Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019 Page 1 of 20

MEMORANDUM DECISION

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

Danielle O. Sheff

Sheff Law Office

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of E.B. and W.B. 

(Minor Children), 

 and

A.C. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

May 30, 2019

Court of Appeals Case No.

18A-JT-3021

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. Moores, 

Judge

The Honorable Larry E. Bradley, 

Magistrate

Trial Court Cause Nos.

49D09-1807-JT-803

49D09-1807-JT-804

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3021 | May 30, 2019 Page 2 of 20

Case Summary

[1] A.C. (“Father”) appeals1the trial court’s order involuntarily terminating his 

parental rights to E.B. and W.B. (collectively, “the Children”), twins born on 

May 11, 2017. 

[2] We affirm. 

Issues

[3] Father raises several due process and statutory issues which we consolidate and 

restate as follows:

(1) Whether the State violated Father’s due process rights by 

failing to follow statutorily required procedures in the 

Child in Need of Services (“CHINS”) proceedings; 

(2) Whether the trial court erred when it denied Father’s 

Motion to Dismiss the termination proceedings for failure 

to hold a timely fact-finding hearing; and

(3) Whether the trial court clearly erred when it terminated 

Father’s parental rights.

1 Mother, J.B., voluntarily relinquished her parental rights and does not actively participate in this appeal.
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Facts and Procedural History

[4] On May 17, 2017, the Indiana Department of Child Services (“DCS”) filed 

CHINS petitions in which it alleged that the Children were born testing positive 

for amphetamine, benzodiazepines, methamphetamine, and opiates, and that 

J.B. (“Mother”) tested positive for those same drugs. The petitions further 

alleged that Father was incarcerated and unable to ensure the Children’s safety 

and well-being. In September of 2016, Father had been charged with various 

counts of burglary, criminal mischief, and criminal trespass. Father had been

arrested and incarcerated for those charges on or around January 3, 2017. 

Father has remained incarcerated since that date. He ultimately pled guilty to 

four counts of burglary and was sentenced accordingly. Father is not scheduled 

to be released from prison until approximately December of 2020.

[5] On October 3, 2017, the trial court conducted a CHINS fact-finding hearing at 

which Mother failed to appear and Father appeared by counsel. Father’s 

counsel notified the court that Father “waive[d] his right to fact-finding, noting 

that he is incarcerated.” Ex. at 60. In an October 12 order on “administrative 

rule hearing,” the court reset the “administrative Ruling to 10/27/17” for the 

purpose of consulting with the magistrate judge “regarding potential 

adjudication of the children to be a Child [sic] in Need of Services on the basis 

of father’s admission on or about 10/3/07,” because the October 3 “order is not 

specific to whether the Court adjudicated the children [as CHINS], and this 

matter is reset to clarify whether the acceptance of father’s admission is a de 
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facto adjudication.” Id. at 63. On October 27, the trial court issued an order 

finding the Children to be CHINS, stating:

On October 3, 2017[,] [Father] waived his right to factfinding. 

The Court accepted the waiver but did not adjudicate the 

children to be in [need of] services. [Mother] could not be 

located and a Default hearing was held for her.

The Court hereby adjudicates the children, [E.B. and W.B.,] to 

be in need of services.

Id. at 71. The Children were placed in relative care where they have remained.

[6] On July 2, 2018, DCS filed two separate petitions to terminate parental rights as 

to the two children. Mother executed a waiver of her parental rights and was 

dismissed from the termination cases. The trial court appointed a public 

defender for Father and set a pretrial conference for August 3. At the August 3 

pretrial hearing, Father requested mediation and the court granted that request. 

The court also, sua sponte, set the matter for a final pretrial hearing on October 

12 and a final hearing on November 15. At the October 12 pretrial hearing, 

DCS notified the court that mediation had been canceled, and Father stated 

that he wanted “to proceed with the termination hearing.” Father’s App. at 63. 

Father’s attorney also “confirm[ed] the trial dates in this matter.” Id. 

[7] On October 23, 2018, Father filed a Motion to Dismiss the termination case 

because the fact-finding hearing had not been commenced within ninety days of 

the date of the petition as required by Indiana Code Section 31-35-2-6(a)(1). In 
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an order dated October 24, the trial court denied2the Motion to Dismiss, noting

“that IC 31-35-2-6(a) states ‘when a hearing is requested.’ Mediation was 

requested on August 3, 2018, and the Court also set this matter for trial sua 

sponte on that date.” Id. at 68.

[8] On November 15, 2018, the trial court conducted the fact-finding hearing on 

the termination petitions. The State produced evidence that, in addition to the 

crimes for which Father was currently incarcerated, Father also had been 

convicted and incarcerated for various crimes in November 2014, June 2015, 

May 2016, and October 2016. On November 27, 2018, the trial court issued its 

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

Father’s “pattern of criminal activity and convictions” made it “reasonable to 

believe that he would not be available to parent after his current incarceration.” 

Appealed Order at 2. This appeal ensued.

Discussion and Decision

Due Process/Procedural Errors

[9] Father maintains that the trial court’s termination of his parental rights violated 

his procedural due process rights because DCS failed to follow the procedures 

required by state law. 

 

2

 The order contains a scrivener’s error in that it initially states that it “GRANTS” the motion to dismiss. Id. 

at 68. However, that statement is immediately followed by the statement that “The Court denies respondent 

father’s Motion to Dismiss...,” and Father concedes that the motion was denied. 
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When the State seeks to terminate the parent-child relationship, it 

must do so in a manner that meets the requirements of the due 

process clause. J.T. v. Marion County Office of Family and Children, 

740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied. 

Although due process has never been precisely defined, the 

phrase embodies a requirement of “fundamental fairness.” Id. 

Our legislature has enacted an interlocking statutory scheme 

governing CHINS proceedings and the involuntary termination 

of parental rights proceedings. A.P. v. Porter County Office of 

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

trans. denied. This statutory scheme is designed to protect the 

rights of parents in raising their children while allowing the State 

to effect its legitimate interest in protecting children from harm. 

Id. The CHINS and involuntary termination statutes are not 

independent of each other. Id.

L.N. v. Boone Cty. Div. of Family & Children (In re L.V.N.), 799 N.E.2d 63, 67 

(Ind. Ct. App. 2003) (superseded by statute on other grounds).

[10] First, Father contends that the trial court violated his due process rights by 

failing to adjudicate the Children as being CHINS “as to” him. Father’s Br. at 

32. However, “[b]ecause a CHINS determination regards the status of the 

child, a separate analysis as to each parent is not required in the CHINS 

determination stage.” N.L. v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d 

102, 106 (Ind. 2010).

[11] Second, Father asserts that DCS violated his due process rights by failing to 

provide him with services the court deemed necessary. However, that assertion 

is factually inaccurate. The evidence shows that, on October 31, 2017, the trial 

court ordered Father to participate in the Father Engagement Program; DCS 
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referred Father to that program; Father participated in that program for 

approximately one month; and Father then chose to cease participation in the 

program before completion.3

Timing of Fact-Finding Hearing

[12] Father maintains that the trial court erred in denying his Motion to Dismiss the 

termination petitions on the grounds that a fact-finding hearing was not 

commenced within ninety days of those petitions. Indiana Code Section 31-35-

2-6 states:

(a) Except when a hearing is required after June 30, 1999, under 

section 4.5 of this chapter, the person filing the petition shall 

request the court to set the petition for a hearing. Whenever a 

hearing is requested under this chapter, the court shall:

(1) commence a hearing on the petition not more than 

ninety (90) days after a petition is filed under this chapter; 

and

(2) complete a hearing on the petition not more than one 

hundred eighty (180) days after a petition is filed under 

this chapter.

(b) If a hearing is not held within the time set forth in subsection 

(a), upon filing a motion with the court by a party, the court shall 

 

3

 Father initially maintained on appeal that DCS also violated his due process rights by failing to file a 

termination petition as to E.B. However, Father withdrew that contention in his reply brief because the 

evidence shows that such a petition was filed. Reply Br. at 5.
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dismiss the petition to terminate the parent-child relationship 

without prejudice. 

[13] The State contends—and the trial court appears to have held—that Father 

invited the error of an untimely fact-finding hearing by requesting mediation on 

August 3, 2018. The State also raises the issue of waiver. Invited error 

typically forecloses appellate review, whereas waived claims generally may still 

be reviewed for fundamental error. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 

2019). We hold that Father did not invite the error by requesting mediation, 

but he did waive the error by failing to timely object to the date of the 

factfinding hearing. 

Invited Error

[14] Generally, a party’s failure to object to, and thus preserve, an alleged trial error 

results in waiver of that claim on appeal. Id. at 558. However, when a failure 

to object is accompanied by the party’s affirmative requests of the court, “it 

becomes a question of invited error.” Brewington v. State, 7 N.E.3d 946, 974 

(Ind. 2014). 

This doctrine—based on the legal principle of estoppel—forbids a 

party from taking “advantage of an error that she commits, 

invites, or which is the natural consequence of her own neglect or 

misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005).

Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). To establish invited error,

there must be some evidence that the error resulted from the 

appellant’s affirmative actions as part of a deliberate, well-
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informed trial strategy. A passive lack of objection, standing 

alone, is simply not enough. And when there is no evidence of 

counsel’s strategic maneuvering, we are reluctant to find invited 

error based on the appellant’s neglect or mere acquiescence to an 

error introduced by the court or opposing counsel.

Batchelor, 119 N.E.3d at 558 (quotation and citations omitted).

[15] Father did not invite the error of an untimely fact-finding hearing by requesting 

mediation. At the time Father requested mediation, there were still 

approximately two months left within which to conduct the fact-finding hearing

pursuant to state law. Father’s request for mediation in no way prevented DCS 

from requesting the scheduling of, or the court from commencing, a timely factfinding hearing. 

[16] Moreover, to the extent the trial court based its order on its belief that the 

statute does not require that the fact-finding hearing be commenced within 

ninety days of the date of the petition unless and until a party requests such a 

hearing, the trial court erred. When interpreting a statute,

[w]e must first determine whether the statutory language is clear 

and unambiguous. [Dykstra v. City of Hammond, 985 N.E.2d 

1105, 1107 (Ind. Ct. App. 2013), trans. denied.] If it is, “we will 

not apply any rules of construction other than to require that 

words and phrases be given their plain, ordinary, and usual 

meanings.” Id. However, if a statute is susceptible to multiple 

interpretations, it is deemed ambiguous and open to judicial 

construction. Id. In interpreting the statute, “we will attempt to 

determine and give effect to the intent of the legislature, and to 

that end, we read provisions of a statute together so that no part 
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is rendered meaningless if it can be harmonized with the 

remainder of the statute.” Id.

Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014). Statutes must be 

construed in a logical and reasonable way, “with each section being considered 

with reference to all other sections.” Gibson v. Ind. Dep’t of Correction, 899 

N.E.2d 40, 58 (Ind. Ct. App. 2008), trans. denied. And “[i]t is well settled that 

the use of the word ‘shall’ is construed as mandatory language.” Taylor, 7 

N.E.3d at 365 (quotations and citation omitted). 

[17] First, we note that the statute clearly and unambiguously provides that it is the 

responsibility of the DCS attorney, a court-appointed special advocate, or a 

Guardian ad Litem (“GAL”)—not the parents—to request a fact-finding 

hearing. Indiana Code Section 31-35-2-6(a) provides that “the person filing the 

[termination] petition shall[

4

] request the court to set the petition for a hearing.” 

(emphasis added); see also I.C. § 31-35-2-4(a) (defining who may file a 

termination petition). DCS cannot rely on its own failure to fulfill its statutory 

duty of requesting a hearing to excuse the untimely fact-finding hearing in this 

case. See Durden, 99 N.E.3d at 651.

 

4

 We note that, prior to a July 1, 2012, amendment, the statute contained permissive language; it stated that 

the person filing the termination petition “may request the court to set the petition for a hearing.” I.C. § 31-

35-2-6(a) (2012). Our legislature evinced a clear intent to make that request mandatory when it subsequently 

changed the word “may” to “shall.” See P.L. 48-2012, SEC. 68.
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[18] Second, the statute also unambiguously requires that the requested hearing be 

commenced “not more than ninety (90) days after a [termination] petition is filed,” 

rather than ninety days after a hearing is requested, as the State maintains. I.C. 

§ 31-35-2-6(a)(1) (emphasis added). Moreover, we observe that the 

commencement of the hearing is triggered by the mandatory filing of a request 

for such a hearing. I.C. § 31-35-2-6(a)(1) (providing that “whenever” a DCS

attorney, a special advocate, or a GAL has fulfilled his/her mandatory duty to 

request a hearing, “the court shall” commence the hearing not more than ninety 

days after the petition was filed). Construing the statute logically and with all 

its parts in harmony, we conclude that the statute requires that whoever filed 

the termination petition must also file a request for a fact-finding hearing in 

time for the hearing to be held in compliance with the statutory deadlines. 

Taylor, 7 N.E.3d at 365.

Waiver

[19] Although Father did not invite the error of an untimely hearing, he did fail to 

object to the untimely fact-finding hearing date both when it was set—i.e., 

August 3, 2017—and again at the October 12 pretrial hearing. To preserve a 

claim for review, “counsel must object to the trial court’s ruling and state the 

reasons for the objection.” Durden, 99 N.E.3d at 651. Moreover, the objection 

must be made “at the earliest opportunity when [the] trial is set beyond the time 

limitations.” Hampton v. State, 754 N.E.2d 1037, 1029 (Ind. Ct. App. 2001)

(discussing the requirement to file a timely objection in the analogous context of 

a request for a speedy criminal trial), trans. denied.
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This gives the court an opportunity to cure the alleged error, 

which, in turn, can result in enormous savings in time, effort and 

expense to the parties and the court, including avoiding an 

appeal and retrial. If the trial court overrules the objection, the 

appellate court benefits from a sufficiently-developed record on 

which to base its decision.

Durden, 99 N.E.3d at 651 (quotation and citations omitted). There are 

exceptions to the general waiver rule, such as where the error was fundamental. 

Id. at 652. An error is fundamental, and thus reviewable on appeal, if it “made 

a fair trial impossible or constituted a clearly blatant violation of basic and 

elementary principles of due process presenting an undeniable and substantial 

potential for harm.” Id. 

[20] Because Father failed to timely object to the date of the fact-finding hearing, he 

waived his appeal on the issue of an untimely hearing. See C.G.G. v. Ind. Dep’t of 

Child Servs. (Matter of N.C.), 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (finding 

parent waived his right to challenge the date of the fact-finding hearing by 

agreeing and failing to object to the setting of that hearing date beyond ninety 

days). Moreover, Father has not shown that any error in the date the factfinding hearing was commenced was fundamental. The fundamental error 

exception to the waiver rule is “an extremely narrow one, available only when 

the record reveals clearly blatant violations of basic and elementary principles of 

due process, and the harm or potential for harm [from the error] cannot be 

denied.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (quotation and 

citation omitted); see also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 
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(Ind. Ct. App. 2006) (“It is a cardinal rule of appellate review that the appellant 

bears the burden of showing reversible error by the record, as all presumptions 

are in favor of the trial court’s judgment.”).

[21] Father has not shown that the evidence presented at—or the outcome of—the 

termination proceeding would have been any different if it had taken place 

within the statutory deadline; that is, he has shown no harm that he suffered 

from the untimely commencement of the fact-finding hearing. 

Termination of Parental Rights

Standard of Review

[22] Father maintains that the trial court’s order terminating his parental rights was 

clearly erroneous. We begin our review of this issue by acknowledging that 

“[t]he traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment of the United States Constitution.” 

Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. 

Ct. App. 1996), trans. denied. However, a trial court must subordinate the 

interests of the parents to those of the child when evaluating the circumstances 

surrounding a termination. Schultz v. Porter Cty. Off. of Family & Children (In re 

K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child 

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

threatened. Id. Although the right to raise one’s own child should not be 

terminated solely because there is a better home available for the child, parental 
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rights may be terminated when a parent is unable or unwilling to meet his or 

her parental responsibilities. Id. at 836.

[23] Before an involuntary termination of parental rights can occur in Indiana, DCS 

is required to allege and prove, among other things:

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

* * *

(iii) The child has been removed from the parent and has 

been under the supervision of a local office or probation 

department for at least fifteen (15) months of the most recent 

twenty-two (22) months, beginning with the date the child is 

removed from the home as a result of the child being alleged 

to be a child in need of services 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.

* * *
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(C) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements 

of subsection (b)(2)(B) before the trial court may terminate parental rights. Id. 

DCS’s “burden of proof in termination of parental rights cases is one of ‘clear 

and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904 

N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).

[24] When reviewing a termination of parental rights, we will not reweigh the 

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of 

Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. 

denied. Instead, we consider only the evidence and reasonable inferences that 

are most favorable to the judgment. Id. Moreover, in deference to the trial 

court’s unique position to assess the evidence, we will set aside the court’s 

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

Judy S. v. Noble Cty. Off. of Family & Children (In re L.S.), 717 N.E.2d 204, 208 

(Ind. Ct. App. 1999), trans. denied.

[25] Here, in terminating Father’s parental rights, the trial court entered specific 

findings of fact and conclusions thereon. When a trial court’s judgment 

contains special findings and conclusions, we apply a two-tiered standard of 

review. Bester v. Lake Cty. Off. of Family & Children, 839 N.E.2d 143, 147 (Ind. 

2005). First, we determine whether the evidence supports the findings and, 

second, we determine whether the findings support the judgment. Id. 

“Findings are clearly erroneous only when the record contains no facts to 
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support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 

102 (Ind. 1996). If the evidence and inferences support the trial court’s 

decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[26] Father challenges several of the trial court’s findings of fact and conclusions of 

law. Father does not challenge the conclusion that he had failed to remedy the 

conditions that resulted in the Children’s removal; rather, he asserts that the 

court erred in determining that his parent/child relationship is a threat to the

Children and that termination is in the Children’s best interests. However, 

because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, 

DCS need only establish either that Father failed to remedy conditions or that 

the parent/child relationship posed a threat. The trial court held that DCS 

established the former, Father does not challenge that conclusion, and that 

conclusion is sufficient to satisfy Indiana Code Section 31-35-2-4(b)(2)(B). 

Thus, we proceed to Father’s challenge to the findings of fact and the 

conclusion that termination was in the Children’s best interests.

Findings of Fact

[27] Father asserts that the evidence did not support the following findings of fact:

9. [Father] has never seen the children, and has no 

experience at being a father;

10. [Father] wrote the family case manager five to six times 

inquiring about the children.
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11. Although [Father] has been incarcerated continuously for 

approximately two years, no evidence was presented of his 

undergoing any prison classes or programs to better 

himself.

12. A Father Engagement Program was referred for [Father] 

who did not engage in the program for a month prior to 

refusing to continue because he no longer saw the point.

Appealed Order at 2. However, with respect to each of those findings except 

number nine, Father does not dispute that the findings are correct statements, 

only that they are taken out of context and/or leave out other pertinent 

information. His contentions amount to requests that we reweigh the evidence, 

which we will not do. In re D.D., 804 N.E.2d at 265.

[28] Regarding finding number nine, Father does not dispute that he has never seen 

the Children, but he points out that he does have experience fathering his older 

child who lived with him in Texas for a time. However, even assuming the 

latter portion of the court’s finding number nine is clearly erroneous, the 

decision of the trial court is supported by the remainder of the findings. Thus, 

we may treat the portion of finding number nine challenged by Father as 

surplusage. Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004). 

Moreover, Father has shown no prejudice from the finding that would warrant

reversal of the court’s judgment on appeal. Id.
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Best Interests of the Children

[29] In determining whether termination of parental rights is in the best interests of a 

child, the trial court is required to look at the totality of the evidence. A.S. v. 

Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010). 

“A parent’s 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 child’s best 

interests.” Castro v. State Off. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

App. 2006), trans. denied. “Additionally, a child’s need for permanency is an 

important consideration in determining the best interests of a child, and the 

testimony of the service providers may support a finding that termination is in 

the child’s best interests.” In re A.K., 924 N.E.2d at 224; see also A.M. v. Ind. 

Dep’t of Child Servs. (In re A.G.), 45 N.E.3d 471, 479 (Ind. Ct. App. 2015) (stating 

the recommendation by both the 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 child’s best interests), trans. denied.

[30] Here, Father was incarcerated and therefore unavailable to parent the Children 

at the time they were initially removed from Mother’s care, and he remained 

incarcerated and unavailable to parent at the time of the termination hearing. 

Those facts support the conclusion that termination was in the Children’s best 

interests. Castro, 842 N.E.3d at 374; see also K.T. v. Marion Cty. Dep’t of Child 

Servs. (In re C.T.), 896 N.E.2d 571, 585 (Ind. Ct. App. 2008) (quotation and 
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citation omitted) (noting that “[i]ndividuals who pursue criminal activity run 

the risk of being denied the opportunity to develop positive and meaningful 

relationships with their children”), trans. denied. 

[31] Further, there was evidence that, in addition to his current convictions and 

incarceration, Father had been convicted and incarcerated in November 2014, 

June 2015, May 2016, and October 2016. Thus, the trial court found that 

Father “has a pattern of criminal activity and convictions.” Appealed Order at 

2. That finding supports the trial court’s conclusion that “it is reasonable to 

believe that [Father] would not be available to parent after his current 

incarceration.” Id.; see In re C.T., 896 N.E.2d at 578 (noting DCS need not rule 

out every possibility that a parent will not change his behavior; rather it need 

establish only that there is a reasonable probability that the parent will not do 

so).

[32] And, finally, both the GAL and the Family Case Manager testified that they 

believed termination of Father’s parental rights was in the Children’s best 

interests given that Father had never met the Children; he was unavailable to 

parent the Children due to his incarceration; the Children needed stability; and 

the Children were well-bonded with their preadoptive family. 

[33] The trial court did not clearly err when it concluded that termination of Father’s 

parental rights is in the Children’s best interests. Father’s contentions to the 

contrary amount to requests that we reweigh the evidence, which we cannot do. 

In re D.D., 804 N.E.2d at 265.
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Conclusion

[34] There were no procedural errors that denied Father due process of law. And, 

by failing to lodge a timely objection, Father waived his contention that the 

termination proceedings should have been dismissed for failure to commence a 

fact-finding hearing within ninety days of the filing of the petitions. Finally, the 

evidence supported the trial court’s findings, and its findings supported its 

judgment terminating Father’s parental rights.

[35] Affirmed.

Riley, J., and Pyle, J., concur.