MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jun 26 2020, 8:41 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, M.M.                              ATTORNEYS FOR APPELLEE
John R. Worman                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
ATTORNEY FOR APPELLANT, R.N.                              Monika Prekopa Talbot
                                                          Deputy Attorney General
Katharine Vanost Jones
                                                          Indianapolis, Indiana
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 26, 2020
of the Parent Child Relationship                          Court of Appeals Case No.
of S.M., P.M., and R.M.;                                  19A-JT-2002
M.M. (Father) and R.N.                                    Appeal from the Vanderburgh
(Mother),                                                 Superior Court
                                                          The Honorable Brett J. Niemeier,
Appellants/Respondents,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          82D04-1808-JT-1557
                                                          82D04-1808-JT-1558
The Indiana Department of
                                                          82D04-1812-JT-2306
Child Services,
Appellee/Petitioner.



Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020                    Page 1 of 30
                                        Statement of the Case
[1]   R.N. (“Mother”) and M.M. (“Father”) (collectively (“Parents”)) each appeal

      the termination of the parent-child relationship with their three sons. Mother

      argues that the trial court erroneously denied her motion to dismiss the

      termination proceedings. Father argues that the trial court abused its discretion

      when it admitted evidence. Parents argue that their due process rights were

      violated because the Department of Child Services (“DCS”) failed to make

      reasonable efforts to preserve the parent-child relationships and that there is

      insufficient evidence to support the terminations. Concluding that: (1) the trial

      court did not erroneously deny Mother’s motion to dismiss the termination

      proceedings; (2) any error in the admission of Father’s evidence was harmless;

      (3) DCS did not violate Parents’ due process rights; and (4) there is sufficient

      evidence to support the terminations, we affirm the trial court’s judgment.


[2]   We affirm.


                                                     Issues
              1.       Whether the trial court erroneously denied Mother’s
                       motion to dismiss the termination proceedings.

              2.       Whether any error in the admission of Father’s evidence
                       was harmless.

              3.       Whether Parents’ due process rights were violated because
                       DCS failed to make reasonable efforts to preserve the
                       parent-child relationships.

              4.       Whether there is sufficient evidence to support the
                       termination of the parent-child relationships.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 2 of 30
                                                      Facts
[3]   The facts most favorable to the termination reveal that Mother and Father are

      the parents of P.M. (“P.M.”), who was born in February 2014; S.M. (“S.M.”),

      who was born in December 2015; and R.M. (“R.M.”), who was born in

      February 2018 (collectively (“the children”)). Parents first became involved

      with DCS in 2014 when P.M. was born. At that time, Mother tested positive

      for codeine, hydrocodone, and THC, and P.M. suffered from drug withdrawal

      symptoms. Mother had a prescription for hydrocodone but not for any of the

      other drugs. Parents entered into an informal adjustment with DCS, and the

      case was eventually closed.


[4]   In October 2016, Mother and Father were involved in a domestic altercation at

      their home, and Father pointed a loaded gun at Mother. Both P.M. and S.M.

      were home at the time. Father was arrested and charged with pointing a

      firearm, criminal recklessness while armed with a deadly weapon, and criminal

      confinement. However, the charges were dropped when Mother failed to

      cooperate with law enforcement. Parents subsequently entered into another

      informal adjustment with DCS. That case was also eventually closed. Mother

      became involved with DCS a month later, in November 2016, when DCS filed

      a petition alleging that Mother’s oldest son, T.D., was a CHINS.


[5]   Six months later, in May 2017, three-year-old P.M. was nearly hit by a vehicle

      while he was wandering unsupervised in a parking lot. At the time, Father was

      slumped over the steering wheel of his vehicle, and Mother was in a nearby

      store. Authorities were called to the scene, and Mother tested positive for
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 3 of 30
      methamphetamine, amphetamines, oxycodone, benzodiazepines, and

      buspirone. Mother had a prescription for buspirone but not for any of the other

      drugs. Father tested positive for methamphetamine, amphetamines,

      oxycodone, and benzodiazepines and did not have a prescription for any of the

      drugs. Parents admitted that they had used methamphetamine together and

      that Mother had given Father the oxycodone and benzodiazepines. Mother

      had gotten the pills from several different physicians as well as from friends.


[6]   Both P.M. and S.M. were removed from Parents that day because of Parents’

      substance abuse and failure to supervise their children. DCS filed petitions

      alleging that both children were CHINS. In August 2017, the trial court

      adjudicated P.M. and S.M. to be CHINS. Also in August 2017, DCS dismissed

      the CHINS case involving Mother’s oldest child because the child was placed in

      a guardianship with his paternal grandmother.


[7]   In September 2017, the trial court issued a CHINS dispositional order in the

      cases involving P.M. and S.M. The order required Parents to: (1) complete a

      parenting assessment and successfully complete all recommendations; (2)

      complete a substance abuse assessment and successfully complete all

      recommendations; (3) compete all recommendations of any domestic violence

      assessment; (4) maintain suitable, safe, and stable housing; (5) obey the law; (6)

      submit to random drug screens; (7) not consume any controlled substances and

      only take prescription medicines for which a valid prescription existed and only

      in the doses and frequencies specified in the prescription; (8) not commit any

      acts of domestic violence; and (9) attend all scheduled visits with the children.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 4 of 30
      The trial court subsequently ordered Father to participate in a domestic

      violence treatment program. The initial plan was family reunification.


[8]   In December 2017, DCS requested that the trial court find Mother in contempt

      for failure to comply with the CHINS dispositional order. When R.M. was

      born two months later in February 2018, the infant was immediately removed

      from Parents because they had failed to comply with the September 2017

      CHINS dispositional order. DCS filed a CHINS petition specifically alleging

      that Parents’ “lack of compliance with [court-ordered] services to address

      substance abuse, domestic violence, and other issues in the home prevent[ed]

      [DCS] from ensuring [R.M.]’s safety in the home.” (Ex. Vol. 4 at 160). The

      trial court adjudicated R.M. to be a CHINS in April 2018 and issued a CHINS

      dispositional order in May 2018. The dispositional order contained the same

      requirements as the September 2017 CHINS dispositional order.


[9]   Also in April 2018, Vanderburgh County Sheriff’s Department Deputy Jeff

      Fentress (“Deputy Fentress”) assisted United States Marshals (“the Marshals”)

      with serving a felony warrant on Mother at her residence. The Marshals saw

      Mother inside the residence, but she refused to answer the door. When the

      Marshals entered the residence, they located Mother hiding under a pile of

      clothes in the bathroom. While inside the residence, the Marshals and Deputy

      Fentress found tramadol, naproxen, oxycodone, methamphetamine, and

      paraphernalia scattered on the countertops and beds, in Mother’s purse, and on

      shelves in the closets. The drugs and paraphernalia were easily accessible to a

      young child. The Marshals and Deputy Fentress also found pills and

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 5 of 30
       methamphetamine in a tin box with Father’s name on it. The state charged

       both Mother and Father with felony possession of controlled substances and

       misdemeanor maintaining a common nuisance, specifically controlled

       substances.


[10]   In May 2018, Mother and Father were involved in another domestic violence

       incident when Father grabbed Mother by her hair and pulled her to the ground.

       He eventually put his hands around her neck and choked her to the point that

       she almost passed out. Mother tried to escape several times, but Father kept

       pulling her back into his trailer. Father was charged with strangulation,

       domestic battery resulting in moderate bodily injury, and criminal confinement.

       These charges violated the terms and conditions of Father’s bond in the April

       2018 case. Later that month, Father was charged with invasion of privacy after

       he violated a no-contact order with Mother by bringing her to his home. Father

       was charged with invasion of privacy again after he violated the no-contact

       order by telephoning Mother 147 times while he was incarcerated. This

       charged also violated the terms and conditions of Father’s bond in the April

       2018 case.


[11]   DCS Family Case Manager Loussa Numa (“FCM Numa”) was assigned to the

       case in July 2018. Two other case workers had already worked on the case

       during the pendency of the proceedings. When she took over the case, FCM

       Numa noticed that Parents had not complied with the 2017 and 2018 CHINS

       dispositional orders. Mother was incarcerated, and Parents had been in and out

       of jail over the course of the proceedings. In addition, Parents’ supervised visits

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 6 of 30
       with the children had been stopped because Parents had not participated in

       substance abuse treatment or submitted to random drug screens.


[12]   In August 2018, DCS filed a petition to terminate Parents’ parental

       relationships with P.M. and S.M. Parents appeared at a September 2018

       hearing in the cases of P.M. and S.M. At the beginning of the hearing, Mother

       asked for a continuance based on her allegation that she had been drugged,

       raped, and left in a ditch the previous night. Father did not object to a

       continuance but asked the trial court to reinstate his visitation with the children.

       FCM Numa responded that visitation had been stopped because Parents had

       not consistently attended the visits, which had been detrimental to the children.

       For example, when P.M. expected a visit and Parents failed to attend, the child

       would defecate in his pants. Father explained that he had only missed visits

       when he had been incarcerated. The trial court granted Mother’s request for a

       continuance and Father’s request to reinstate visitation.


[13]   At the late September 2018 rescheduled hearing in the cases of P.M. and S.M.,

       FCM Numa reported that Mother had tested positive for methamphetamine

       and amphetamines following the previous hearing. When the trial court asked

       Mother if her alleged assailant had put the drugs in “[her] system[,]” Mother

       responded that she did not remember. (Tr. Vol. 2 at 17). FCM Numa further

       reported that both parents had appearances scheduled in criminal court that

       afternoon. Mother had a pending forgery charge, and Father had violated the

       terms of his bond in the April 2018 case when he missed an appointment with

       his probation officer. He had missed the appointment because he had spent the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 7 of 30
       night with Mother and had overslept. FCM Numa asked the trial court to

       terminate Father’s recently reinstated visitation, which Father had not been able

       to attend because of his arrest. The trial court temporarily suspended visitation

       because it wanted to see what would happen with Parents’ criminal court

       appearances.


[14]   Both parents were incarcerated at the time of the next hearing in P.M.’s and

       S.M.’s cases in October 2018. When the trial court mentioned scheduling a

       termination hearing P.M.’s and S.M.’s cases, Mother stated that she was

       “willing to waive the six[-]month time frame” to see whether DCS was going to

       file a termination petition in R.M.’s case. (Tr. Vol. 2 at 27). DCS objected to

       the delay. The trial court responded as follows to Mother’s request: “I’m going

       to set trial dates, but it’s going to be later than normal so that, quite frankly,

       [Parents] have more time to get their act together. If they don’t, then the baby

       and the two older children can be tried at the same time.” (Tr. Vol. 2 at 28). At

       the conclusion of the hearing, the trial court told Parents that when they were

       released from jail, “one of [their] very, very first phone calls should be to the

       [DCS] case manager and [to] say what do I need to do, remind me, and how do

       I do it. The responsibility is yours to get this done.” (Tr. Vol. 2 at 30). The

       trial court scheduled the termination hearing in the cases of P.M. and S.M. for

       January 2019.


[15]   In late October 2018, Father pled guilty to the April 2018 felony possession of a

       controlled substance and misdemeanor maintaining a common nuisance

       charges. Pursuant to the plea agreement, Father’s felony would be reduced to a

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 8 of 30
       misdemeanor if he successfully completed the terms and conditions of his

       probation.


[16]   DCS filed a petition to terminate the parental relationship between parents and

       R.M. on December 19, 2018. At the January 2019 termination hearing

       regarding all three children, the trial court observed that there had been a

       discovery problem. Specifically, the computer disks that DCS had provided to

       Parents had apparently been defective. Parents requested a continuance to

       prepare their cases. The trial court responded that its “problem [was] that [it

       had] time deadlines. These cases, at least on the older kids, were open[ed] in

       August. Obviously, we can’t meet the current deadlines on those two older

       kids[.]” (Tr. Vol. 2 at 35). Mother responded that she “would be willing to

       waive the time lines, and would in fact request the Court [to] allow her to waive

       the time lines” because she was incarcerated at the time. (Tr. Vol. 2 at 35).

       Mother further asked the trial court “to draw a parallel to criminal rule 4, which

       is waivable or the time at least tolls against the Defendant if the Defendant

       makes the motion[.] And to not allow the times lines to be waived by the

       parent, I think would violate due process and the ability of the parents to have a

       fair trial.” (Tr. Vol. 2 at 35-36). DCS objected to a continuance. The trial

       court “grant[ed] the motions to continue based on the reasons stated” and

       scheduled the termination hearing for all three children for April 2019, which

       was the earliest date that the trial court, the CASA, the parties, and their

       respective counsels were all available. (Tr. Vol. 2 at 36). At the end of the

       hearing, DCS told the trial court that although it had previously offered Parents


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 9 of 30
       substance abuse services, drug screens, supervised visits, couples counseling,

       domestic violence services, and a parent aid, DCS had now terminated all

       services. The trial court ordered DCS to continue to offer Parents drug screens

       at the state’s expense and told Mother to contact FCM Numa as soon as she

       was released from jail.


[17]   The termination hearing began in April 2019. Father testified that he and

       Mother had known each other for fifteen years and had been in a relationship

       for eight years. Father admitted that he had smoked marijuana daily for ten

       years and that he and Mother had smoked marijuana in the evenings and on the

       weekends during the course of their relationship. According to Father, he and

       Mother had started using pills together weekly about four years ago when

       Mother began sharing her prescription pills with Father. Mother and Father

       then began using methamphetamine together. Father admitted that he had

       used drugs until his arrest in April 2018 but maintained that he had not used

       drugs since that time. Father explained that although he had not participated in

       counseling pursuant to the CHINS dispositional orders and had been removed

       from the Safe Haven shelter and the NOW counseling program following his

       missed probation appointment in September 2018, he had subsequently been

       readmitted to the programs and now regularly attended counseling. Father

       admitted that his counselor had recommended that he not have contact with

       Mother because “it was not beneficial for [his] recovery,” and Father “make[s]

       bad decisions when [he is] around her.” (Tr. Vol. 2 at 89, 90). Despite his

       counselor’s admonition, Father and Mother had talked to each other one to


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 10 of 30
       three times a week for the past year, and had been intimate in April 2019, just

       two weeks before the termination hearing. Father further testified that he had

       recently been compliant with the terms and conditions of his probation because

       he did not “wanna go back to jail.” (Tr. Vol. 2 at 94). Father also testified that

       he had a job and that his work schedule was 5:00 p.m. until 5:00 a.m. At the

       time of the hearing, he did not have childcare for his children and had

       previously told FCM Numa that he would “rely on [Mother] for child care.”

       (Tr. Vol. 2 at 113).


[18]   During Father’s testimony, DCS offered into evidence DCS Exhibit P, Father’s

       drug screen compliance reports, which had been compiled by Redwood

       Toxicology Laboratory. The reports, which did not include drug test results,

       revealed that Father had failed to attend more than forty scheduled drug screens

       from 2016 until 2018. Father objected that there was not “any essential and

       necessary foundation laid” for the exhibit. (Tr. Vol. 2 at 117). The trial court

       concluded that the exhibit was a certified record and admitted it over Father’s

       objection.


[19]   Also at the termination hearing, FCM Numa testified that Father had

       completed the CHINS court-ordered substance abuse evaluation but had never

       followed the assessor’s recommendations. FCM Numa also testified that DCS

       had filed at least one information for contempt as to Father because of his lack

       of compliance with the CHINS dispositional orders. FCM Numa recognized

       that Father had recently “achieved the desired goal of working on sobriety” and

       was participating in NOW counseling services through the probation

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 11 of 30
       department. (Tr. Vol. 2 at 135). However, FCM Numa stated that she

       “honestly . . . just fe[lt] like [Father was] going through the motions because of

       his probation” and was still concerned about his ability to care for his three

       children. (Tr. Vol. 2 at 144). She further explained that although the CHINS

       dispositional orders were issued in September 2017 and May 2018, Father had

       not participated in services until November 2018, when the trial court had

       ordered him to participate in services through the probation department as part

       of his plea agreement for the April 2018 drug charges. FCM Numa also

       pointed out that in January 2019, Father had attended only one of twenty-six

       sessions in a domestic violence program. Father told FCM Numa that he did

       not need to participate in the program because he did not have domestic

       violence problems and that the program conflicted with his job. FCM Numa

       believed that Father had refused to participate in the program because it had not

       been ordered through his probation. In addition, although Father was

       submitting drug screens through the probation office, he was not regularly

       submitting the drug screens that DCS had requested.


[20]   FCM Numa further testified that Mother had never participated in any drug

       treatment or mental health programs because Mother “felt like she did not need

       any services.” (Tr. Vol. 2 at 137). FCM Numa also testified that DCS had filed

       several informations for contempt as to Mother because she had failed to

       comply with the CHINS dispositional orders. According to FCM Numa, she

       remained concerned about Mother’s ability to care for the children because she

       had never “complied with treatment. And then throughout the life of the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 12 of 30
       case[,] she was still testing positive for prescriptions and illegal drugs.” (Tr.

       Vol. 2 at 144). FCM Numa also testified that Mother had never asked about

       how her children were doing and, during the course of the CHINS proceedings,

       Mother’s visits with the children had never progressed beyond supervised

       visitation. At the time of the termination hearing, Mother was living with a

       friend and did not have enough space for the three children to live with her.


[21]   Also during the hearing, Father’s probation officer, Melinda Littell (“Probation

       Officer Littell”) testified that, from April 2018 until October 2018, Father had

       violated the conditions of his bond five times by committing additional offenses

       and by failing to attend drug screens and probation meetings. However, Father

       had been compliant with probation requirements, including drug screens,

       probation meetings, and counseling since being sentenced in November 2018.

       According to Probation Officer Littell, Father was on track to successfully

       complete a program that would reduce his felony conviction to a

       misdemeanor.1


[22]   CASA Ruth Kauk (“CASA Kauk”) testified that she had been assigned to the

       case in June 2018. At that time, Parents had not been compliant with the

       CHINS dispositional orders. Specifically, according to CASA Kauk, Father

       had missed multiple drug screens and had not started “screening until his




       1
        It appears that Mother had also been offered the opportunity to participate in a diversion program to reduce
       her felony conviction to a misdemeanor conviction. However, she was apparently terminated from the
       program when she violated a no-contact order by talking to Father.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020                   Page 13 of 30
       release from incarceration in July of 2018.” (Tr. Vol. 2 at 180). CASA Kauk

       also testified that although Father had begun complying with his probation

       requirements after his sentencing in November 2018, Father continued to refuse

       to participate in CHINS court-ordered programs. For example, in January

       2019, Father told CASA Kauk that he would not be participating in the

       domestic violence program because “he’d never touched [Mother] and did not

       have a domestic violence problem.” (Tr. Vol. 2 at 181). Further, in January or

       February 2019, Father told CASA Kauk that because he worked the night shift,

       he only had time for probation appointments, work, and sleep. The only

       possible option for childcare that he had identified was Mother. According to

       CASA Kauk, Father believed that Mother was mentally and emotionally ready

       to provide childcare to the three children. Father also told CASA Kauk that it

       was not possible for him to switch shifts or jobs.


[23]   CASA Kauk was also concerned that Parents “get in trouble together and they

       lead each other to make poor decisions. They have a pattern of incarceration.”

       (Tr. Vol. 2 at 183). According to CASA Kauk, Father had spent 109 days in

       jail in 2018, which included jail time for the April 2018 drug charges, the May

       2018 domestic violence charges, and the May 2018 invasion of privacy charges.

       All of these incidents involved Mother. CASA Kauk pointed out that “Father

       [had done] well for periods of time and then Mother and Father get back

       together and all of a sudden (indiscernible).” (Tr. Vol. 2 at 185). Father had

       also served jail time for missing probation appointments, drug screens, and

       counseling appointments. CASA Kauk agreed that “this [was] all time that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 14 of 30
       they could’ve been spending participating in services and spending time with

       their children.” (Tr. Vol. 2 at 184).


[24]   Testimony regarding the children revealed that P.M. and S.M. had been in

       foster care for more than two years, and that R.M. had been in foster care for

       his entire life. S.M. and R.M. were thriving in the same pre-adoptive foster

       home, and P.M was in a foster home with the possibility that he would be

       placed with maternal grandmother. P.M. required therapy for behavior issues,

       and S.M. had been diagnosed with global developmental delay. CASA Kauk

       testified that S.M.’s foster mother had reported that S.M.’s behavioral problems

       had “dramatically decreased. He head[-]bang[ed] only once a month now.

       And the self-harming behavior ha[d] also decreased.” (Tr. Vol. 2 at 186). FCM

       Numa testified that P.M. and S.M. both had routines that “ha[d] to continue in

       order for them to be able to function.” (Tr. Vol. 2 at 148). According to FCM

       Numa, the children needed “a stable parent, a sober parent. That parent needs

       to be able to provide shelter for the kids, food, clothing, proper supervision,

       have daycare line up if they need to, making sure that the kids are attending

       scheduled appointments.” (Tr. Vol. 2 at 148). When asked whether a

       continuation of the parent-child relationship posed a threat to the well-being of

       the children, both CASA Kauk and FCM Numa responded that it did. Both

       service providers also testified that termination and adoption were in the

       children’s best interests.


[25]   At the end of the first day of the hearing, the parties agreed to continue it until

       May 16, 2019. At the May hearing, Father testified that although his work

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 15 of 30
       schedule would be changing to 10:00 a.m. until 8:00 p.m. at some unspecified

       point in the future, he still did not have a plan for childcare. He also did not

       have suitable housing for the children although he claimed that he had saved

       enough money to obtain it. Father also admitted that FCM Numa had offered

       him referrals for services in the past. However, he claimed that he did not

       know that DCS-provided services were not permanent and would lapse if he

       failed to participate in them or was incarcerated. Father further admitted that

       he had failed to tell his counselor that he had been intimate with Mother but

       further explained that the counselor had “put [him] on a no[-]contact with

       [Mother] while [Father] was in the counseling services [and] [the counselor

       had] released [Father] from all that.” (Tr. Vol. 2 at 212).


[26]   At the end of the hearing, Mother asked the trial court to order services for her.

       The trial court responded that Mother could participate in services voluntarily

       but that it was not going to order the State to provide them. The trial court also

       ordered the parties to submit findings of fact and conclusions thereon within

       thirty days.


[27]   In July 2019, before the trial court had issued its order in the termination cases,

       Parents each filed a motion to dismiss the termination cases because the trial

       court had held the termination hearing outside the 180-day time limit set forth

       in INDIANA CODE § 31-35-2-6(a)(2). Although Mother has not included a copy

       of her motion in her appendix, she apparently argued that the trial court had

       violated her due process rights because it had failed to follow the statutory



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 16 of 30
       timeline regarding termination hearings. In addition, Father asked the trial

       court to reopen the evidence. The trial court denied Parents’ motions.


[28]   In August 2019, the trial court issued an eighteen-page order terminating the

       parental relationships between Parents and P.M., S.M., and R.M. In its order,

       the trial court concluded, in relevant part, as follows:


               10. Court agrees with DCS and CASA that continuation of
               the parent-child relationship poses a threat to the children’s well-
               being. Parents’ habitual patterns of behavior, especially their
               recurring involvement in criminal acts, demonstrate that they are
               unable to make decisions in their own best interests, let alone
               make decisions in the best interest of the child. See Castro vs. State
               Office of Family and Children, 842 N.E.2d 367, 374 (Ind. Ct. App.
               2006) trans. denied. Both parents have missed out on a great deal
               of time with the children due to their incarceration. Mother has
               been incarcerated numerous times since these cases started, up
               until February of this year. Father has been incarcerated at least
               one hundred and nine days just since April 23, 2018.


               11. The children have stability in their current home. The
               Court agrees with CASA Kauk that [P]arents’ inconsistency
               poses a threat to the child[ren]’s current stability. CASA
               described the child[ren]’s relationship with parents as “back and
               forth,” adding that it is this “inconsistency that really hurts.”


               12. When asked why he was complying with terms of
               probation this time around when he had not previously, Father
               said “I don’t want to go to jail.” When asked why he had started
               to comply with substance abuse services, Father cited “jail,”
               “probation,” and the “hopes to see his boys again,” in that order.
               The children were removed from Father’s care in May of 2017.
               These services were available and have been ordered by the
               Court for over one (1) year. Father has just recently
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 17 of 30
               demonstrated compliance since jail and probation began to
               threaten his liberty. The children need a caretaker that will make
               him their priority.


               13. The parents have also established through their previous
               actions a[n] habitual pattern of returning to one another, despite
               the weight of evidence suggesting this is not in their own best
               interest. The parents have a history of using illegal substances
               with one another and engaging in instances of serious domestic
               violence. These shared activities have repeatedly led to their
               contemporaneous incarceration. Parents’ behaviors and
               decision-making while they are together pose a threat to their
               own well-being, as well as the well-being of the child[ren]. The
               Court cannot ignore this pattern when determining the
               probability of future neglect or deprivation of the children.


               14. See In re A.K.[924 N.E.2d 212,] 224 [(Ind. Ct. App. 2010),
               trans. dismissed] (finding that continuing in a relationship with an
               unfit parent may form the basis for the Court’s finding that
               continuation of the parent-child relationship poses a threat to the
               child’s well-being).


[29]   Each parent separately appeals the termination of his and her relationships with

       their three children.


                                                    Decision
[30]   Mother argues that the trial court erroneously denied her motion to dismiss the

       termination proceedings. Father argues that the trial court abused its discretion

       when it admitted evidence. Parents argue that their due process rights were

       violated because the DCS failed to make reasonable efforts to preserve the




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 18 of 30
       parent-child relationships and that there is insufficient evidence to support the

       terminations. We address each of these contentions in turn.


       1. Mother’s Motion to Dismiss


[31]   Mother first contends that the trial court erroneously denied her motion to

       dismiss the termination cases. She specifically argues that the trial court failed

       to complete the termination hearing in compliance with INDIANA CODE § 31-

       35-2-6.


[32]   “Matters of statutory interpretation present pure questions of law; as such,

       these questions are review de novo.” Rodriguez v. State, 129 N.E.3d 789, 793

       (Ind. 2019). INDIANA CODE § 31-35-2-6 provides as follows:


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


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


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


               (b) If a hearing is not held within the time set forth in subsection
               (a), upon filing a motion with the court by a party, the court shall
               dismiss the petition to terminate the parent-child relationship
               without prejudice.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 19 of 30
[33]   Here, DCS filed its termination petitions for P.M. and S.M. on August 23,

       2018, and for R.M. on December 19, 2018. The combined termination hearing

       for all three children began on April 18, 2019 and was completed on May 16,

       2019. Although the April and May 2019 hearings were timely as to R.M.’s

       termination petition, they were not timely as to the termination petitions for

       P.M. and S.M. because they were not completed within the one-hundred-

       eighty-day timeline set forth in the statute. However, we conclude that Mother

       invited this error and cannot now seek to use the error to her advantage.


[34]   The Indiana Supreme Court recently explained as follows:


               The invited-error doctrine is based on the doctrine of estoppel
               and forbids a party from taking advantage of an error that she
               commits, invites, or which is the natural consequence of her own
               neglect or misconduct. Where a party invites the error, [he or]
               she cannot take advantage of that error. In short, invited error is
               not reversible error.


       Matter of J.C., 142 N.E.3d 427, 432 (Ind. 2020) (internal citations omitted).


[35]   Here, our review of the evidence reveals that, at the October 2018 hearing in the

       cases of P.M. and S.M., Mother said she was “willing to waive the six[-]month

       time frame” to see whether DCS was going to file a termination petition in

       R.M.’s case. (Tr. Vol. 2 at 27). Then, at the January 2019 termination hearing,

       Mother requested that the trial court “allow her to waive the [statutory] time

       line” because she was incarcerated at the time. (Tr. Vol. 2 at 35). Mother

       further asked the trial court to draw a parallel to Criminal Rule 4, which tolls

       the time against a criminal defendant when the defendant files a motion to
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 20 of 30
       continue the trial. Mother also argued that the trial court would be committing

       a due process violation if it refused to allow her to waive the statutory timeline.


[36]   Because Mother affirmatively waived the 180-day statutory requirement and

       invited the court to conduct the hearings outside the statutory time requirement,

       Mother cannot now invoke the requirement as a basis for reversal. See J.C., 142

       N.E.2d at 432 (citing In re N.C., 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017))

       (concluding that a parent in a TPR case could be afforded no relief on appeal

       where, when the hearing was being scheduled, the court reporter proposed a

       hearing date 222 days after the petition’s filing and the parent’s counsel

       responded, “That sounds good”). The trial court did not erroneously deny

       Mother’s motion to dismiss the termination proceedings.2


       2. Admission of Evidence


[37]   Father argues that the trial court abused its discretion in admitting evidence.

       Specifically, he contends that Exhibit P, the toxicology lab’s compliance

       reports, constituted inadmissible hearsay. However, at the termination hearing,

       Father’s sole argument was that DCS had failed to establish a foundation for

       the exhibit. Father has therefore waived appellate review of the hearsay




       2
         Mother also appears to argue that the trial court should have dismissed the termination proceedings because
       the trial court’s termination order was entered more than ninety days after the last day of the termination
       hearing in violation of Indiana Trial Rule 53.2(A). However, Trial Rule 53.2(A) does not contemplate a
       dismissal if the trial court fails to enter an order within ninety days. Rather, pursuant to the rule, Mother was
       entitled to move to withdraw the proceedings from the trial court and request that the Indiana Supreme Court
       appoint a special judge to rule on the petition. Mother, however, did not so move. The trial court did not
       erroneously deny Mother’s motion to dismiss the termination proceedings.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020                       Page 21 of 30
       argument because he did not raise it at the termination hearing. See Konopasek

       v. State, 946 N.E.2d 23, 27 (Ind. 2011) (explaining that an objection for one

       evidentiary ground does not preserve another evidentiary ground for appeal).


[38]   Waiver notwithstanding, any error in the admission of this exhibit was

       harmless. This is because the remaining evidence presented at the termination

       hearing, including Father’s testimony that he had continued to use drugs until

       April 2018 and the evidence as discussed below, satisfies this Court that there is

       no substantial likelihood that the challenged evidence contributed to the

       judgment. See Termination of the Parent-Child Relationship of E.T., 808 N.E.2d

       639, 646 (Ind. 2004) (explaining that the 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).


       3. Reasonable Efforts and Due Process


[39]   Parents argue that DCS failed to make reasonable efforts to preserve the parent-

       child relationships, resulting in a violation of their due process rights. When

       DCS seeks to terminate parental rights, “it must do so in a manner that meets

       the prerequisites of due process.” In re J.K., 30 N.E.3d 695, 699 (Ind. 2015)

       (quotations and citations omitted). Whether due process has been afforded in

       termination proceedings is determined by balancing the following “three

       distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1)

       the private interests affected by the proceeding; (2) the risk of error created by


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 22 of 30
       the State’s chosen procedure; and (3) the countervailing governmental interest

       supporting use of the challenged procedure. A.P. v. Porter Cnty. Off. of Family

       and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans. denied.


[40]   In S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)

       (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)), this Court further explained

       the Mathews factors as follows:


               The private interest affected by the proceeding is substantial – a
               parent’s interest in the care, custody, and control of his or her
               child. And the State’s interest in protecting the welfare of a child
               is also substantial. Because the State and the parent have
               substantial interests affected by the proceeding, we focus on the
               risk of error created by DCS’s actions and the trial court’s
               actions.


[41]   DCS must “make reasonable efforts to preserve and reunify families.” IND.

       CODE § 31-34-21-5.5(b). In addition, “due process protections at all stages of

       CHINS proceedings are vital because every CHINS proceeding has the

       potential to interfere with the rights of parents in the upbringing of their

       children.” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations

       omitted). “[T]hese two proceedings - CHINS and TPR - are deeply and

       obviously intertwined to the extent that an error in the former may flow into

       and infect the latter[.]” Id.


[42]   However, the “failure to provide services does not serve as a basis on which to

       directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

       145, 148 n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 23 of 30
       Ct. App. 2000) (“[T]he provision of family services is not a requisite element of

       our parental rights termination statute, and thus, even a complete failure to

       provide services would not serve to negate a necessary element of the

       termination statue and require reversal.”). Further, a parent may not sit idly by

       without asserting a need or desire for services and then successfully argue that

       he or she was denied services to assist him or her with his or her parenting. In

       re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).


[43]   Here, Parents appear to argue that DCS failed to make reasonable efforts to

       preserve the parent-child relationships because it failed to offer them services.

       As a preliminary matter, we note that the law is well established that a party on

       appeal may waive a constitutional claim. McBride v. Monroe Cnty. Office of

       Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). For example, in

       In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001), this Court determined

       that a mother had waived her claim that the trial court had violated her due

       process rights because she raised the constitutional claim for the first time on

       appeal.


[44]   Parents in this case did not object to any alleged deficiencies in the CHINS

       process during the CHINS proceedings, nor did they argue during the

       termination proceedings that those alleged deficiencies constituted a due

       process violation. Rather, Parents have raised their due process claim for the

       first time on appeal. They have therefore waived appellate review of this issue.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 24 of 30
[45]   Waiver notwithstanding, our review of the record reveals that DCS offered

       Parents the following services in the September 2017 when the trial court issued

       the CHINS dispositional orders in the cases of P.M. and S.M: (1) parenting,

       substance abuse, and counseling services; (2) drug screens; and (3) supervised

       visitation with their children. DCS offered Parents these services with a plan

       for family reunification. Although Parents neither participated in nor benefited

       from these services, DCS again offered them to Parents eight months later in

       the May 2018 when the trial court issued the dispositional order in R.M.’s case.

       Parents again failed to participate in and benefit from these services and now

       complain that they should have been offered more services. DCS offered

       Parents sufficient services in its attempt to preserve and reunify Parents’ family.

       Based on the foregoing, Parents have not established that their due process

       rights were violated.3


       4. Sufficiency of the Evidence


[46]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.




       3
          We further note that Parents have not established that DCS engaged in conduct that affected their ability to
       participate in and complete services aimed at reunifying them with their children. Cf. Matter of C.M.S.T., 111
       N.E.3d 207, 213 (Ind. Ct. App. 2018) (concluding that “the chaotic and unprofessional handling” of a CHINS case
       violated the parents’ due process rights, requiring reversal of the termination order); A.P., 734 N.E.2d at 1117
       (finding parents’ due process rights were violated in a termination proceeding where DCS made multiple
       procedural errors, such as failing to provide parents with copies of case plans and filing CHINS and termination
       petitions that did not meet statutory requirements).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020                     Page 25 of 30
       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[47]   Before an involuntary termination of parental rights may occur, 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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 26 of 30
[48]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[49]   We further note that, in determining whether to terminate a parent-child

       relationship, trial courts have discretion to weigh a parent’s prior history more

       heavily than efforts made only shortly before termination and may find that a

       parent’s past behavior is the best predictor of future behavior. D.B.M. v. Indiana

       Dep’t of Child Services, 20 N.E.3d 174, 181-82 (Ind. Ct. App. 2014), trans. denied.

       We have also stated that the time for a parent to rehabilitate himself or herself is

       during the CHINS process, before DCS files a termination petition. Prince v.

       Dep’t of Child Services, 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007).


[50]   Parents argue that DCS failed to prove by clear and convincing evidence that:

       (1) there is a reasonable probability that the conditions that resulted in the

       children’s removal or the reasons for placement outside the home will not be

       remedied; and (2) a continuation of the parent-child relationships poses a threat

       to the children’s well-being. However, we note that INDIANA CODE § 31-35-2-

       4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish

       by clear and convincing evidence only one of the three requirements of

       subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010), trans.

       dismissed. We therefore discuss only whether there is a reasonable probability

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 27 of 30
       that a continuation of the parent-child relationship poses a threat to the

       children’s well-being.


[51]   The continuation of the parent-child relationship poses a threat to children’s

       well-being when: (1) their parents engage in destructive and dangerous

       behavior; (2) the behavior is ongoing without any serious sign of improvement;

       and (3) the behavior poses a threat to their children. In re A.I., 825 N.E.2d 798,

       807 (Ind. Ct. App. 2005), trans. denied. In addition, this Court has previously

       stated that a Father’s continued relationship with a Mother who was unable to

       remain drug free, manage her mental illness, and maintain stable housing was a

       proper consideration in determining whether there was a reasonable probability

       that a continuation of Father’s relationship with the child posed a threat to the

       child’s well-being. See A.K., 924 N.E.2d at 224.


[52]   Here, our review of the evidence reveals that, for several years, Mother and

       Father have been involved in a tumultuous relationship, which has included

       drug use, domestic violence, and multiple incarcerations for both parents. This

       relationship has also led parents to neglect their children’s needs and place them

       in dangerous situations. Neither parent has complied with the 2017 or 2018

       CHINS dispositional orders. Father began to comply with court-ordered drug

       screens and counseling through the probation department in November 2018

       after he was sentenced for the April 2018 felony offense. However, he still

       refused to comply with the CHINS dispositional orders, including a domestic

       violence program. Father also maintained regular contact with Mother

       throughout the CHINS proceedings, including being intimate with her just two

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 28 of 30
       weeks before the April 2019 termination hearing, while acknowledging that

       Mother led him to make bad decisions. Father also believed that it would be

       appropriate for Mother, who had failed to comply with the CHINS

       dispositional orders and who was frequently incarcerated, to provide childcare

       to their children while he worked twelve-hour shifts. This evidence supports

       the trial court’s conclusion that a continuation of the parent-child relationship

       poses a threat to the children’s well-being. We find no error.


[53]   Parents next argue that there is insufficient evidence that the termination was in

       the children’s best interests. In determining whether termination of parental

       rights is in the children’s best interests, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the children involved. Id. In addition, children’s needs for

       permanency is a central consideration in determining the child’s best interests.

       In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the

       service providers may support a finding that termination is in the children’s best

       interests. McBride, 798 N.E.2d at 203.


[54]   Here, our review of the evidence reveals that both FCM Numa and CASA

       Kauk testified that termination was in the children’s best interests. The

       testimony of FCM Numa and CASA Kauk, as well as the other evidence

       previously discussed, supports the trial court’s conclusion that termination was

       in the children’s best interests.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 29 of 30
[55]   We have previously recognized that this Court is ever mindful of the fact that

       the trial court must subordinate the interests of the parents to those of the

       children when evaluating the circumstances surrounding the termination of the

       parent-child relationship. Matter of D.G., 702 N.E.2d 777, 781 (Ind. Ct. App.

       1998) (citing Stone v. Daviess Cnty Div. of Children & Family Servs., 656 N.E.2d

       824, 828 (Ind.Ct.App.1995), trans. denied). Recognizing that the trial court

       listened to the testimony of all the witnesses at the two-day termination hearing,

       observed their demeanor, and judged their credibility, as a reviewing court, we

       must give proper deference to the trial court. Accordingly, we hold that the trial

       court was justified in concluding that the DCS proved by clear and convincing

       evidence that parents’ parental rights should be terminated.


[56]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2002 | June 26, 2020   Page 30 of 30
