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 APPELLANTS: ATTORNEYS FOR APPELLEES:

JENNIFER A. JOAS GREGORY F. ZOELLER

Joas & Stotts Attorney General of Indiana

Madison, Indiana

ROBERT J. HENKE

AARON J. SPOLARICH

Deputies Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )

THE PARENT-CHILD RELATIONSHIIP OF: )

Q.M. and E.M., Minor Children, )

)

B.M., Father, )

)

Appellants-Respondents, )

)

vs. ) No. 15A04-1303-JT-142

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE DEARBORN CIRCUIT COURT

The Honorable James D. Humphrey, Judge

Cause Nos. 15C01-1209-JT-23, 15C01-1209-JT-24

December 20, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
2

B.M. (Father)1 appeals the involuntary termination of his parental rights to his 

children, Q.M. and E.M. (Children). Father’s parental rights had previously been terminated,

but we reversed that order on September 11, 2012. In Re Q.M., 974 N.E.2d 1021 (Ind. Ct. 

App. 2012). Soon afterward2the Dearborn County office of the Department of Child 

Services (“DCDCS”) filed a second petition, which the trial court granted. Father argues on 

appeal:

1. DCDCS violated Father’s right to due process because it did not provide Father with 

additional services between our reversal of the first termination order and the filing of 

the second termination petition;

2. The trial court committed fundamental error when it proceeded to a second 

termination hearing based on DCDCS’s prematurely-filed second petition; and

3. There was insufficient evidence to support the involuntary termination of Father’s 

parental rights.

We affirm.3 

FACTS AND PROCEDURAL HISTORY

The facts of the underlying CHINS adjudications and the earlier proceedings were set 

forth in our earlier opinion:

Father is the biological father of Q.M., born in July 2007, and E.M., 

born in August 2009. The facts most favorable to the trial court’s judgment 

 

1 Mother voluntarily relinquished her parental rights to the Children.

2 The petition is dated September 17 and the court, in its final order, indicates the petition was filed on that day. 

However, the Chronological Case Summary and the handwritten notation on the petition in the Appendix 

indicates the petition was filed on September 24. 

3 We held oral argument on this matter on November 19, 2013, at the Indiana Statehouse. We commend 

counsel on their advocacy.
3

reveal that the local Dearborn County office of the Indiana Department of 

Child Services (“DCDCS”) became involved with this family in March 2010 

after receiving a report of injuries suffered by then two-year-old Q.M. 

Although Q.M. had been taken to Dearborn County Hospital by his mother for 

uncontrollable vomiting, hospital personnel noticed Q.M. had sustained 

multiple injuries including a bruise to the tip of his penis, bilateral bruising on 

both hips, small bruises on his face, and a laceration to his chin. Q.M. was 

transported to Cincinnati Children’s Hospital where it was further discovered 

that Q.M. also had suffered damage to his small intestine requiring surgery to 

remove a portion of the injured organ.

While Q.M. remained at Cincinnati Children’s Hospital, Dr. Shapiro, 

Medical Director of the hospital’s Child Abuse Team, informed the DCDCS 

assessment case manager that Q.M.’s injuries, including the injury to his small 

intestine, were indications of abuse. Dr. Shapiro further disclosed that the 

injury to Q.M.’s small intestine was a result of “blunt force trauma” that could 

have been caused by “a punch or a kick.” Appellant’s Appendix at 50.

As a result of its investigation, DCDCS filed petitions, under separate 

cause numbers, seeking emergency custody of both Q.M. and E.M. The 

emergency custody petitions were granted, and DCDCS thereafter filed 

petitions alleging Q.M. and E.M. were children in need of services (“CHINS”). 

Although the specific perpetrator of Q.M.’s injuries was never specifically 

identified, Father later signed a Stipulation of CHINS agreement wherein he 

acknowledged that Q.M.’s injuries “would not have occurred but for the act or 

omission of a parent, custodian, or guardian.” Id. at 89.

The children were adjudicated CHINS, and the trial court entered an 

order directing Father to participate in various services including a 

psychological evaluation, parenting classes, individual counseling, and 

therapeutic visits with the children. Initially, Father participated in several of 

these court-ordered services. He failed, however, to progress in his ability to 

incorporate the things he was learning into his daily life and interactions with 

the children. For example, Father’s evaluation with psychologist Dr. Edward 

Connor indicated Father consistently tried to present a more positive persona 

than what reality would indicate. Father also demonstrated a deficit in his 

ability to be “emotionally attuned” to the children, which was “particularly 

concerning” with regard to Q.M., who had suffered such “severe emotional 

trauma.” Transcript at 121. Additionally, Father did not express his emotions 

in a positive manner and had significant passive-aggressive tendencies. As a 

result of his evaluation, Dr. Connor recommended Father participate in 

individual counseling.

Although Father initially participated in the recommended individual 

therapy through Lifeworks Counseling, he failed to successfully complete the 

program. Moreover, the therapist working with Father observed that Father’s 
4

“thoughts” and “perceptions” were “distorted” to such a degree that it rendered 

him incapable of being “effective in any level of interaction with his children.” 

Id. at 23. Father also began expressing obsessive and aggressive behaviors 

with regard to Mother following the couple’s break-up in October 2010. This 

extreme and obsessive behavior by Father was observed by service providers 

during visits with the children and during other interactions with case workers 

and service providers. For example, Father sent 96 text messages and made 

numerous phone calls concerning Mother and her whereabouts to the homebased counselor’s personal cell phone and home phone during a single 

weekend, causing the provider to feel threatened and to request no further 

work with Father.

Father also began showing up at the DCDCS office whenever he 

thought Mother might be there, and a restraining order was later issued against 

Father with regard to [Mother]. Father was also ordered by the trial court to 

limit his contact with certain DCDCS case managers and service providers due 

to his unstable behavior and aggressive telephone calls and texts. Because 

Father’s behavior was viewed as a threat to the children, Father’s visitation 

privileges were also eventually limited.

As a result of Father’s overall lack of progress in services, refusal to 

accept responsibility for his role in the children’s removal, and inability to 

understand the severe emotional trauma suffered by Q.M. and/or effectively 

deal with the child’s long-term emotional and behavioral issues, DCDCS filed 

petitions seeking the involuntary termination of Father’s parental rights to both 

children on May 20, 2011. Although the children had been removed from the 

family home for approximately thirteen months, no dispositional order 

formally removing the children from Father’s care and custody had been issued

by the trial court at the time the termination petitions were filed. Upon 

discovering this oversight, DCDCS sought, and the trial court entered, 

dispositional orders formally removing the children from Father’s care and 

custody in July 2011.

A consolidated, two-day evidentiary hearing on the termination 

petitions as to both children commenced in August 2011 and later concluded in 

October 2011. During the hearing, DCDCS presented considerable evidence 

regarding Father’s failure to successfully complete a majority of the courtordered reunification services, including individual counseling and a Batterer’s 

Intervention [P]rogram. The evidence also confirmed Father remained unable 

to demonstrate that he was capable of providing the children with a safe and 

stable home environment. Specifically, DCDCS presented substantial 

evidence establishing Father’s ongoing distorted self-perceptions, lack of 

emotional attunement with the children, refusal to acknowledge the 

significance of Q.M.’s physical and emotional trauma, and ongoing obsession 

with Mother.
5

As for the children, DCDCS submitted evidence showing Q.M., who 

was diagnosed with post traumatic stress disorder, intermittent explosive 

disorder, and oppositional defiant disorder, was living and thriving together 

with E.M. in the care of his pre-adoptive foster family. Additional evidence 

established that Q.M.’s significant behavioral and emotional outbursts were 

lessening, and that the child was happy, trusted, and bonded to his foster 

parents, especially his foster mother who had become Q.M.’s primary source 

of emotional security.

At the close of evidence, the trial court took the matter under 

advisement. On November 7, 2011, the trial court issued its judgment 

terminating Father’s parental rights to Q.M. and E.M.

In re Q.M., 974 N.E.2d at 1022-24. 

On appeal, DCDCS conceded it had not filed its dispositional decree removing the 

Children from Father’s home until after it had filed the petition for termination and that the 

Children had been removed from Father’s home for only thirteen of the required fifteen 

months. Thus, DCDCS’s termination petition had not satisfied “the jurisdictional 

requirements of Indiana Code § 31-35-2-4(B)(2)(a).” Id. at 1024. We, therefore, reversed 

the involuntary termination of Father’s parental rights to the Children and remanded. Our 

opinion was handed down on September 11, 2012. 

Within two weeks DCDCS filed a second petition to involuntarily terminate Father’s 

parental rights. The trial court held a hearing December 18 and thereafter issued another 

order involuntarily terminating Father’s parental rights.4 

 

4 The court entered the order terminating Father’s rights on January 14, 2013. However, Father claimed he did 

not receive a copy of that order, and the Chronological Case Summary suggested that order may not have been 

sent to him. To provide Father with an opportunity to appeal, the trial court entered an amended order that 

contained the same findings, conclusions, and judgment as the original order. 
6

DISCUSSION AND DECISION

1. Additional Services after Reversal of First Termination Order

In a termination of parental rights proceeding, parents have certain due process rights:

When a State seeks to terminate the parent-child relationship, it must do so in a 

manner that meets the requirements of the due process clause. Santosky v. 

Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although due 

process has never been precisely defined, the phrase embodies a requirement 

of “fundamental fairness.” E.P. v. Marion County Office of Family & 

Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting Lassiter v. 

Dep’t of Social Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 

(1981)). Citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 

18 (1976), this court has recently acknowledged that the nature of the process 

due in parental rights termination proceedings turns on a balancing of three 

factors: (1) the private interests affected by the proceeding, (2) the risk of error 

created by the State’s chosen procedure, and (3) the countervailing 

governmental interest supporting use of the challenged procedure. A.P. v. 

Porter County Office of Family and Children, 734 N.E.2d 1107 (Ind. Ct. App.

2000)[, reh’g denied].

J.T. v. Marion Co. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), 

reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion Co. Office of 

Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004). In addition, “procedural 

irregularities in a CHINS proceeding may be of such import that they deprive a parent of 

procedural due process with respect to the termination of his or her parental rights.” A.P., 

734 N.E.2d at 1112-13. 

Father argues his due process rights were violated when DCDCS did not provide 

services to Father or attempt to reunify him with his Children between our reversal of the 

first termination order and DCDCS’s filing of the second termination petition. Father argues 

that, on remand, DCDCS was required to offer reunification services pursuant to Ind. Code § 
7

31-34-21-5.5(b) (footnote added):

(b) Except as provided in section 5.65 of this chapter, the department shall 

make reasonable efforts to preserve and reunify families as follows:

(1) If a child has not been removed from the child’s home, to prevent or 

eliminate the need for removing the child from the child’s home.

(2) If a child has been removed from the child’s home, to make it 

possible for the child to return safely to the child’s home as soon as 

possible.

In addition, Father argues the short time before the second termination petition – within two 

weeks of our uncertified opinion – deprived him of the due process required before

involuntary termination.

DCDCS was not required to provide Father with services because he did not request 

them. See In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (“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”). Regarding this issue, the trial court found:

[Family Case Manager] Eckstein testified that she spoke multiple times with 

Father on the phone after the [C]ourt of Appeals reversed the termination of 

parental rights. In none of these conversations did Father ask FCM Eckstein 

about the [C]hildren and how the [C]hildren were doing or whether he could 

visit the [C]hildren.

(App. at 44.) During the hearing on the second termination petition, DCDCS Case Manager 

Amy Eckstein testified:

[State]: . . . [W]hat is the reason that any services for [Father] did not begin 

again?

[Eckstein]: We had - the case had been open to - since 2010 and he did not 

progress in those services or complete those services and the 

 

5

Ind. Code § 31-34-21-5.6 lists scenarios – including a parent’s conviction of certain crimes, prior termination 

proceedings, and abandonment of an infant – during which DCDCS is not required to comply with Ind. Code § 

31-34-21-5.5. Neither party asserts one of those scenarios occurred in the instant case.
8

Department [of Child Services] did not feel that he would progress in 

any future services?

[State]: Did [Father] motion the Court to request any services to begin again?

[Eckstein]: Not to my knowledge.

(Tr. at 12.) Father also testified:

[Father’s Counsel]: OK. Now, at some point you heard that the [first termination] 

case was overturned by an appeal, correct?

[Father]: Yes.

[Father’s Counsel]: When you learned that the case was overturned on appeal, did 

you make any efforts to try to resume visitations and contact 

with your children?

[Father]: No Sir I have not.

(Id. at 18.) Father then testified regarding his frustration with various parts of the CHINS 

process and his disagreements with service providers, but never testified that he asked for 

reunification services after we reversed the first termination order. Therefore, Father has not 

demonstrated his due process rights were violated when DCDCS did not provide him with 

reunification services and DCDCS was not required to in the absence of his request to do so. 

2. Premature Filing of Second Termination Petition

Our Appellate Rules provide: “The trial court, Administrative Agency, and parties 

shall not take any action in reliance upon the opinion or memorandum decision until the 

opinion or memorandum decision is certified.” App. R. 65(E) (emphasis added). An opinion 

is certified “only after the time for all Petitions for Rehearing, Transfer, or Review has 

expired, unless all the parties request earlier certification. If the Supreme Court grants 

transfer or review, the Clerk shall not certify any opinion or memorandum decision until final 

disposition by the Supreme Court.” Id. A party must file a petition for rehearing or transfer
9

no later than thirty days after the decision. App. R. 54 (B) (rehearing); App. R. 57(C)(1) 

(transfer). Our Indiana Supreme Court recently upheld a trial court’s refusal to act on a

party’s request for implementation of an appellate holding prior to its certification. Founds.

of E. Chicago, Inc. v. City of E. Chicago, 933 N.E.2d 874, 874-5 (Ind. 2010). 

Our opinion reversing the first termination order was issued on September 11, 2012, 

and DCDCS filed its new petition on either September 17 or September 24. See supra at 1 

n.3. The filing therefore occurred before the thirty-day time frame for a petition for rehearing 

or for transfer had passed. Regarding that premature filing, the trial court found:

22. [DCDCS] did not begin visits after the Court of Appeals reversed the 

original TPR [termination of parental rights]. It is noted that [DCDCS] refiled a TPR petition within six (6) days of receiving the Court of [A]ppeals 

order. FCM Eckstein acknowledged, however, that [DCDCS] spoke with 

[Q.M.’s] counselor about doing visits and the counselor and DCS believed that 

visits would be detrimental to the child. The child’s behavior has begun to 

stabilize since the original TPR due to the care he has received. FCM Eckstein 

believes, and the Court finds, that the child’s behavior would destabilize if 

visits began again with his father.

(App. at 43-44.) At oral argument, DCDCS conceded the second termination petition was 

filed prematurely, but argued the error was harmless. We agree. 

We will not reverse a trial court’s decision on the basis of an “error or defect in any 

ruling or order or in anything done or omitted by the trial court or by any of the parties” when 

that error’s “probable impact, in light of all the evidence in the case, is sufficiently minor so 

as not to affect the substantial rights of the parties.” App. R. 66(A). DCDCS filed its second 

petition before our opinion was certified, but the trial court did not act on the petition until

two weeks after certification. Father did not bring the issue of the premature filing to the 
10

trial court’s attention or file a motion to dismiss based on the error, which means this alleged 

error also was waived for appellate review. See In re S.P.H. and H.P.H., 806 N.E.2d at 877-

78 (failure to first raise an issue at the trial court level waives the issue from appellate 

consideration). As noted above, Father did not request services, so the premature filing did 

not affect his rights. While DCDCS’s premature filing was error, we are unable to find 

prejudice when Father has not demonstrated any impact on the decision of the trial court. 

Therefore, the error was harmless. See Rogers v. R.J. Reynolds Tobacco Co., 745 N.E.2d 

793, 796 (trial court’s procedural error was harmless when it did not ultimately affect the 

outcome of the case).

3. Sufficiency of Evidence Supporting Termination

We review termination of parental rights with great deference. In re K.S., D.S., and 

B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge 

credibility of 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 most favorable to the 

judgment. Id. In deference to the juvenile court’s unique position to assess the evidence, we 

will set aside a judgment terminating a parent’s rights only if it is clearly erroneous. In re 

L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 

U.S. 1161 (2002).

When, as here, a 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). We determine first whether the evidence supports the 
11

findings and second 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. 1996). If the evidence and 

inferences support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 

208.

“The traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 

N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court must subordinate the 

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

surrounding a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child 

should not be terminated solely because there is a better home available for the child, id., but 

parental rights may be terminated when a parent is unable or unwilling to meet his or her 

parental responsibilities. Id. at 836.

To terminate a parent-child relationship, the State must allege and prove:

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

(i) The child has been removed from the parent for at least six 

(6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that 

reasonable efforts for family preservation or reunification are 

not required, including a description of the court’s finding, the 

date of the finding, and the manner in which the finding was 

made.

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

under the supervision of a county office of family and children 

or probation department for at least fifteen (15) months of the 

most recent twenty- two (22) months, beginning with the date 

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

alleged to be a child in need of services or a delinquent child;
12

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

(i) There is a reasonable probability that the conditions that 

resulted in the child’s removal or the reasons for placement 

outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the 

parent-child relationship poses a threat to the well-being of the 

child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;

(C) 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). The State must provide clear and convincing proof of these 

allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court 

finds the allegations in the petition are true, it must terminate the parent-child relationship. 

Ind. Code § 31-35-2-8.

Father does not challenge the trial court’s findings regarding Ind. Code § 31-35-2-

4(B)(2)(A) and Ind. Code § 31-35-2-4(b)(2)(D). He disputes only the trial court’s findings 

that there is a “reasonable probability that the conditions that resulted in the child’s removal 

or the reasons for placement outside the home of parents will not be remedied,” Ind. Code § 

31-35-2-4(b)(2)(B)(i), and “that termination is in the best interests of the child.” Ind. Code § 

31-35-2-4(b)(2)(C). 

a. Remedy of Conditions Resulting in Children’s Removal

Regarding whether there was a reasonable probability the conditions that resulted in 

the Children’s removal from their home would be remedied, 6the trial court concluded:7

 

6 Father also challenges the trial court’s conclusion that the continuation of the parent-child relationship posed 

a threat to the well-being of the children pursuant to Ind. Code § 31-35-2-4(b)(4)(B)(ii). However, as Ind. 
13

3. DCS has established by clear and convincing evidence that the reasons 

for continued placement outside the home will not be remedied. The 

Court particularly notes that:

A. Father has failed to complete therapy and the Batterer’s 

Intervention Program.

B. Father has also failed to make considerable progress working 

with caseworkers from George Jr. Republic.8

C. Father’s distorted perceptions render him incapable of 

recognizing the necessity of change, and his passive-aggressive 

tendencies have undermined some of the work done with him.

D. Father’s obsession with his failed relationship with mother took 

precedence to concerns regarding the children – no progress was 

made as a result.

(App. at 46) (footnote added). The trial court noted fourteen findings of fact it relied on in 

making its conclusion:

8. Father suffers from “distorted perceptions”, [sic] according to Father’s 

Lifeworks therapist, Janelle Batta, which render him incapable of 

seeing the negative sides of his actions.

9. In Father’s counseling sessions, he focused obsessively on Mother and 

their relationship rather than on his own issues or on his children.

10. Father also displayed obsessive behavior with regard to Mother after 

their breakup in visits with his children and in his interactions with 

caseworkers and service providers.

11. Father’s extreme behavior included questioning service providers and 

DCS staff about Mother’s location, including sending nearly one 

hundred (100) text messages about Mother to service provider Jennifer 

Buesing on her personal cell phone, causing her to request no further 

work with [Father]. A restraining order was issued between Father and 

 

Code § 31-35-2-4(B) is written in the disjunctive, DCDCS needed only prove one of the requirements. See In 

re J.W., 779 N.E.2d 954, 962 (Ind. Ct. App. 2002) (DCS required to prove one, but not both, of the 

requirements set forth by Ind. Code § 31-35-2-4(B)).

7 We note a majority of the trial court’s findings focus on Q.M. and say little about E.M.’s situation. While we 

hold the evidence sufficient to terminate Father’s rights to both children, we encourage the trial court, when 

determining the fate of two children, to present more thorough findings regarding both children.

8 “George Junior Republic in Indiana provides a continuum of services including home-based therapeutic 

services, group homes, and independent living across the state of Indiana. GJR Home-Based includes services 

that are provided to families and children in their own homes, schools and communities. These services range 

from home-based casework and therapy, functional family therapy, independent living, supervised visitations 

and homemaker services.” http://georgejuniorrepublic.org/gjr_in_indiana.html (last accessed November 27, 

2013).
14

Mother, and Father appeared at the DCS office at times where he 

thought he could run into Mother. The result of this conduct was an 

order from the Court limiting Father’s contact with DCS and service 

providers and likewise limiting his visitation, as his unstable behavior 

was a threat to the children.

12. Father demonstrated neither aptitude for nor any progress in gaining 

emotional attunement with his children, according to testimony from 

Batta and George Jr. Republic workers Jon MacMurdo and Jennifer 

Buesing.

13[.] Father’s deficit in emotional attunement was noted by Dr. Connor in his 

psychological evaluation of Father.

14. Father was referred to the Batterer’s Intervention program at Lifeworks 

but failed to recognize any need for the service and did not engage in it 

or successfully complete this service.

15. Father continued to blame Mother for the issues that resulted in 

continued placement outside the home and continued to call DCS staff 

to complain about Mother’s behavior up to the date of the original 

termination hearing. He testified about Mother’s employment as an 

exotic dancer and her cheating against [sic] [F]ather to cause the 

breakup of their marriage. While these facts are not desirable, they did 

not make Mother responsible for Father’s unwillingness to engage in 

the services he was offered. It is Father’s obligation to be a fit parent, 

and Father’s obligation to do what is necessary in the CHINS case to 

repair his parenting deficits. Father’s consistent blame shifting 

corresponds to the distorted perceptions noted by Batta and the 

tendency to present himself in the best possible light as noted by Dr. 

Connor.

16. Services for Father were stopped at the filing of the first termination of 

parental rights petition in February, 2011; as Father’s rights remained 

terminated throughout the appeal, no services were offered during the 

appeal process. Services were not reinstated after the Court of Appeals 

reversed the original petition. FCM Eckstein believed that Father 

showed an inability to progress from the services previously provided 

and that he had showed no changes such that services would now help 

him progress.

17. Consistent with FCM Eckstein’s testimony, despite services offered, 

[F]ather remained unable to understand the severe trauma suffered by 

[Q.M.]. This inability renders Father incapable of dealing with the long 

term issues [Q.M.] continues to suffer with regard to his injuries.

18. Father’s visitation was always supervised, usually for one or two hours 

at a time twice a week. These visits took place prior to the original 

termination of parental rights petition.
15

19. Father made little progress in attuning to the children in visits and no 

service provider ever recommended an increase in visitation.

20. Father refused to visit his children for a two (2) or three (3) week 

period in March and April, 2011, because DCS required these visits to 

be at the DCS office instead of in the community.

21. Father’s refusal to visit indicates self-centered tendencies which appear 

to govern Father’s behavior throughout the case. The Court finds that 

this was shown by his refusal to participate in Batterer’s Intervention 

because he didn’t feel he needed the program and his failure to 

successfully complete counseling with Janelle Batta because he felt she 

was not a good therapist. Father’s priorities are thus centered on his 

own needs to the exclusion of his children’s needs. DCS should not be 

required to incentivize parents to make them want to visit their 

children.

(Id. at 41-43.) 

To determine whether there is a reasonable probability the conditions justifying a 

child’s continued placement outside the home will not be remedied, “the trial court must 

judge a parent’s fitness to care for her children at the time of the termination and take into 

consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct.

App. 2001), trans. denied sub nom. Timm v. Office of Family & Children, 753 N.E.2d 12 

(Ind. 2001). Nevertheless, the trial court must also “evaluate the parent’s habitual patterns of 

conduct to determine the probability of future neglect or deprivation of the child.” Id. The 

court may consider the parent’s response to services offered by an Office of Family and 

Children when determining whether conditions have changed. M.B. v. Delaware Cnty. Dept. 

of Welfare, 570 N.E.2d 78, 82 (Ind. Ct. App. 1991). Pursuant to this rule, courts have 

properly considered evidence of a parent’s prior criminal history, drug and alcohol abuse, 

history of neglect, failure to provide support, and lack of adequate housing and employment. 
16

A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 

2002), trans. denied. A trial court need not wait until a child is irreversibly harmed by a 

deficient lifestyle such that his or her physical, mental, and social growth are permanently 

impaired before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 

(Ind. Ct. App. 2002).

Father argues DCDCS did not present evidence reflecting his fitness and ability to 

care for his Children at the time of the second termination hearing; instead, he asserts

DCDCS relied “almost solely,” (Br. of Appellant at 19), on evidence presented during the 

first termination hearing. However, during the second termination hearing, Father’s counsel 

said, “the facts [sic] situation hasn’t changed at all since that prior termination hearing,” (Tr. 

at 13-14), and counsel agreed to the incorporation of the transcript and record from the first 

termination hearing. Father testified that he would not “do anything” to change his testimony 

during the prior termination hearing. (Id. at 18.) Thus, to the extent the trial court’s decision 

was based on the evidence from the first hearing, Father and his counsel invited any error 

therein. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (“party may not 

take advantage of an error that she commits, invites, or which is the natural consequence of 

her own neglect or misconduct.”).

Further, there was sufficient evidence to support the trial court’s findings. During the 

second termination hearing, the DCDCS case manager, Amy Eckstein, testified:

[Father] did not progress in his services, he was unable to address the family 

situations that had led to the removal of the [C]hildren and he - and throughout 

the case he did not put the [C]hildren first. At one point of time in March of 

2011 and April of 2011 he refused to visit the [C]hildren because he did not 
17

want to visit in an 8 by 8 room. And he was unable to put the [C]hildren first. 

[He] [w]as unable to understand [Q.M.’s] diagnosis and would not be able to 

help the [C]hildren.

(Tr. at 13.) During the first termination hearing, Father’s counselor testified he did not make 

any progress in therapy designed to “work on his parenting deficits, emotional attunement 

with his [C]hildren[.]” (DCDCS Ex. 1, page 15.) Dr. Edward Connor, who conducted 

Father’s psychological evaluations testified Father’s emotional attunement was important 

considering the trauma Q.M. experienced which led to the DCDCS involvement. 

Additionally, Father never progressed beyond supervised visitation with the Children because 

he “missed visitation,” would “not visit with the [C]hildren” and instead would “speak about 

the case and speak about [Mother] during these visits[.]” (Id. at 159.)

DCDCS presented sufficient evidence to prove the conditions under which the 

Children were removed from Father’s home would not be remedied. Father’s arguments to 

the contrary are invitations for us to reweigh the evidence, which we cannot do. See In re 

D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the credibility of 

witnesses). 

b. Best Interests of the Children

Pursuant to Ind. Code § 31-35-2-4(b)(1)(C), DCDCS needed to provide sufficient 

evidence “that termination is in the best interests of the child.” In determining what is in the 

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

DCS and to consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

App. 2009). In so doing, the trial court must subordinate the interests of the parent to those 
18

of the child. Id. The court need not wait until a child is harmed irreversibly before 

terminating the parent-child relationship. Id. Recommendations of the case manager and 

court-appointed advocate, in addition to evidence the conditions resulting in removal will not 

be remedied, are sufficient to show by clear and convincing evidence that termination is in 

the child’s best interests. Id.

Regarding the best interests of the Children, the trial court concluded:

[DC]DCS has established by clear and convincing evidence that termination of 

the parent-child relationship is in the best interests of the child. Both FCM 

Eckstein and GAL Cleary testified in support of termination, and Father has 

done little to alleviate the conditions that resulted in continued placement 

outside the home. There is no evidence to suggest Father can provide the 

stability and nurturing needed by his children. The children are in a stable, 

appropriate, and well-kept home with foster parents, and permanency is 

essential for these children.

(App. at 47.)

Father argues DCDCS did not present sufficient evidence because “[a] subjective 

finding that there was a lack of progress despite participation in services does not 

demonstrate clear and convincing evidence.” (Br. of Appellant at 24.) He argues he 

completed the required services and he is not to blame for DCDCS’s failure to accommodate 

his request for a new therapist. Father also contends his supervised visits should not have 

been terminated based on “verbal behavior not directed at the children or occurring in the 

children’s presence, but at service providers.” (Id.)

As noted above, the evidence presented indicated Father’s supervised visits were 

terminated because he did not visit with the Children when given the time to do so, and did 
19

not focus on the Children during visits. In addition, Father did not progress in therapy, 

specifically in the areas of proper parenting techniques and emotional attunement to the 

Children.

DCDCS presented sufficient evidence the involuntary termination of Father’s parental 

rights was in the best interests of the children. Father’s arguments to the contrary are 

invitations for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d 

at 265 (appellate court cannot reweigh evidence or judge the credibility of witnesses). 

CONCLUSION

DCDCS was not required to offer services because Father did not request them. Any 

error from the consideration of DCDCS’s prematurely filed second termination petition was 

harmless because the violation of the Appellate Rules did not prejudice Father or affect the 

outcome of the case. Finally, DCDCS presented sufficient evidence that involuntary 

termination of Father’s parental rights to the Children was warranted based on evidence that 

the conditions under which the Children were removed would not be remedied, and that 

termination was in the best interests of the Children. Accordingly, we affirm the decision of 

the trial court.

Affirmed.

BAILEY, J., and BRADFORD, J., concur.