MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jun 24 2019, 8:48 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE:
Danielle L. Gregory                                       INDIANA DEPARTMENT OF
Indianapolis, Indiana                                     CHILD SERVICES
                                                          Curtis T. Hill, Jr.
                                                          Attorney General of Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                                          ATTORNEY FOR APPELLEE:
                                                          CHILD ADVOCATES, INC.
                                                          DeDe Connor
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          June 24, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: J.J. (Minor                              18A-JT-3025
Child),                                                   Appeal from the Marion Superior
and                                                       Court
                                                          The Honorable Marilyn Moores,
L.J. (Father),                                            Judge




Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                  Page 1 of 24
      Appellant-Respondent,                                     The Honorable Larry Bradley,
                                                                Magistrate
              v.                                                Trial Court Cause No.
                                                                49D09-1805-JT-574
      The Indiana Department of
      Child Services,
      Appellee-Petitioner,

      and

      Child Advocates, Inc.,
      Guardian ad Litem.



      Tavitas, Judge.


                                               Case Summary

[1]   L.J. (“Father”) appeals the termination of his parental rights to J.J. (the

      “Child”). We affirm.


                                                      Issues

[2]   Father raises two issues, which we revise and restate as follows:


              I.       Whether procedural error occurred that violated Father’s
                       due process rights.


              II.      Whether there was sufficient evidence to terminate
                       Father’s parental rights.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019       Page 2 of 24
                                                           Facts

[3]   The Child was born to Mother 1 and Father in August 2016. On May 1, 2017,

      the Department of Child Services (“DCS”) filed a petition alleging the Child is

      a Child in Need of Services (“CHINS”). The petition alleged: (1) Mother’s and

      Father’s inability, refusal or neglect to care for the child; (2) the parents

      committed an act or failed to act seriously endangering the physical or mental

      health; and (3) the Child was born with drugs in his system.


[4]   As to Father, the petition alleged that, on or about April 27, 2017, Father tested

      positive for amphetamine, methamphetamine, and THC; however, he denied

      any drug usage. Father appeared at the detention hearing on May 1, 2017 and

      requested counsel. Subsequently, Father was incarcerated 2 and waived a fact-

      finding hearing with regard to the CHINS petition. The trial court granted

      wardship of the Child to DCS and adjudicated the Child a CHINS on

      September 15, 2017. Father did not attend the dispositional hearing; nor did

      Father attend the periodic review hearings on December 5, 2017, March 6,

      2018, or the permanency hearing on April 24, 2018. Counsel for Father

      appeared at each hearing.




      1
          Mother’s parental rights were also terminated; however, Mother is not a party to this appeal.
      2
       Father was incarcerated during the entirety of the CHINS and termination proceedings. Initially, Father
      was incarcerated for a probation violation after he was charged with several new offenses. Father ultimately
      pleaded guilty in May 2017 to intimidation, a Level 5 felony, and domestic battery, a Class A misdemeanor.
      Father expects to be released in 2020, at the latest, and is hoping for an earlier release.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                       Page 3 of 24
[5]   DCS filed a petition to terminate Mother’s and Father’s parental rights on May

      10, 2018. Father did not attend several of the initial or pre-trial hearings;

      however, counsel for Father did attend the hearings, and Father attended pre-

      trial hearings on August 29, 2018, and October 1, 2018, by telephone. The trial

      court conducted separate fact finding hearings with regard to the termination of

      Mother’s and Father’s parental rights on October 1, 2018, and November 7,

      2018, respectively. 3 Father appeared by phone for his fact finding hearing. 4


[6]   At the fact finding hearing, K.A. (“Foster Mother”) testified that the Child was

      placed with her in April 2017, when the Child was eight months old. Foster

      Mother lives with her husband and her eleven-year-old son. Foster Mother

      testified that she has a great relationship with the Child and that she is willing

      to adopt the child. Foster Mother testified that the Child has not had any visits

      with Father while in her care. Father stated that the last time he saw the Child

      was in May 2017.


[7]   Katrina McGhee is the Child’s guardian ad litem (“GAL”). McGhee testified

      that she was happy with the Child’s placement with the foster parents.

      McGhee also stated that she “never has had a conversation with dad.” Tr. p.

      56. McGhee does not believe that the Child should be returned to parents




      3
       Because only Father appeals, the relevant facts are the evidence that was presented at the November 7,
      2018, hearing.
      4
        Father did file a motion to transport for the termination fact finding, which the trial court denied. The trial
      court did order, however, that Father’s attorney attempt to initiate the ability for Father to video conference
      in for the hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                        Page 4 of 24
      because “both parents are incarcerated,” and accordingly, McGhee “[doesn’t]

      know how they would be able to parent [the Child].” Id. McGhee supported

      DCS’s position to terminate parents’ rights to the Child and testified that

      returning the Child to Mother and Father would be detrimental to the Child

      because the Child has not seen either parent in over a year and neither parent

      has “participated in any services [for] most of the case.” Id. at 64. McGhee

      also noted, however, that Father was not ordered to complete any services

      during the CHINS proceeding because Father was incarcerated.


[8]   DCS family case manager (“FCM”) Reilly Wilson testified that he contacted

      Father through letters and that Wilson received two letters from Father.

      Although Father claimed that he was participating in services while

      incarcerated, Wilson could not verify Father’s claim. 5 When asked why the

      plan changed from reunification to adoption, Wilson stated:


              DCS felt that the parents had adequate time to resolve safety
              concerns and that [the Child] deserves permanency and those
              timelines had been past [sic]. He had been in our system for or
              he had been with DCS as a ward of the State for some time and
              [Mother and Father] had not alleviated the safety concerns that
              DCS initially had for [the Child].




      5
       Father stated he completed the Inside Out Dad’s Program and participated in: (1) parenting classes; (2)
      Healthy Families Program; and (3) the Read to Me Dad Program where Father would record audio of
      himself reading books.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                    Page 5 of 24
       Id. at 74-75. Wilson also stated that Father has not remedied the conditions

       that kept the Child out of Father’s care. Wilson also testified that continuation

       of the parent-child relationship would pose a threat to the Child’s well-being

       and that Father has not demonstrated he can sustain a safe and stable home for

       the Child. Wilson requested the trial court terminate the parental rights of

       Father.


[9]    Wilson acknowledged that he does not recall ever speaking with or visiting

       Father while Father was incarcerated. Father was not involved in the making

       of the case plan; nor did Wilson ever send Father a case plan. Wilson testified

       that he never referred Father to the Father Engagement program because it

       “would have done probably little to help” Father, due to the length of Father’s

       incarceration. Id. at 91. Father claims that he expressed his desire to

       participate in services in a letter to Wilson.


[10]   Father testified that his current anticipated release date is May 2020; however,

       Father has completed the Purposeful Incarceration program and hopes to be

       released earlier. 6 Father acknowledged that he received documentation from

       his attorney while he was incarcerated and that his attorney kept Father

       updated regarding the case proceedings.




       6
        As a result of Father’s incarceration for his probation violation, the trial court recommended the Purposeful
       Incarceration program in which, after completion of the program, the trial court “will consider modifying
       placement in 6th year of sentence.” Petitioner’s Ex. p. 108. Father indicated that, because he completed the
       program, he hoped to have his sentence modified soon and that he already had an attorney for his sentence
       modification.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                     Page 6 of 24
[11]   Father and Mother hoped the Child would be reunited with the Child’s paternal

       grandfather or Father’s grandmother. 7 Father cannot explain why the Child

       was not placed with those relatives. At the hearing, DCS noted that it

       completed a home study with regard to paternal grandfather, but recommended

       that the Child remain with foster parents.


[12]   The trial court terminated Father’s parental rights on November 27, 2018. As

       related to Father, the trial court found:


                                                      *****

               20. Due to [Father] being incarcerated, no services were ordered
               by the Court at disposition.


               21. Although no documentation was provided, [Father] testified
               he has completed a therapeutic community living program, two
               parenting classes while in prison, and participates in alcoholics
               anonymous and narcotics anonymous.


               22. [Father] has been incarcerated during the CHINS case due to
               violating probation from a 2012 Burglary (a Class B Felony at the
               time) and Robbery (a Class B Felony at the time) by being
               charged in May of 2017, of Intimidation using a deadly weapon,
               Intimidation where threat is to commit a forcible felony,
               Kidnapping, Criminal Recklessness committed with a deadly
               weapon, and Domestic Battery.




       7
        At the beginning of the CHINS proceedings, both Mother and Father also requested that the Child be
       placed with a maternal cousin. Furthermore, at the permanency hearing on April 24, 2018, the Child’s
       paternal grandfather appeared and requested modification of placement with him.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                 Page 7 of 24
        23. [Father] pleaded guilty to the counts of Intimidation as a
        Level 5 Felony and Domestic Battery as a Class A misdemeanor
        on May 7, 2017.


        24. [Father] believes his earliest possible release date is in May of
        2020. He can request modification of his placement at some
        future date. He currently has no hearing pending.


        25. [Father] has not seen [the Child] since [the] CHINS case was
        filed. He informed the IDCS family case manager that he had
        little contact with [the Child] prior to that.


        26. [The Child] was not over eight months of age when he last
        had contact with his father and is now over the age of two.


        27. There is a reasonable probability that the continuation of the
        parent-child relationship between [the Child] and his father poses
        a threat to [the Child’s] well-being in that it would be a barrier to
        [the Child] being adopted into the home he has known and by
        the family he knows and is bonded to. Being removed from his
        home and foster family would be disruptive, and adversely affect
        his well-being.


        28. There is a reasonable probability that the conditions that
        resulted in the removal and continued placement of [the Child]
        outside the home will not be remedied by his father. [Father]
        was incarcerated at the beginning of the CHINS case and will
        remain so, currently until May of [2020].


        29. [The Child] is in a preadoptive home where he has resided
        since April of 2017. He has been observed as being very bonded
        in the home.


        30. [The Child] does not inquire about his mother or father.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 8 of 24
       Appellant’s App. Vol. II p. 76. Father now appeals.


                                                     Analysis

[13]   Father challenges the termination of his parental relationship with the Child.

       The Fourteenth Amendment to the United States Constitution protects the

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

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

       1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is

       ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

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

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

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

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

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

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

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

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


[14]   When reviewing the termination of parental rights, we neither reweigh the

       evidence nor judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

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

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

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

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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 9 of 24
[15]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

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

       (a) and (b)” when granting a petition to terminate parental rights. 8 Here, the

       trial court did enter findings of fact and conclusions of law in granting DCS’s

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

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

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

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

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

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

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

       support the judgment. Id.


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

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

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




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

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

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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                           Page 10 of 24
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

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


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


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


                     (ii)         The court has entered a finding under IC 31-34-
                                  21-5.6 that reasonable efforts for family
                                  preservation or reunification are not required,
                                  including a description of the court’s finding, the
                                  date of the finding, and the manner in which the
                                  finding was made.


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


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


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




Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019      Page 11 of 24
                                  (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.


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

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


                                           I.       Procedural Irregularities

[17]   Father contends that the procedural irregularities during the termination

       proceedings resulted in a violation of his procedural due process rights. We

       address each of Father’s arguments below. 9


[18]            The nature of the process due in parental rights termination
                proceedings turns on a balancing of the ‘three distinct factors’
                specified in Matthews v. Eldridge, 424 U.S. 319, 335 [ ] (1976): the
                private interests affected by the proceeding; the risk of error
                created by the State’s chosen procedure; and the countervailing



       9
         Father argues that DCS failed to “state in the petition whether at least one factor would apply as the basis
       for filing a motion to dismiss the termination petition.” Appellant’s Br. p. 23 (footnote omitted). We are
       uncertain of how this applies to the matter before us, as there does not appear to be any evidence that DCS
       intended to move forward with a motion to dismiss. Accordingly, Father’s argument is waived for failure to
       make a cogent argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                    Page 12 of 24
               governmental interest supporting use of the challenged
               procedure.


       A.P. v. Porter Cty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct.

       App. 2000) (citations omitted), trans denied. Because of the interlocking CHINS

       and termination of parental rights statutes, “procedural irregularities in a

       CHINS proceeding[] may be of such import that they deprive a parent of

       procedural due process with respect to the termination of his or her parental

       rights.” Id. at 1112-13.


[19]   DCS argues that Father has waived his argument because he did not object to

       any of the procedural irregularities below, which Father acknowledges. Waiver

       notwithstanding, Father invites us to consider his arguments pursuant to the

       fundamental error doctrine. “The fundamental error doctrine applies to

       egregious trial errors.” In re B.R., 875 N.E.2d 369, 375 (Ind. Ct. App. 2007)

       (citations omitted), trans. denied. “In order for this court to reverse based on

       fundamental error, the error must have been a clearly blatant violation of basic

       and elementary principles, and the harm or potential for harm therefrom must

       be substantial and appear clearly and prospectively.” Id.


                                         A. Failure to Notify Father

[20]   Father first alleges that DCS “failed to provide Father with notice, in writing,

       that a petition to terminate his parental rights to [the Child] would have to be

       filed” once the Child was in DCS’s care for at least fifteen of the last twenty-two




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 13 of 24
       months, pursuant to Indiana Code Section 31-34-21-0.2. Appellant’s Br. p. 20.

       Indiana Code Section 31-34-21-0.2 provides:


                At a child’s first periodic case review occurring after June 30,
                1998, the local office is required to advise the child’s parent,
                guardian, or custodian in writing that a petition to terminate the
                parent-child relationship must be filed with respect to the child
                after June 30, 1999, if the child has been removed from the
                child’s parent and has been under the supervision of a local office
                for at least fifteen (15) months of the most recent twenty-two (22)
                months. However, if a child’s parent, guardian, or custodian
                fails to appear at the first periodic case review occurring after
                June 30, 1998, the local office shall make reasonable efforts to
                send notice of the advisement to the last known address of the
                parent, guardian, or custodian.


[21]   DCS counters that the trial court’s dispositional decree indicates that “failure to

       participate as required by a Parental Participation Order under Ind[iana] Code

       31-34-20-3 can lead to the termination of the parent-child relationship under

       Ind[iana] Code 31-35.” Petitioner’s Ex. 7 p. 44. Moreover, DCS indicates that

       Father admitted he received information from his attorney and the trial court’s

       orders. 10


[22]   While we agree that the trial court notified Father regarding the potential for

       termination of his parental rights, the statute clearly indicates that it is DCS’s




       10
          DCS also argues that the trial court found in its April 24, 2018 order that DCS had complied with the
       notice requirements; however, our review of the trial court’s finding indicates that the trial court was
       referencing DCS’s compliance with notification requirements for the periodic case review pursuant to
       Indiana Code Section 31-34-21-4(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                   Page 14 of 24
       responsibility to do so. 11 That said, Father has failed to prove that he suffered

       clear, substantial harm as a result of DCS’s failure. See B.R., 875 N.E.2d at 375.

       Father was to remain incarcerated until 2020; therefore, even if Father was

       notified of the time frame for the filing of the termination petition, Father has

       not shown that he could have been released from incarceration or could have

       provided a stable home for the Child had he known about the time frame.

       Accordingly, to the extent that DCS’s failure to notify Father was error, Father

       has not established fundamental error.


                                        B. Notice of Periodic Case Review

[23]   Father claims that he was never notified of the periodic case review hearings

       and, therefore, was denied the opportunity to be heard. Pursuant to Indiana

       Code Section 31-34-21-4(a), “[e]xcept as provided in subsection (f), at least

       seven [] days before the periodic case review, including a case review that is a

       permanency hearing under section 7 of this chapter, the department shall

       provide notice of the review” to the persons identified in the statute, including

       the child’s parent, guardian, or custodian, the attorney of record, a prospective

       adoptive parent, foster parents, or other persons.


[24]   Although Father did not attend the periodic case review hearings, Father’s

       attorney attended and represented Father. Moreover, the trial court’s order on




       11
            As noted above, Father also acknowledged that his attorney kept him up to date on the proceedings.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                   Page 15 of 24
       April 24, 2018, indicated that “DCS did provide proof of notice required by

       subsection (a) at the periodic case review” to Father. Petitioner’s Ex. 11 p. 62.


[25]   Regardless, Father has not demonstrated that any error created clear and

       substantial harm. Father had an attorney present at each of the review

       hearings, and he had an opportunity to be heard through his attorney. This

       case differs from A.P., 734 N.E.2d at 1117, in which the father had a no contact

       order with regard to the child and was banned from appearing at the periodic

       review hearing, despite the father’s constant requests to be present. Here, the

       record does not demonstrate that Father was denied the right to be at the

       hearing, unlike the father in A.P. Father cannot establish fundamental error.


                             C. Failure to Involve Father in Case Planning

[26]   Father also argues that he was not included in the case planning for the Child;

       nor was he sent the case plan. Under Indiana Code Section 31-34-15-1, a case

       plan is required for each child who is under DCS’s supervision. Indiana Code

       Section 31-34-15-2 states that:


               The department, after negotiating with:


               (1) the child’s parent, guardian, or custodian;


               ...


               shall complete a child’s case plan not later than sixty (60) days
               after the date of the child’s first placement or the date of a
               dispositional decree, whichever occurs first.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 16 of 24
       Once the case plan is completed, a copy “shall be sent, not later than ten [] days

       after the plan’s completion, to: (1) the child’s parent, guardian, or custodian; . .

       .” Ind. Code § 31-34-15-3.


[27]   DCS argues that, although this was one of the due process violations identified

       in A.P., no case plans are included in the record, nor is evidence regarding the

       contents of the case plan in the record; therefore, DCS urges us to follow In re

       T.F., 743 N.E.2d 766, 772 (Ind. Ct. App. 2001), trans. denied. In T.F., we

       distinguished A.P., stating:


               [I]n A.P., although no case plans were made part of the court’s
               record prior to the termination hearing, the appellate record
               contained nine case plans. However, in our case, the record does
               not contain a case plan, thus the record does not reflect whether a
               case plan was ever prepared or whether the [parents] were ever
               provided with a copy of a case plan. Therefore, in A.P. we had
               the opportunity to analyze the case plan concurrently with the
               original dispositional order and the multiple review hearing
               orders to determine whether the parents were properly notified of
               their right to know what conduct could lead to the termination of
               their parental rights. In fact, in A.P. we found that the original
               dispositional order and the multiple review hearing orders
               provided some written notice to the parents, however, the case
               plans often contained requirements not contained in the court
               orders. Therefore, in A.P. we held that the difference in
               requirements between the case plans and the court orders
               heightened the importance of providing copies of case plans to
               the parents.


       T.F., 743 N.E.2d at 771 (citations omitted). Thus, we concluded that, “because

       proof of a case plan is not an element enunciated in the termination proceedings


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 17 of 24
       under Ind[iana] Code § 31-35-2-4, the record of the CHINS proceedings is not

       before this court in order for us to examine whether a case plan was prepared

       and provided to the [parents].” Id. at 772. The same outcome is required here.

       Accordingly, Father has failed to prove that he suffered clear, substantial harm

       as a result of DCS’s failure to provide Father with the case plans.


                                                   D. Efforts to Reunify

[28]   Father also argues that DCS made no efforts to reunify the Child with Father

       pursuant to Indiana Code Section 31-34-21-5.5(b), which states:


                  Except as provided in section 5.6[ 12] of this chapter, the
                  department shall make reasonable efforts to preserve and reunify
                  families as follows:


                            (1) If a child has not been removed from the child’s home,
                            to prevent or eliminate the need for removing the child
                            from the child’s home.


                            (2) If a child has been removed from the child’s home, to
                            make it possible for the child to return safely to the child’s
                            home as soon as possible.


[29]   DCS responds that it “is not required to provide a parent with services directed

       at reunification with the child while the parent is incarcerated,” citing Rowlett v.

       Vanderburgh Cty. Office of Family and Children, 841 N.E.2d 615, 622 (Ind. Ct.

       App. 2006), trans. denied. In Rowlett, we noted that DCS “did not, nor was it



       12
            It does not appear that any provisions of sections 5.6 apply in this case.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019     Page 18 of 24
       required to, provide [the father] with services directed at reuniting him with his

       children,” due to [the father’s] incarceration. Id. Father has failed to

       demonstrate fundamental error.


                                     E. Failure to Place with Relatives

[30]   Finally, Father argues that DCS failed to identify relatives that the Child could

       be placed with, despite Mother’s and Father’s request, initially, that the Child

       be placed with a maternal cousin and later with paternal grandfather. DCS

       responds that consideration of placement with relatives is a requirement for a

       CHINS proceeding; however, Father is appealing a termination proceeding.

       Indiana Code Section 31-34-4-2 states:


               (a) If a child alleged to be a child in need of services is taken into
               custody under an order of the court under this chapter and the
               court orders out-of-home placement, the department is
               responsible for that placement and care and must consider
               placing the child with a:


                        (1) suitable and willing relative; or


                        (2) de facto custodian;


               before considering any other out-of-home placement.


               (b) The department shall consider placing a child described in
               subsection (a) with a relative related by blood, marriage, or
               adoption before considering any other placement of the child.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 19 of 24
[31]   We agree with DCS that consideration of relative placement is a concern in a

       CHINS proceeding. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009)

       (concluding that, in termination proceedings, DCS is only required to establish

       that there is a satisfactory plan for the care and treatment of the child) (internal

       quotations omitted). Accordingly, we find that Father has failed to establish

       fundamental error.


                                           II.      Sufficiency of Evidence

[32]   Father argues that the evidence was insufficient to terminate his parental rights

       pursuant to Indiana Code Section 31-35-2-4 (b)(2)(B) and Indiana Code Section

       31-35-2-4(b)(2)(C). We will address each in turn below.


                        A. Conditions that Led to Removal will not be Remedied

[33]   Father first argues that the trial court erred in concluding the conditions that led

       to the Child’s removal will not be remedied. 13 Specifically Father contends that

       he “had voluntarily participated in services while he was incarcerated, he was

       pending an early release due to his participation in services, he had a plan for

       housing upon his release, and he had a plan for employment upon his release.”

       Appellant’s Br. p. 32.




       13
          Father argues, also, that the trial court erred in concluding that the continuation of the parent-child
       relationship between Father and the Child poses a threat to the Child’s well-being. The statute only requires
       that DCS prove one of the Indiana Code Section 31-35-2-4(b)(2)(B) factors; therefore, we only address
       whether the conditions that led to the Child’s removal will be remedied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019                   Page 20 of 24
[34]   “In determining whether ‘the conditions that resulted in the [Child’s] removal .

       . . will not be remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4

       N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “First,

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

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

       remedied.’” Id. In analyzing this second step, the trial court judges the parent’s

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

       evidence of changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family

       & Children, 839 N.E.2d 143, 152 (Ind. 2005)). “We entrust that delicate balance

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

       heavily than efforts made only shortly before termination.” Id. “Requiring trial

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

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

       Id.


[35]   The trial court found that “[t]here is a reasonable probability that the conditions

       that resulted in the removal and continued placement of [the Child] outside the

       home will not be remedied by his father. [Father] was incarcerated at the

       beginning of the CHINS case and will remain so, currently until May of

       [2020].” Appellant’s App. Vol. II p. 76. The Child was removed for several

       reasons, including Mother’s and Father’s inability, refusal or neglect to care for

       the child, and the parents’ acts/omissions that seriously endangered the

       physical or mental health of the Child. Father has been unable to remedy the

       situations due to his incarceration.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 21 of 24
[36]   In K.E. v. Indiana Dept. of Child Services, 39 N.E.3d 641, 648 (Ind. 2015), our

       Supreme Court concluded that, “[a]lthough at the time of the termination

       hearing Father’s possible release was still over two years away[,] that alone is

       insufficient to demonstrate that the conditions for removal will not be

       remedied.” Id. Noting that the “release date alone is not determinative,” our

       Supreme Court considered “whether other evidence, coupled with [the

       consideration that the father was incarcerated,] demonstrates by clear and

       convincing evidence a reasonable probability that Father would be unable to

       remedy the conditions for removal.” Id.


[37]   There, the trial court found that the father had made significant strides because

       the father had completed twelve programs during incarceration, “the majority

       of which were completed voluntarily and did not result in sentence reductions.”

       Id. Moreover, the child in K.E. visited the father every other week for two or

       three hours, and the FCM in that case “testified that Father interacts well with

       the [child, and the father’s other children] during visitations.” Id. at 649. The

       child in K.E. also recognized the father, knew who he was, and the father made

       nightly phone calls to the child.


[38]   K.E. is distinguishable from the present case. Father has had very little

       involvement in the Child’s life, including prior to his incarceration. Father has

       not seen the Child since the CHINS case began. While Father has participated

       in many programs during his incarceration, some of these programs appear to

       have been completed in contemplation of an early release. Moreover, Father

       has completed some additional programs for the benefit of his other child, but

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 22 of 24
       not the Child in the present case. In other words, we do not see Father making

       the same improvement as the father in K.E., and Father’s incarceration is not

       the sole basis for his failure to remedy the conditions that led to removal.

       Accordingly, sufficient evidence supports the finding that the conditions that

       led to the Child’s removal will not be remedied.


                                          B. Best Interests of the Child

[39]   Father also argues that the trial court erred in concluding that termination is in

       the best interests of the Child. Father acknowledges that both the GAL and

       FCM indicated that terminating Father’s parental rights was in the Child’s best

       interests; however, Father still contends that was not sufficient because Father

       participated in services and was bettering himself.


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

       the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68 (Ind. Ct.

       App. 2008). The trial court must subordinate the interests of the parents to

       those of the child involved. Id. at 168. Termination of a parent-child

       relationship is proper where the child’s emotional and physical development is

       threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until

       a child is irreversibly harmed such that his or her physical, mental, and social

       development is permanently impaired before terminating the parent-child

       relationship. Id. Additionally, a child’s need for permanency is a “central

       consideration” in determining the best interests of a child. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 23 of 24
[41]   Father essentially invites us to reweigh the evidence, which we cannot do. See

       C.G., 954 N.E.2d at 923. Father presented the evidence regarding his attempts

       at bettering himself to the trial court. DCS presented evidence that Father had

       not seen the Child in a significant amount of time. While we commend the

       work Father has done while incarcerated, we will not reweigh the evidence to

       reach the opposite conclusion as the trial court. The Child is presently in a

       stable home with foster parents who are willing to adopt the Child. As these

       proceedings occurred when the Child was at such a young age, the Child does

       not ask about Mother or Father. We agree that stability of the Child, which

       presently exists, is a central consideration in these cases. Accordingly, the trial

       court’s conclusion that termination is in the Child’s best interests is not clearly

       erroneous.


                                                   Conclusion

[42]   The procedural irregularities in this case do not constitute fundamental error,

       and accordingly, Father’s due process rights were not violated. Sufficient

       evidence exists to terminate Father’s parental relationship with the Child. We

       affirm.


[43]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019   Page 24 of 24
