MEMORANDUM DECISION
[1] A.D. (“Father”) appeals the involuntary termination of his parental rights with respect to his children, J.W. and Ak.D. We affirm.
Facts and Procedural History
[2] Father and K.W. (“Mother,” and together with Father, “Parents”) are the parents of Ak.D., who was born in April 2008, and J.W., who was born in January 2010.
1
On September 17, 2018, Father was incarcerated in the federal prison system after pleading guilty to being a felon in possession of a firearm and attempting to distribute methamphetamine.
[3] In February 2019, the Department of Child Services (“DCS”) filed a petition alleging Ak.D and J.W. were children in need of services (“CHINS”) and that Mother was hospitalized due to an illicit drug overdose, she admitted to being addicted to pills and using prescription medication and heroin for approximately six months, and the children saw Mother “passed out and drooling [on] herself in her bed when she overdosed.” Exhibits Volume I at 24. On February 25, 2019, the court held a hearing and found it was in the best interests of the children to be removed from the home. On March 11, 2019, the court held a hearing at which Mother admitted the allegations in the CHINS petition.
[4] On April 10, 2019, the court entered a Dispositional Order which found that Father appeared for a hearing that same day.
2
The court ordered Mother and Father to participate in counseling, cooperate with homebased services, complete a drug/alcohol assessment and psychological evaluation and follow all recommendations, obtain and maintain a legal and regular source of income and adequate housing, complete a parenting assessment and comply with all recommendations, maintain consistent contact with DCS, and inform DCS in writing of any changes in address and phone number within forty-eight hours.
[5] In February 2023, DCS filed a petition for the involuntary termination of the parent-child relationship between Parents and the children. On May 1, 2023, the court held a hearing at which Father was represented by counsel. On June 6, 2023, the court held a hearing at which Father appeared via Zoom and was represented by counsel. Mother presented the testimony of J.W. and Ak.D. When asked if he would rather stay in foster care until he “aged out of the system rather than your parents [sic] rights be terminated,” J.W. answered affirmatively. Transcript Volume I at 68. Ak.D. testified that she did not want to be adopted by anyone but also stated that she wanted her aunt who lives in Arkansas to be her parent.
[6] On July 31, 2023, the court continued the hearing at which Father appeared “by audio only” and by counsel. Id. at 110. DCS presented the testimony of Angela Rogers, a permanency case worker, Kelly Colwell, a visit supervisor for Mother and the children, Donette Sandlin, Mothers homebased caseworker, Heather Weston, Ak.D.’s therapist, and Court Appointed Special Advocate Natalie Bogan (“CASA Bogan”). After DCS rested, Father testified that he communicated with the children via text and phone. He testified that he completed the “challenge program” and “was doing parenting classes with them too and then weve been locked down so much I never got to complete all of the phases and they be hitting you like ah ah passes for classes that you have to do to rehabilitate your self [sic] for society and all that so I was doing that during lockdowns too.” Id. at 208. He also stated that he was in “RDAT,” a drug program. Id. at 209. When asked how long he had been participating in that program, he answered: “Um I Im currently been enrolled Im waiting Im on a waiting list right now thats why I got moved to this facility here (inaudible).” Id. He indicated that his release date was February 20, 2027. He stated that he applied for compassionate release on March 10. He indicated that, other than his current federal incarceration, he had convictions for escape, two convictions for dealing in marijuana, possession of a controlled substance, and possession of a handgun without a license.
[7] On November 22, 2023, the court entered an eight-page order finding: there is a reasonable probability that the reasons for the childrens placement outside the home would not be remedied; continuation of the parent-child relationship posed a threat to the well-being of the children; termination of the parent-child relationships was in the best interests of the children; and there was a satisfactory plan for the care and treatment of the children.
Discussion
[8] Father argues that his rights were terminated based in part on findings that he failed to comply with dispositional terms that were unnecessary to remedy the reasons for removal or that demonstrate harm to the children. He argues that he did not receive any services from DCS and the courts order is unsupported by the evidence. DCS argues that Father waived any argument that the CHINS dispositional order was improper and the termination order is not erroneous.
[9] Even assuming that Father did not waive his argument that the CHINS dispositional order contained unnecessary requirements due to his failure to appeal the dispositional order, we cannot say that reversal is warranted. Father asserts that “there was no claim that [he] needed a psychological evaluation, a parenting assessment or training, a substance abuse assessment, drug screens, individual or family counseling, or homebased services, as substantive, non-‘boilerplate’ services.” Appellants Brief at 19. The record reveals that Father was incarcerated after pleading guilty, years after the birth of the children, to being a felon in possession of a firearm and attempting to distribute methamphetamine. Father also had two convictions for dealing in marijuana and a conviction for possession of a controlled substance. We cannot say that the participation decree which was aimed at resolving Fathers parenting deficiencies was unsupported by the evidence.
[10] To the extent Father asserts that DCS failed to provide services, as a matter of statutory elements, DCS is not required to provide parents with services prior to seeking termination of the parent-child relationship. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019), trans. denied. However, parents facing termination proceedings are afforded due process protections. Id. “Due process requires ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976)). The Indiana Supreme Court has held that “the process due in a termination of parental rights action turns on balancing three Mathews factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the States chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.” Id. (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). “In balancing the three-prong Mathews test, we first note that the private interest affected by the proceeding is substantial – a parents interest in the care, custody, and control of her child.” In re C.G., 954 N.E.2d at 917. “We also note the countervailing Mathews factor, that the States parens patriae interest in protecting the welfare of a child is also substantial.” Id. Thus, we focus on the risk of error created by the actions of DCS and the trial court.
[11] DCS is required to make reasonable efforts to reunify parents and children during CHINS proceedings, but that requirement “is not a requisite element of our parental rights termination statute, and a failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” A.Z. v. Ind. Dept of Child Servs., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). And a parent may not sit idly by without asserting a need or desire for services and then successfully argue that he was denied services to assist him with his parenting. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).
[12] The record reveals that Father was incarcerated outside Indiana and CASA Bogan testified that she attempted to contact Father but he had moved to a different federal prison by the time she received his contact information. CASA Bogan testified that she “tried to do the federal system, I tried to contact them using what they said on their website and by the time I had done all of that he had been moved already.” Transcript Volume I at 198. She stated: “I didnt try after that because when I ․ started doing it then he got moved again.” Id. Father admitted that he had not maintained consistent contact with DCS and had not informed DCS of any changes of his location or phone number in writing within forty-eight hours. Under these circumstances, we cannot say Fathers due process rights were violated.
[13] In order to terminate a parent-child relationship, DCS is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the childs removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[14] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial courts opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640.
[15] In determining whether the conditions that resulted in a childs removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. 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. at 643. In the second step, the trial court must judge a parents fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parents recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parents 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 a parents past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a childs removal for purposes of determining whether a parents rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parents prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parents response to those services. Id. Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances the problematic situation will not improve. Id.
[16] To the extent Father does not challenge the courts findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.
[17] The court found:
25. DCS was unable to put into place any services for Father due to him being incarcerated outside the State of Indiana for the duration of the case.
26. Fathers current anticipated release date from federal custody is in 2027.
27. Father presented no documentation to DCS nor the Court that he has completed any of the Court orders while hes been incarcerated.
28. Fathers current incarceration is based on convictions for Felon in Possession of a Firearm and Attempt to Distribute Methamphetamine.
29. [Father] pled guilty to the charges for which he is currently incarcerated, although at this Evidentiary Hearing Father suggested that he was not guilty of those offenses, leading the Court to conclude that Father either was dishonest either in making his plea of guilty before the federal court or in his testimony before this Court on that subject. In either instance, this calls into question the credibility of all his testimony.
30. Additionally, Father has previously been convicted of Escape, Dealing in Marijuana, Failure to Return to Lawful Detention, Dealing in a Controlled Substance, Possession of a Controlled Substance, and Possession of a Handgun without a license.
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54. [R]eview of the Orders [issued by the CHINS court] show that Father has not involved himself in the underlying CHINS case for literally years, even having actual knowledge that the child welfare action was pending.
55. The children have already been involved with the child welfare system for almost five (5) years, well beyond the time the Indiana legislature intended.
56. To allow these children to languish in the child welfare system on the hope that Father will, at this late date, be granted compassionate release from his federal sentence to involve himself in his childrens rearing and pursue physical custody of them is unrealistic and therefore not in the childrens best interest.
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65. The Court finds Fathers effort to seek compassionate release from his federal incarceration is more to benefit himself than to benefit his children.
Appellants Appendix Volume II at 37-39.
[18] The record reveals that Father was incarcerated in the federal prison system on September 17, 2018, after pleading guilty to being a felon in possession of a firearm and attempting to distribute methamphetamine. Fathers expected release date was February 20, 2027, at which point Ak.D. would be eighteen years old and J.W. would be seventeen years old. At the June 6, 2023 hearing, J.W. testified that he had not talked to Father in three months. At that same hearing, Ak.D. testified that she had not been in the same room with Father for five years and last received a text message from him in the beginning of May. She testified that it has been harmful for her to be in the system for the last four years and that being in the system longer would be harmful.
[19] Rogers, the permanency case worker, testified that the children had been involved with DCS for four and one-half years. She testified that Father had not contacted her about setting up services or provided her with any notification of any services in which he had engaged while incarcerated. She acknowledged that Father had maintained contact with the children by phone but stated that such contact was in contravention of the CHINS court orders. She indicated Father had not maintained consistent contact with DCS or sent any evidence that he completed a parenting assessment. CASA Bogan testified that she did not believe J.W. had a close relationship with Father and Ak.D. “had a relationship with [Father] until he stopped communicating with her.” Transcript Volume I at 196.
[20] In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in the childrens removal and the reasons for placement outside Fathers care will not be remedied.
[21] In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the childrens best interests. A.D.S. v. Ind. Dept of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. “A parents historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the childs best interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. We have previously recognized that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Id. (citation omitted).
[22] Rogers testified that DCS recommended “termination to achieve permanency for these children.” Transcript Volume I at 134. When asked if termination of parental rights would be in the childrens best interest, Colwell, the visit supervisor, answered: “I do think that would be in the childrens best interest they do need permanency this case this is one thing that [Ak.D.] said this case has been open forever why is it still open. She constantly kept saying that.” Id. at 163. Sandlin, Mothers homebased caseworker, testified:
When I stopped working this case in February of this year this case had been opened for years. That is a very long time for children to [be] bounced from place to place to place. These children deserve permanency. They deserve a place that they know is going to be long term. The same house structure to be raised in. The same schools. The same rules. So, no I ․ dont believe this case needs to stay open longer.
Id. at 171. Weston, Ak.D.’s therapist since January 18, 2023, testified that termination and placement with her aunt would be in Ak.D.’s best interest. CASA Bogan testified that “it is in the best interest of the children for the parental rights to be terminated” and that Fathers request for a compassionate release from his federal sentence did not alter her recommendation. Id. at 195. Based on the totality of the evidence, we conclude the trial courts conclusion that termination is in the childrens best interests is supported by clear and convincing evidence.
[23] To the extent Father argues that DCS does not have a satisfactory plan for the care and treatment of the children, we note that adoption is a “satisfactory plan” for the care and treatment of a child under the termination of parental rights statute. In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). This plan need not be detailed, so long as it offers a general sense of the direction in which the child will be going after the parent-child relationship is terminated. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied. With respect to the plans for the children, DCS was working on placement and the adoption of Ak.D. by her aunt, and adoption of J.W. by his godmother with whom he was already placed. When asked if those plans were supported by the children, she answered affirmatively. On cross-examination by Fathers counsel, Rogers testified that DCS was “working on getting [Ak.D.] the necessary documentation to get her [to her aunt] because it is out of state.” Transcript Volume I at 149. We conclude that clear and convincing evidence supports the trial courts determination that there is a satisfactory plan for the care and treatment of the children.
[24] For the foregoing reasons, we affirm the trial court.
[25] Affirmed.
FOOTNOTES
1
. Mothers rights were also involuntarily terminated but she does not participate in this appeal.
2
. The chronological case summary contains entries dated April 10, 2019, which indicate that Father requested appointed counsel, the court appointed him counsel, Father “waives the right to Fact-Finding,” and “[t]he CHINS petition comes on for a Dispositional Hearing.” Exhibits Volume I at 11.
Brown, Judge.
May, J., and Pyle, J., concur.