MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 31 2018, 9:09 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel G. Foote                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 31, 2018
Parent-Child Relationship of:                             Court of Appeals Case No.
                                                          18A-JT-1348
D.U.H. and E.U. (Minor Children)                          Appeal from the Marion Superior
and                                                       Court
P.U.R. (Father),                                          The Honorable Gary Chavers,
Appellant-Respondent,                                     Judge Pro Tem
        v.                                                The Honorable Larry Bradley,
                                                          Magistrate
The Indiana Department of
                                                          Trial Court Cause No.
Child Services,                                           49D09-1710-JT-913
Appellee-Petitioner,                                      49D09-1710-JT-911
and
Child Advocates, Inc.,
Appellee-Guardian Ad Litem.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018                  Page 1 of 25
      Robb, Judge.



                                 Case Summary and Issues
[1]   P.U.R. (“Father”) appeals the juvenile court’s termination of his parental rights

      to D.U.H. and E.U. (collectively, the “Children”), raising three issues which we

      consolidate and restate as two: (1) whether the juvenile court’s termination

      order is supported by clear and convincing evidence and (2) whether Father was

      denied a fair hearing. Concluding the termination order is not clearly

      erroneous and the hearing was not unfair, we affirm.



                             Facts and Procedural History
[2]   Father and M.H. (“Mother”) are the parents of the Children, who were born on

      July 13, 2011, and December 29, 2013.1 In February 2016, while the Children

      were residing with Mother, Father witnessed Mother smoking

      methamphetamine from a pipe as he returned the Children to her home. The

      next day, Father returned to Mother’s home and recorded her smoking

      methamphetamine while the Children were elsewhere in the home. Father then

      reported these incidents to the Indiana Department of Child Services (“DCS”).




      1
        Mother’s parental rights were also terminated but she does not participate in this appeal. Accordingly, we
      limit our recitation of the facts to those applicable to Father.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018                 Page 2 of 25
      The Children were taken into custody without a court order on February 21,

      2016.


[3]   On February 23, 2016, DCS filed a petition alleging the Children were children

      in need of services (“CHINS”) because of the parents’ inability to provide

      Children “with a safe, stable, and appropriate living environment free from

      substance abuse.” Exhibits, Volume I at 18. DCS alleged that despite being

      offered services in the past, Mother continued to use methamphetamine and her

      whereabouts were currently unknown and further alleged that Father was

      unable to ensure the Children’s safety and well-being while in the care of

      Mother. At the conclusion of the initial hearing, the juvenile court ordered

      Children removed from Mother’s care and placed with Father.


[4]   At a fact-finding hearing on June 8, Father admitted the Children were CHINS.

      The juvenile court entered a dispositional order on July 20, which placed the

      Children in a temporary trial home visit with Father, who was ordered to

      engage in home-based case management and to submit to random drug and

      alcohol screening. However, on September 30, the guardian ad litem expressed

      concerns with Father’s ability to care for the Children because he was not

      cooperative with DCS, the guardian ad litem, or providers, and he refused to

      allow service providers to access his home. Thereafter, the juvenile court ended

      the temporary trial visit and ordered the Children removed from Father’s care

      due to alleged educational and therapeutic neglect, as well as Father’s positive

      drug test.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 3 of 25
[5]   At a modification hearing on October 26, the Children’s therapist stated that

      Father exhibited concerning and aggressive behavior during visits with the

      Children. On November 9, the juvenile court conducted a periodic review

      hearing and DCS presented evidence that Father twice tested positive for illicit

      substances, had been aggressive toward the foster parents and visitation

      supervisor, was at times combative, and that the Children were traumatized

      after Father’s parenting time sessions. D.U.H. had begun engaging in self-

      harming behavior and both Children began to wet their beds. The juvenile

      court ordered Father’s parenting time be therapeutically supervised and

      modified Father’s disposition to include anger management, substance abuse

      treatment, and home-based therapy.


[6]   By the time of a permanency hearing on February 8, 2017, Father had been

      incarcerated on drug charges and placed on an immigration hold. DCS

      presented evidence that Father had screened positive for marijuana and refused

      screening for an additional two week period. Father’s home-based therapist

      testified that Father had broken the rules of visitation by bringing his cell phone

      and hiding candy in the Children’s boots. The therapist also stated that, during

      the most recent visit, Father grabbed D.U.H. in a “dangerous way by her head”

      when playing and that Father laughed when the Children were upset. Id. at

      100.


[7]   DCS filed a petition to terminate parental rights on October 5, 2017, and the

      juvenile court conducted a termination hearing on April 5 and 24, 2018. Father

      was not present at the hearing because he had been deported to the Dominican

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 4 of 25
Republic. Father was, however, provided counsel, an interpreter, and was

allowed to listen to, and participate in, the hearing via telephone. On May 9,

2018, the juvenile court issued its order terminating Father’s parental rights,

finding and concluding the following:


          2.     Child in Need of Services Petitions “CHINS” were filed
                 on [Children] on February 23, 2016, . . . on allegations
                 that [Mother] used methamphetamine and her
                 whereabouts was unknown. Allegations against [Father]
                 was [sic] that he was unable to ensure the safety of the
                 children while in their [M]other’s care.


        3.       The CHINS Petitions also included allegations that the
                 parents had an extensive history with [DCS]. They were
                 involved in a CHINS case in 2014, and two cases to
                 compel their behavior in 2015.


        4.       The [C]hildren were placed with their [F]ather at the
                 February 23, 2016, initial hearing. However, on
                 September 30, 2016, they were ordered detained and
                 placed outside the home due to educational and
                 therapeutic neglect, and [Father] testing positive for THC.
                 The [C]hildren have remained out of home.


        5.       The [C]hildren were found to be in need of services as to
                 their [F]ather on June 8, 2016, and as to their [M]other on
                 June 29, 2016.


        ***


        16.      [Father] was ordered to engage in case management and
                 random drug screens. His disposition was modified when
                 he tested positive for THC, and he was also required to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 5 of 25
                 undergo a substance abuse assessment and follow
                 recommendations, engage in therapy, and complete anger
                 management.


        17.      [Father] did a domestic violence assessment which
                 recommended a twenty-six week batterers intervention
                 program. [Father] completed three sessions.


        18.      [Father] minimized his role in domestic violence, and
                 blamed the system and past partners. He has exhibited his
                 anger and aggression at child and family team meetings
                 [sic] and during parenting time.


        19.      Providers observed [Father’s] behavior as combative,
                 aggressive, and threatening.


        20.      [Father] did not make progress in his approximate fifteen
                 sessions of home based therapy to address anger, coping
                 skills, and parenting skills do [sic] to his venting during
                 therapy sessions.


        21.      [Father] was mainly consistent in parenting time between
                 October of 2016 until early 2017, although he would be
                 significantly late. He has not seen the [C]hildren since
                 being deported, well over one year ago.


        22.      [Father’s] visitation supervisor did not think he appeared
                 to have the capacity to parent and had concerns whether
                 the [C]hildren would be supervised with him. He
                 relinquished [E.U.] to his paramour to take care of on
                 every visit, and treated [D.U.H.] inappropriately for her
                 age and sex. His mannerisms and language were
                 inappropriate. Other concerns included [Father] not



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 6 of 25
                 assuming a parenting role, lack of discipline, and not
                 following rules.


        23.      [Father] was incarcerated on drug charges and he
                 contacted [DCS] in August of 2017 to inform the family
                 case manager that he had been deported to the Dominican
                 Republic due to being in the United States illegally.


        24.      Although the CHINS cases have been pending for over
                 two years, and this termination action has been pending
                 for over six months, [Father] testified he was still planning
                 to start services to address his aggression the Saturday after
                 trial in this matter.


        25.      On September 6, 2017, the plan for the [C]hildren’s
                 permanency was changed from reunification to adoption,
                 with the Court finding, in-part, that before being deported,
                 [Father] was inconsistent with services, was uncooperative
                 with the [DCS], and when he screened, he tested positive
                 for THC, and [Father] was aggressive during parenting
                 time with the [C]hildren being traumatized. The Court
                 further found that [Mother] was in agreement with the
                 permanency plan changing to adoption.


        26.      The [C]hildren have been placed in the care of their
                 paternal great-aunt. The [C]hildren’s grandmother also
                 resides in the home. This placement is preadoptive.


        27.      The [C]hildren have suffered trauma, have had many
                 residential moves, and have behavioral issues which are
                 getting better.


        28.      The [C]hildren’s therapist believes the stability of their
                 placement is a positive for the [C]hildren, and it was

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 7 of 25
                 traumatic for the [C]hildren when they moved. The
                 therapist believes that stability and permanency would
                 greatly benefit the [C]hildren, and that they are in need of
                 a forever home sooner than later.


        29.      The great-aunt is committed to providing a structured
                 home for the [C]hildren and is working on parenting skills
                 to address the [C]hildren’s special needs.


        ***


        31.      There is a reasonable probability that the conditions that
                 resulted in the [C]hildren’s removal and continued
                 placement outside the home will not be remedied by their
                 [F]ather. From his demeanor and history, [Father] would
                 need therapy and anger management as well as domestic
                 violence classes to make sure a cycle of violence does not
                 take place. From his actions at parenting time sessions
                 and the neglect alleged when the [C]hildren were detained,
                 he would not be an appropriate parent without parenting
                 education. Substance abuse is still a concern and would
                 need addressed. Considering [Father’s] defiant mindset,
                 these many conditions would not be remedied if he is
                 given more time.


        32.      There is a reasonable probability that the continuation of
                 the parent-child relationship poses a threat to the
                 children’s well-being. Without addressing substance
                 abuse, instability, lack of parenting skills, anger, parents
                 cannot provide a safe and stable environment or meet the
                 [C]hildren’s needs. More importantly, these [C]hildren are
                 in need of permanency at this time and another move for
                 the [C]hildren could be devastating.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 8 of 25
              33.      Wendy Claxton has been the [C]hildren’s Guardian ad
                       Litem for two years. Based on the length of time the
                       CHINS case has been pending, the lack of parents’
                       progress, Ms. Claxton agrees with adoption being the
                       permanency plan in the [C]hildren’s best interests. She
                       believes that it would not be in the [C]hildren’s best
                       interests to give the parents additional time.


              34.      Termination of the parent-child relationship is in the best
                       interests of the [C]hildren. Termination would allow them
                       to be adopted into a stable and permanent home where
                       their needs will be safely met.


              35.      There exists a satisfactory plan for the future care and
                       treatment of the [C]hildren, that being adoption.


      Appellant’s Appendix, Volume II at 24-26. Father now appeals.



                                 Discussion and Decision
[8]   A parent’s interest in the care, custody, and control of their children is “perhaps

      the oldest of the fundamental liberty interests[,]” Bester v. Lake Cty. OFC, 839

      N.E.2d 143, 147 (Ind. 2005), and these rights are protected by the Fourteenth

      Amendment to the United States Constitution, In re D.D., 804 N.E.2d 258, 264

      (Ind. Ct. App. 2004), trans. denied. These rights are not without limitation,

      however, as the law provides for the termination of the parent-child relationship

      when parents are unable or unwilling to meet their parental responsibilities. In

      re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 9 of 25
                                       I. Standard of Review
[9]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265.

       We only consider the evidence and reasonable inferences therefrom most

       favorable to the judgment. Id. And we only set aside a juvenile court’s

       judgment terminating a parent-child relationship when it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied,

       534 U.S. 1161 (2002). A judgment is “clearly erroneous if the findings do not

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

       judgment.” Bester, 839 N.E.2d at 147.


[10]   As required by statute, the juvenile court entered findings of fact and

       conclusions thereon when terminating Father’s parental rights. Ind. Code § 31-

       35-2-8 (providing “if the court finds the allegations in a petition . . . are true, the

       court shall terminate the parent-child relationship” and “shall enter findings of

       fact that support the entry of the conclusions”). Accordingly, we apply a two-

       tiered standard of review. Bester, 839 N.E.2d at 147. We must first determine

       whether the evidence supports the findings; then we determine whether the

       findings support the judgment. Id. Findings will only be set aside if they are

       clearly erroneous and findings are clearly erroneous only “when the record

       contains no facts to support them either directly or by inference.” Yanoff v.

       Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 10 of 25
                            II. Termination of Parental Rights
[11]   To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires the

       State to prove, in relevant part:


               (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.


               ***


               (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.


[12]   The State must prove the foregoing elements by clear and convincing evidence.

       Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

       “[b]ecause subsection (b)(2)(B) is written in the disjunctive, . . . the [juvenile]

       court need only find one of the two elements by clear and convincing

       evidence.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 373 (Ind.

       Ct. App. 2006) (citation omitted), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 11 of 25
[13]   Here, the juvenile court found that the State proved all of the statutory elements

       by clear and convincing evidence. Father now challenges the sufficiency of the

       evidence to support each finding.


                                        A. Remedy of Conditions
[14]   Father first contends the State failed to prove by clear and convincing evidence

       the conditions resulting in Children’s removal will not be remedied. The

       juvenile court concluded:


               There is a reasonable probability that the conditions that resulted
               in the [C]hildren’s removal and continued placement outside the
               home will not be remedied by their [F]ather. From his demeanor
               and history, [Father] would need therapy and anger management
               as well as domestic violence classes to make sure a cycle of
               violence does not take place. From his actions at parenting time
               sessions and the neglect alleged when the [C]hildren were
               detained, he would not be an appropriate parent without
               parenting education. Substance abuse is still a concern and
               would need addressed. Considering [Father’s] defiant mindset,
               these many conditions would not be remedied if he is given more
               time.


       Appellant’s App., Vol. II at 26, ¶ 31.


[15]   In determining whether the conditions that resulted in the children’s removal

       will not be remedied, we engage in a two-step analysis:


               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. In the second step, the trial
               court must judge a parent’s fitness as of the time of the
               termination proceeding, taking into consideration evidence of
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 12 of 25
               changed conditions—balancing a parent’s recent improvements
               against habitual patterns of conduct to determine whether there is
               a substantial probability of future neglect or deprivation. 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. 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.


       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citations, quotations, and footnote

       omitted).


[16]   Here, the Children were initially removed from their parents due to their

       inability to provide Children “with a safe, stable, and appropriate living

       environment free from substance abuse.” Exhibits, Vol. I at 18. As it pertains

       to Father, DCS alleged he was unable to ensure the Children’s safety and well-

       being while in their Mother’s care. DCS also alleged that both parents had an

       extensive history with DCS and were offered services through previous CHINS

       actions. Children were placed with Father on a temporary trial visit but

       removed from Father’s care “due to educational and therapeutic neglect, and

       [Father] testing positive for THC.” Appellant’s App., Vol. II at 24, ¶ 4. When

       balancing the conditions that led the Children’s removal against Father’s recent

       improvements, we cannot conclude the juvenile court judgment was clearly

       erroneous for three primary concerns.


[17]   First and foremost, Father has failed to adequately address his anger,

       aggression, and propensity for domestic violence. After Father completed a

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 13 of 25
       domestic violence assessment, it was recommended that he complete a twenty-

       six-week batterers intervention program of which he only completed only three

       weeks. Father routinely displayed disturbing behavior during parenting time,

       which traumatized the Children. Notably, the juvenile court found Father’s

       potential to remedy this condition is particularly unlikely given his “defiant

       mindset,” id. at 26, ¶ 31, and how Father has “minimized his role in domestic

       violence, and blamed the system and past partners.” Id. at 25, ¶ 18.


[18]   Second, Father’s significant history of substance abuse shows no sign of

       improvement. During the CHINS case, Father tested positive for illicit

       substances and, at other times, refused drug screens entirely. Father missed the

       permanency hearing due to his incarceration on drug possession charges 2 and

       the record is otherwise absent of any significant effort on Father’s part to

       effectively deal with his substance abuse issues.


[19]   Third and finally, Father’s capacity to parent has shown no signs of

       improvement. Father did not make progress in home-based therapy sessions

       due to “his venting during therapy sessions.” Appellant’s App., Vol. II at 25,

       ¶ 20. And during visitation sessions, Father routinely relinquished the Children

       to others, behaved inappropriately, and failed to assume a parenting rule.




       2
        Father testified at the termination hearing that he had never been convicted of a crime but had been arrested
       “several times” and “beat both cases[.]” Transcript, Volume II at 133.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018                Page 14 of 25
[20]   On appeal, Father complains that DCS terminated its efforts when he was

       deported through no fault of his own. However, it is well established that:


               the law concerning termination of parental rights does not
               require [DCS] to offer services to the parent to correct the
               deficiencies in childcare . . . . Rather, while a participation plan
               serves as a useful tool in assisting parents in meeting their
               obligations, and while [DCS] routinely offer[s] services to assist
               parents in regaining custody of their children, termination of
               parental rights may occur independently of them, as long as the
               elements of Ind. Code § 31-35-2-4 are proven by clear and
               convincing evidence.


       In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (citations omitted); see

       also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“A failure to provide

       services, or the provision of services in an allegedly discriminatory manner,

       does not serve as a basis on which to directly attack a termination order as

       contrary to law.”). In any event, Father’s response to services has been minimal

       at best. During the two-years of the underlying CHINS action, Father failed to

       take substantial steps at self-improvement, failing to avail himself of some

       services while failing to complete others. We therefore conclude allowing time

       for additional services would likely be fruitless and that Father’s argument on

       this issue is unconvincing. See Lang v. Starke Cty. Office of Family & Children, 861

       N.E.2d 366, 372 (Ind. Ct. App. 2007) (noting that a court may consider a

       parent’s response, or lack thereof, to services offered the parent), trans. denied; In

       re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App. 2001) (concluding parental rights

       may be terminated when parties are unable or unwilling to meet their

       responsibilities), trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 15 of 25
[21]   Father also alleges he has continued to work toward reunification through local

       services since being deported to the Dominican Republic. But we view this

       argument as nothing more than an invitation to reweigh the evidence as it is

       well within the juvenile court’s discretion to “disregard the efforts [a parent]

       made only shortly before termination and to weigh more heavily [a parent’s]

       history of conduct prior to those efforts.” K.T.K. v. Indiana Dep’t of Child Servs.,

       989 N.E.2d 1225, 1234 (Ind. 2013).


[22]   Despite evidence of substance abuse, anger, aggression, a propensity for

       domestic violence, and an overall lack of parenting skills, Father has failed to

       take substantial steps to remedy these conditions. Therefore, we conclude the

       record clearly and convincingly supports the juvenile court’s conclusion that the

       conditions resulting in the Children’s removal are unlikely to be remedied.3


                                                  B. Best Interests
[23]   Next, Father contends the State did not establish by clear and convincing

       evidence that involuntary termination of his parental rights was in the

       Children’s best interests as required by Indiana Code section 31-35-2-4(b)(2)(C).

       Specifically, Father argues that “[i]n light of recent case law,” the State failed to

       demonstrate termination was in the Children’s best interest because “there




       3
        Father also contends the State failed to present clear and convincing evidence that the continuation of the
       parent-child relationship poses a threat to the Children’s well-being. Because Indiana Code section 31-35-2-
       4(b)(2)(B) is written in the disjunctive, however, we need not address Father’s argument. See In re I.A., 903
       N.E.2d 146, 153 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018                 Page 16 of 25
       remain options short of termination, including continued wardship under the

       CHINS matter, ongoing services under the supervision of Dominican

       authorities, and ultimate reunification with Father.” Brief of Appellant at 26.


[24]   In determining the best interests of a child, the juvenile court evaluates the

       totality of the evidence and need not wait until the child is “irreversibly

       harmed” before terminating parental rights. A.D.S. v. Indiana Dep’t of Child

       Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In addition to

       evidence that the conditions that led to a child’s removal will not be remedied, a

       case manager and child advocate’s recommendation to terminate the parent-

       child relationship is sufficient to prove by clear and convincing evidence that

       termination of parental rights is in the child’s best interests. Id. at 1158-59.

       Furthermore, we have held that a parent’s non-remedied substance abuse and

       domestic violence issues alone are sufficient to support a juvenile court’s

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

       although permanency is a “central consideration” in determining a child’s best

       interests. Id. at 1159 (internal quotation omitted).


[25]   Here, the State presented evidence that after visitations with Father, the

       Children displayed signs of trauma and their behavior worsened. The guardian

       ad litem testified that termination is in the Children’s best interests. Father has

       not seen the Children in well over a year since being deported, and instability

       has had a further traumatic effect on the Children. The Children’s therapist

       believes the stability of their current placement has had a positive effect on the

       Children and that “they are in need of a forever home sooner than later.”

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 17 of 25
       Appellant’s App., Vol. II at 26, ¶ 28. The juvenile court also found that

       “another move for the [C]hildren could be devastating.” Id. at ¶ 32.


[26]   On appeal, Father relies on three cases, In re J.M., 908 N.E.2d 191 (Ind. 2009);

       In re G.Y., 904 N.E.2d 1257 (Ind. 2009); and H.G. v. Ind. Dep’t of Child Servs.,

       959 N.E.2d 272 (Ind. Ct. App. 2011), trans. denied, in support of his argument

       that the State failed to demonstrate termination was in the Children’s best

       interests. However, aside from describing the facts of these cases, Father never

       makes a cogent argument as to why they are applicable here. In any event, all

       three cases involve substantial improvement on the part of the parent—a fact

       not present here. See In re J.M., 908 N.E.2d at 195 (noting “parents have fully

       cooperated with the services required of them while incarcerated”); In re G.Y.,

       904 N.E.2d at 1263 (noting “the record shows that Mother took positive steps

       and made a good-faith effort to better herself as a person and as a parent”); and

       H.G., 959 N.E.2d at 292 (noting the “record also shows improvements in

       H.H.G.’s parenting”). Thus, we believe Father’s reliance on those cases is

       misplaced, and the record presents clear and convincing evidence that

       termination is in the Children’s best interests.


                                          C. Satisfactory Plan
[27]   Father next argues the State failed to present clear and convincing evidence that

       adoption is a satisfactory plan for the Children pursuant to Indiana Code

       section 31-35-2-4(b)(2)(D). The juvenile court concluded that “[t]here exists a

       satisfactory plan for the future care and treatment of the [C]hildren, that being


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 18 of 25
       adoption.” Appellant’s App., Vol. II at 26, ¶ 35. The permanency plan is for

       the Children to be adopted by their great-aunt, with whom their grandmother

       also resides, and the great-aunt has been taking parenting classes to better deal

       with the Children’s special needs.


[28]   Father argues the “the facts here simply do not warrant the ‘extreme measure’

       of termination under the law outlined above.” Br. of Appellant at 28.

       However, Father’s argument is merely cumulative of those presented above,

       and, just as those arguments failed, so too must this.


                                            III. Due Process
[29]   Finally, Father argues the termination hearing was not fundamentally fair.

       Specifically, Father complains that his telephone connection with the hearing

       was repeatedly disrupted, his counsel failed to object to hearsay testimony or

       the admission of exhibits, and his counsel failed to call any witnesses on his

       behalf. As an example of what he contends was his counsel’s poor presentation

       of his case, Father points to the fact that his own testimony constituted only

       four pages out of the 136-page transcript.


[30]   In termination proceedings, parents have certain due process rights and the

       proceeding must adhere to the requirements of the due process clause. Santosky

       v. Kramer, 455 U.S. 745, 747 (1982). Although due process has never been

       precisely defined, the phrase embodies a requirement of “fundamental

       fairness.” In re D.P., 27 N.E.3d 1162, 1166 (Ind. Ct. App. 2015). In

       termination proceedings, due process turns on a balancing of three factors: (1)

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 19 of 25
       the private interests affected by the proceeding, (2) the risk of error created by

       the State’s chosen procedure, and (3) the countervailing governmental interest

       supporting use of the challenged procedure. A.P. v. Porter Cty. Office of Family &

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


[31]   Father’s claims regarding fundamental fairness deal almost exclusively with the

       performance of his counsel. Earlier opinions from this court measured

       counsel’s performance using the two-part Strickland test applicable in criminal

       cases. Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1039

       (Ind. 2004). However, in Baker, our supreme court discussed the proper

       analysis of a claim of ineffective assistance of counsel at a termination hearing

       as follows:


               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.


       Id. at 1041 (footnote omitted). Therefore, to determine whether Father’s

       hearing was fundamentally unfair because he received ineffective assistance of

       counsel, we do not focus on the particular actions of counsel, but whether

       counsel’s performance was so defective as to undermine our confidence in the


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       juvenile court’s termination decision. In re A.P., 882 N.E.2d 799, 808 (Ind. Ct.

       App. 2008) (holding counsel did not provide ineffective assistance where parent

       received a fundamentally fair trial because the facts demonstrated an accurate

       determination and the court could say with confidence that DCS adequately

       proved its case). To conduct such a review, we “must also examine the

       evidence supporting the termination of his parental rights.” Id. at 806.


[32]   As concluded above, the State proved by clear and convincing evidence that the

       conditions resulting in the Children’s removal will not be remedied,4

       termination was in the Children’s best interests, and there exists a satisfactory

       plan for adoption. As such, we conclude the “facts demonstrate an accurate

       determination[,]” Baker, 810 N.E.2d at 1041, sufficient to overcome a challenge

       to the effectiveness of counsel. In the interest of thoroughness, however, we

       endeavor to address each of Father’s contentions.


[33]   We turn first to Father’s argument that he was deprived of a fair hearing

       because his telephone connection was repeatedly disconnected. The record

       reflects Father’s telephone connection was disconnected on several occasions

       and that, as a result, Father was unable to hear substantial portions of the

       State’s testimony or the admission of numerous exhibits. Besides ample

       citations to the record, however, Father fails to advance a cogent argument or




       4
        Again, because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we needed not address
       Father’s argument regarding whether a continuation of the parent-child relationship posed a threat to the
       well-being of the Children. See supra, ¶ 22, n.2.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018               Page 21 of 25
       provide citation to authority explaining why these facts rendered Father’s

       proceeding fundamentally unfair. See Ind. Appellate Rule 46(A)(8) (providing

       that the argument section of the appellants brief must “contain the contentions

       of the appellant on the issues presented, supported by cogent reasoning[,]”

       along with citations to the authorities, statutes, and parts of the record relied

       upon, and a clear showing of how the issues and contentions in support thereof

       relate to the particular facts under review). Therefore, Father has waived this

       argument on appeal. D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1127 (Ind.

       Ct. App. 2018).


[34]   Waiver notwithstanding, the record shows the juvenile court made numerous

       attempts to accommodate Father’s presence at the hearing, Father was provided

       with an interpreter, Father’s counsel was present throughout, and Father was

       able to testify on his own behalf. A parent does not necessarily have a

       constitutional right to be present at a termination hearing. See In re E.E., 853

       N.E.2d 1037, 1044 (Ind. Ct. App. 2006) (determining that the trial court did not

       deprive a parent of due process by proceeding with a termination hearing in the

       parent’s absence where the parent’s counsel participated in the hearing), trans.

       denied. Under these circumstances and with a lack of cogent argument to the

       contrary, we cannot conclude repeated disconnections rendered Father’s

       termination proceedings fundamentally unfair.


[35]   Second, Father claims his counsel “permitted a number of witnesses to provide

       testimony adverse to Father without interposing possible foundational or

       hearsay objections.” Br. of Appellant at 21. In support thereof, Father lists

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 22 of 25
       three brief examples of the State’s testimony which he claims should have been

       contested on the basis of hearsay. Father is correct in that the Rules of

       Evidence regulating the admission of hearsay are applicable in a termination

       proceeding. See D.B.M. v. Indiana Dep’t of Child Servs., 20 N.E.3d 174, 178-80

       (Ind. Ct. App. 2014) (discussing applicability of hearsay rules in a termination

       proceeding), trans. denied. However, even if the examples that Father provides

       constitute inadmissible hearsay, they are either cumulative of other evidence or

       are unlikely to have contributed to the juvenile court’s judgment. B.H. v.

       Indiana Dep’t of Child Servs., 989 N.E.2d 355, 363 (Ind. Ct. App. 2013) (noting

       that an error is harmless if a judgment is supported by independent evidence

       such that there is no substantial likelihood that the questioned evidence

       contributed to the judgment).


[36]   Father also argues the State offered a total of sixty-seven exhibits which went

       unchallenged by his counsel. According to Father, Exhibits 1-27 were

       produced by the juvenile court in the underlying CHINS case and “many of

       those documents may have contained hearsay or other unfounded evidence[,]”

       and Exhibits 28-67 were documentation from service referrals, “many of which

       contained narratives and other material that would have been objectionable on

       foundational or other grounds.” Br. of Appellant at 22. It is possible that the

       documents did indeed contain hearsay. However, there are a number of

       exceptions to the inadmissibility of hearsay evidence, including the business

       records and public records exceptions, which may apply to CHINS reports and

       filings. See D.B.M., 20 N.E.3d at 179-80 (citing Indiana Evidence Rules 803(6)


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 23 of 25
       and 803(8)). Furthermore, Indiana Rule of Evidence 201 permits courts to take

       judicial notice of “records of a court of this state[.]” In light of these exceptions,

       and Father’s failure to provide specific examples of inadmissible hearsay, it is

       unclear what result, if any, such objections would have obtained.


[37]   Finally, Father argues that counsel was ineffective for failing to elicit specific

       testimony about his recent engagement in services or his housing or

       employment situation in the Dominican Republic. The record reflects that

       Father testified regarding the services he planned to begin—a fact reflected in

       the juvenile court’s findings. Appellant’s App., Vol. II at 25, ¶ 24 (“[Father]

       testified he was still planning to start services to address his aggression the

       Saturday after trial in this matter.”). As discussed above however, a juvenile

       court is at liberty to disregard efforts made only shortly before termination. See

       id. at ¶ 21; K.T.K., 989 N.E.2d at 1234. Thus, again, it is unclear what effect, if

       any, Father’s additional testimony would have had on the result.


[38]   For the reasons outlined above, we can say with confidence the record

       demonstrates an accurate determination that the conditions leading to the

       Children’s removal or the reasons for placement outside the home of Father are

       unlikely to be remedied and that termination of Father’s parental rights is in the

       Children’s best interests. Accordingly, we conclude Father’s counsel was not

       ineffective and Father received a fundamentally fair hearing. Baker, 810 N.E.2d

       at 1041.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 24 of 25
                                               Conclusion
[39]   The juvenile court’s decision to terminate Father’s parental rights was not

       clearly erroneous and Father received a fundamentally fair hearing. Therefore,

       we affirm.


[40]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1348 | October 31, 2018   Page 25 of 25
