Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be 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 : ATTORNEYS FOR APPELLEE: AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana DCS Marion County Local Office Indianapolis, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana



## IN THE CO URT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION ) OF THE PARENT CHILD RELATIONSHIP OF: ) ) M.B. (Minor Child), ) ) and ) ) B.B. (Mother), ) ) Appellant

- Re spondent, ) ) vs. ) No. 49A05

- 1212

- JT

- 649 ) THE INDIANA DEPAR TMENT OF ) CHILD SERVICES, ) ) Appellee

- Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT

– JUVENILE DIVISION

The Honorable Marilyn Moores, Judge The Honorable Larry Bradley, Magistrate Cause No. 49D09

- 1208

- JT

- 0307332 August 14, 2013
ME MORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge
Case Summary
B.B. (“Mother”) appeals the termination of her parental r ights to her daughter,
M.B . Mother challenges the trial court’s conclusion that the conditions resulting in M.B.’s removal from h er care will not be remedied

. But Mother has a history of drug abuse and was incarcerated on drug

- related charges at the time of the termination hearing. She had also failed to maintain contact with her daughter, communicate with authorities involved in the termination case, and participate in the termination proceedings. Mother’s rights to her three older children have also been terminated. This is sufficient evidence to support the trial court’s decision to terminate Mother’s rights. Mother also argu es , belatedly, that her due

- process rights were violated at an earlier stage in the proceedings involving M.B. But Mother raises these arguments for the first time on appeal; thus, they are waived. Waiver aside, her due

- process arguments are not persuasi ve. We affirm. Facts and Procedural History Mother gave birth to M.B. in July 2011. 1 Mother has a history of drug use and
M.B. had health issues at birth , including drug

- withdrawal symptoms and feeding difficulties that required a feeding tube. M.B. received specialized care in the neonatal

1 M.B.’s biological father does not participate in this appeal; he consented to M.B.’s adoption.3

intensive

- care unit for the first two months of her life

. Hospital employees told Mother that she needed to learn how to control M.B.’s feeding tube and that they would contact child

- protective services if Mother did not complete the necessary training. Mother participated in some training, but she was forceful with M.B. and became frustrated when she could not control the feeding tube . Mother never completed the entire training. Mother was also required to id entify two alternate caregivers for M.B. due to her special medical needs. Mother first identified M.B.’s maternal grandmother

. But M.B.’s maternal grandmother was not a suitable caregiver; she worked sixty hours per week and did not complete the feeding

- tube training. Mother suggested another caregiver for M.B. , b ut that indivi dual was also unsuitable; the man was seventy

- two years old, had a history of strokes and limited mobility, and was physically unable to complete the feeding

- tube training. Altho ugh Mother suggested additional caregivers, they were all unsuitable. By the end of September, M.B. was ready to be discharged from the hospital, but

no one had completed the medical training necessary to care for her

. H ospital employees contacted the local Marion County Department of Child Services (“MCDCS”). MCDCS took custody of M.B. a nd placed her in foster care. MCDCS made a number of referrals for Mother for services such as substance

- abuse assessments, random drug screens, home

- based therapy, a nd home

- based case management. Mother never participated in any of these services. Tr. p. 25

- 26, 32. In September 2011, MCDCS filed a petition alleging that M.B. was a child in need of services (“CHINS”). Mother appeared at an initial hea ring and deni ed the allegations, and t he trial court appointed a n attorney to represent Mother. Mother did not appear a t a4

pre - trial hearing two months later , and her attorney told the trial court that she had been

un able to make contact with Mother. The court schedu led a fact

- finding hearing for January 2012. Mother did not app ear at the fact

- finding hearing and her attorney said Mother had not responded to her letters

. The court allowed counsel to withdraw. At the conclusion of the hearing, the trial court adjudi cated M.B. a CHINS. The trial court ordered Mother to appear in court to receive service referrals. Mother was incarcerated on drug

- related charges in February or March 2012. Mother was first incarcerated at the Marion County jail, but she was later tr ansferred to the Morgan County jail. The CHINS proceedings continued, but M other did not contact
MCDCS or appear at a permanency review hearing in August 2012. The court approved
a permanency plan of adoption for M.B

. Meanwhile, M.B.’s foster

- care place ment had changed, and she was living with Mother’s cousin, R.L. M.B. thrived in R.L. ’s home. She no longer needed a feeding tube, and she received occupational therapy to help develop healthy eating skills. She was developing normally and was bonded to R.L. and the other members of the family. R.L. hoped to adopt M.B. In August 2012, MCDCS filed a petition to terminate Mother’s parental rights

. Mother did not appear at the initial hearing on the termination petition, but t he trial court appointed an attorney for Mother. Mother also did not attend the evidentiary hea ring on the termination petition in November , but her attorney was present.5

At the hearing, MCDCS presented additional evidence regarding Mother’s
substance

- abuse issues

. 2 Before M.B.’s birth, Mother had been addicted to heroin, and d uring her pregnancy, Mother tested positive for methadone, marijuana, and cocaine. At the time of the hearing, Mother was still incarcerated. The MCDCS caseworker assigned to the case, Chatarra Johnson, re commended termination of Mother’s parental rights

. Johnson said that Mother had never demonstrated an abil i ty to care for M.B. and had not addressed her substance

- abuse issues

. Id. at 27

- 28. Johnson confirmed that M.B. was well cared for in her foster h ome and had developed a bond with her foster family. Id. at 29. The guardian ad litem (“GAL”) assigned to the case, Chris Crowder, also recommended terminating Mother’s right s, saying that M.B. was happy and healthy and that her foster family could provid e a permanent home where M.B.’s emotional and physical needs would be met

. Id. at 37

- 38

. At the end of September, the trial court entered its order with findings terminating Mother’s parental rights. Appellant’s App. p. 14

- 16

. Mother now appeals.
Di scussion and Decision On appeal, Mother argues that her due

- process rights were violated at the CHINS stage. She also challenges the sufficiency of evidence underlying the trial court’s decision to terminate her parental rights.
I. Mother’s Due Process R ights

2 DCS admitted a number of exhibits with this information. Mother’s attorney did not object to the admissio n of these exhibits, see Tr. p. 4, and Mother does not challenge their admission on appeal.6

Mother argues that her due

- process rights were violated at the CHINS stage because M.B. was adjudicated a CHINS without notice to Mother and because the trial court ordered her to appe ar in court to receive services, rather than ordering services at the time of the CHINS disposition. Appellant’s Br. p. 16

- 17. Mother did not raise any challenge to the CHINS proceedings at the termination stage; instead, she raises her due

process argument for the first time on appeal. The State must satisfy the requi rements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent

- child relationship. Castro v. Stat e Office of Family & Children , 842 N.E.2d 367, 375 (Ind. Ct. App. 2006) (citation omitt ed), trans. denied

. “Due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.” Id. Before an action affecting a party ’ s interest in life, liberty, or property protected by the Due Process Clause proceeds, the St ate, at a minimum, must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. Any p rocedural irregularities in a CHIN S proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights. Id. Neverth eless, a parent may waive a due

- process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal. McBride v. Monroe Cnty. Office of Family & Children , 798 N.E.2d 185, 194

- 95 (Ind. Ct. App. 2003); see also In re
K.S. , 750 N.E.2d 832, 834 n. 1 (Ind. Ct. App. 2001) (by raising issue for first ti me on appeal , mother waived due

- process claim that trial court violated her rights in failing to7

follow statutory requirements governing permanency hearings, case plans, and dispositional orders). Mother had a court

- appointed attorney throughout the termination procee dings but

never rai sed a CHINS due

- process claim

. Because she does so for the first time on appeal, s he has waived h er constitutional challenge. See McBride , 798 N.E.2d at 194

- 95

. Wavier aside, Mother’s claim s have no merit. She first argues that she w as denied due process when M.B. was adjudicated a CHINS without notice to her. But Mother invited any error of which she now complains. The doctrine of invited error provides that a party may not t ake advantage of an error that sh e commits, invites, or w hich i s the natural consequence of her own neglect or misconduct. C.T. v. Marion Cnty. Dep’t of Child
Serv s. , 896 N.E.2d 571, 588 (Ind. Ct. App. 2008) (citation omitted). The record shows that Mother appeared at the initial CHINS hearing and signed the original rights

- advisement form. Appellant’s App. p. 28

- 29. Mother then failed to respond to letters sent to her by the attorney representing her in the CHINS case . By failing to communicate with counsel despite knowledge of the ongoing CHINS proceeding s, Mother has invited the alleged error of which s he now complains, and invited error is not reversible error. Id

. (No reversible error where father was absent from termination hearing but was represented by his attorney; “ i n fai ling to respond to his
att orney’ s letters or to communicate with his attorney prior to the termination hearing, despite his actual knowledge of the hearing, [father] has invited the alleged error of which he now complains. ”). 3

3 Citing Indiana Code section 31

- 34

- 19

- 10, Mother also states that the trial court must accompany its dispositional decree with written findings and conclusions c oncerning the child’s needs and a parental8

Mother also argues that she was denied due process bec ause the trial court ordered her to appe ar in court to receive services, rather than ordering services at the time of the CHINS disposition . Because she never appeared in court, the trial court never ordered services. But w e have previously explained tha t “the provision of services is not a

re quisite element of our parental rights termination statute, and thus even a complete failure to provide services would not serve to negate a necessary element of the termination statute and require reversal.” In re E.E. , 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)

. Mother therefore cannot attack the termination order based on the fact that she was not provided services in the underlying CHINS case. This Court has also made clear that a parent may not “sit idly by with out asserting a need or desire for services ” and then successfully argue on appeal that she was denied services to assist her with parenting. In re B.D.J. , 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). But that is exactly what happened here. DCS offered Mot her services after the initial CHINS filing, but she refused to participate in those services

. And even if the trial court had erred by not ordering services for Mother at disposition, Mother fails to show how she was harmed by the trial court’s actions. If Mother wished to receive service s , she could have simply appeared in court

— but she never did. We find no error here.

II. Termination of Parental Rights The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. In re I.A. , 934
participation plan. Appellant’s Br. p. 18. But that requirement was met here; the trial court concluded that M.B. was a CHINS base d on the evidence in the record and indicated that Mother could receive services by appearing in court. See Petitioner’s Exh. 6. To the extent Mother also implies that the trial court did not comply with Section 31

- 34

- 19.6.1, she does not explain how the trial court erred or how this alleged error harmed her. See Appellant’ s Br. p. 18. Thus, we find no error here.9

N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting Troxel v . Granville , 530 U.S. 57, 65 (2000)). “Indeed[,] the parent

- child relationship is ‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty. Div. of Family & Children , 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parent al rights are “not absolute and must be subordinated to the child’s interests when determining the proper disposition of a petition to terminate parental rights.” Id. (citing
In re D.D. , 804 N.E.2d 258, 264

- 65 (Ind. Ct. App. 2004), trans. denied ). When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester v. Lake C nty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005) (citation omitted). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id

. Here, the trial court made specific findings and conclusions in its termination order. When a trial court enters specific findings of fact and conclusions thereon, we apply a
two

- tiered standard of review. First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. We will set aside the court’s judgment terminating a parent

- child relationship only if it is clearly erroneous. Id. Clear error is that which leaves us with a definite and firm conviction that a mistake has been made. In re A.B. , 888 N.E.2d 231, 235 (Ind. Ct. App. 2008) (citation omitted), trans. denied

. In Indiana, before parental ri ghts may be involuntarily terminated, the State is required to allege and prove, among other things:10

(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 reas ons 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). In addi tion, the State has the burden of pleading and provin g each element of Indiana Code section 31

- 35

- 2

- 4(b) by “‘ clear and convincing evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y. , 904 N.E.2d 1257, 1260

- 61 (Ind. 20 09) (quoting Ind. Code § 31

- 37

- 14

- 2). On appeal, Mother challenges the sufficiency of the evidence supporting the trial court’s judgm ent as to subsection (B) of the termination statute detailed above. See I.C. § 31

- 35

- 2

- 4(b)(2)(B ). Indiana Code section 3 1

- 35

- 2

- 4(b)(2)(B) is written in the disjunctive

. The trial court therefore had to find only that one of the three requirements of subsection 2(B) had been met before terminating Mothe r’s parental rights. In re L. V.N. , 799 N.E.2d 63, 69 (Ind. Ct. App. 200 3). Nevertheless, the trial court found sufficient evidence had been presented to satisfy the evidentiary requirements of subsections 2(B)(i) and 2(B)(ii). Because we find it dispositive, we address only whether the evidence shows that there is

a reasona ble probability that the cond itions resulting in the child ’s removal or continued11

placement outside Mother’s care will not be remedied. See Ind. Code § 31

- 35

- 2

- 4(b)(2)(B)(i). When making this determination, a trial court must judge a parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration

e vidence of changed conditions. In re I.A. , 903 N.E.2d 146, 154 (Ind. Ct. App. 2009) (citations omitted). The court must also evaluate the parent’s habitual patt erns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. Similarly, courts may consider evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, and failu re to provide suppor t. Id. The trial court may also consider the services offered to the parent and the parent’s response to those services, as evidence of whether conditions will be remedied. Id. Specific instances of a parent’s character, including e vidence regarding previous termination of parental rights, is also admissible evidence in a termination proceeding. In
re D.G ., 702 N.E.2d 777, 780 (Ind. Ct. App. 1998). The purpose of terminating parental rights is not to punish the parent but to protec t the children involved. In re D.B ., 942 N.E.2d 867, 872 (Ind. Ct. App. 2011) (citing In re
K.S. , 750 N.E.2d at 832 ). The involuntary termination of parental rights is the most extreme sanction a court can impose on a parent because termination severs al l of a parent’s rights to his or her children

. Id. (citing In re R.H. , 892 N.E.2d 144, 149 (Ind. Ct. App. 2008)). “ Termination of parental rights is therefore intended as a last resort, available only when all other reasonable efforts have failed.” Id.12

In determining that there is a reasonable probability that the conditions resulting in the child ’s removal or continued placement outside Mother’s care will not be remedied, the trial court cited Mother’s substance

- abuse issues, her failure to participate in any services to address those issues , her failure to participate in the CHINS or termination proceedings, and her failure to maintain contact with M.B. or MCDCS. Appellant’s App. p. 15. The court also noted that Mother’s parental rights to her three o ther children have been terminated

. Id. Mother argues that there was insufficient evidence of her fitness to care for M.B. at the time of the termination hearing because no one had visited her in jail to see if she had participated in any services there

. Appellant’s Br. p. 11

- 12. She argues that the burden of proving changed conditions was therefore improperly placed on her. Mother is correct that DCS , not the parent, carries the burden of proving that the parent is unfit to care for her child at the t ime of the termination hearing . But we do not think this requires
DCS to disprove an argument that Mother never ma de. P ut differently , MCDCS did not have to prove that Mother had not completed services when Mother herself never claimed to have done so

. And Mother’s participation in services

— or lack thereof

— was only one aspect of the trial court’s reasoning. There was other evidence of Mother’s fitness to care for M.B. at the time of the hearing, and it supported termination of her rights: Mother has a history of drug abuse and was incarcerated on drug

- related charges at the time of the termination hearing, making her physically unable to parent M.B. Other than the initial CHINS hearing, Mother did not attend any of the CHINS or termination proceedings, and s he did13

not maintain contact with M.B. or MCDCS

. Notably, Mother does not argue that she was unable to attend court proceedings or communicate with her daughter or MCDCS. Finally, her parental rights to her three o ther children have been terminated. Under these circumstances, we cannot say that the trial court erred in determining that MC DCS had established that the conditions resulting in M.B.’s removal would not be remedied

. Because we conclude that the evidence was sufficient to support the co urt’s determination , we need not consider whether the continuation of the parent

- child relationship poses a threat to M.B.’s well

- being as MC DCS has satisfied the requirements of Indiana Code section 31

- 35

- 2

- 4(b)(2)(B) by clear and convincing evidence.
Af firmed. BAKER, J., and FRIEDLANDER, J., concur.