Opinion
24A-JT-209
09-11-2024
In Re: The Termination of the Parent-Child Relationship of R.B (Minor Child); v. The Indiana Department of Child Services, Appellee-Petitioner C.W. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Brent R. Dechert Kokomo, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Howard Circuit Court The Honorable Lynn Murray, Judge Trial Court Cause No. 34C01-2309-JT-382
ATTORNEY FOR APPELLANT Brent R. Dechert Kokomo, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] C.W. ("Father") appeals the termination of the parent-child relationship with his son, R.B. ("R.B."). Father argues that there is insufficient evidence to support the termination. Concluding that there is sufficient evidence to support the termination of Father's parent-child relationship with R.B., we affirm the trial court's judgment.
The trial court also terminated R.B.'s mother's ("Mother") parental relationship with R.B. However, Mother is not participating in this appeal.
[¶2] We affirm. Issue
Whether there is sufficient evidence to support the termination of Father's parent-child relationship with R.B.
Facts
[¶3] The facts most favorable to the termination reveal that Father and A.W. ("A.W.") are the parents of: (1) son Ci.W. ("Ci.W."), who was born in 2004; (2) daughter N.W. ("N.W."), who was born in 2006; (3) son Ca.W. ("Ca.W."), who was born in 2009; and (4) daughter W.W. ("W.W."), who was born in 2012. When Father and A.W. dissolved their marriage in 2019, they agreed that Father would have physical custody of Ci.W., N.W., and Ca.W. ("the older children") and that A.W. would have physical custody of W.W.
Father is also the parent of a child who was born in 2002.
[¶4] At some point, following the dissolution of Father's marriage to A.W., Father and Mother (collectively "Parents") became involved in a relationship. It appears that Mother lived with Father and the older children. In March 2022, Father and Ci.W. became involved in a physical altercation, which resulted in the State filing felony domestic battery charges against Father ("the Cass County charges"). As a result of the Cass County charges, Father was not allowed to have contact with the older children, who moved in with his sister ("Father's sister").
[¶5] In April 2022, DCS filed petitions alleging that the older children were children in need of services ("CHINS"). In May 2022, following a factfinding hearing, the trial court issued orders adjudicating the older children to be CHINS. In these orders, the trial court specifically found that Father's two older children had disclosed that they had: (1) been physically abused by Father; (2) been present during instances of domestic violence; and (3) observed Mother and Father using methamphetamine together.
[¶6] In July 2022, Parents' son R.B., who is the child in this termination case, was born. A nurse at the hospital contacted DCS because both R.B. and Mother had tested positive for methamphetamine and amphetamine and Mother had continued to co-sleep with R.B. despite several nurses warning her not to do so. DCS family case manager Benjamin Mooney ("FCM Mooney") went to the hospital to talk to Mother. Mother told FCM Mooney that she had used methamphetamine two to three months before R.B.'s birth. Mother specifically explained to FCM Mooney that "her usage was due to moving out . . . and moving in with her mother . . . due to being in an abusive relationship . . . with [Father]." (Tr. Vol. 2 at 6). Mother also told FCM Mooney Father's name but was not willing to give FCM Mooney any additional information about Father.
[¶7] DCS removed five-day-old R.B. from Mother because she and R.B. had tested positive for methamphetamine and amphetamine and because she had been cosleeping with R.B. FCM Mooney attempted to contact Father but was unable to reach him. DCS placed R.B. with one of Mother's relatives ("Mother's relative") and filed a petition alleging that R.B. was a CHINS.
[¶8] DCS located Father in August 2022, and Father established paternity of R.B. Thereafter, DCS did not place R.B. with Father because Father "did not pass . . . an initial drug screen[]" and because Father had "an open . . . CHINS case out of Cass County . . . that had criminal charges attached to it for physical abuse on one of his other children." (Tr. Vol. 2 at 13).
[¶9] At the end of August 2022, the trial court adjudicated R.B. to be a CHINS. In September 2022, DCS removed R.B. from his placement with Mother's relative because she had been allowing Mother to have access to R.B. DCS then placed R.B. with Father's sister. Also, in September 2022, the trial court in the older children's CHINS case awarded temporary custody of the older children to Father's sister and granted DCS' petition to terminate wardship of the older children.
[¶10] Further, in September 2022, the trial court in R.B.'s CHINS case issued a dispositional order that required Father to: (1) sign any releases necessary for DCS to monitor compliance with the terms of the dispositional order; (2) abstain from the use of illegal substances and only take prescription medications for which a valid and current prescription existed; (3) complete a parenting assessment and follow the assessor's recommendations; (4) complete a substance abuse assessment and follow the assessor's recommendations; (5) submit to random drug screens; (6) complete a psychological examination and follow the examiner's recommendations; and (7) attend scheduled visits with R.B.
[¶11] In November 2022, DCS removed R.B. from Father's sister's home because she had been allowing Father access to R.B. DCS placed R.B. in foster care. In December 2022, Father tested positive for methamphetamine.
[¶12] In January 2023, DCS family case manager Charlotte Hall ("FCM Hall") was assigned to R.B.'s case. Father had not yet complied with the CHINS dispositional order. FCM Hall referred Father to mental health and substance use assessments.
[¶13] Three months later, in April 2023, Father had not yet attended mental health, substance use, or parenting assessments. Father was participating in homebased casework but had not made any progress. In addition, although Father had attended some supervised visits with R.B, several of the visits had been suspended because Father had not been "consistent in drug screening[.]" (Tr. Vol. 2 at 17). Also, in April 2023, Father tested positive for methamphetamine.
[¶14] In June 2023, nine months after the trial court had ordered Father to participate in substance use, mental health, and parenting assessments, Father participated in a mental health assessment. Father did not disclose his methamphetamine use to the assessor and told the assessor that he did not need help with anything at that time. Following the assessment, the assessor recommended that Father participate in a substance abuse assessment and home-based casework to connect him to community services.
[¶15] By July 2023, Father had made no significant progress toward reunification with R.B. Specifically, several of Father's supervised visits with R.B. had been suspended because of Father's: (1) noncompliance with drug screens; (2) positive drug test results for methamphetamine and opiates, including oxycodone and hydrocodone; and (3) health issues that necessitated medical procedures and hospitalizations.
[¶16] Father denied using methamphetamine and explained that the positive methamphetamine results had been caused by "his diabetic medication and OTC cold and flu medications." (App. Vol. 2 at 13). However, DCS contacted the company that tests the drug screens and was told that Father's diabetic medication and OTC cold and flu medicine "would not show positive for [m]ethamphetamine[.]" (App. Vol. 2 at 13). Father also attributed his methamphetamine-positive drug screen results to Mother "poisoning his coffee and food." (Tr. Vol. 2 at 25).
[¶17] Father further explained that he had not been honest with DCS about his health and medical conditions for which doctors had prescribed opioids. FCM Hall asked Father to sign a release at the doctor's office so that FCM Hall could discuss Father's prescriptions with his physician. However, Father failed to sign a release.
[¶18] In addition, R.B. had been diagnosed with failure to thrive and developmental delays. When told about R.B.'s diagnosis, Father stated that all of his children had been small and that doctors "just needed to give [R.B.] Ka[]ro Syrup for him to gain weight, and that he would be fine." (Tr. Vol. 2 at 18).
[¶19] Father subsequently participated in a substance abuse assessment. However, during the assessment, Father did not disclose any issues with illegal substances. The assessor recommended that Father attend individual counseling and participate in medication management, which would have necessitated a psychiatric evaluation. Father attended one counseling session and then "no showed" at all of the subsequent sessions. (Tr. Vol. 2 at 21). In addition, Father did not participate in a psychiatric assessment or medication management.
[¶20] In September 2023, DCS filed a petition to terminate Father's parental relationship with R.B. At that time, DCS also referred Father to a fatherhood engagement program. Also, in September 2023, Father again tested positive for methamphetamine.
[¶21] One month later, in October 2023, Guardian Ad Litem Cindy Baldwin ("GAL Baldwin") met with Father. Father told GAL Baldwin that he was frustrated with DCS because R.B.'s CHINS case had been opened because of Mother's drug use and co-sleeping habits. Father further told GAL Baldwin that because he was "not the offending parent[,]" he should not be required to engage in services. (Tr. Vol. 2 at 64).
[¶22] In November 2023, FCM Hall suspended Father's supervised visits with R.B. because Father's drug test had been positive for hydromorphone, which is also known as Dilaudid. Father told FCM Hall that he had been involved in an accident in his truck and that a doctor had prescribed the hydromorphone. Father offered to show FCM Hall a photograph of his wrecked truck; however, FCM Hall told Father that she needed a copy of the prescription for the hydromorphone. In addition, FCM Hall reminded Father that she had told him throughout the pendency of the CHINS proceedings that he needed to show her proof of his prescriptions.
[¶23] Shortly before the termination hearing, Father provided FCM Hall with a list of his prescriptions. However, FCM Hall noticed that there were still substances for which Father had tested positive that were not included in Father's tendered list of prescribed medications.
[¶24] The trial court heard the facts as set forth above in a two-day termination hearing in November 2023. In addition, FCM Hall testified that during the course of the CHINS proceedings, Father had denied using methamphetamine and had never acknowledged that he had a substance abuse problem. FCM Hall further testified that Father had not followed the recommendations in the substance abuse and mental health assessments. Specifically, Father had failed to engage in individual therapy, medication management, and a fatherhood engagement program. According to FCM Hall, Father had also failed to complete a parenting assessment. FCM Hall was also concerned about Father's inability to control his moods as evidenced by Father sending FCM Hall "multiple text messages . . . cussing at her[.]" (Tr. Vol. 2 at 55).
[¶25] In addition, according to FCM Hall, Father had never progressed beyond supervised visits with R.B. because Father had not consistently complied with drug screens and, when he did comply, Father often had positive drug screen results. FCM Hall further testified that after she had received Father's list of prescriptions, she had attempted to reconcile the list with Father's positive drug screens. According to FCM Hall, "out of 30 something [positive drug screens] only 7 of them were reconciled [with Father's list] and 25 were not." (Tr. Vol. 2 at 58).
[¶26] FCM Hall acknowledged that Father had consistently participated in homebased case management services during the pendency of the CHINS proceedings. However, when asked whether she had "seen any significant changes in the reason [R.B.] ha[d] remained out of his care as a result of him participating in these [home-based case management] sessions[,]" FCM Hall responded, "No." (Tr. Vol. 2 at 55).
[¶27] Further, when asked if Father had "made any significant progress in remedying the reasons for [R.B.'s] removal and continued placement out of the home[,]" FCM Hall responded, "No." (Tr. Vol. 2 at 30). In addition, when asked if she "believed that [R.B.] ha[d] waited long enough for the stability of permanency that he deserve[d,]" FCM Hall responded, "Yes." (Tr. Vol. 2 at 31). FCM Hall also testified that termination was in R.B.'s best interests.
[¶28] GAL Baldwin also testified at the termination hearing. When DCS asked GAL Baldwin if she had "seen any significant progress toward [Father] remedying the reasons for [R.B.]'s removal or continued placement outside of the home[,]" GAL Baldwin responded, "No[,] I haven't." (Tr. Vol. 2 at 68). In addition, GAL Baldwin testified that R.B., who was sixteen months old and who had been removed from Mother when he was five days old, had been living with his foster parents for the past eleven months. According to GAL Baldwin, R.B. was "very bonded" with his foster parents. (Tr. Vol. 2 at 62). GAL Baldwin also testified that R.B. had special needs because of his failure to thrive diagnosis. Specifically, R.B. had special dietary needs and muscle weakness that necessitated physical and occupational therapies. GAL Baldwin also testified that termination was in R.B.'s best interests.
[¶29] After DCS had rested, the parties discussed DCS' exhibits. DCS asked the trial court to take judicial notice of DCS' Exhibits 4, 5, and 6, which were certified court records in the CHINS cases involving the older children. Specifically, DCS' Exhibit 4 contained the certified court records for the CHINS case involving Ci.W., DCS' Exhibit 5 contained the certified court records for the CHINS case involving Ca.W., and DCS' Exhibit 6 contained the certified court records for the CHINS case involving N.W. The trial court took judicial notice of the certified court records in DCS' Exhibits 4, 5, and 6 over Father's objection.
[¶30] DCS also asked the trial court to admit into evidence DCS' Exhibit 9, which DCS identified as the 311 Assessment Reports ("the Assessment Reports") in the older children's CHINS cases. Father objected and argued that the Assessment Reports were inadmissible because they contained "a number of hearsay issues[.]" (Tr. Vol. 2 at 82). DCS responded that the Assessment Reports were admissible under the business records exception to the hearsay rule. The trial court agreed with DCS and admitted DCS' Exhibit 9 into evidence.
[¶31] Thereafter, Father testified and denied using methamphetamine during the pendency of the CHINS proceedings. Father further testified that he had recently "voluntarily signed up for" a "home[-]based substance abuse thing" that he had not yet started. (Tr. Vol. 2 at 162). Father also testified that he had attended one individual counseling session and that he had "called about" a fatherhood engagement program. (Tr. Vol. 2 at 163).
[¶32] Following the hearing, in December 2023, the trial court issued a twenty-four-page order, which includes forty-eight findings of fact, terminating Father's parental relationship with R.B. The trial court's order provides, in relevant part, as follows:
30. Throughout the course of this case, [Father] has [not] fully engaged in reunification services [or] acknowledged the need for these services.... [Father] engaged in some services during the last year of the case by participating in home-based casework, random drug screens, and visitation, however [Father] routinely missed appointments and visitation and was unable to consistently provide negative drug tests. [Father] continuously denied any issues with substance abuse, his mental health, or domestic violence, despite evidence to the contrary. [Father] did ultimately complete his mental health assessment and substance abuse assessment, however he displayed a notable lack of truthfulness in the information he provided during those assessments. During [Father]'s mental health assessment, he denied any current or historical use of illegal substances and indicated that he believed his positive drug tests were caused by other medications. When he did provide proof of prescriptions to FCM Hall, she reconciled the list with seven (7) of his positive screens, which left twenty-five (25) positive screens still unaccounted for.... Ultimately, while [Father] completed [mental health and substance abuse] assessments, he failed to follow through with the recommendations of those assessments.
* * * * *
40. The Court finds by clear and convincing evidence that there is a reasonable probability that the conditions that led to the removal of [R.B.] and [R.B.]'s continued placement outside of the home . . . will not be remedied. . .
. * * * * *
46. The Court further finds by clear and convincing evidence that termination of the parent-child relationship[] is in the best interests of [R.B.]. . . Failure to terminate the parentchild relationship[] at this time would simply deny [R.B.] the stability and permanency to which he is entitled, and which has too long been denied. It is in [R.B.]'s best interests to have permanency, not perpetual wardship and uncertainty in [his life].(App. Vol. 2 at 28-29, 33, 36) (footnote omitted).
The trial court's factual findings include three facts taken from the orders adjudicating the older children to be CHINS. Specifically, one of the trial court's findings of fact provides, in relevant part, as follows: ". . . [I]n March 2022, [Father]'s two older Children did disclose being the victims of physical abuse by [Father], being present during instances of domestic violence, and observing [Father] and [Mother] using methamphetamine together." (Finding of Fact 37, App. Vol. 2 at 32). Finding of Fact 37 also includes facts taken from the Assessment Reports. Specifically, that finding of fact provides, in relevant part, as follows: "In January 2022, the ten-year-old daughter of [Father]'s ex-girlfriend (K.A.) disclosed: physical abuse by [Father], witnessing domestic violence in the home; witnessing her mother and [Father] smoking marijuana in the home; and witnessing [Father] crush and snort pills." (Finding of Fact 37, App. Vol. 2 at 32).
[¶33] Father now appeals.
Decision
[¶34] Father argues that there is insufficient evidence to support the termination of his parent-child relationship with R.B. Father specifically contends that although he "certainly could have done a better job complying with the underlying orders in the CHINS action[,] . . . his perceived lack of compliance does not rise to the level to justify the extreme result of terminating his parental rights over his infant child." (Father's Br. 24). We disagree.
[¶35] The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind.Ct.App. 2015), 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. Id. at 1188. Termination of the 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 rights may be terminated when a parent is unable or unwilling to meet his parental responsibilities. Id.
[¶36] The termination statute in effect at the time DCS filed the termination petition in April 2023 provided that, before an involuntary termination of parental rights may occur, DCS is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the 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 wellbeing 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.
[¶37] IND. CODE § 31-35-2-4(b)(2) (2023). DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013).
We note that the legislature amended INDIANA CODE § 31-35-2-4 during the 2024 legislative session, and the amendment became effective March 11, 2024.
[¶38] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. In re Involuntary Termination of Parent-Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016). We consider only the evidence and any reasonable inferences to be drawn therefrom that support the judgment and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. K.T.K., 989 N.E.2d at 1229.
[¶39] In addition, as a general rule, appellate courts grant latitude and deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind.Ct.App. 2017). "This deference recognizes a trial court's unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony, as opposed to this court[] only being able to review a cold transcript of the record." Id.
[¶40] Further, where, as here, a judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. In re A.S., 905 N.E.2d 47, 49 (Ind.Ct.App. 2009). First, we determine whether the evidence supports the findings, and then we determine whether the findings support the judgment. Id. We will set aside a judgment only when it is clearly erroneous. Id. A judgment is clearly erroneous when the findings do not support the trial court's conclusions or the conclusions do not support the judgment. Id.
We note that Father has challenged nearly all of the trial court's findings and conclusions regarding himself. However, we have thoroughly reviewed the record of the proceedings and determined that only one of his challenged findings is not supported by the evidence. Specifically, in Finding 20, the trial court found as follows: "On August 29, 2022, the Court held a Fact Finding Hearing on the CHINS Petition, wherein . . . [Father] failed to appear in person, but appeared by [a] public defender .... [Father] had been served with the CHINS Petition and notice of the Fact Finding Hearing on July 29, 2022, and had met with Howard County DCS on August 2, 2022." (App. Vol. 2 at 20-21). DCS points out that the trial court probably had independent knowledge of these facts because the same trial judge presided over the CHINS factfinding [hearing] and the termination factfinding [hearing][,]" but DCS acknowledges that there are no facts in the record supporting this finding. (DCS' Br. 24). Accordingly, we do not consider this factual finding in our consideration of the issues. We further note that the remaining factual findings support the trial court's judgment.
[¶41] Here, Father first contends that the evidence is insufficient to show that there is a reasonable probability that: (1) the conditions that resulted in the R.B.'s removal or the reasons for his placement outside the parent's home will not be remedied; and (2) a continuation of the parent-child relationship poses a threat to R.B.'s well-being.
[¶42] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish by clear and convincing evidence only one of the three requirements of subsection (B). In re A.K., 924 N.E.2d 212, 220 (Ind.Ct.App. 2010), trans. dismissed. We therefore discuss only whether there is a reasonable probability that the conditions that resulted in R.B.'s removal or the reasons for his placement outside the home will not be remedied.
[¶43] In determining whether the conditions that resulted in a child's removal or placement outside the home will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the conditions that led to removal or placement outside the home and then determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. The second step requires trial courts to judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Pursuant to this two-step analysis, trial "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." In re D.B., 942 N.E.2d 867, 873 (Ind.Ct.App. 2011).
[¶44] We further note that DCS need not rule out all possibilities of change. In re Involuntary Termination of the Parent-Child Relationship of Kay. L., 867 N.E.2d 236, 242 (Ind.Ct.App. 2007). Rather, DCS need establish only that there is a reasonable probability that a parent's behavior will not change. Id. "We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination." E.M., 4 N.E.3d at 643.
[¶45] Here, DCS removed R.B. from Mother before Father had established his paternity. After Father had established his paternity, DCS did not place R.B. with Father because Father failed to pass an initial drug screen and because Father had an open CHINS case in Cass County, where Father had been charged with felony domestic battery following an altercation with Ci.W. Thus, the primary reason for R.B.'s removal as to Father was Father's drug use and his pending criminal charges for battering one of his older children.
[¶46] Our review of the record reveals that Father never believed that he should have been required to engage in services because he did not consider himself to be the offending parent in the CHINS proceedings. Indeed, Father failed to successfully complete any of the court-ordered services set forth in the CHINS dispositional order. Specifically, although Father participated in home-based case services, he failed to make any progress. Further, although Father completed mental health and substance abuse assessments, he failed to follow the assessors' recommendations. We note that shortly before the termination hearing, Father had "voluntarily signed up for" a "home-based substance abuse thing" that he had not yet started and had called about a fatherhood engagement program. (Tr. Vol. 2 at 162). However, our Indiana Supreme Court has explained that, in evaluating the parent's habitual patterns of conduct, the trial court may disregard efforts made shortly before the termination hearing and weigh the history of the parent's prior conduct more heavily. K.T.K., 989 N.E.2d at 1234.
[¶47] We further note that Father often missed visits with R.B. because Father either failed to comply with drug screens or tested positive for methamphetamine and other drugs. Despite the positive drug screens, Father denied using methamphetamine. Specifically, Father alleged that Mother was poisoning his coffee and food. He also alleged that his medication for his diabetes and over the counter drugs for colds and the flu had caused him to test positive for methamphetamine. However, FCM Hall confirmed with the drug testing agency that this would not have been possible.
[¶48] We further note that when a medical professional diagnosed R.B. with failure to thrive, Father did not believe the diagnosis. Rather, Father stated that R.B. was simply small like Father's other children and would be fine if he took Karo Syrup. The totality of this evidence supports the trial court's conclusion that there is a reasonable probability that the conditions that resulted in R.B.'s removal or the reasons for his placement outside the home will not be remedied. See Lang v. Starke County Office of Family and Children, 861 N.E.2d 366, 372 (Ind.Ct.App. 2007) (explaining that evidence of a parent's pattern of unwillingness or lack of commitment to addressing parenting issues and cooperating with services supports a finding that there exists no reasonable probability that the conditions will change), trans. denied.
[¶49] Father also argues that there is insufficient evidence that the termination was in R.B.'s best interests. In determining whether termination of parental rights is in a child's best interests, the trial court is required to look at the totality of the evidence. In re Termination of the Parent-Child Relationship of D.D., 804 N.E.2d 258, 267 (Ind.Ct.App. 2004), trans. denied. In so doing, the court must subordinate the interests of the parent to those of the child involved. Id. In addition, a child's need for permanency is a central consideration in determining that child's best interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers may support a finding that termination is in the child's best interests. McBride v. Monroe County Office of Family and Children, 798 N.E.2d 185, 203 (Ind.Ct.App. 2003).
[¶50] Here, our review of the evidence reveals that, at the time of the termination hearing, sixteen-month-old R.B. had never lived with Father and had been placed with foster parents for eleven months. In addition, FCM Hall and GAL Baldwin both testified that termination was in R.B.'s best interests. The testimony of these service providers, as well as the other evidence previously discussed, supports the trial court's conclusion that termination was in R.B.'s best interests.
Father also argues that the trial court abused its discretion in admitting evidence. He specifically contends that the trial court abused its discretion when it included in its termination order the facts, as set forth above in footnote 3, which were included in the orders adjudicating the older children to be CHINS and in the Assessment Reports. However, even if the trial court erred in admitting this evidence, that error does not require reversal if the error was harmless. D.B.M. v. Indiana Department of Child Services, 20 N.E.3d 174, 179 (Ind.Ct.App. 2014), trans. denied. Our Indiana Supreme Court has explained that the harmless-error analysis is found in Appellate Rule 66(A). Hayco v. State, 211 N.E.3d 483, 492 (Ind. 2023), cert. denied. Specifically, Appellate Rule 66(A)'s "probable impact test" controls. Id. "Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below." Id. The supreme court further explained that "[i]mportantly, this is not a review for the sufficiency of the remaining evidence; it is a review of what was presented to the trier of fact compared to what should have been presented." Id. Further, "when conducting that review, we consider the likely impact of the improperly admitted . . . evidence on [the trier of fact] in light of all the evidence in the case." Id. "Ultimately, the error's probable impact is sufficiently minor when - considering the entire record - our confidence in the outcome is not undermined." Id. As a preliminary matter, we note that Father has not cited this rule in his appellate brief. Indeed, Father's cursory argument is only that the trial court's alleged "error was not merely harmless as these allegations are extremely serious and the Court obviously gave them considerable weight." (Father's Br. 32). Further, applying the probable impact test, we conclude that when considering the entire record in this case, including Father's failure to successfully complete services and his use of methamphetamine and opiates during the pendency of the CHINS proceedings, our confidence in the trial court's judgment terminating Father's parental relationship with R.B. is not undermined. Accordingly, any error in the admission of this evidence was harmless.
[¶51] Affirmed.
May, J., and Brown, J., concur.