 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Feb 09 2016, 8:16 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT I.P.                               ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                          Gregory F. Zoeller
Madison, Indiana                                          Attorney General of Indiana
ATTORNEY FOR APPELLANT B.P.                               Robert J. Henke
                                                          David E. Corey
R. Patrick Magrath
                                                          Deputy Attorneys General
Alcron Sage Schwartz & Magrath, LLP
                                                          Indianapolis, Indiana
Madison, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 9, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of L.P. and B.C.,                                         40A04-1507-JT-868
B.P. and I.P.                                             Appeal from the Jennings Circuit
                                                          Court
Appellants-Respondents,
                                                          The Honorable Jon W. Webster,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               40C01-1401-JT-5
Services,                                                 40C01-1401-JT-6

Appellee-Petitioner.




Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016      Page 1 of 23
                                                  Case Summary
[1]   Appellants-Respondents, I.P. (“Father”) and B.P. (“Mother”) (collectively

      “Parents”), separately appeal the trial court’s order terminating their parental

      rights to L.P. Mother also appeals the trial court’s order terminating her

      parental rights to B.C.1 On February 11, 2011, Appellee-Petitioner, the

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

      Children were children in need of services (“CHINS”). The Children were

      subsequently determined to be CHINS. On January 31, 2014, DCS filed a

      petition seeking the termination of parental rights (“TPR”). Following an

      evidentiary hearing, the trial court issued an order terminating Parents’ parental

      rights to the Children. On appeal, Parents argue that DCS did not provide

      sufficient evidence to support the termination of their parental rights and Father

      contends that the trial court failed to advise him of his right to counsel. We

      affirm.



                                  Facts and Procedural History
[2]   Mother and Father are the biological parents of L.P., who was born on January

      18, 2011. Mother is the biological mother of B.C., who was born on October

      18, 2007.2 On February 4, 2011, the DCS received a report that L.P. had tested




      1
          L.P. and B.C. will be referred to collectively as “the Children.”
      2
          B.C.’s father is not a party to this matter.


      Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 2 of 23
      positive for morphine. Mother admitted to DCS that she used opiates,

      specifically morphine, without a prescription, and the trial court ordered the

      Children’s emergency removal on February 10, 2011. The Children were

      placed with their maternal aunt, A.B. (“Aunt”), and her husband, W.B.

      (“Uncle”). Aunt estimated that prior to DCS’s involvement, she and her

      husband took care of the Children “a good 75 percent” of the time. Tr. p. 235.

      On February 11, 2011, DCS filed a petition alleging that the Children were

      CHINS and, on the same day, the trial court held an initial hearing and

      declared the Children to be CHINS. Father was not present at the initial

      hearing because he was incarcerated at the time after violating his probation for

      a prior misdemeanor battery conviction.


[3]   The Children were scheduled to be returned to Parents on March 30, 2011 for a

      trial home visit, but their return was stayed after the trial court received an

      email from the provider of Mother’s outpatient substance abuse program

      regarding suspected domestic violence by Father. As a result, the trial court

      recommended that Parents participate in individual therapy and couples

      counseling. Parents denied any physical abuse but acknowledged that they

      argued frequently.


[4]   On April 21, 2011, the Children returned to live with Parents for an initial trial

      home visit. The Children were removed on May 31, 2011 due to ongoing

      concerns regarding Mother’s drug use. On June 14, 2011, the trial court held a

      dispositional hearing at which Parents were present and issued its dispositional

      order on July 27, 2011. The order provided that the Children were removed

      Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 3 of 23
      from Mother’s care, DCS was granted wardship of the child, and Parents were

      ordered to maintain contact with the Family Case Manager (“FCM”). The trial

      court also ordered Parents to obtain suitable housing and a stable source of

      income; abstain from illegal substance use; complete a substance abuse

      assessment, a psychological evaluation, and a parenting assessment and follow

      all recommendations; submit to random drug tests; attend supervised

      visitations; and provide the Children with a safe, secure, nurturing

      environment.


[5]   Parents completed an intensive outpatient substance abuse program (“IOP”) in

      August 2011 and continued to undergo individual therapy and couples

      counseling. The Children were again returned to Parents for a trial home visit

      on October 14, 2011. On January 30, 2012, the Children were removed from

      Mother’s care, again due to concerns regarding drug use, and placed in the sole

      care of Father. At the May 25, 2012 review hearing, the trial court found that

      (1) since completing the August 2011 IOP, Parents had refused substance abuse

      treatment, (2) Parents had “not enhanced their ability to fulfill their parental

      obligations,” and (3) Parents had not cooperated with DCS. Petitioner’s Ex.

      1H for L.P.


[6]   On October 1, 2012, during a home visit, B.C. told FCM Kristen Sparks about

      an instance of physical abuse in which Father pulled L.P. out of his chair by his

      hair and dragged him across the floor, also by his hair. B.C. also reported that

      Father slapped her and hit Mother. Father denies any instances of physically



      Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 4 of 23
      abusing the Children, although he admitted to “losing it” at times and failing to

      take medications at prescribed times. DCS Ex. 18.


[7]   The trial court held permanency hearings on August 15, and November 4,

      2013, for B.C. and L.P. respectively. In its subsequent orders, the trial court

      found that Parents had failed to comply with the Children’s case plan, failed to

      participate in services, had not visited the Children, had not cooperated with

      DCS, had moved out of the county; that Mother was arrested in 2012 and failed

      to inform the FCM; and that Mother failed to maintain stable employment. As

      a result, the trial court changed the permanency plan for the Children from

      reunification to adoption. The DCS filed a petition to terminate the parent-

      child relationships on January 31, 2014.


[8]   On February 13, 2014, Father was arrested after police were called regarding an

      altercation between Mother and Father. When police arrived at Parents’ home,

      they found Father on top of Mother pinning her to the bed with his arms and

      legs. Father was “aggravated and intoxicated,” resisted police, and had to be

      subdued with a taser. Tr. p. 5. Mother was pregnant with S.P.3 at the time of

      the altercation. Father pled guilty to three counts of battery and was given a

      two-and-a-half-year sentence with six months executed and the remaining two

      years on probation.




      3
        S.P. was born on April 2, 2014 and is the biological child of Parents. S.P. was adjudicated to be a CHINS
      in a separate case on October 21, 2014 and Parents did not have custody of S.P. at the time of the termination
      hearing in this case. Parents’ parental rights regarding S.P. are not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016           Page 5 of 23
[9]    Throughout the CHINS proceedings, Parents intermittently participated in the

       recommended counseling and substance abuse treatment programs. Father

       completed his initial IOP but did not follow up with recommendations to

       continue with AA or NA. Although Father never failed a drug screen, he

       refused to take five screens, which were considered to be positive tests. Father

       admits that he was only minimally compliant with individual counseling and

       was unable or unwilling to address providers’ concerns which were brought to

       his attention.


[10]   While undergoing treatment for substance abuse, Mother admitted to using

       amphetamines, marijuana, spice, and morphine. Mother “never acknowledged

       that she had a problem with drugs.” Tr. p. 21. Although Mother never failed a

       drug screen, she refused to take seven drug screens over the life of the case.

       When S.P. was born in April 2014, S.P. tested positive for marijuana and

       opiates, indicating that Mother had again ingested opiates while pregnant.

       Mother’s participation in therapy was “sporadic” and “very inconsistent.” Tr.

       p. 264.


[11]   At a permanency hearing held on April 25, 2014, the trial court found that it

       was in the Children’s best interest to continue with the permanency plan to

       terminate the Parents’ parental rights and place the Children for adoption. In

       making this determination, the trial court noted that Mother had not complied

       with the Children’s case plan, had not attended therapy consistently, had last

       attended therapy on October 10, 2013, had only visited the Children on five

       occasions between the August 2013 and the April 2014 hearings, and had not

       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 6 of 23
       maintained her sobriety. With regards to Father, the trial court found that he

       had not attended therapy since October 10, 2013, was inconsistent with

       services, had visited L.P. only once between the August 2013 and the April

       2014 hearings, continued to have legal issues, and was convicted of multiple

       battery charges for the February 2014 incident.


[12]   On August 26, 2014, Father pled guilty to Class A misdemeanor invasion of

       privacy. In January 2015, Father’s probation was revoked after he violated the

       conditions of his probation for, among other things, failure to report, failure to

       maintain employment, and testing positive for hydrocodone without a valid

       prescription. As of the June 9, 2015 termination order, Father had been

       incarcerated since January 20, 2015.


[13]   The trial court held termination hearings on January 27, April 14, and May 12,

       2015. After a thorough recitation of the facts underlying the case, the trial court

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

       Accordingly, the trial court terminated Parents’ parental rights over L.P. and

       Mother’s parental rights over B.C. As of the date of the termination order, the

       Children lived with Aunt and Uncle, and have lived there since February 2,

       2012. Based on the testimony of FCM Sparks, the trial court found that the

       Children are well-adjusted in Aunt and Uncle’s home and they are willing to

       adopt the Children.



                                  Discussion and Decision

       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 7 of 23
                                         Standard of Review
[14]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of a parent to establish a home and raise his or her child. Bester

       v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

       Further, we acknowledge that the parent-child relationship is “one of the most

       valued relationships of our culture.” Id. However, although parental rights are

       of a constitutional dimension, the law allows for the termination of those rights

       when a parent is unable or unwilling to meet his responsibility as a parent. In re

       T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the child’s interests

       in determining the appropriate disposition of a petition to terminate the parent-

       child relationship. Id.


[15]   The purpose of terminating parental rights is not to punish the parent but to

       protect the child. Id. Termination of parental rights is proper where the child’s

       emotional and physical development is threatened. Id. The trial court need not

       wait until the child is irreversibly harmed such that his physical, mental, and

       social development is permanently impaired before terminating the parent-child

       relationship. Id.


[16]   Parents contend that the evidence presented at the evidentiary hearing was

       insufficient to support the trial court’s order terminating their parental rights. In

       reviewing termination proceedings on appeal, this court will not reweigh the

       evidence or assess the credibility of the witnesses. In re Involuntary Termination


       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 8 of 23
       of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only

       consider the evidence that supports the trial court’s decision and reasonable

       inferences drawn therefrom. Id. Where, as here, the trial court includes

       findings of fact and conclusions thereon in its order terminating parental rights,

       our standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id. We note that Parents have not challenged the trial

       court’s factual findings and instead challenge only the trial court’s legal

       conclusions.


[17]   In deference to the trial court’s unique position to assess the evidence, we set

       aside the trial court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       trial court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[18]   In order to involuntarily terminate a parent’s parental rights, DCS must

       establish by clear and convincing evidence that:


               (A) one (1) of the following exists:
                        (i) the child has been removed from the parent for at
                        least six (6) months under a dispositional decree;
                        (ii) a 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
       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 9 of 23
                 of the court’s finding, the date of the finding, and the
                 manner in which the finding was made; or
                 (iii) the child has been removed from the parent and
                 has been under the supervision of a county office of
                 family and children or probation department for at
                 least fifteen (15) months of the most recent twenty-
                 two (22) months, beginning with the date the child is
                 removed from the home as a result of the child being
                 alleged to be a child in need of services or a
                 delinquent child;
        (B) that one (1) of the following is true:
                 (i) There is a reasonable probability that the
                 conditions that resulted in the child’s removal or the
                 reasons for placement outside the home of the
                 parents will not be remedied.
                 (ii) There is a reasonable probability that the
                 continuation of the parent-child relationship poses a
                 threat to the well-being of the child.
                 (iii) The child has, on two (2) separate occasions,
                 been adjudicated a child in need of services;
        (C) termination is in the best interests of the child; and
        (D) there is a satisfactory plan for the care and treatment of the
        child.
Ind. Code § 31-35-2-4(b)(2) (2011). Parents do not dispute that DCS presented

sufficient evidence to support the first and fourth elements set forth in Indiana

Code section 31-35-2-4(b)(2). Parents, however, argue that DCS failed to

establish either that (1) there is a reasonable probability that the conditions that

resulted in the Children’s removal from or the reasons for the Children’s

continued placement outside of their home will not be remedied, or (2) there is

a reasonable probability that the continuation of the parent-child relationship


Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 10 of 23
       poses a threat to the well-being of the Children. Father also argues that DCS

       failed to establish that termination is in L.P’s best interest.


           I. Conditions Resulting in Removal Not Likely to Be
                                Remedied
[19]   On appeal, Parents argue that DCS failed to establish by clear and convincing

       evidence that the conditions resulting in the Children’s removal from and

       continued placement outside their care will not be remedied. Parents also argue

       that DCS failed to establish by clear and convincing evidence that the

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

       However, it is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B)

       is written in the disjunctive, the trial court need only find either that the

       conditions resulting in removal from or continued placement outside the

       parent’s home will not be remedied or that the continuation of the parent-child

       relationship poses a threat to the child. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct.

       App. 2003), trans. denied. Therefore, where, as here, the trial court concludes

       that there is a reasonable probability that the conditions which resulted in the

       removal of the child from or the reasons for the continued placement of the

       child outside of the parent’s care would not be remedied, and there is sufficient

       evidence in the record supporting the trial court’s conclusion, it is not necessary

       for DCS to prove or for the trial court to find that the continuation of the

       parent-child relationship poses a threat to the child. In re S.P.H., 806 N.E.2d at

       882.



       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 11 of 23
[20]   In order to determine whether the conditions will be remedied, the trial court

       should first determine what conditions led DCS to place the Children outside of

       Parents’ care or to continue the Children’s placement outside Parents’ care,

       and, second, whether there is a reasonable probability that those conditions will

       be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied;

       In re S.P.H., 806 N.E.2d at 882. When assessing whether a reasonable

       probability exists that the conditions justifying a child’s removal or continued

       placement outside his parent’s care will not be remedied, the trial court must

       judge the parent’s fitness to care for the child at the time of the termination

       hearing, taking into consideration evidence of changed conditions. In re A.N.J.,

       690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The trial court must also evaluate

       the parent’s habitual patterns of conduct to determine whether there is a

       substantial probability of future neglect or deprivation. Id.


[21]   A trial court may properly consider evidence of the parent’s prior criminal

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

       and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a trial

       court “‘can reasonably consider the services offered by [DCS] to the parent and

       the parent’s response to those services.’” Id. (quoting In re A.C.C., 682 N.E.2d

       542, 544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule

       out all possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re




       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 12 of 23
       Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,

       242 (Ind. Ct. App. 2007).


[22]   Here, the Children were initially removed from Parents’ care due to Mother’s

       substance abuse issues. DCS continued to keep Children placed outside of

       Parents’ care due to Parents’ domestic violence issues, Father’s physical abuse

       of the Children and Mother, Father’s incarceration, Mother’s failure to

       maintain stable employment, and Parents’ failure to consistently participate in

       or benefit from services provided to them. The trial court determined that DCS

       presented sufficient evidence to prove that it was unlikely that the reasons for

       the Children’s removal from and continued placement outside of Parents’ care

       would be remedied, and upon review, we conclude that the trial court’s

       determination to this effect is supported by the record.


                  A. Reasons for Children’s Removal from Mother
[23]   The Children were initially removed from Parents’ care in 2011 after L.P. tested

       positive for morphine at birth. With regards to dealing with her substance

       abuse issues, the trial court ordered Mother to “abstain from illegal substance

       use; [] complete a substance abuse assessment and follow all recommendations;

       [] complete a psychological evaluation and follow all recommendations;” and

       “submit to random drug tests.” Mother’s App. p. 28. In 2011, DCS twice

       returned the Children to Parents’ care for trial home visits. The first trial home

       visit, which began in April, ended on May 31, due to continued problems with

       Mother’s drug use. Mother completed an IOP in August 2011 and the Children

       were returned to Parents for a second trial home visit on October 14, 2011. On
       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 13 of 23
       January 30, 2012, the Children were removed from Mother’s care, again due to

       concerns regarding drug use.


[24]   At the August 15, 2013 permanency hearing, the trial court changed the

       permanency plan from reunification to termination as a result of “[M]other’s

       inconsistency attending individual and couples counseling sessions, [M]other’s

       failure to maintain stable employment, [M]other’s failure to comply with parent

       aid classes, and [M]other’s refusal to submit to drug screens.” Mother’s App. p.

       29. Despite this order, Mother’s participation in therapy was “sporadic” and

       “very inconsistent,” tr. p. 264, and Mother did not attend a single therapy

       session in the five months leading up to the April 25, 2014 permanency hearing.


[25]   Although Mother never failed a drug screen, she refused to take seven drug

       screens over the life of the case. As the trial court noted, “Mother was aware

       that refusal to submit to a drug screen would result in a presumptive positive

       screen.” Mother’s App. p. 30. Despite her admission to using amphetamines,

       marijuana, spice, and morphine, Mother “never acknowledged that she had a

       problem with drugs.” Tr. p. 21. As further evidence that Mother failed to

       address her issues with drug abuse, in April 2014, S.P. tested positive for

       marijuana and opiates at birth, indicating that Mother had again taken

       narcotics while pregnant.


[26]   In addition to her issues with drugs, the trial court also noted Mother’s refusal

       to acknowledge or address domestic violence issues with Father despite her

       admission to frequent heated arguments, B.C.’s statements, and the 2014


       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 14 of 23
       incident resulting in Father’s battery convictions. Parents were ultimately

       dismissed from couples therapy due to their refusal to address issues and

       frequent appointment cancellations.


[27]   Finally, the trial court noted several areas in which Parents were deficient in

       providing stability for the Children: Mother obtained and lost three different

       jobs in the first four months of 2015 and Father had no employment arranged

       upon his release from incarceration, Mother was unwilling or unable to

       properly discipline the Children during visits, and Parents regularly failed to

       properly provide nutritional food and drinks during visits.


                   B. Reasons for Children’s Removal from Father
[28]   In its termination order, the trial court noted that Father has been incarcerated

       multiple times throughout the life of the underlying CHINS case. Father had

       two separate convictions for battery in 2010, one as a Class D felony and one

       Class B misdemeanor. In January of 2011, Father was arrested for violating his

       probation and served a 140-day sentence. As a result, Father was incarcerated

       during the period in which L.P. was born, subsequently removed from Mother’s

       care by DCS, and declared a CHINS by the trial court. In 2013, Father

       received a one-year sentence for Class A misdemeanor possession of

       paraphernalia and served eight days with the remainder suspended to

       probation. In February of 2014, Father was arrested after an altercation with

       Mother for which he was ultimately convicted of Class D felony battery with

       bodily injury to a law enforcement officer, Class A misdemeanor battery, and

       Class B misdemeanor battery. Father violated his probation in January of 2015
       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 15 of 23
       and, as of the trial court’s June 2015 termination order, had been incarcerated

       since that time.


[29]   Father has a total of five battery convictions involving three separate incidents

       in approximately four years and Father admitted to having trouble controlling

       his temper. Nevertheless, in the time since DCS became involved, he has failed

       to sufficiently address or even acknowledge his anger issues or make any

       significant improvements. In 2012, during a trial home visit, the Children were

       removed after B.C. told FCM Sparks about incidents in which Father had

       physically abused L.P., B.C., and Mother. Additionally, the trial court noted

       that Father was inconsistent with completing therapy, made little to no progress

       with service providers, never admitted to any instances of domestic abuse

       despite his plea to committing battery and B.C.’s statements, and refused to

       address the issue with his therapists. The trial court also noted that Father

       “demonstrated inconsistency in attendance with his child. From August 2013

       until his incarceration on February 13, 2014, Father only visited his child

       once.” Father’s App. p. 46.


[30]   Parents had four years from the initiation of the underlying CHINS case to the

       termination proceedings to address their issues with domestic violence, drug

       abuse, and criminal recidivism. Unfortunately, both Mother and Father failed

       to do so and have not shown they are capable of providing a consistent and

       stable home-life for the Children. In light of these findings, the trial court

       concluded that DCS had established by clear and convincing evidence that the

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

       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 16 of 23
       Parents’ home would not be remedied. Neither Mother nor Father,

       individually or taken together, have sustained their burden to show that the trial

       court’s determination in this regard was clearly erroneous.


                                     II. Best Interests of L.P.
[31]   Father also contends that DCS failed to prove by clear and convincing evidence

       that termination of his parental rights was in L.P.’s best interests. We are

       mindful that in considering whether termination of one’s parental rights is in

       the best interests of a child, the trial court is required to look beyond the factors

       identified by DCS and look to the totality of the evidence. McBride, 798 N.E.2d

       at 203. In doing so, the trial court must subordinate the interests of the parent

       to those of the child involved. Id. “A parent’s historical inability to provide a

       suitable environment along with the parent’s current inability to do the same

       supports a finding that termination of parental rights is in the best interests of

       the children.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

       373 (Ind. Ct. App. 2007) (citing In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct.

       App. 2002)). “Permanency is a central consideration in determining the best

       interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). In this

       vein, we have previously determined that the testimony of the case worker or

       court appointed special advocate (“CASA”) regarding the child’s need for

       permanency supports a finding that termination is in the child’s best interests.

       McBride, 798 N.E.2d at 203; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct.

       App. 1996), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 17 of 23
[32]   As outlined above, DCS has demonstrated that Father’s domestic violence,

       alleged physical abuse, and habitual incarceration poses a threat to the

       wellbeing of the Children. FCM Sparks and CASA John Nickoll testified that

       they believed that termination of the parent-child relationship and adoption is

       in the Children’s best interest. In addition to the negative evidence supporting

       removal from Parents, FCM Sparks indicated that since being removed from

       Parents’ care, the Children’s behavior and temperament have significantly

       improved and that the Children are “very comfortable” living with Aunt and

       Uncle. Tr. p. 287. The Children have lived with Aunt and Uncle for the

       majority of their lives, Aunt and Uncle are willing to adopt the Children, and

       the Children have indicated that they want to continue living with Aunt and

       Uncle. Moreover, FCM Sparks felt that termination was appropriate because

       Aunt and Uncle’s home provided the Children with much-needed stability and

       permanency compared to the instability and inconsistency of Parents’ home.


[33]   In challenging the sufficiency of the evidence to support the termination of his

       parental rights, Father does not specifically challenge the opinions of FCM

       Sparks or CASA Nickoll. Instead, Father argues that despite moving frequently

       he always secured housing and that although he was incarcerated and not

       employed on the day of the evidentiary hearing, he “maintained fairly regular

       employment.” Father’s Br. p. 20. Father also argues that he participated in

       substance abuse programs and therapy, participated in visitations with

       Children, and passed all drug screens throughout the life of the case. Finally,

       Father argues that there was only one instance of physical abuse against the


       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 18 of 23
       Children which was substantiated by the DCS and that instance was

       uncorroborated.


[34]   However, as stated above, the trial court found that Father was only minimally

       compliant with therapy, that Father went long periods without visiting Children

       while not incarcerated, and that Father refused to take five drug screens,

       resulting in presumptive positives. The trial court also noted that in addition to

       the single reported instance of physical abuse against the Children, Parents were

       the subject of multiple police reports regarding allegations of domestic violence

       and one of Parents’ therapists suspected physical abuse after seeing Mother with

       an unexplained black eye. The trial court, acting as the fact finder, was free to

       judge witness credibility and believe or not believe the witnesses as it saw fit.

       See Thompson, 804 N.E.2d at 1149; McClendon, 671 N.E.2d at 488; Moore, 637

       N.E.2d at 822.


[35]   Father’s criminal recidivism and issues with domestic violence create significant

       uncertainty as to when, if ever, Father would be capable of providing for L.P.

       In light of the testimony of the service providers, considered with L.P.’s need

       for consistency and permanency, we conclude that the evidence is sufficient to

       establish that termination of Father’s parental rights is in L.P.’s best interests

       and the trial court did not err in finding as such. Father’s claim to the contrary

       essentially amounts to an invitation for this court to reweigh the evidence,

       which we will not do. See In re S.P.H., 806 N.E.2d at 879.




       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 19 of 23
                              III. Father’s Due Process Rights
[36]   Father also argues that his due process rights were violated because he was not

       advised of his right to legal counsel pursuant to Indiana Code section 31-34-4-6

       at the outset of the CHINS proceeding underlying this case. Section 31-34-4-6

       provides that DCS shall inform the parent of a child who is the subject of a

       CHINS proceeding of his or her statutory rights in writing. The rights as

       enumerated by the statute include “the right to be represented by a court

       appointed attorney…upon the request of the parent…if the court finds that the

       parent” is indigent. Ind. Code § 31-34-4-6(a)(2).


[37]           The Due Process Clause of the United States Constitution
               “prohibits state action that deprives a person of life, liberty, or
               property without a fair proceeding.” In re B.J., 879 N.E.2d 7, 16
               (Ind. Ct. App. 2008), trans. denied. It is also well settled that the
               right to raise one’s child is an “essential, basic right that is more
               precious than property rights.” In re C.C., 788 N.E.2d 847, 852
               (Ind. Ct. App. 2003), trans. denied. Thus, when the State seeks to
               terminate a parent-child relationship, it must do so in a manner
               that meets the constitutional requirements of the due process
               clause. Hite v. Vanderburgh County Office of Family & Children, 845
               N.E.2d 175, 181 (Ind. Ct. App. 2006). Although due process has
               never been precisely defined, the phrase embodies a requirement
               of “fundamental fairness.” In re J.T., 740 N.E.2d 1261, 1264 (Ind.
               Ct. App. 2000), trans. denied.


       In re J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). When faced with a

       claim of denial of due process in a CHINS or TPR proceeding, we focus on

       “the risk of error created by the State’s chosen procedure.” Id. (citing Mathews

       v. Eldridge, 424 U.S. 319 (1976)). Furthermore, “if the State imparts a due

       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 20 of 23
       process right, then it must give that right.” Id. (citing A.P. v. Porter County Office

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


[38]   On February 11, 2011, at the initial hearing on the CHINS petition, Mother

       was informed of her right to counsel which she waived. Father was

       incarcerated at the time of the initial hearing and although he was served with a

       summons regarding the CHINS proceeding, the summons did not inform him

       of his right to counsel. On September 12, 2011, the trial court found Parents to

       be indigent and appointed counsel to represent them. It is unclear from the

       record whether Father was informed of his right to counsel by DCS prior to

       appointment of counsel.


[39]   DCS filed its TPR petition on January 31, 2014, and Father was appointed

       counsel on February 3, 2014. Father concedes that his trial counsel failed to

       argue that his due process rights were violated in the CHINS proceeding and, as

       such, waived the issue for review on appeal. However, Father argues that the

       failure to properly advise him of his right to counsel was a fundamental error4.

                [I]f the court made a “fundamental error,” meaning an error “so
                prejudicial to the rights of a defendant that a fair trial is rendered
                impossible,” then the lack of objection does not waive the right
                on appeal. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App.
                2010). The fundamental error rule “applies only when the error
                constitutes a blatant violation of basic principles, the harm or




       4
        Although the fundamental error rule is typically applied in criminal cases, it has been similarly applied in a
       TPR case in Matter of D.G., 702 N.E.2d 777, 779 n.2 (Ind. Ct. App. 1998).

       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016            Page 21 of 23
               potential for harm is substantial, and the resulting error denies
               the defendant fundamental due process.” Id.


       Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011).


[40]   Father claims that counsel would have been particularly helpful at the outset of

       the CHINS proceeding because the circumstances predicating the CHINS

       petition involved only Mother’s drug use. Although it is true that DCS’s initial

       concerns appeared to consist of only Mother’s behavior, it quickly became

       apparent to DCS that Father also had challenges providing consistent adequate

       care for the Children as evidenced by the following: Father was incarcerated

       when DCS became involved and so could not provide for Children at that time;

       concerns with Father’s domestic abuse were an issue as early as March 29, 2011

       and the initial home visit was delayed due to these concerns; Father and

       Mother cohabitated throughout the majority of the CHINS proceedings, and

       later married, meaning Mother’s substance abuse would have posed a threat to

       Children regardless of Father’s ability to provide.


[41]   Therefore, it is unlikely that Father would have prevailed at the CHINS

       proceeding even if he had been represented by counsel. Furthermore, Parents

       were appointed counsel in September of 2011 and the TPR petition was not

       filed until 2014. Father’s subsequent failure to comply with recommendations

       by the trial court and DCS, as well as his continued criminal behavior and

       incarcerations, are not attributable to a lack of counsel at the outset of the case.

       We cannot say that the failure to advise Father of his right to counsel––


       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 22 of 23
       assuming such an error was made––so fundamentally denied his rights as to

       make a fair trial impossible.



                                               Conclusion
[42]   Having concluded that the evidence is sufficient to support the trial court’s

       order terminating Parents’ parental rights to the Children and that Father’s due

       process rights were not violated, we affirm the judgment of the trial court.


[43]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A04-1507-JT-868 | February 9, 2016   Page 23 of 23
