   We do agree with Father that the trial court erred in admitting Whalen’s

       testimony regarding foster mother’s statements. The statements do not fall

       within one of the hearsay exceptions. We find, however, that any error in the

       admission of the evidence is harmless. DCS introduced substantial admissible

       evidence of the Children’s statements to their therapists regarding Father’s

       alleged actions. The admission of very brief testimony regarding foster

       mother’s observations of sexualized behaviors did not impact Father’s

       substantial rights. This evidence was not germane to the ultimate issues before

       the court.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 13 of 25
                                        C. Exhibit F and Exhibit G

[24]   Father argues that the trial court abused its discretion by admitting Exhibit F

       and Exhibit G, which were H.A.’s and A.A.’s medical records from

       Southwestern. These exhibits were admitted during Martin’s testimony over

       Father’s objection. Father contends that the exhibits contain progress notes

       from another therapist that also worked with H.A. and A.A. and that “there is

       no foundation laid for A.A. and H.A.’s hearsay statements to the other medical

       professional.” Appellant’s Br. p. 18.


[25]   DCS argues that any error in the admission of the exhibits was harmless. We

       note that Father does not point to any specific hearsay statements made to the

       other medical professional at issue here. Father makes no effort to explain how

       his substantial rights were impacted by the admission of these exhibits. Given

       Father’s lack of cogent argument, we agree that any error in the admission of

       the exhibits was harmless.


                                 B. Family Case Manager’s Testimony

[26]   Next, Father argues that the trial court abused its discretion by admitting

       Moore’s testimony regarding H.A.’s and A.A.’s statements to her. Moore

       testified that she first met the Children in 2016 when DCS received a hotline

       call about the family. Over Father’s objection, Moore testified that, upon

       arriving, H.A. and A.A. almost immediately told Moore that “their Dad was in

       jail for molesting them.” Id. at 66.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 14 of 25
[27]   During the termination hearing, DCS argued that the statement was admissible

       as an excited utterance. See Ind. Evid. R. 803(2). Moore testified that H.A. and

       A.A. were not “in any kind of significant emotional state” at the time. Tr. Vol.

       II p. 66. We do not find that this statement qualified as an excited utterance.

       See, e.g., Bryant v. State, 984 N.E.2d 240, 247 (Ind. Ct. App. 2013) (holding that

       a stabbing victim’s statement to an officer was not admissible as an excited

       utterance where the victim was no longer under the stress of the stabbing when

       the officer interviewed him).


[28]   On appeal, DCS argues that any error in the admission of the statement was

       harmless. We agree. Father admitted that he had been charged with two

       counts of child molesting for molesting H.A. and A.A. We have noted that

       H.A.’s and A.A.’s statements to their therapist that Father molested them were

       admissible. Consequently, Moore’s testimony was cumulative of Father’s and

       Martin’s testimony, and any error in the admission of Moore’s testimony was

       harmless. See, e.g., B.H. v. Indiana Dept. of Child Services, 989 N.E.2d 355, 363

       (Ind. Ct. App. 2013) (holding that, to the extent it was error to admit testimony

       regarding progress reports, any error was harmless).


                         II. Sufficiency of Evidence to Support Termination

[29]   Father challenges the termination of his parental relationship with the Children.

       The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. In re

       K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

       1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 15 of 25
       ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

       [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

       (2000)). We recognize, of course, that parental interests are not absolute and

       must be subordinated to the child’s interests when determining the proper

       disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental

       rights may be terminated when the parents are unable or unwilling to meet their

       parental responsibilities by failing to provide for the child’s immediate and long-

       term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d

       258, 265 (Ind. Ct. App. 2004), trans. denied).


[30]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must also give “due regard” to the trial

       court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[31]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b)” when granting a petition to terminate parental rights. 2 Here, the




       2
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019                   Page 16 of 25
       trial court did enter findings of fact and conclusions of law in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions of law entered in a case involving the termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second, we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[32]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


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


                             (i)      The child has been removed from the parent for
                                      at least six (6) months under a dispositional
                                      decree.




               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019                       Page 17 of 25
                       (ii)          The court has entered a finding under IC 31-34-
                                     21-5.6 that reasonable efforts for family
                                     preservation or reunification are not required,
                                     including a description of the court’s finding, the
                                     date of the finding, and the manner in which the
                                     finding was made.


                       (iii)         The child has been removed from the parent and
                                     has been under the supervision of a local office
                                     or probation department for at least fifteen (15)
                                     months of the most recent twenty-two (22)
                                     months, beginning with the date the child is
                                     removed from the home as a result of the child
                                     being alleged to be a child in need of services or
                                     a delinquent child.


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


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


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


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


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




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019     Page 18 of 25
                        (D)     that there is a satisfactory plan for the care and
                                treatment of the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[33]   Father makes three arguments on appeal. First, Father argues that several of

       the trial court’s findings are clearly erroneous. Next, Father argues the trial

       court’s conclusion that the conditions that led to the Children’s removal would

       not be remedied is clearly erroneous. Finally, Father argues the trial court’s

       conclusion that termination of Father’s rights is in the best interests of the

       Children is clearly erroneous.


                                                   A. Findings

[34]   Father challenges several of the trial court’s findings of fact. First, Father

       challenges the trial court’s finding that “Father does not know when his

       criminal case will end and when he would be available to parent his children.”

       Appellant’s App. Vol. II p. 33. Father testified that he has been in jail for

       nineteen months, that he did not know when his trial would occur, that he had

       no idea when he would be released, and that he could not currently take

       custody of any of the Children. This finding is supported by the evidence.


[35]   Father next challenges the trial court’s finding that “[w]hen asked how long the

       children should have to wait for permanency, father replied that, ‘he doesn’t

       have an answer.’” Id. During the evidentiary hearing, Father testified as

       follows:

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 19 of 25
               Q How long should your children have to wait for you to get out
               of prison - out of jail, sir?


               A Well, I mean, I don’t really have that answer. You know, to
               say if my children should have to wait and then I was found
               guilty would be – you know, it would be wrong for them. But at
               the same time for my kids not to wait and be taken out of their
               homes and separated and adopted into other homes, there’s no
               guarantee that they would be even safe within the homes that
               they adopted in or anything else. And then I was found not
               guilty and they wouldn’t be a part of my life or their own life and
               with each of their siblings. It’s just unfair.


       Tr. Vol. II pp. 34-35. Although the wording of the trial court’s finding is

       slightly different than the language used in the question, the trial court

       adequately summarized Father’s statement—Father does not know how long

       he will be in jail and how long the Children should have to wait. The trial court

       committed no error.


[36]   Next, Father challenges the trial court’s finding that “[a]ll of the children have

       been in therapy.” Appellant’s App. Vol. II p. 33. Father concedes that H.A.,

       A.A., and Ro.A. have been receiving psychological therapy, but he argues that

       Ri.A. has not been receiving therapy. DCS presented evidence that Ri.A. has

       been receiving speech, physical, and occupational therapies. The trial court’s

       finding is supported by the evidence.


                    B. Probability that Removal Conditions will be Remedied

[37]   Father next argues that the trial court erred by finding there is a reasonable

       probability that the conditions that resulted in the Children’s removal or the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 20 of 25
       reasons for placement outside the home of the parents will not be remedied.

       We first note that Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS

       adjudications, is inapplicable here. Consequently, DCS was required to

       demonstrate by clear and convincing evidence a reasonable probability that

       either: (1) the conditions that resulted in the Children’s removal or the reasons

       for placement outside the home of the parents will not be remedied, or (2) the

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

       well-being. The trial court here found both that the conditions resulting in the

       Children’s removal will not be remedied and that the continuation of the

       parent-child relationship poses a threat to the Children’s well-being. Father

       does not challenge the trial court’s finding that the continuation of the parent-

       child relationship poses a threat to the Children’s well-being. By failing to

       challenge this finding, Father has implicitly conceded the sufficiency of the

       evidence to support subsection (b)(2)(B)(ii) and has effectively waived review of

       the trial court’s determination under Indiana Code Section 31-35-2-4(b)(2)(B).


[38]   Waiver notwithstanding, we will address Father’s argument. “In determining

       whether ‘the conditions that resulted in the [Child’s] removal . . . will not be

       remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4 N.E.3d 636, 642-

       43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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. In

       analyzing this second step, the trial court judges the parent’s fitness “as of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 21 of 25
       time of the termination proceeding, taking into consideration evidence of

       changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 152 (Ind. 2005)). “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

       parents’ past behavior is the best predictor of their future behavior.” Id.


[39]   Father’s only arguments are that he has been unable to participate in services

       due to his incarceration and that the family case managers and Court

       Appointed Special Advocate (CASA) have not been in contact with him outside

       of court hearings. The Children were initially removed due to Father’s

       incarceration for allegedly sexually abusing two of the Children and Mother’s

       refusal to take custody of the Children, failure to address their medical needs,

       and failure to provide them with a safe and appropriate home. Father was

       charged with molesting H.A. and A.A., and those charges are pending. During

       the proceedings, Ro.A. also accused Father of molesting him and forcing him

       to participate in sexual activity with H.A. and A.A. Ro.A. disclosed to his

       therapist many disturbing instances of abuse. Ro.A.’s therapist recommended

       that Ro.A. have no further contact with Father. Given the significant

       allegations of sexual abuse of H.A., A.A., and Ro.A. by Father, the trial court’s

       conclusion that there is a reasonable probability that those conditions will not

       be remedied is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 22 of 25
                                         C. Children’s Best Interests

[40]   Father next challenges the trial court’s determination that termination is in the

       best interests of the Children. In determining what is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. See In re

       A.B., 887 N.E.2d 158, 167-68 (Ind. Ct. App. 2008). In doing so, the trial court

       must subordinate the interests of the parents to those of the child involved. Id.

       at 168. Termination of a parent-child relationship is proper where the child’s

       emotional and physical development is threatened. K.T.K., 989 N.E.2d at

       1235. A trial court need not wait until a child is irreversibly harmed such that

       his or her physical, mental, and social development is permanently impaired

       before terminating the parent-child relationship. Id. Additionally, a child’s

       need for permanency is a “central consideration” in determining the best

       interests of a child. Id.


[41]   Father argues that he has maintained his innocence in the criminal case and

       that he could be “found innocent on his criminal charges but have lost the rights

       to his children.” Appellant’s Br. p. 24. Father also argues that a best interest

       determination should not be based solely on the recommendations of the family

       case managers and the CASA. Father focuses on the family case managers and

       CASA’s lack of contact with him during his incarceration.


[42]   We agree that a best interest determination cannot be supported solely on the

       recommendations of the family case managers and CASA. We have held that

       “[r]ecommendations of the case manager and court-appointed [special]

       advocate, in addition to evidence that the conditions resulting in removal will not be
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 23 of 25
       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests.” In re A.S., 17 N.E.3d 994, 1005

       (Ind. Ct. App. 2014) (emphasis added), trans. denied. There is no indication,

       however, that the trial court based its best interest conclusion on only the

       opinions of the family case managers and the CASA. Moreover, Father’s

       argument focuses on himself and the lack of contact by the family case

       managers and CASA with himself. The issue here, however, is the best

       interests of the Children.


[43]   The Children have been out of Father’s care since July 2016, when he was

       charged with molesting H.A. and A.A. Since that time, Ro.A. has disclosed

       extremely disturbing allegations of additional abuse. Both family case

       managers testified that adoption was in the Children’s best interests due to

       Father’s ongoing incarceration and the nature of the charges. The CASA also

       recommended adoption because the Children needed permanency and stability.

       H.A., A.A., and Ro.A. have each needed significant therapy to address their

       behaviors and to process the trauma they have suffered. Although they have

       each made progress, the Children need permanency, stability, and a safe

       environment. Under the totality of the circumstances, the trial court’s finding

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

       not clearly erroneous.


                                                 Conclusion
[44]   The trial court’s termination of Father’s parental rights is not clearly erroneous.

       We affirm.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 24 of 25
[45]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019   Page 25 of 25
