Opinion
Court of Appeals Case No. 20A-JT-499
10-30-2020
In Re: The Termination of the Parent-Child Relationship of N.S. (Minor Child); T.M. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
ATTORNEY FOR APPELLANT Kimberly A. Jackson Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana
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 Kimberly A. Jackson
Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr.
Attorney General of Indiana David E. Corey
Deputy Attorney General
Indianapolis, Indiana Appeal from the Allen Superior Court The Honorable Charles Pratt, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-1905-JT-265 Pyle, Judge.
Statement of the Case
[1] T.M. ("Father") appeals the termination of the parent-child relationship with his daughter, N.S. ("N.S."). Father argues that: (1) the Department of Child Services ("DCS") violated his due process rights; (2) the trial court abused its discretion in admitting and excluding evidence; and (3) there is insufficient evidence to support the termination. Concluding that: (1) DCS did not violate Father's due process rights; (2) the trial court did not abuse its discretion in admitting and excluding evidence; and (3) there is sufficient evidence to support the termination of the parent-child relationship, we affirm the trial court's judgment. [2] We affirm.
N.S.'s mother ("Mother") voluntarily relinquished her parental rights and signed consents to the adoption of her four children at the beginning of the second day of the termination hearing. She is not a party to this appeal.
Issues
1. Whether DCS violated Father's due process rights.
2. Whether the trial court abused its discretion in admitting and excluding evidence.
3. Whether there is sufficient evidence to support the termination.
Facts
[3] The evidence and reasonable inferences to be drawn therefrom that support the judgment reveal that Mother is the parent of daughter Na.S., who was born in June 2010; son Jo.S., who was born in June 2012; daughter N.S., who was born in December 2014; and son J.S., who was born in May 2018. Father is the parent of only N.S., who is the subject of this appeal. [4] In November 2015, the State charged Father with: (1) Level 6 felony domestic violence committed in the presence of a child less than sixteen years old; (2) Level 6 felony domestic battery with a prior unrelated conviction; and (3) Level 6 felony battery with moderate bodily injury. All of the charges were related to domestic violence acts against Mother that had occurred in September 2015 ("the September acts"). Also in November 2015, the State charged Father, in a separate cause, with: (1) Level 5 felony criminal confinement with bodily injury; (2) Level 6 felony residential entry; (3) Level 6 felony domestic battery committed in the presence of a child less than sixteen years old; (4) Level 6 felony domestic battery with a prior unrelated conviction; and (5) Class A misdemeanor interference with the reporting of a crime. All of the charges were related to domestic violence acts against Mother that had occurred in October 2015 ("the October acts"). [5] Mother became involved with DCS in December 2015 because she had exposed her children to domestic violence. DCS referred Mother to a healthy families program. Shortly thereafter, Mother was charged with six counts of theft. Her children were removed and placed together in foster care in January 2016. N.S. was not placed with Father because he was incarcerated for the September acts and the October acts. [6] Also in January 2016, DCS filed a petition alleging that the children were children in need of services ("CHINS"). In February 2016, DCS filed an amended CHINS petition. In March 2016, the trial court adjudicated the children to be CHINS. The CHINS dispositional order required Father to: (1) contact DCS within forty-eight hours of his release from incarceration; (2) submit to a diagnostic assessment within thirty days of his release from incarceration and follow all recommendations in the assessment; (3) obtain a drug and alcohol assessment within thirty days of his release from incarceration and follow all recommendations in the assessment; and (4) enroll in a parenting class within thirty days of his release from incarceration, attend all sessions, and successfully complete the program. [7] In May 2016, Father pled guilty to Level 6 felony battery with moderate injury for the September acts, and the State dismissed the remaining charges. The trial court sentenced Father to one year in the Department of Correction ("the DOC"). Also in May 2016, Father pled guilty to Level 5 felony criminal confinement with bodily injury for the October acts, and the State dismissed the remaining charges. The trial court sentenced Father to three years in the DOC and ordered the three-year sentence to run consecutively to the one-year sentence for the September acts. [8] Two years later, shortly before Father's release from incarceration, Mother contacted DCS Family Case Manager Joshua Meyer ("FCM Meyer"). Mother told FCM Meyer that she was afraid of Father because of "past incidents of domestic violence that had occurred between them that the children had witnessed." (Tr. Vol. 2 at 133). Further, although Mother had a no-contact order in place that prohibited Father from contacting her, Mother also told FCM Meyer that Father had been sending her threatening emails from prison. [9] Father was released from incarceration and placed on house arrest in May 2018. He contacted FCM Meyer as required by the CHINS dispositional order, and FCM Meyer referred Father for a substance abuse assessment and to a "Batterer Service." (Tr. Vol. 2 at 138). Father attended the intake assessment for the "Batterers Class" but did not successfully complete the program. (Tr. Vol. 2 at 145). Father, who was initially unable to visit with N.S. because there was a no-contact order in place, began supervised visits with N.S. in mid-September 2018. [10] Three weeks later, in early October 2018, Father violated the no-contact order with Mother when he went to Mother's home and physically assaulted her ("the October 2018 assault"). The State charged Father with Level 5 felony battery, Level 6 felony strangulation, and Level 6 felony invasion of privacy with a prior unrelated conviction, and Father was immediately incarcerated. [11] Father and Father's counsel attended a November 2018 CHINS permanency hearing. The trial court noted that Father had failed to comply with the CHINS dispositional order, had physically assaulted Mother, and was incarcerated on felony charges relating to the assault. Thereafter, the trial court changed N.S.'s permanency plan from reunification to termination of parental rights and adoption. [12] In January 2019, Father pled guilty to Level 5 felony battery and Level 6 felony strangulation for the October 2018 assault, and the State dismissed the remaining charge. The trial court sentenced Father to three years for the Level 5 felony and two years for the Level 6 felony and ordered the sentences to run concurrently with each other. [13] In May 2019, more than three years after N.S. had been removed from Mother and placed in foster care with her siblings, DCS filed a petition to terminate Father's parental relationship with N.S. [14] Two months later, in July 2019, Father's counsel moved to continue Father's initial hearing in the termination proceedings "due to lack of service." (App. Vol. 2 at 36). At an October 2019 case management conference, the trial court asked if all of the parties in the termination petition had been served. DCS responded that Father had been "served in prison but [had] refused to sign." (Tr. Vol. 2 at 27). Father's counsel "request[ed] that the issue of service on [Father] be reserved for the beginning of the termination trial." (Tr. Vol. 2 at 27). DCS responded that it would call the process server to testify. [15] On October 30, 2019, at the beginning of the first day of the three-day termination hearing, Raymond Kinison ("Kinison"), public information officer and administrative assistant to the warden at the Plainfield Correctional Facility, testified that he had served the termination paperwork on Father on September 27, 2019. According to Kinison, Father had refused to sign the paperwork. After further discussion, the trial court determined that Father had been properly served. Father's counsel, who had previously asked that the issue of service be reserved for the beginning of the termination hearing, objected that Father had not had an initial hearing. [16] Thereafter, the trial court advised Father of his rights, and Father confirmed that he: (1) was not under the influence of any alcohol or drugs; (2) wrote and understood the English language; and (3) did not suffer from any condition that affected his ability to understand the proceedings. In addition, the trial court reviewed the elements of the termination statute that DCS was required to prove by clear and convincing evidence. Father responded that he understood that he was entitled to be represented by counsel and that one had been appointed for him. [17] Father confirmed that he understood that if he denied the allegations in the termination petition, there would be a hearing wherein DCS would have the burden to prove by clear and convincing evidence that his parental rights should be terminated. Father also confirmed that he understood that he had the right to cross-examine witnesses, to obtain evidence by compulsory process, receive notice of and attend all termination proceedings, and appeal any adverse decision while represented by appointed counsel. Thereafter, Father denied the allegations in the termination petition, and the trial court transitioned to the termination hearing. [18] At the hearing, DCS offered into evidence exhibits 49, 52, 55, 57, and 59 over Father's objection. Exhibit 49 was the Chronological Case Summary ("CCS") for Father's 2013 convictions for Class D felony operating a vehicle as an habitual traffic violator and Class A misdemeanor operating a vehicle while intoxicated. Exhibit 52 was the CCS for Father's 2012 conviction for Class B misdemeanor public intoxication. Exhibit 55 was the CCS for Father's 2009 conviction for Class D felony battery. Exhibit 57 was the CCS for Father's 2004 conviction for Class D felony theft. Exhibit 59 was the CCS for Father's 2003 convictions for Class D felony battery and Class A misdemeanor criminal mischief. [19] Father objected to the admission of these exhibits "on the basis of relevance." (Tr. Vol. 2 at 80). Father specifically argued that the convictions occurred "before . . . [N.S.] was born or even conceived[.] A parent's behavior . . could change after having children and thinking about having children[.]" (Tr. Vol. 2 at 80). The State responded that "character evidence is admissible by statute in termination proceedings and you will find that one of the issues . . . that has not been remedied as one of the State's elements is the ongoing criminal activity . . . also the objection goes to weight and not admissibility." (Tr. Vol. 2 at 80). The trial court overruled Father's objection and admitted the exhibits into evidence. [20] Also during the first day of the termination hearing, Mental Health Therapist Vickie Heath ("Therapist Heath") testified that she had provided individual and family therapy for N.S. and her siblings. Therapist Heath had begun seeing N.S. in April 2018. According to Therapist Heath, before attending therapy, N.S. had been experiencing behavioral outbursts after visits with Mother. Therapist Heath diagnosed N.S. with an adjustment disorder and generalized anxiety. Therapist Heath further testified that, as a result of their therapy sessions, N.S. had improved her ability to: (1) communicate effectively; (2) identify and label emotions appropriately; and (3) self-confidently integrate herself into classrooms and peer environments. Therapist Heath attributed N.S.'s progress in therapy to the stable environment with her siblings and her foster family, and the therapist further testified that it was in the children's best interests to stay together. According to Therapist Heath, there "had recently [been] no disruptions[.] [T]here [had] been no visitation with family members . . . so the children [had] been a lot less anxious." (Tr. Vol. 2 at 89). When DCS asked Therapist Heath if the children had been able to identify a trigger to their anxiety, Father's counsel objected on the basis of hearsay. Following a long discussion regarding Father's objection, the trial court overruled it. Therapist Heath then testified to a list of factors that triggered the children's anxieties, including Father's release from incarceration and N.S.'s subsequent visits with Father. [21] DCS Family Case Manager Paulette Eldridge ("FCM Eldridge"), who had been assigned to the children's cases in September 2018, also testified at the termination hearing. When asked if the concerns that she had for Father were likely to be remedied through services, FCM Eldridge responded that they were not. FCM Eldridge also testified that termination was in N.S.'s best interests "[b]ecause she [had] been exposed to so much trauma in her . . . young life and she [had] been . . . exposed unfortunately by her parents doing these things in front of her[.] " (Tr. Vol. 2 at 150). In addition, FCM Eldridge testified that the plan for N.S. was foster parent adoption with her siblings. [22] Also at the termination hearing, Guardian Ad Litem Nicholas Adams ("GAL Adams"), who had been assigned to the children's cases in 2016, testified that N.S.'s foster parents had provided consistency and stability for the children. GAL Adams specifically testified that foster parents had been "that rock in the kids' lives . . . as well as the sibling group itself . . . [had been] a strong point of the family[.]" (Tr. Vol. 2 at 164). According to GAL Adams, termination and foster parent adoption was in N.S.'s best interests. [23] Father also testified at the termination hearing. When asked about the October 2018 incident when he had physically assaulted Mother, Father stated that he had been "drinking and . . . [he] ha[d] no idea." (Tr. Vol. 2 at 175). When asked whether the anger management program in which he had briefly participated while he had been released from incarceration had helped, Father responded, "yeah - nah." (Tr. Vol. 2 at 175). In addition, when asked whether there was anything else that he wanted to tell the trial court about why he did not want his parental rights terminated, Father responded as follows: "like I said I just ain't never had the chance with her . . . been locked up this whole time . . . I care for my other kids[.]" (Tr. Vol. 2 at 172). Father also testified that he was on waiting lists to participate in parenting, anger management, and alcohol programs at the DOC. In addition, he asked the trial court to place N.S. with his mother ("Maternal Grandmother"). Father's scheduled release date from the DOC was September 2020. [24] During Father's case-in-chief, Father called Maternal Grandmother to testify on his behalf. Maternal Grandmother requested for the first time that N.S. be placed with her. She specifically testified that she would like to adopt N.S. [25] After Maternal Grandmother had testified, Father called Mother to the stand and asked her if she "would be in agreement with [Maternal Grandmother] having custody of [N.S.]" (Tr. Vol. 2 at 202). DCS objected to the question on the basis of relevance before Mother answered the question. The trial court sustained the objection, and Mother gave no further testimony. [26] Following the hearing, in February 2020, the trial court issued a detailed sixteen-page order terminating the parental relationship between Father and N.S. The termination order provides as follows regarding Therapist Heath's testimony:
58. The Court finds that [Na.S] and [Jo.S.] and [N.S.] are all enrolled in play therapy and cognitive behavioral therapy with Vicki Heath. Heath, who hold a masters in mental health counseling, has been seeing the children since 2018. The Court
finds that all three children have been diagnosed with adjustment disorder which manifests itself with behavioral outbursts for [N.S.] and anxiety for [Jo.S.] and [Na.S.] The Court finds that over the course of treatment, the children have made improvements as a result of their stability achieved in their current placement. However, the Court finds that the children still struggle with anxiety related to the lack of permanency. The Court finds through the testimony of Heath that it is in the best interests of the children to remain placed in the same sibling group.(App. Vol. 2 at 18). [27] Father now appeals the termination.
The petition included Mother, her three other children, and their fathers.
Decision
[28] Father contends that: (1) DCS violated his right to due process; (2) the trial court abused its discretion in admitting and excluding evidence; and (3) there is insufficient evidence to support the termination. We address each of his contentions in turn.
1. Due Process
[29] Father first argues that DCS violated his due process rights because it failed to make reasonable efforts to preserve his parent-child relationship with N.S. When DCS seeks to terminate parental rights, "it must do so in a manner that meets the prerequisites of due process." In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (quotations and citations omitted). Due process requires "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Whether due process has been afforded in termination proceedings is determined by balancing the following "three distinct factors" specified in Mathews: (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 Cnty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans. denied. [30] In S.L. v. Ind. Dep't of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)), this Court further explained the Mathews factors as follows:
The private interest affected by the proceeding is substantial - a parent's interest in the care, custody, and control of his or her child. And the State's interest in protecting the welfare of a child is also substantial. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions.[31] DCS must "make reasonable efforts to preserve and reunify families." IND. CODE § 31-34-21-5.5(b). In addition, "due process protections at all stages of CHINS proceedings are vital because every CHINS proceeding has the potential to interfere with the rights of parents in the upbringing of their children." In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations omitted). "[T]hese two proceedings - CHINS and TPR - are deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter[.]" Id. [32] However, the "failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law." In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) ("[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 statue and require reversal."). Further, a parent may not sit idly by without asserting a need or desire for services and then successfully argue that he or she was denied services to assist him with her parenting. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). [33] As a preliminary matter, we note that the law is well-established that a party on appeal may waive a constitutional claim. McBride v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). For example, in In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001), this Court determined that a mother had waived her claim that the trial court had violated her due process rights because she raised the constitutional claim for the first time on appeal. Here, Father did not object to any alleged deficiencies in the CHINS process during the CHINS proceedings, nor did he argue during the termination proceedings that those alleged deficiencies constituted a due process violation. Rather, Father has raised his due process claim for the first time on appeal. He has therefore waived appellate review of this issue. See id. [34] Waiver notwithstanding, our review of the record reveals that DCS offered Father the following services when he was released from incarceration: (1) a substance abuse assessment; (2) participation in a Batterers Class; and (3) supervised visits with N.S. DCS provided these services to Father in an attempt to reunify him with his daughter. Father, however, failed to successfully complete these services. In addition, within three weeks of beginning supervised visits with N.S., Father went to Mother's house in violation of a no-contact order and physically assaulted Mother. DCS offered Father sufficient services in its attempt to reunify him with his daughter, and Father has not established that DCS violated his due process rights because it failed to make reasonable efforts to preserve his parent-child relationship with N.S. [35] Father further contends that DCS violated his due process rights because his initial hearing and the termination hearing were held on the same day. However, at the October 2019 case management conference, when the trial court asked if all of the parties in the termination petition had been served, DCS responded that Father had been served in prison but had refused to sign. It was then Father's counsel who requested that the issue of service on Father be reserved for the beginning of the termination trial. Any alleged error in holding the initial hearing and the termination hearing on the same day was therefore invited. See Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)) (explaining the invited error doctrine, which is 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.'"). [36] Father also argues that DCS violated his due process rights when it "fail[ed] to investigate and order a transfer of custody to [Maternal Grandmother]." (Father's Br. 21). As the sole authority in support of his argument, Father directs us to INDIANA CODE § 31-34-4-2, which provides as follows:
If a child alleged to be a child in need of services is taken into custody under an order of the court under this chapter and the court orders out-of-home placement, the department is responsible for that placement and care and must consider placing the child with a:
(1) suitable and willing relative; or
(2) de facto custodian;
(Emphasis added). [37] However, the first time that Father asked DCS to place N.S. with Maternal Grandmother was at the termination hearing. Father did not request this placement during the CHINS proceeding, and he is not appealing the trial court's adjudication that N.S. was a CHINS. Thus, INDIANA CODE § 31-34-4-2 does not apply. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) (concluding that INDIANA CODE § 31-34-6-2, which states that DCS shall consider placing a child alleged to be a child in need of services with an appropriate family member of the child before considering any other placement for the child, did not apply in the appeal of a termination of parental rights) (emphasis in the original). [38] Regarding Father's other allegations of due process violations, we note Father has not established that DCS engaged in conduct that affected his ability to participate in and complete services aimed at reunifying him with N.S. Cf. In re T.W., 135 N.E.3d 607, 618 (Ind. Ct. App. 2019) (concluding that the "insufficient process employed in the CHINS case created a risk of the erroneous filing of a petition to terminate Father's parental rights to [his child], in violation of Father's due process rights.") trans. denied; Matter of C.N.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (concluding that "the chaotic and unprofessional handling" of a CHINS case violated the parents' due process rights, requiring reversal of the termination order); A.P., 734 N.E.2d at 1117 (finding parents' due process rights were violated in a termination proceeding where DCS made multiple procedural errors, such as failing to provide parents with copies of case plans and filing CHINS and termination petitions that did not meet statutory requirements). [39] In sum, Father was heard "at a meaningful time and in a meaningful manner." See Mathews, 424 U.S. at 333. Specifically, Father: (1) was served with the termination petition; (2) was notified of the termination hearing date; (3) was given an initial hearing where the trial court advised him of his rights, the allegations in the petition, and DCS's burden of proof, (4) appeared and testified at the termination hearing; and (5) was vigorously represented by an attorney who frequently objected to the admission of DCS's evidence and the testimony of DCS's witnesses and called witnesses on Father's behalf. We find no due process violation here.
before considering any other out-of-home placement.
Father also argues that DCS violated his due process rights when it failed to provide him with services while he was incarcerated. In support of his argument, Father directs us to INDIANA CODE § 31-34-15-4(7), which requires a DCS case plan to describe and discuss both services and treatment available to an incarcerated parent and how that parent may be afforded visitation opportunities. However, as Father points out, this statute became effective on July 1, 2019, which was after the termination petition had been filed in this case. Further, Father does not ask us to apply this statute to his case, and we decline to do so.
2. Admission and Exclusion of Evidence
[40] Father next argues that the trial court abused its discretion in admitting and excluding evidence. The decision to admit or exclude evidence is left to the sound discretion of the trial court, and we will not reverse that decision except for an abuse of discretion. In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. [41] Father first argues that the trial court abused its discretion when it admitted exhibits 49, 52, 55, 57, and 59, which were the Chronological Case Summaries from Father's criminal cases in 2003, 2004, 2009, and 2013. Father argues that this evidence was not relevant because these crimes "predated [N.S.'s] birth." (Father's Br. 46). DCS responds that "Father's criminal history, including before [N.S.] was born, was relevant to his parental fitness and whether there was a reasonable probability that he [had] remedied the reasons for [N.S.'s] placement outside his care. (State's Br. 44). We agree with DCS. [42] "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ind. Evid. Rule 401. As discussed below, in determining whether there is a reasonable probability that the conditions that resulted in N.S.'s removal or the reasons for [N.S.'s] placement outside the home will not be remedied, trial courts are 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. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Habitual conduct may include, among other things, a parent's prior criminal history. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. [43] Here, exhibits 49, 52, 55, 57, and 59 reveal that Father has an extensive criminal history, including a history of committing battery offenses that began sixteen years before the termination hearing. Father spent two years of the CHINS proceedings incarcerated for battery-related offenses against Mother. Five months after his release from incarceration for those offenses, Father was re-incarcerated for another battery-related offense. Father's prior criminal history was, therefore, relevant, and the trial court did not abuse its discretion in admitting exhibits 49, 52, 55, 57, and 59. [44] We further note that even if the trial court had abused its discretion in admitting these exhibits, any such error was harmless because the remaining evidence presented at the termination hearing, as discussed below, was more than sufficient to support the termination of Father's parental rights. See E.T., 808 N.E.2d 639, 646 (Ind. 2004) (explaining that the improper admission of evidence is harmless error when the judgment is supported by substantial independent evidence to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the judgment). [45] Father next argues that the trial court erred in admitting Therapist Heath's testimony that the list of factors that triggered the children's anxieties included Father's release from incarceration and N.S.'s subsequent visits with him. Father argues that this testimony constitutes inadmissible hearsay "and was extremely prejudicial." (Father's Br. 45). [46] We, however, agree with the State that "contrary to Father's argument that the admission was prejudicial, none of the [trial] court's findings . . . include any mention . . . that [the children's] anxiet[ies] resulted from Father's visits with [N.S.] [or] his release from jail[.]" (State's Br. 40, 41). Specifically, our review of the trial court's finding regarding the children's mental health reveals that the trial court found that: (1) the children were all enrolled in therapy with Therapist Heath; (2) three of the children had been diagnosed with adjustment disorders; (3) the children suffered from behavioral outbursts and anxiety; (4) the children had made improvements due to the stability in their current placement; and (5) Therapist Heath testified that it was in the best interests of the children to remain placed in the same sibling group. The trial court did not abuse its discretion in admitting Therapist Heath's testimony. Further, even if the trial court had abused its discretion in admitting this testimony, any such error was harmless. See E.T., 808 N.E.2d at 646. [47] Lastly, Father argues that the trial court erred in excluding "Mother's testimony as to her recommendations for transfer of custody to Paternal Grandmother." (Father's Br. 47). However, after Father's counsel asked Mother if she would be in agreement with Maternal Grandmother having custody of N.S., DCS objected to the question on the basis of relevance before Mother answered it. The trial court sustained the objection, and Mother gave no further testimony, [48] Father has waived appellate review of this issue because he failed to make an offer of proof. See Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009) (explaining that an offer of proof is required to preserve an error predicated upon the exclusion of a witness' testimony), trans. denied. Waiver notwithstanding, even if we had concluded that the trial court had abused its discretion in excluding this testimony, any such error was harmless. See E.T., 808 N.E.2d at 646.
3. Sufficiency of the Evidence
[49] The traditional right of a parent to establish a home and raise his 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 a parent to those of his child when evaluating the circumstances surrounding a termination. Id. at 1188. Termination of the parent-child relationship is proper where a child's 22 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. [50] 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 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). DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). [51] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 23 628 (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. [52] We further note that, in determining whether to terminate a parent-child relationship, trial courts have discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination and may find that a parent's past behavior is the best predictor of future behavior. D.B.M. v. Ind. Dep't of Child Servs., 20 N.E.3d 174, 181-82 (Ind. Ct. App. 2014), trans. denied. We have also stated that the time for a parent to rehabilitate himself or herself is during the CHINS process, before DCS files a termination petition. Prince v. Dep't of Child Servs., 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007). [53] Father first argues that DCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in N.S.'s removal or the reasons for placement outside the home will not be remedied. 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 at 643. 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. 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 24 conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Habitual conduct may include a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and a lack of adequate housing and employment. A.D.S., 987 N.E.2d at 1157. The trial court may also consider services offered to the parent by DCS and the parent's response to those services as evidence of whether conditions will be remedied. Id. [54] Here, our review of the evidence reveals that DCS removed N.S. from Mother after Mother had been charged with six counts of theft. N.S. was not placed with Father because he was incarcerated for two incidents of domestic violence against Mother. When Father was released from incarceration two years later, DCS referred him to services and supervised visitation with N.S. However, rather than taking advantage of this opportunity to work towards reunification with his daughter, in less than one month, Father violated a no-contact order, physically assaulted Mother, and was immediately re-incarcerated. This evidence supports the trial court's conclusion that there was a reasonable probability that the conditions that resulted in N.S.'s removal would not be remedied. We find no error. [55] Father next argues that there is insufficient evidence that the termination was in N.S.'s best interests. In determining whether termination of parental rights is in the child's best interests, the trial court is required to look at the totality of the evidence. In re 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 25 child involved. Id. In addition, a child's need for permanency is a central consideration in determining the 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, 798 N.E.2d at 203. [56] Here, our review of the evidence reveals that both FCM Eldridge and GAL Adams testified that termination was in N.S.'s best interests. GAL Adams also testified that N.S.'s foster parents, with whom N.S. had lived for three and one-half years, had provided her with consistency and stability. The testimony of FCM Eldridge and GAL Adams, as well as the other evidence previously discussed, supports the trial court's conclusion that termination was in N.S.'s best interests. [57] Lastly, Father argues that DCS does not have a satisfactory plan for N.S.'s care and treatment. This Court has previously explained that the plan for the care and treatment of the child need not be detailed, so long as it offers a general sense of the direction in which the child will be going after the parent-child relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008). Here, FCM Eldridge testified that the plan for N.S.'s care and treatment is foster parent adoption. This is a satisfactory plan. See In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). [58] We have previously recognized that this Court is ever mindful of the fact that the trial court must subordinate the interests of a parent to those of the child 26 when evaluating the circumstances surrounding the termination of the parent-child relationship. Matter of D.G., 702 N.E.2d 777, 781 (Ind. Ct. App. 1998) (citing Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied). Recognizing that the trial court listened to the testimony of all the witnesses at the three-day termination hearing, observed their demeanor, and judged their credibility, as a reviewing court, we must give proper deference to the trial court. Accordingly, we hold that the trial court was justified in concluding that the DCS proved by clear and convincing evidence that parents' parental rights should be terminated. [59] Affirmed. Kirsch, J., and Tavitas, J., concur.