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 S : AMY KAROZOS PATRICK M. RHODES. Greenwood, Indiana Indiana Department of Child Services Indianapolis , Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana 

## IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent

- Child ) Relationship of D.L. , minor child, and D. S., mother, ) ) D.S., ) ) Appellant

- Respondent, ) ) vs. ) No. 49A05

- 1206

- JT

- 305 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee

- Petitioner. ) ) and ) ) CHILD ADVOCATES, INC., ) ) Co

- Appellee

- Guardian Ad Litem )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn Moores , Judge The Honorable Julie Cartmel, Magistrate Cause No. 49D05

- 1103

- JT

- 864 March 11, 2013 MEMORANDUM DECISION
- NOT FOR PUBLICATION KIRSCH, Judge2

D.S. (“Mother”) appeal s the involuntary termination of her parental rights to her child, D.L. , claiming s he (1) was denied due process of law and (2) received ineffective assistance of counsel during the termination hearing

. We affirm. FACTS AND PROCEDURAL HISTORY
Mo ther is the biological mother of D.L. , bo rn i n September 1999

. 1 The facts most favorable to the juvenile court’s judgment reveal that , in May 2007, the local Marion County office of the Indiana Department of Child Services (“MCDCS”) took D.L. into protective custody and placed the child in therapeutic foster care after determining that Mother had fai led to provide a safe home environment for D.L. and allowed then

- seven year - old D.L. to fondle and “suck on her breasts” for “comfort.” Petitioner’s Ex. 3, at 4

. Mother was arrested on various felony charges , and later ple a d ed guilty to C lass D felony dis semination of matters harmful to minors . Mother was incarcerated from June through September of 2007. Meanwhile, in July 2007, D.L. was adjudicated to be a child in need of services (“CHINS”) , and following a hearing in August 2007, the juvenile court entered a dispositional order formally remov ing D.L. from Mother’s care and custody . The dispositional order also directed Mother to participate in and successfully complete a variety of tasks an d services designed to address her parenting deficiencies and to facilitate reunification of the family. Among other things, Mother was specifically

1 D.L.’s biological father, Da.L. signed a voluntary consent for adoption during the underlying proceedings and does not participate in this appeal. We therefore limit our recitation of the facts to those pertinent solely to Mother’s appeal.3

ordered to: (1) obtain and maintain stable housing and income to support the family; (2) submit to both a parenting assessment and mental health evaluation and follow all resulting recommendations; and (3) successfully complete home

- based counseling services and follow all recommendations of the home

- based counselor. Although Mother remained incarcerated at the time of the dispositional hearing, referrals for a psychological evaluation, psychosexual evaluation, and home

- based counseling services were made for Mother. Mother was released from incarceration in early November 2007. Her participation in court

- or dered reunification services following her release, however, was sporadic and ultimately unsuccessful. In July 2008, MCDCS filed a petition seeking the involuntary termination of Mother’s parental rights to D.L. The terminati on petition was later dismiss ed at the request of MCDCS in December 2009 because a pre

- adoptive home had not been secured. Mother was thereafter allowed to continue visiting with D.L. until January 2009 when D.L.’s therapist recommended that visitation be discontinued due to adverse behavioral problems exhibited by D.L. following the child’s visits with Mother. In March 2011, MCDCS filed a second petition seeking the involuntary termi nat ion of Mother’s parental rights. A two

- day evidentiary hearing on the termination petition was hel d in February 2012. During the termi n at i on hearing, MCDCS presented evidence showing that , although Mother participate d in s everal court

- ordered services including two psychological evaluations, individual counseling as a condition of her probation in the criminal case, and home

- based services, she nevertheless had failed to successfully compete and /or benefit from these services. For example, t hrough the4

testimony of p sychologist Mary Papandria (“Dr. Papandria”) , MCD CS established that Mother suffers from a “clear delusional paranoid disorder” and also showed “pretty severe” features of bi

- polar disorder , ” all of which would require “extensive psychotherapy ” for several years in order to achieve a significant change i n Mother’s
behavior. Tr

. at 182

- 83. Psychologist Michael Johnson (“Dr. Johnson”) likewise testified that during his psychosexual evaluation of Mother in 2009, Mother admitted she had allowed D.L. to “kiss and fondle her breasts to comfort him” before the child was removed from her care. Id. at 98. Mother also reported to Dr. Johnson that she watched “sadomasochistic pornography and pornography involving b estiality” and used marijuana and alcohol “on a weekly basis.” Id. at 98

- 99. Dr. Johnson further in formed the juvenile court that his assessment revealed Mother continued to suffer with “delusional disorder , ” “endorsed a number of bizarre [and] extreme thoughts ,” and was a “high risk” for recidivism.” Id. at 102, 110. Similarly , in recommending termina tion of Mother’s parental rights, MCDCS case manager Christine Myles (“Myles”) confirmed that Mother had failed to successfully complete a majority of the court

- ordered reunification services . M y les further reported , “I have never received any po sitive re commendations from providers working with [Mother] or anything that would lead us to believe that she understands the severity of the sexual abuse and that it will not occur again.” Id. at 149. As for D.L., M y les informed the juvenile court that although D.L. had suffered “severe sexual abuse” and continues to exhibit “slight behavioral issues,” the child’s overall behavior was being managed well in5

his current pre

- adoptive foster home, and D.L. was bonded with his foster parents. Id. at 146 , 150

. At the conclusion of the hearing, the j uvenile court took the matter u n d er advisement. In May 2012, the juvenile court issued a judgment terminating Mother’s parental right s of D.L. This appeal ensued. DISCUSSION AND DECISION When reviewing a t ermination of parental rights case , we will not reweigh the evidence or judge the credibility of the witnesses. 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 juvenile 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. In re L.S. , 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied

. I n terminating Mo ther ’s parental rights, the juvenile court entered specific findings and conclusions . When a juvenile court’s judgment contains specific findings of fact and conclusions thereon, we apply a two

- tiered standard of review. Bester v. Lake Cnty

. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports t he findings, and second, we determine whether the findings support the judgment. Id

. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen , 671 N.E.2d 98, 102 (Ind. 19 96). If the evidence and inferences support the juvenile court’s decision, we must affirm. L.S. , 717 N.E.2d at 208

.6

The “ traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United S tates Constitution.” In re M.B. , 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied

. These parental interests, however, are not absolute and must be subordinated to the child’s interests when determining the proper disposition of a petition to termina te parental rights. Id. In addition, a lthough the right to raise one’s own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. In re K.S

. , 750 N.E.2d 832, 836 (Ind. Ct. App. 2001)

. Before an involuntary termination of parental rights may occur in Indiana , the State is required to allege and prove, among other things : (B) that one (1) of the foll owing is true: (i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied. (ii) There is a reasonable probability that the continuation of the parent

- child relationship poses a threat to the well

- being of the child.
* * * (C) that termination is in the best interests of the child ; and (D) that there is a satisfactory plan for the care and treatment of the child.7

Ind. Code § 31

- 35

- 2

- 4(b)(2). 2 The State’s burden of proof for establishing these allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y. , 904 N.E.2d 1257, 1260

- 61 (Ind. 2009) (quoting Ind. Code § 31

- 37

- 14

- 2). On appeal, Mother does not challenge the sufficiency of the evidence supporting the juvenile court’s findings as to any of the requisite statutory elements of the termination statute cited above

. See Ind. Code § 31

- 35

- 2

- 4(b)(2). Rather, Mother a sserts

s he was denie d due process of law when MCDCS failed to “make ‘reasonable efforts’ during the CHINS proceedings ‘to make it possible for the c h ild to return safely to the child’s home as soon as possible’” by failing to refer Mother for certain recommended services. Ap

pellant’ s B r . at 20. Mother also complains that s he “was denied the effective assistance of trial counsel in the termination proceeding where [M]other denied many of the allegations of abuse, and her attorney did not object to numerous hearsay statements by the child alleging sexual abuse.” Id. at 13. We shall address each argument in turn.
I. Due Process

“ The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.” In re C.G ., 954 N.E.2d 910, 916 (Ind. 2011)

. Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a ‘ “unique kind of deprivation. ’ ” Id. (quoting Lassiter v. Dep ’ t of Soc. Servs., 452 U.S. 18, 27 (1981) )

. C hildren have an

2 We observe that Indiana Code section 31

- 35

- 2

- 4 was amended by Pub. L. No. 48

- 2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case.8

inte rest , however, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long

- term, continuous relationships. Id. at 917 (citing L ehman v. Lycoming Cnty

. Children’ s Servs. Agency, 458 U.S. 502, 513 (1982) )

. Notwithstanding the significance of the rights involved herein, it is well

established that a party on appeal may waive a constitutional claim. McBride , 798 N.E.2d at 194. In particular, we have previously held that a parent may waive a due process claim in a CHINS or involuntary termination case when it is raised for the first time on appeal. Id. at 194

- 95; see also In re K.S. , 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (concluding mother waived claim that trial court violated her due process rights i n failing to follow statutory requirements governing permanency hearings, case plans, and dispositional orders because she raised constitutional claim for first time on appeal) . T his is in keeping with the long

- standing general rule that an issue cannot b e raised for the first time on appeal. McBride , 798 N.E.2d at 194. Here, Mother claims that by “refusing to make a referral for services identified as needed for reunification, [ M CDCS] failed to make reasonable efforts to reunify the family” during the C HINS proceedings, thereby denying Mother due process of law. Appellant’s Br

. at 19. The record reveals , however, that a lthough Mother appeared in person and was represented by counsel throughout the duration of the termination hearing, s he never objected to proceeding with the termination hearing based on the ground that MCDCS had failed to provide family services in accordance with Indiana Code section 31

- 34

- 21

- 5.5

. Nor did Mother or h er attorney seek a continuance of the termination hearing based on an y other alleged constitutional violation

. Rather, Mother9

has raised t his issue for the first time on appeal. We therefore conclude that Mother has waived h er constitutional challenge. Waiver notwithstanding, we pause to a cknowledge that this c ourt has repeatedly expla i n ed , “ [T]he provision of family services is not a requisite 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 sta tute and require reversal. In re
E.E. , 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). In addition, we have clarified a parent’s responsibility in seeking appropriate services as follows: [T]he responsibility to make positive changes will stay where it must, on the parent. If the parent feels the services ordered by the [juvenile] court are inadequate to facilitate the changes needed for reunification, then the onus is on the parent to req uest additio nal assistance from the court or [the Indiana Department of Child Services]

. Prince v. Dep’t of Child Servs. , 861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007)

. T he record makes clear that Mother was provided multiple opportunities to participate in various services during the underlying CHINS case, including home

- based counseling, parenting and mental health assessments, supervised visitation, and individual counseling as a condition of her probation, in order to a ddress her mental health issues and to learn how to safely parent D.L. T he juvenile court properly determined, however, that by the time of the termination hearing, Mother had failed to successfully complete and/or benefit
from these available services. The juvenile court also indicated i n its termination order that D.L.’s interests would be best served by term inati ng the parent

- child relationship

. T he record supports th e juvenile court’s findings and conclusion

. We therefore find no

error.10 I I . Ineffective Assistance of Counsel
We now turn to Mother’s contention that s he was denied effective assistance of trial counsel. Mother contends s he was not afforded effective assistance of trial counsel in th e underlying termination hearing because her attorney failed to object to the int roduction of “numerous hearsay stat ements ” made by the child to various service providers “ alleging sex ual abuse, ” thereby “ lead ing to a fundamentally unfair hearing.” Appellant’s Br

. at 12. In Indiana, indigent pa rents have a statutory right to the assistance of counsel in termination of parental rights proceedings. See Ind. Code § 31

- 32

- 4

- 1; Ind. Code § 31

- 32

- 2

- 5. However, when reviewing termination of parental rights cases, our inquiry into whether counsel’s assista nce was effective does not involve the Strickland 3 test used in criminal cases. Rather, the focus of our inquiry is “whether it appears that the parent[] received a fundamentally fair trial whose facts demonstrate an accurate determination.” Baker v. Mar ion Cnty. Office of Family & Children , 810 N.E.2d 1035, 1041 (Ind. 2004). Thus, w hen a parent asserts on appeal that his or her lawyer underperformed, the question is not whether the lawyer might have objected to this or that, but whether the lawyer’s

ove rall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the child from parental care are un likely to be remedied and that termination is in the child’s best interests. Id

. App lying this standard to the present case, we find Mother’s claim to be unpersuasive. The record makes clear that Mother was zealously represented by counsel

3 Se e Strickland v. Washington , 466 U.S. 668 (1984).11

throughout the duration of the underlying termination proceedings . As for her attorney ’s specific performance during the termination hearing, the evidence demonstrates that Mother’s attorney effectively cross

- examined witnesses, made and won multiple objections, introduced evidence and exhibits, and proffered passionate and persuasive arguments against granting MCDCS’s petition to involuntarily terminate Mother’s parental rights. Of particular note, Mother’s attorney specifically object ed to Dr. Papandria’s testimony concerning MCDCS’s referral for a psychological evaluation
because the referral indica ted that Mother had admitted to engaging in certain sexual acts with D.L. See, e.g., Tr . at 180. Also significant, Mother’s own testimony during the termination hearing reveals that she admitted to explaining to her home

- based counselor, Mary Funderburg h, that she had allow ed D

. L. to “ suck ” her breasts for “comfort” like “sucking his thumb” prior to the child’s removal from her care

. Tr

. at 8 2. Thus, any alleged error committed by Mother’s counsel in failing to object to testimony concerning Mother’s s exual abuse of
D.L. was cumulative of Mother’s own properly admitted testimony , and therefore harmless. See, e.g., In re S.W. , 920 N.E.2d 783, 788 (Ind. Ct. App. 2010) (concluding that any error caused by admission of evidence constitutes harmless error i f erroneously admitted evidence is cumulative of other evidence properly admitted). Based on the foregoing, we conclude that Mother has failed to show she was prejudiced in any way by her attorney’s performance during the termination hearing

. Moreover, Mother’s own admissions provided sufficient evidence to support the juvenile court’s judgment

. In addition, after carefully reviewing the record, we cannot say that12

our confidence in the juvenile court’s determination s that (1) the conditions leading to D.L.’s removal from Mother’s care are unlikely to be remedied and (2) termination of Mother’s parental rights is in D.L.’s best interests has been undermined. We therefore find no error.
A ffirmed. MATHIAS, J. and CRONE, J., con c ur.