MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Sep 20 2019, 9:16 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
Heather M. Schuh-Ogle                                    Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                             Attorney General
Guthrie, P.C.
Columbus, Indiana                                        Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         September 20, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of F.P., J.P., M.C.,                        19A-JT-590
(Minor Children)                                         Appeal from the Bartholomew
and                                                      Circuit Court
                                                         The Honorable Kelly Benjamin,
C.C. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Heather Mollo,
                                                         Magistrate
        v.
                                                         Trial Court Cause Nos.
                                                         03C01-1709-JT-4847, -48, -49
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                 Page 1 of 21
      Crone, Judge.


                                                 Case Summary
[1]   C.C. (“Mother”) appeals the involuntary termination of her parental rights to

      F.P., J.P., and M.C. (“Children”). 1 She argues that the trial court committed

      clear error in concluding that there is a reasonable probability that the

      conditions that resulted in the Children’s removal and continued placement

      outside the home will not be remedied and that termination is in the Children’s

      best interests. She also argues that she was denied due process after disposition

      in the children in need of services (“CHINS”) case because she was not

      represented by counsel at subsequent CHINS hearings. We conclude that the

      trial court’s conclusions are clearly and convincingly supported by the

      unchallenged findings of fact and that Mother waived her due process claim by

      raising it for the first time on appeal. Therefore, we affirm.


                                     Facts and Procedural History
[2]   The unchallenged findings of fact show that Mother is paralyzed from the waist

      down and uses a wheelchair as a result of being struck while riding a bicycle

      when she was eleven years old. 2 M.C. was born in August 2013. F.P. and J.P.

      are twins born in December 2014.




      1
        F.P. and J.P.’s father executed consents for their adoption. M.C.’s father’s parental rights were terminated
      in the same order as Mother’s, but he does not appeal.
      2
          Mother received a $200,000 settlement from the accident, which is managed by a trustee.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                  Page 2 of 21
[3]   On January 22, 2015, the Indiana Department of Child Services (“DCS”)

      received a report that the Children were abused and/or neglected due to unsafe

      sleeping and feeding conditions in Mother’s home. Appealed Order at 2

      (Finding #7). At that time, F.P. and J.P.’s father (“Father”) lived with the

      family. On January 26, 2015, DCS Family Case Manager (“FCM”) Amy

      Pawlus visited Mother’s home. Pawlus smelled rotting food, dirty diapers, and

      urine and “observed garbage bags overflowing, sharp items within reach of the

      Children, excessive flies in the home, flies on baby bottles, and formula

      spoiling.” Id. at 3 (#8). Pawlus also observed F.P. and J.P. “being fed with

      propped up bottles in their cribs without proper supervision.” 3 Id.


[4]   On February 13, 2015, Pawlus visited the home again and found that

      conditions remained substantially the same; some of the same dishes, food, and

      garbage bags that Pawlus had seen at the earlier visit were still present. Id. (#9).

      Also, F.P. and J.P. were asleep in their cribs with bottles propped up for

      feeding. Id. Crusted formula was in their hair, and flies were on their faces and

      bottles. Id. Mother was indifferent and unconcerned about the feeding and

      sleeping practices. Id. (#10). Initially, Mother was offered a program of

      informal adjustment, but no improvement was observed. Id. (#11). During

      March 2015, Pawlus never observed the home in a condition that was safe for




      3
        The bottles contained eight ounces of formula, contrary to the doctor’s order for two ounces of formula per
      feeding. Tr. Vol. 2 at 49.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                 Page 3 of 21
      the ages of the Children. Id. M.C. was mobile, but there was rotting food on

      the floor, and there were sharps containers within her reach with openings large

      enough for her hand. Id. The Children were often seen wearing the same

      urine-soaked clothing. 4 Id.


[5]   On March 19, 2015, the Children were removed from Mother’s care. On

      March 22, 2015, DCS filed a petition alleging that the Children were CHINS.

      Mother admitted that she was struggling to care for the Children and the home,

      there was a buildup of garbage, dirty dishes, and dog feces, 5 the home was not

      appropriate for the Children in its present state, and the Children were CHINS.

      Id. (#16). The dispositional order required Mother to participate in home-based

      case management, a parenting curriculum, and supervised visitation with the

      Children. Initially, Mother had supervised visitation with the Children for two

      hours three times a week.


[6]   After removal from Mother’s home, the Children were placed in foster care.

      When they first arrived at their foster home, “they were physically dirty, had an

      odor, did not like to take baths, and struggled to sleep at night.” Id. at 11




      4
       Pawlus testified that the Children were dirty, and their clothes usually smelled of and were soaked in urine.
      Tr. Vol. 2 at 59. She also testified that the smell from the rotting food, garbage, dirty diapers, and urine was
      “overpowering.” Id. at 53.
      5
       The presence of dog feces appears to apply to the Children’s grandmother’s home, which was attached to
      Mother’s home.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                    Page 4 of 21
      (#90). M.C. and J.P. were evaluated by First Steps. 6 M.C. “was found to be

      globally deficient and required developmental therapy, occupational therapy,

      and physical therapy.” Id. at 10 (#88). M.C. “quickly made progress and

      completed services within two months.” Id. J.P. was diagnosed with torticollis

      and required physical therapy for a longer period of time. 7 Id. (#89).                             While in

      foster care, the Children “started hitting their developmental milestones.” Id. at

      11 (#92).


[7]   DCS providers determined that Mother had problems with anxiety and

      depression, which affected her daily living, and offered her individual therapy.

      Id. at 4 (#6). From July 2015 to June 2017, Jeannie Arbuckle served as

      Mother’s individual therapist. Id. (#7). Arbuckle used several therapeutic

      techniques to help Mother, but Mother saw them as chores, and there was not

      much progress. Id. (#8). In early 2016, Arbuckle recommended that, in

      addition to therapy, Mother seek medication management for her depression

      and anxiety. Id. at 5 (#14). Mother agreed, but her regularity in taking the

      medication was questionable. Id. (#15).


[8]   In the early months of the case, Mother was able to improve the conditions of

      the home. Sometime between March 14 and June 28, 2016, the Children had




      6
        First Steps is a program administered by the Indiana Family and Social Services Administration for
      children under the age of three who are experiencing developmental delays. IN.gov, FSSA: First Steps
      Home, https://www.in.gov/fssa/4655.htm (last visited Sept. 3, 2019).
      7
        Torticollis is “a tightening of the neck muscle” and apparently caused J.P.’s head to tilt in one direction.
      Tr. Vol. 2 at 98.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                    Page 5 of 21
       their first overnight visitation with Mother. Id. at 6 (#30). During that visit,

       Mother violated the Children’s safety plan by leaving one of the Children asleep

       on a changing table. Id. “It was particularly troubling to have these incidents

       still occurring one year after the opening of the CHINS case despite home based

       services and a safety plan.” Id. Afterward, DCS resumed supervised visitation.


[9]    Over the course of 2016, safety conditions in the home had to be continually

       addressed. Prescription bottles and inhalers were left within reach of the

       Children. Id. (#31). The Children’s training potty was not properly emptied,

       with fecal matter and urine left unattended. Id. There was exposed wiring near

       the Children’s cribs, and a heavy headboard leaning against a dresser. The

       Children were seen eating food off the floor. Id. “Used diapers were left

       unattended and the house smelled of urine.” Id. (#32). In November 2016,

       DCS recommended that Mother hire a cleaning service. Id. (#33). For six

       months, DCS “worked in earnest to assist Mother” with hiring a cleaning

       service. Id. Finally, a deep clean was scheduled for March 2017, but it never

       occurred. Id.


[10]   On March 22, 2017, the Children began a trial home visit with Mother.

       However, after two and a half months, the Children were removed due to

       numerous concerns for their safety and well-being: the condition of the home

       deteriorated and was unsafe, with dishes piling up and latex gloves and exposed

       wiring within the Children’s reach; Mother failed to remediate safety issues in a

       timely manner; the Children appeared unkempt; the Children displayed

       increased aggression, with hitting, screaming, and biting; there was a lack of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 6 of 21
       physical contact or emotional warmth from Mother toward the Children; the

       Children sought each other out for comfort rather than Mother; the Children

       were left unattended in the bathtub; two of the Children got out of the house

       and into the street unattended because Mother “forgot to lock the door”;

       Mother quit trying to have the Children take naps; there appeared to be no

       routine; and M.C. required a short hospital stay for a health issue that may have

       been a psychosomatic symptom due to stress. Id. at 7-8 (#38-54). Also, during

       the trial home visit, J.P. was engaged in a physical therapy program for a delay

       in walking and balance. However, Mother did not seem interested in

       participating, and it was not until J.P. was returned to foster care that she made

       sufficient progress to be successfully discharged from therapy. Id. at 7 (#37). In

       addition, there was an instance of domestic violence, during which Father

       physically assaulted the Children’s grandmother, Mother held a ten- to twelve-

       inch knife against Father’s throat, and one of the Children got pushed down.

       Id. at 8-9 (#56). After the incident, Father moved out of Mother’s home.


[11]   On June 6, 2017, the Children were removed from Mother’s care and returned

       to foster care, and supervised visitation resumed. During visitation, “Mother

       required frequent prompting … regarding safety concerns” and “did not

       consistently implement recommendations from providers that were crucial to

       child safety and often blatantly ignored prompts from providers.” Id. at 11

       (#101). The Children became reluctant to visit Mother and verbally expressed

       that they did not want to attend visits. Id. at 12 (#106). F.P. physically resisted

       attending a visit, and J.P. was “hard to console when she understood that a visit


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 7 of 21
       with Mother was going to occur.” Id. M.C. “displayed a stress response of

       needing to immediately go to the bathroom at the start of a visit with Mother.”

       Id. During visitation, “Mother put her own needs before those of the

       Children” and “required prompting to interact with the Children in a warm and

       loving manner.” Id. (#105). “Mother was unwilling to implement changes in

       her parenting and became frustrated when things [did] not go her way.” Id. at

       11 (#103). By September 2017, the Children’s therapist recommended that

       visitation be discontinued due to the level of distress it caused the Children. Id.

       at 12 (#107). The trial court reduced visitation to one hour per week and set a

       status hearing for six weeks to give Mother time to make positive changes. Id.

       However, supervised visits never progressed beyond one hour per week. Id.

       (#108). Mother had opportunities to attend the Children’s appointments with

       medical providers but attended less than half. Id. at 9-10 (#69, 73). For

       example, she missed F.P. and J.P.’s two-year physical. Id. at 9 (#70).

       According to Mother, she failed to attend the Children’s appointments because

       she slept late due to her depression, forgot, or had conflicts. Id. at 10 (#73).


[12]   After the trial home visit, domestic violence and safe relationships were added

       to Mother’s treatment goals in therapy and case management. Id. at 9 (#58).

       Despite this counseling, Mother became a pen pal with a person who was

       incarcerated and planned to have him move into her home when he was




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 8 of 21
       released. 8 Id. (#63). “Even after Mother was cautioned that unhealthy

       romantic relationships could delay reunification with the Children, she visited

       the pen pal in jail.” Id. (#64).


[13]   In July 2017, Arbuckle stopped serving as Mother’s therapist. At the time

       Arbuckle stopped therapy, “Mother was still working on the same initial goals

       in therapy – anxiety, depression, coping strategies, and routines.” Id. at 5

       (#16). From September 2017 to December 2017, Mother had individual

       therapy with Cathy Gentry. Id. (#21). Gentry diagnosed Mother with major

       depressive disorder. Id. (#22). Gentry’s primary goal of therapy was for

       “Mother to learn how to take care of herself before taking care of the Children.”

       Id. (#23). Gentry “found Mother to be receptive to therapy, but that she lacked

       follow through.” Id. (#26). Mother typically failed to complete assigned goals,

       and failed “to create a schedule for herself so that she would not sleep all day.”

       Id. (#26-27). When Gentry stopped therapy with Mother, “Mother had not

       progressed to the point of being able to take care of herself,” and Gentry had

       concerns for the Children’s safety if they were returned to Mother. Id. at 6

       (#28). In January 2018, Lee Hamlin became Mother’s therapist. Id. at 10

       (#78). After an initial meeting, Mother failed to attend a scheduled

       appointment and cancelled the next two appointments. Id. (#79-80).




       8
         The inmate was in prison on a drug-related conviction, including possession of methamphetamine. Ex. at
       45.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019             Page 9 of 21
[14]   On September 6, 2017, DCS filed petitions for the involuntary termination of

       the parent-child relationships. On March 23 and May 18, 2018, the trial court

       conducted an evidentiary hearing. The Children’s therapist supported the

       Children being adopted by foster parents based upon the bonds and attachments

       of the Children. Id. at 12 (#109). The Children’s current court appointed

       special advocate (“CASA”) also supported adoption of the Children by the

       foster parents and believed “visits with Mother were a disruption to the

       Children’s lives.” Id. at 13 (#114, 122). Three different family case managers

       opined that “it would be detrimental to the Children from a psychological and

       emotional standpoint to continue efforts of reunification with Mother.” Id.

       (#117). “The detrimental harm is the combination of Mother struggling to

       understand age appropriate parenting and development, Mother’s lack of

       nurturing and inability to comfort, Mother’s lack of self-care and inability to be

       fully present as a parent, and an ongoing inability to maintain safe living

       conditions for the Children.” Id. On February 11, 2019, the trial court issued

       findings of fact and conclusions thereon, terminating Mother’s parental rights to

       the Children. This appeal ensued.


                                      Discussion and Decision
[15]   Mother seeks reversal of the termination of her parental rights. In considering

       her appeal, we recognize that “a parent’s interest in the care, custody, and

       control of his or her children is ‘perhaps the oldest of the fundamental liberty

       interests.’” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)). “[A]lthough

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 10 of 21
       parental rights are of a constitutional dimension, the law provides for the

       termination of these rights when the parents are unable or unwilling to meet

       their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App.

       2008). Involuntary termination of parental rights is the most extreme sanction,

       and therefore “termination is intended as a last resort, available only when all

       other reasonable efforts have failed.” Id.


[16]   Because “the Fourteenth Amendment to the United States Constitution protects

       the traditional right of parents to establish a home and raise their children,” we

       apply a heightened standard of review to termination proceedings. In re V.A.,

       51 N.E.3d 1140, 1144 (Ind. 2016) (quoting In re Adoption of O.R., 16 N.E.3d

       965, 972 (Ind. 2014)).


               In considering whether the termination of parental rights is
               appropriate, we do not reweigh the evidence or judge witness
               credibility. We consider only the evidence and any reasonable
               inferences therefrom that support the judgment, and give due
               regard to the trial court’s opportunity to judge the credibility of
               the witnesses firsthand. Where a trial court has entered findings
               of fact and conclusions of law, we will not set aside the trial
               court’s findings or judgment unless clearly erroneous. [Ind. Trial
               Rule 52(A)]. In evaluating whether the trial court’s decision to
               terminate parental rights is clearly erroneous, we review the trial
               court’s judgment to determine whether the evidence clearly and
               convincingly supports the findings and the findings clearly and
               convincingly support the judgment.


       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013)

       (citations and quotation marks omitted).


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 11 of 21
[17]   A petition to terminate a parent-child relationship involving a CHINS must,

       among other things, allege:


               (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.


       Ind. Code § 31-35-2-4(b)(2) (emphasis added). DCS must also allege that

       termination is in the best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C).

       DCS must prove each element by “clear and convincing evidence.” R.S., 56

       N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the

       allegations in the petition are true, the court shall terminate the parent-child

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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 12 of 21
         Section 1 – The trial court did not clearly err in concluding
        that there is a reasonable probability that the conditions that
            resulted in the Children’s removal or the reasons for
          placement outside Mother’s home will not be remedied.
[18]   Mother asserts that “[t]he trial court committed error when it failed to show by

       clear and convincing evidence” that there is a reasonable probability that the

       conditions that resulted in the Children’s removal and continued placement

       outside Mother’s home will not be remedied. Appellant’s Br. at 18. Initially,

       we observe that DCS, not the trial court, has the burden of proving the elements

       required under Section 31-35-2-4 by clear and convincing evidence. We further

       note that even though Mother’s argument refers to the sufficiency of the

       evidence, Mother has not directly challenged any of the trial court’s findings.

       When findings of fact are unchallenged, this Court accepts them as true. In re

       S.S., 120 N.E.3d 605, 608, n.2 (Ind. Ct. App. 2019). As such, if the

       unchallenged findings clearly and convincingly support the judgment, we will

       affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans.

       denied; T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App.

       2012), trans. denied.


[19]   In reviewing whether there is a reasonable probability that the conditions that

       resulted in the Children’s removal or the reasons for placement outside

       Mother’s home will not be remedied, we engage in a two-step analysis. K.T.K.,

       989 N.E.2d at 1231. First, “we must ascertain what conditions led to

       placement and retention in foster care.” Id. Second, we “determine whether


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 13 of 21
there is a reasonable probability that those conditions will not be remedied.” Id.

(quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). When the trial court

makes its determination, it must evaluate a parent’s fitness at the time of the

termination hearing, taking into consideration evidence of changed conditions

and balancing a parent’s recent improvements against “habitual pattern[s] of

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

or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

N.E.2d at 1231). “A court may properly consider evidence of a parent’s prior

criminal history, drug and alcohol abuse, history of neglect, failure to provide

support, and lack of adequate housing and employment.” McBride v. Monroe

Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). In

addition, a trial court may consider services offered by DCS and the parent’s

response to those services as evidence of whether conditions will be remedied.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. “Where there are only temporary improvements and the pattern

of conduct shows no overall progress, the court might reasonably find that

under the circumstances, the problematic situation will not improve.” In re

A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not required to

provide evidence ruling out all possibilities of change; rather, it need only

establish ‘that there is a reasonable probability that the parent’s behavior will

not change.’” A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d

236, 242 (Ind. Ct. App. 2007)).




Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 14 of 21
[20]   Here, the conditions that resulted in the Children’s removal and placement

       outside Mother’s home were Mother’s failures to provide the Children with a

       safe environment. Mother contends that she made significant progress in

       improving the conditions of the home over the course of the CHINS case, the

       trial court’s orders show that she made progress, and DCS’s disapproval of the

       home conditions can be primarily attributable to a difference in housekeeping

       standards. Mother’s argument emphasizes the improvements in the cleanliness

       of her home, but that was only one aspect of the home environment that was

       unsafe for the Children and led to their removal. The unchallenged findings of

       fact show that Mother’s parenting significantly contributed to the creation of

       unsafe conditions. FCM Pawlus observed that one-month-old F.P. and J.P.

       were left unattended in their cribs to feed themselves with propped-up bottles,

       and obvious safety hazards such as Mother’s sharps container were left within

       fifteen-month-old M.C.’s reach.


[21]   Safe parenting remained an issue throughout the CHINS case. During the first

       overnight visitation the Children had with Mother in the spring of 2016, safety

       was an issue. After a year of services covering child safety and parenting,

       Mother allowed one of the twins to sleep on a changing table in violation of the

       Children’s safety plan. Over the course of 2016, unsafe conditions in the home

       were a consistent problem: DCS providers observed prescription bottles and

       inhalers left within the Children’s reach, exposed wiring, and fecal matter and

       urine left unattended in the training potty. Mother seemed not to recognize that




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 15 of 21
       some conditions were a safety hazard to the Children, such as the headboard

       left leaning against a dresser.


[22]   During the trial home visit from March 22 to June 6, 2017, Mother had two

       and a half months to practice safe parenting, strengthen the bond with her

       Children, and demonstrate that she was able to care for the Children and

       manage the home. However, the trial home visit had to be terminated due to

       safety and parenting issues. As for safety concerns, dangerous items were left

       within the Children’s reach, Mother failed to timely remedy dangerous

       conditions, the Children were left unattended in the bathtub, and two of the

       Children got out of the house and into the street unattended. As for parenting

       concerns, there was a lack of emotional warmth from Mother toward the

       Children, the Children sought each other out for comfort rather than Mother,

       Mother did not seem interested in participating in J.P.’s therapy, the Children

       appeared unkempt, they were seen eating off the floor, and they displayed

       escalating aggression, including hitting, screaming, and biting. There was also

       a physical altercation when Father attacked the Children’s grandmother, and

       Mother held a knife to his neck. Although Father left after the altercation,

       Mother pursued a relationship with an incarcerated individual even after she

       was counseled that unhealthy romantic relationships could delay reunification

       with the Children.


[23]   Mother also failed to progress in her individual therapy. When Arbuckle

       stopped therapy with Mother in July 2017, Mother was still working on the

       same initial therapy goals. When Gentry stopped therapy with Mother in

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 16 of 21
       December 2017, Gentry did not believe Mother had progressed to the point of

       being able to take care of herself, and Gentry had concerns for the Children’s

       safety if they were returned to Mother. Another therapist met with Mother

       once in January 2018, but Mother missed the next appointment and cancelled

       two others.


[24]   In addition to the lack of progress in safe parenting and individual therapy,

       Mother’s relationship with the Children also deteriorated. This occurred even

       after the Children had lived with Mother for two and a half months during the

       trial home visit. Mother still “required frequent prompting during visits

       regarding safety concerns” and “did not consistently implement

       recommendations from providers that were crucial to child safety and often

       blatantly ignored prompts from providers.” Appealed Order at 11 (#101).

       Mother put her own needs before the Children’s and required prompting to

       interact with the Children in a loving manner. Id. at 12 (#105). Also, “Mother

       was unwilling to implement changes in her parenting and became frustrated

       when things [did] not go her way.” Id. at 11 (#103). Eventually, the Children

       expressed reluctance to visit Mother. Due to the level of distress the Children

       experienced as a result of visitation, their therapist recommended that visits be

       reduced to one hour a week.


[25]   The trial court’s findings show that over the two and a half to three years that

       DCS had been providing services, Mother may have made progress in keeping

       her house relatively clean, but she was unable to parent in a way that

       maintained a safe, secure, and stable environment for the Children. We

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 17 of 21
       conclude that the findings clearly and convincingly support the trial court’s

       conclusion that there is a reasonable probability that the conditions that resulted

       in the Children’s removal and the reasons for continued placement outside the

       home will not be remedied. 9


           Section 2 – The trial court did not clearly err in concluding
              that termination of Mother’s parental rights is in the
                            Children’s best interests.
[26]   Mother also challenges the trial court’s conclusion that termination of the

       parent-child relationship is in the Children’s best interests.


                [I]n determining what is in the best interests of a child, the trial
                court is required to look beyond the factors identified by [DCS]
                and to consider the totality of the evidence. In so doing, the trial
                court must subordinate the interests of the parent to those of the
                child. The court need not wait until a child is irreversibly
                harmed before terminating the parent-child relationship.
                Moreover, we have previously held that the recommendations of
                the case manager and court-appointed advocate to terminate
                parental rights, in addition to evidence that the conditions
                resulting in removal will not be remedied, is sufficient to show by
                clear and convincing evidence that termination is in the child’s
                best interests.


       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted).




       9
         Due to our resolution of this issue, we need not address Mother’s argument that the trial court erred in
       concluding that there is a reasonable probability that the continuation of the parent-child relationship poses a
       threat to the Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019                  Page 18 of 21
[27]   Here, the CASA and the Children’s therapist supported termination of parental

       rights and adoption by the foster parents, and three different family case

       managers opined that continued efforts toward reunification would be

       detrimental to the Children’s psychological and emotional well-being. We have

       already concluded that there is a reasonable probability that the conditions that

       resulted in the Children’s removal from Mother’s care will not be remedied.

       Accordingly, we conclude that the trial court did not clearly err in concluding

       that termination is in the Children’s best interests.


           Section 3 – Mother waived her claim that her due process
                            rights were violated.
[28]   At the initial hearing in the CHINS case, Mother requested and was appointed

       counsel. Ex. at 6. At the conclusion of the dispositional hearing, Mother’s

       counsel requested to withdraw his appearance. The record does not indicate

       the reason for the request. The trial court granted counsel’s request but ordered

       that counsel “shall remain available should [M]other have any questions that

       arise during the progression of the case.” Id. at 12. Mother did not appeal the

       dispositional decree.


[29]   On August 7, 2017, after the trial home visit ended and the Children were

       removed from Mother’s care, Mother wrote a letter to the trial court requesting

       a public defender. On August 30, 2017, the trial court granted Mother’s request

       and appointed public defender Christopher Clerc to represent Mother. On

       September 6, 2017, DCS filed the petitions for involuntary termination of the

       parent-child relationships. Mother did not file a motion to dismiss the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 19 of 21
       termination petition. At the evidentiary hearings on March 23 and May 18,

       2018, Clerc appeared on Mother’s behalf. Clerc did not raise the issue that

       Mother had not been represented by counsel throughout the CHINS

       proceedings. Mother now argues for the first time that failure to provide her

       with counsel through all stages of the CHINS proceeding violated her

       constitutional and statutory due process rights.


[30]   It is well established that “a party on appeal may waive a constitutional claim,

       including a claimed violation of due process rights, by raising it for the first time

       on appeal.” In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). And “a parent may

       waive a due-process claim in a CHINS or termination proceeding by raising

       that claim for the first time on appeal.” S.E. v. Ind. Dep’t of Child Servs., 15

       N.E.3d 37, 43-44 (Ind. Ct. App. 2014), trans. denied; see also McBride, 798 N.E.2d

       at 194 (affirming termination of parental rights and concluding that mother

       waived claim that her due process rights were violated by numerous alleged

       deficiencies in the CHINS proceedings because she did not raise the issue to the

       trial court); In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (affirming

       termination of parental rights and concluding that mother waived due process

       claim that trial court violated her rights in failing to follow statutory

       requirements governing permanency hearings, case plans, and dispositional

       orders by raising issue for the first time on appeal). Mother could have raised

       her due process claim in a motion to dismiss or brought it to the trial court’s

       attention during the termination proceedings. She failed to do so. Accordingly,

       she has waived her due process claim.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 20 of 21
[31]   Based on the foregoing, we affirm the termination of Mother’s parental

       relationship to the Children.


[32]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019   Page 21 of 21
