In re the Termination of the Parent-Child Relationship of: D.F., S.F., and J.F. (minor children) and A.F. (Mother) and D.F., Sr. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                          FILED
    regarded as precedent or cited before any                                 May 18 2020, 10:53 am
    court except for the purpose of establishing                                   CLERK
    the defense of res judicata, collateral                                    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT AF                                ATTORNEY FOR APPELLEE
    Justin R. Wall                                           Robert J. Henke
    Wall Legal Services                                      Deputy Attorney General
    Huntington, Indiana                                      Indianapolis, Indiana
    ATTORNEY FOR APPELLANT DF
    Daniel J. Vanderpool
    Vanderpool Law Firm, PC
    Warsaw, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Termination of the                             May 18, 2020
    Parent-Child Relationship of:                            Court of Appeals Case No.
    D.F., S.F., and J.F. (minor                              19A-JT-2837
    children) and A.F. (Mother) and                          Appeal from the
    D.F., Sr. (Father)                                       Wabash Circuit Court
    A.F. (Mother) and D.F., Sr.                              The Honorable
    (Father),                                                Robert R. McCallen III, Judge
    Appellants-Respondents,                                  Trial Court Cause No.
    85C01-1904-JT-006
    v.                                               85C01-1904-JT-007
    85C01-1904-JT-008
    Indiana Department of Child
    Services,
    Appellee-Petitioner
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                       Page 1 of 27
    Vaidik, Judge.
    Case Summary
    [1]   D.F., Sr. (“Father”) and A.F. (“Mother”) (collectively, “Parents”) appeal the
    termination of their parental rights to their three children. We affirm.
    Facts and Procedural History
    [2]   The facts that follow are taken primarily from the trial court’s findings of fact,
    none of which Parents challenge on appeal.1 Parents are the biological parents
    of three children: D.F., born in 2006; S.F., born in 2007; and J.F., born in 2009
    (collectively, “Children”). In July 2013, the Wabash County Sheriff’s
    Department responded to a domestic-violence call at Parents’ house. When
    officers arrived, they discovered that Father had hit Mother in the back of her
    head with a “Mag light.” Father’s App. Vol. II p. 52; see also Tr. p. 23. Father
    had left the scene. Mother had a “significant injury to the back of her head” and
    was transported to a nearby hospital. Tr. p. 23. Because Children were present
    and witnessed the incident, the Department of Child Services (DCS) was called.
    When Family Case Manager (FCM) Valerie Eiler arrived, she went inside
    Parents’ house and found that the home conditions were “deplorable.” Father’s
    App. Vol. II p. 52. The basement was filled with “standing water and sewage,”
    1
    Because neither Father nor Mother challenge the trial court’s findings of fact, we accept them as true. See
    Maldem v. Arko, 
    592 N.E.2d 686
    , 687 (Ind. 1992).
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                      Page 2 of 27
    and there were dirty dishes, piles of clothes, and animal feces throughout the
    house. Tr. p. 23. Father was later located “hiding in a house” and was arrested
    and charged with Class D felony domestic battery. Father’s App. Vol. II p. 52.
    He would remain in custody until early 2014.2 Children were removed from
    Parents’ care and placed together in foster care. Shortly after, DCS filed
    petitions alleging that Children were in need of services (CHINS).3
    [3]   In October 2013, the trial court found that Children were CHINS and ordered
    that Children continue to be detained. Following a dispositional hearing in
    November, the court ordered that Parents participate in services, including
    home-based case work services, parenting assessments, psychological
    assessments, substance-abuse assessments, and supervised visitation. At the
    time, Father was still incarcerated and was ordered to begin services as soon as
    he was released. The trial court also authorized a trial home visit with Mother,
    which began in December 2013.
    [4]   In January 2014, the trial court held a review hearing and found that Mother
    was complying with Children’s case plan and that Father had recently been
    released from incarceration but had not yet begun services.
    2
    In January 2014, the State dismissed the case against Father. See Father’s App. Vol. IV p. 49.
    3
    DCS had contact with Parents before July 2013. The outcome was that a guardianship over D.F. and S.F.
    was granted 2008. Despite this guardianship, Children were in Parents’ care in July 2013.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                         Page 3 of 27
    [5]   A month later, law-enforcement officers were called to Parents’ house on a
    report that Mother was threatening to harm Father. When officers arrived,
    Father refused to speak with them “other than to say ‘F**k you,’” and Mother
    was found locked in a bathroom with J.F. Father’s App. Vol. III p. 56. Mother
    yelled at the officers to “get the f**k out of my house,” and when they tried to
    open the door to get J.F. out, Mother screamed that “she was going to stab
    herself if law enforcement came in.”
    Id. Eventually, officers
    were able to force
    their way in, and Mother grabbed “a large butcher knife and pointed it
    downwards stating she would stab herself.”
    Id. Officers ordered
    Mother to drop
    the knife, and when she refused, they tased her. See
    id. Mother was
    arrested and
    charged with Class A misdemeanor resisting law enforcement, Class A
    misdemeanor intimidation, and Class B misdemeanor disorderly conduct. She
    later pled guilty to Class A misdemeanor resisting law enforcement and was
    sentenced to one year, which was suspended to probation. Children were again
    removed from Parents’ care and placed together in foster care. The next day,
    the court held a detention hearing and ordered that Children continue to be
    removed from Parents’ care.
    [6]   In May 2014, the court modified the dispositional decree and ordered that
    Parents participate in additional services, including submitting to random drug
    screens and participating in the “Alternative Batterers Program” and
    “therapeutic Supervised Visitation.”
    Id. at 64.
    [7]   By December, Parents were consistently engaging in services and asked the
    court to change the case to “an In-home CHINS.”
    Id. at 71.
    The trial court
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 4 of 27
    found that “progress ha[d] occurred” but not sufficient enough “to jump from
    the beginning of community visits, to In-home CHINS, at this time.”
    Id. The court
    did find, however, that Parents could have an extended visit with
    Children over the Christmas holiday.
    [8]   At the February 2015 CHINS review hearing, the court found that Parents had
    stopped complying with Children’s case plan and that neither was cooperating
    with DCS. See
    id. at 73.
    The court ordered that Mother’s current substance-
    abuse treatment be reevaluated and that Father complete a new substance-abuse
    assessment “to determine the need for services.”
    Id. at 74.
    Children’s placement
    outside Parents’ home was also continued. In May, Father filed a petition for
    dissolution of marriage. At a July permanency hearing (which Parents failed to
    appear for), the court found that Parents were only partially complying with
    Children’s case plan and ordered that Children’s permanency plan be changed
    to a concurrent plan of reunification and termination. The court also appointed
    a Court-Appointed Special Advocate (CASA) for Children around that same
    time.
    [9]   Parents failed to appear for a January 2016 CHINS review hearing. The court
    found that Parents were not in compliance with Children’s case plan and were
    not cooperating with DCS. Parents also had not been visiting Children.
    Id. at 84.
    By August, however, Parents re-engaged in supervised visitation. In late
    October 2016, Mother was granted another trial home visit with Children.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 5 of 27
    [10]   Three days into the second trial home visit, Children were removed from
    Parents’ care for the third time. They were placed together in foster care. Father
    had just been released from jail and returned to Parents’ house. Law
    enforcement was called when Father became intoxicated and began arguing
    with Mother in front of Children. Father was arrested and later charged with
    Level 6 felony domestic battery and Class A misdemeanor intimidation. He
    later entered into an agreement with the State to plead guilty to Level 6 felony
    intimidation and was sentenced to two years, with one year to be served in
    either the Department of Correction or local jail and the other year suspended
    to probation. After Children were removed, the court held another detention
    hearing and ordered their continued placement outside Parents’ home.
    Id. at 91.
    In its order, the court noted that Mother had “attempted to prevent her son
    [D.F.] from seeking help relating to the domestic violence incident by hanging
    up on a 911 operator and instructing him not to speak to law enforcement
    officers.”
    Id. at 92.
    [11]   In late 2016, Father posted bail and was released from custody. After his
    release, he did not contact DCS or reengage in services. Instead, Father went to
    Georgia.
    [12]   In January 2017, following a CHINS review hearing, the court found that
    Parents had “partially complied with [Children’s] case plan” and “have been
    inconsistent with services and have not benefitted from the services to a point
    where reunification would be safe.”
    Id. at 94.
    Parents’ divorce was finalized in
    February. See Tr. Vol. III p. 170.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 6 of 27
    [13]   In March, DCS filed petitions to terminate Parents’ parental rights to Children.
    Then, in May, based on the recommendation of Children’s therapist, the court
    modified the CHINS dispositional decree so that family therapy could begin “as
    soon as possible.” Father’s App. Vol. III p. 99. After a permanency hearing in
    July, the court found that family therapy occurred five times but that the family
    was not engaged. Specifically, the court found that Mother “was cooperative in
    attending the sessions, however, the family as a whole ha[d] little to no insight
    about how the trauma has impacted them.”
    Id. at 104.
    Regarding Father (who
    did not appear for the hearing), the court found that he was not in compliance
    with Children’s case plan, was “residing out of state,” and was “not
    participating in any services or in person visitation.”
    Id. The court
    ordered that
    Children’s permanency plan be that “of adoption with a concurrent plan of
    reunification.”
    Id. at 105.
    [14]   In November 2017, Mother filed a motion to modify the dispositional order.
    Following a hearing on Mother’s motion, the court found that “Father is no
    longer a part of [Mother’s] life and she is attempting to go it alone, albeit with
    some financial assistance from him.”
    Id. at 108.
    Although the court found that
    “[w]hile not necessarily apparent, progress, at least on a personal level for
    [M]other, has occurred,” it denied her motion to modify the dispositional order.
    Id. [15] At
    the January 2018 CHINS review hearing, the court found that Mother was
    in partial compliance with supervised visitation, random drug screens, and
    family therapy, and ordered her to participate in the “Seeking Safety and
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 7 of 27
    Batterers Intervention Program.”
    Id. at 111.
    As for Father, the court found that
    he “ha[d] not participated in any services since moving to Georgia in November
    2016.”
    Id. at 110.
    [16]   The trial court held a fact-finding hearing on DCS’s termination petitions over
    three days in February and March 2018. Father did not appear, and the court
    found that “[h]e has been and remains in Georgia, choosing to appear only by
    counsel.” Father’s App. Vol. II p. 50. Following the hearing, the court denied
    DCS’s petitions to terminate Parents’ parental rights to Children. The trial court
    explained:
    While the Court could easily have made a different
    determination as to [Father] only, terminating his obligation to
    pay support would not be in [Children’s] best interests. Of
    course, should [Mother] and [Father] renege on their promises to
    go it alone, the Court will very likely to re-visit the issue of
    termination of parental rights.
    At first blush, it may appear absurd that after such a long
    removal, the parent’s rights are not terminated. However, many
    different factors attributed to the long removal, including changes
    in foster placements and service providers, DCS personnel, the
    behaviors of [Mother] and [Father] and the lack of evidence. The
    Court must make its determination based upon the evidence
    presented in Court. The evidence fell short of supporting
    termination. In that regard, [Mother] should count her lucky
    stars that she is being given what is very likely one last chance to
    step up to the plate and be the parent she needs to be, including
    doing whatever it takes to do so. Her recent behavior offers a
    glimmer of hope. That glimmer can be quickly tarnished if she
    falls back into her old ways. That would be a terrible tragedy for
    her children who deserve much better.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 8 of 27
    Id. at 54.
    [17]   At a CHINS permanency hearing in July, the court found that Mother was in
    compliance with Children’s case plan. The court further found that she was
    “participating in all required services on a consistent basis” and had
    “consistently [drug] screened as requested with no positive screens.” Father’s
    App. Vol. III p. 115. In August, Father was extradited to Indiana from Georgia
    on warrants out of Wabash and Howard counties. See Tr. pp. 51-52.
    [18]   In December 2018, DCS filed a “Motion for Approval of Trial Home Visit” for
    all three children in Mother’s home. Father’s App. Vol. II p. 117. The court
    found that Mother had made progress in services and “appeared to engage
    meaningfully to remedy the reason for out of home placement.”
    Id. The court
    also found that while D.F. and J.F. wished to return to Mother’s home, S.F. “is
    adamant that she does not wish to return to [Mother’s] home or visit in-home
    on Christmas.”
    Id. The court
    ordered that D.F. and J.F. participate in a trial
    home visit with Mother and that S.F. participate in a four-hour in-home visit on
    Christmas. See
    id. [19] Father,
    who by then had been in and out of jail since August 2018, was placed
    on work release in early 2019. In February, DCS filed a motion to terminate
    Mother’s trial home visit. DCS alleged that there was recently an incident
    where Parents were found extremely intoxicated at Mother’s house. Mother
    had “neglected to pick up [D.F. and J.F.] from school and did not know their
    whereabouts, and [D.F. and J.F.] witnessed yet another incident of violence
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 9 of 27
    involving one of their parents when [Father] was forcibly restrained by law
    enforcement to prevent an attack on a case manager.” Mother’s App. Vol. III p.
    220. Father was charged with Level 6 felony resisting law enforcement, Class A
    misdemeanor intimidation, and Class B misdemeanor disorderly conduct. He
    was incarcerated from February 2019 to March 2019 and again from May 2019
    to October 2019. He later pled guilty to Level 6 felony resisting law
    enforcement and Class A misdemeanor intimidation and was sentenced to two-
    and-a-half years in the DOC. The trial court granted DCS’s motion to terminate
    the trial home visit, and D.F. and J.F. were once again removed from Mother’s
    care. See
    id. at 225.
    They were placed together in the same foster home as their
    sister, S.F. At the April 2019 CHINS permanency hearing, the trial court
    changed Children’s permanency plan to termination. Later that month, DCS
    filed new petitions to terminate Parents’ parental rights to Children.
    [20]   In May, the court held the initial hearing on the termination petitions. Father,
    who was incarcerated at the time, refused to appear for the hearing, telling
    officers at the jail “that he was not going to court th[at] morning.” Tr. Vol. II p.
    5. His attorney appeared on his behalf and participated in the hearing.
    Following the initial hearing, the court set the fact-finding hearing to begin on
    June 28. Mother filed a motion for a change of judge on June 26. At the
    beginning of the fact-finding hearing, the court addressed Mother’s motion.
    Mother, through counsel, admitted that her motion was not timely for an
    automatic change of judge but alleged that “given the history, and the length of
    time we’ve gone through this case, and the prior termination cases, and some of
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 10 of 27
    the comments, um, about that prior termination hearing, that, perhaps, the
    Court has, um, some preconceived notions about the outcome of the current
    termination proceedings.”
    Id. at 18.
    Father joined Mother’s motion and
    explained that “the fact that the Court has given chances, uh, probably above
    and beyond what would normally be done, uh, and – and I think expressed
    some understandable frustration. But going forward, I think we want to make
    sure that that’s not going to be something that would color the proceedings.”
    Id. at 19.
    The trial court denied Mother’s motion for a change of judge and stated,
    “I think I can be fair and impartial. I think I have tried to do that. I think I’ll
    stick with what the facts are in that particular case.”
    Id. at 20.
    The trial court
    then started the termination fact-finding hearing, and FCM Gary Spratt testified
    regarding the conditions that led to Children’s initial removal from Parents’
    care. After a few minutes, the trial court concluded the hearing, stating “we will
    resume the testimony due to inadequate time [on] October 29th, 30th, and
    31st.”
    Id. at 24.
    [21]   Less than two weeks before the termination fact-finding hearing was set to
    resume on October 29, Father filed several pro se motions, even though he was
    still represented by counsel. On October 17, Father filed a “Motion for
    Appearance,” stating that he “files his appearance” in the case. Father’s App.
    Vol. II p. 75. On October 18, he filed a motion for continuance and a “Motion
    to Raise Issues At Trial Level for Appeal.”
    Id. at 77,
    79. Three days later, he
    filed two more motions: a second motion for a continuance and a motion to
    proceed in forma pauperis.
    Id. at 82,
    85. The next day, Father filed four more
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 11 of 27
    motions: (1) a third motion for a continuance, (2) a request for production, (3)
    another “Motion to Raise Issues At Trial Level for Appeal,” and (4) a “Request
    For Bonding Assessment.”
    Id. at 88,
    90, 92, 95. That same day, October 22,
    Father’s attorney since 2015 filed a motion to withdraw his appearance, stating
    he was doing so “at the instruction of the Natural Father.”
    Id. at 98.
    The next
    day, the trial court granted Father’s attorney’s motion to withdraw. On October
    24, Father filed a request “seeking the assistance of second chair.”
    Id. at 100.
    [22]   On October 25, the court held a hearing on Father’s various motions. During
    the hearing, the court confirmed that Father wished to represent himself and
    was only “seeking a second chair.” Tr. Vol. II p. 28. Father confirmed that is
    what he wanted, and the trial court appointed “second chair.”
    Id. at 30.
    The
    trial court commented, “I doubt very much that person is going to be able to
    attend given your last minute requests. They have busy lives and schedules as
    well. I’m going to appoint Attorney Sharon Breitenbach. . . . Whether she can
    meet with you, assist you, I do not know.”
    Id. at 31.
    The court then moved on
    to Father’s request for production, and DCS provided Father a copy of the
    documents he requested (which had previously been provided to his former
    attorney) in open court. See
    id. at 29-30.
    Then, the court stated that it was taking
    judicial notice of the first termination proceeding and stated:
    In that proceeding, I did deny termination. I indicated I’d have
    no problem terminating your parental rights based upon the
    evidence and history, um, and your apparent acquiescence to
    that. But I did not because I decided based upon the evidence
    presented, at that time, not to terminat[e] [Mother’s] rights.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 12 of 27
    As my order indicated, you were, at least for a period of time, a
    source of income for [Mother] and [Children]. And given
    [Mother’s] work history, I believed terminating your rights would
    deprive her of a financial support that she would need going
    forward.
    Your recent termination of your attorney, your pro se
    appearance, your request for production of documents, and all
    other pro se filing herein, in my opinion are merely an attempt to
    underly [sic] and delay these court proceedings in what I think
    you believe is going to somehow aid [Mother]. I’m not going to
    allow that. Your children deserve better. You should be ashamed
    of yourself.
    ******
    Given my prior position not to terminate your rights, if I don’t
    terminate her rights, you’re adequately represented by [Mother’s
    attorney], who is not your attorney of record. But the issues she
    will preserve and raise would benefit you as well.
    Tr. Vol. II pp. 30-31. The court then denied Father’s remaining motions,
    including his three motions to continue, finding “them a sham on the Court.”
    Id. at 31.
    The court closed the hearing by confirming that the termination
    hearing would resume, as scheduled, on October 29 and commenting to Father,
    “these children deserve the attention and the life they ar[e] entitled to. They’ve
    certainly not been getting it in the last several years. You’ve actually played
    zero role.”
    Id. at 34.
    [23]   On October 28, the day before the termination hearing was set to resume,
    Father filed a motion for change of judge, asking the judge to recuse himself
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 13 of 27
    because he had been involved in the prior termination case and made
    comments about what happened in that case during the October 25 hearing. See
    Father’s App. Vol. II pp. 105-112. Later that same day, the trial court denied
    Father’s motion for a change of judge.
    [24]   On October 29, the termination hearing resumed. At the start of the hearing,
    Father and his attorney objected to the hearing, alleging that they did not have
    enough time to prepare. Tr. Vol. II pp. 41, 43. The court denied any
    continuance, stating, “there’s been adequate time, [Father] just made a
    conscious decision to terminate his attorney, conveniently right . . . on the eve
    of trial.”
    Id. at 41,
    43. The trial court also noted that the dates for the
    termination hearing had been set since May 2019. See
    id. at 43.
    [25]   Therapist Annette Dubois testified that she worked with D.F. to address his
    anxiety issues and obsessive-compulsive disorder. Therapist Dubois testified
    that D.F. needs a home that provides structure, understanding, patience, “no
    surprises,” and stability.
    Id. at 63.
    Therapist Terri Valentine testified that she
    worked with S.F. on her belief that she had “to parent her younger brother and
    sister” and to address her lack of trusting adults.
    Id. at 79-80.
    Therapist
    Valentine said that S.F. needs a home that provides her “challenge, enrichment,
    and opportunities to learn, opportunities to be in the community and be
    involved.”
    Id. at 81.
    Therapist Valentine stated that S.F. had expressed to her
    that she does not want to live with Parents and does not “want to have a close
    relationship” with them.
    Id. at 87.
    Therapist Alexandria Minkler testified that
    she worked with J.F. on “processing her trauma.”
    Id. at 92.
    Therapist Minkler
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 14 of 27
    said that J.F. needs a home where “she can establish safety, have support, and
    have structure,” because “support helps with her safety, the feeling of safety,”
    “where she can come out of feeling as though she has to fend for herself
    emotionally and physically.”
    Id. at 93-94.
    [26]   Therapist Janet Shull testified that she worked with Mother. Regarding Parents’
    relationship, Therapist Shull said that Mother “had a long relationship with
    [Father]. He’s the father of her children. They’ve had a close relationship for
    years. She cares about him and for him. She believes that he has potential also.
    She wants him to have influence in the lives of her children.” Tr. Vol. III p.
    120. Therapist Shull explained that Mother “thinks she will save [Father].”
    Therapist Shull stated that she was aware that Mother used methamphetamine
    in September 2019 and thought that Mother did so because she was lonely.
    Mother admitted that she used methamphetamine over Labor Day weekend.
    See
    id. at 148.
    Mother explained that she did it because she “just wanted to be
    numb.”
    Id. at 149.
    Father testified that “at whatever cost to [him],” Mother’s
    parental rights should not be terminated.
    Id. at 173.
    When asked what he meant
    by that, Father responded, “I am more than suggesting that I would do
    whatever it takes to make sure that happens for their peace.”
    Id. [27] FCM
    Eiler testified that DCS had been providing the family services for “over
    six years . . . And every time [Children] go back home, something happens
    between [Mother] and [Father] that results in DCS having to re-remove
    [Children] again.” Tr. Vol. II p. 153. FCM Eiler said that Children “deserve
    stability, they deserve permanency, and they haven’t had that. . . . Most of their
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 15 of 27
    childhood has been lived in foster care.”
    Id. FCM Eiler
    stated that adoption was
    DCS’s plan and that she believed termination of Parents’ parental rights is in
    Children’s best interests.
    Id. FCM Gary
    Spratt also testified that Parents were
    “given plenty of time, plenty of opportunities, nearly every service at [DCS’s]
    disposal. But every time we get close, we come right back to the same issues
    that got [DCS] involved in the first place.” Tr. Vol. III p. 16. FCM Spratt said
    that he thought that termination of Parents’ parental rights is in Children’s best
    interests. See
    id. at 17.
    CASA Robert Cole testified that “it’s been over six years
    and there’s been very little substantial progress.”
    Id. at 54.
    CASA Cole said that
    Mother has “admitted to having taken methamphetamine and . . . her reason
    for doing it is she just didn’t want to feel pain anymore . . . it seems that she just
    falls back on her old habits.”
    Id. at 56-57.
    CASA Cole supported DCS’s plan for
    adoption and believed that termination of Parents’ parental rights is in
    Children’s best interests. See
    id. at 53-54.
    In November 2019, the trial court
    issued its order terminating Parents’ rights to Children.
    [28]   Father and Mother separately appeal.
    Discussion and Decision
    [29]   Parents make two separate arguments on appeal. Father argues that the trial
    court abused its discretion by denying his motion for change of judge and
    motions to continue. Mother argues that there is insufficient evidence to
    support the trial court’s termination order.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 16 of 27
    I. Father’s Appeal
    [30]   Father contends that the trial court abused its discretion in two ways: (1) by
    denying his motion for a change of judge and (2) by denying his motions to
    continue.
    A. Motion for Change of Judge
    [31]   First, Father argues that “[t]he trial court was not the neutral and detached
    magistrate required by due process to afford [Father] a fair hearing, and should
    have granted his Motion for Change of Judge. It was an abuse of discretion for
    the court not to do so.” Father’s Br. p. 15. A ruling upon a motion for a change
    of judge rests within the sound discretion of the trial judge and will be reversed
    only upon a showing of an abuse of that discretion. Carter v. Knox Cty. Office of
    Family & Children, 
    761 N.E.2d 431
    , 434 (Ind. Ct. App. 2001). Reversal is
    appropriate only where a record discloses actual bias and prejudice against a
    party.
    Id. [32] The
    law presumes that a judge is unbiased and unprejudiced. 
    Carter, 761 N.E.2d at 435
    . To overcome this presumption, the moving party must establish
    that the judge has personal prejudice for or against a party.
    Id. Such bias
    or
    prejudice exists only where there is an undisputed claim or the judge has
    expressed an opinion on the merits of the controversy before him.
    Id. Adverse rulings
    and findings by the trial judge do not constitute bias per se.
    Id. Instead, prejudice
    must be shown by the judge’s trial conduct; it cannot be inferred from
    his subjective views.
    Id. Moreover, Indiana
    courts credit judges with the ability
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 17 of 27
    to remain objective notwithstanding their having been exposed to information
    which might tend to prejudice lay persons.
    Id. Thus, the
    mere fact that a party
    has appeared before a certain judge in a prior action or the judge has gained
    knowledge of the party by participating in other actions does not establish the
    existence of bias or prejudice.
    Id. Indeed, our
    courts have recognized that in the
    area of termination proceedings, a judge is very likely to have knowledge of
    previous proceedings because the juvenile court’s jurisdiction over a child in
    need of services or their parent continues until the child reaches their twenty-
    first birthday, unless the court discharges the child or their parent at an earlier
    time.
    Id. [33] Father
    says that the following remarks made by the trial court at the October 25
    hearing show bias:
    • When referring to the prior termination proceeding, the
    court commented, “in that proceeding, I did deny
    termination. I indicated that I’d have no problem
    terminating your parental rights based upon the evidence
    and history, um, and your apparent acquiescence to that.
    But I did not, because I decided based upon the evidence
    presented at that time, not to terminate Mom’s rights.”
    • When discussing Father’s request for a second chair, the
    court noted, “given my prior position not to terminate
    your rights, if I don’t terminate [Mother’s] rights, you’re
    adequately represented by [Mother’s attorney], who is not
    your attorney of record. But the issues she will preserve
    and raise would benefit you as well.”
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 18 of 27
    • After denying Father’s motions to continue, when
    confirming that the termination hearing would resume as
    scheduled, the court said, “these children deserve the
    attention and the life they ar[e] entitled to. They’ve
    certainly not been getting it in the last several years.
    You’ve actually played zero role.”
    Tr. Vol. II pp. 30-31, 34.4
    [34]   At the outset, we note that Father knew that the same judge who heard the first
    termination proceeding would be presiding over this one long before he filed his
    motion for change of judge. In fact, at the June 28 hearing, where Father was
    present, he joined Mother’s motion for change of judge. The fact that he knew
    that the judge would be the same for this length of time supports the trial court’s
    conclusion that Father’s motions, made on the eve of trial, were a “sham” to
    give Mother more time. Father’s App. Vol. II p. 45. Moreover, Father does not
    establish how the above comments show that the trial court had a personal
    prejudice against him. Instead, the above comments show that the trial court
    was making an observation about the prior termination proceeding and Father’s
    participation in the current proceedings, not prejudging any future termination.
    As discussed above, the mere fact that a judge has gained knowledge of the
    party by participating in other actions does not establish the existence of bias or
    4
    Indiana Appellate Rule 46 provides that every contention in the argument section of a brief “must be
    supported by citations to . . . the Appendix or parts of the Record on Appeal relied on[.]” The argument
    section of Father’s brief does not include a single citation to the record. Needless to say, this lack of citations
    substantially hindered our review.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                          Page 19 of 27
    prejudice. See 
    Carter, 761 N.E.2d at 435
    . Accordingly, the trial court did not
    abuse its discretion in denying Father’s last-minute motion for a change of
    judge.
    B. Motions to Continue
    [35]   Father also argues that the trial court abused its discretion when it denied his
    motions to continue. Generally, the decision to grant or deny a motion to
    continue is within the sound discretion of the trial court, and we will reverse
    only for an abuse of discretion. In re J.E., 
    45 N.E.3d 1243
    , 1246 (Ind. Ct. App.
    2015), trans. denied. An abuse of discretion occurs when the trial court’s
    conclusion is clearly against the logic and effect of the facts and circumstances
    before the court or the reasonable and probable deductions to be drawn
    therefrom.
    Id. When a
    motion to continue has been denied, an abuse of
    discretion will be found if the moving party has demonstrated good cause for
    granting the motion, but we will reverse the trial court’s decision only if the
    moving party can show that he was prejudiced by the denial.
    Id. [36] Here,
    the record shows that Father fired his longtime attorney and filed three
    motions to continue less than two weeks before the termination hearing was to
    resume. The trial court did not believe “for one second” that Father needed a
    continuance and instead thought that his motions to continue and slew of other
    motions were a “sham,” designed to delay the proceedings and give Mother
    more time to work toward reunification. Father’s App. Vol. II pp. 45-46.
    Indeed, Father admitted during trial that he would “do whatever it takes” to
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 20 of 27
    ensure Mother’s parental rights to Children were not terminated. Tr. Vol. III p.
    173. The trial court did not believe that Father required a continuance and
    therefore denied his motion. We do not second-guess the trial court’s credibility
    determination on appeal. As such, we conclude that the trial court did not
    abuse its discretion.
    [37]   To the extent that Father argues that his due-process rights were violated
    because “his right to have counsel represent his interests was significantly
    impaired,” Father’s Br. p. 23, we find no merit to this argument. When the
    State seeks to terminate the parent-child relationship, it must do so in a manner
    that meets the requirements of due process. Hite v. Vanderburgh Cty. Office of
    Family & Children, 
    845 N.E.2d 175
    , 181 (Ind. Ct. App. 2006). Due process in
    termination cases involves the 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 government interest supporting use of the
    challenged procedure.
    Id. There is
    no doubt that Father’s private interest in his
    parental relationship with Children is substantial. See
    id. Likewise, the
    government’s countervailing interest in protecting the welfare of Children is
    also substantial. See
    id. As for
    the risk of error, the record shows that Father,
    with the assistance of an attorney, was able to testify, cross-examine DCS’s
    witnesses, and call his own witnesses. And our review of the record shows that
    Father’s “second chair” adequately represented his interests. To the extent that
    Father complains that his “second chair” was under prepared, that was due to
    his own dilatory tactics. First, Father was very clear that he wanted to represent
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 21 of 27
    himself and was only seeking a “second chair” to assist him. Next, Father’s
    request for a “second chair” was part of a last-minute slew of motions made just
    before the termination hearing was scheduled to resume. Finally, the trial court
    found that Father’s many motions were a “sham” designed to delay the
    proceedings to give Mother more time to work toward reunification. For all of
    these reasons, we do not think that the trial court’s denial of Father’s motions to
    continue created a substantial risk of error.5
    II. Mother’s Appeal
    [38]   Mother contends that there is insufficient evidence to support the trial court’s
    termination order.6 When reviewing the termination of parental rights, we do
    not reweigh the evidence or judge witness credibility. In re K.T.K., 
    989 N.E.2d 1225
    , 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable
    inferences that are most favorable to the judgment of the trial court.
    Id. When a
    trial court has entered findings of fact and conclusions of law, we will not set
    aside the trial court’s findings or judgment unless clearly erroneous.
    Id. To determine
    whether a judgment terminating parental rights is clearly erroneous,
    5
    To the extent that Father argues that “resetting the hearing within thirty days would have allowed for
    preparation by counsel, in light of the late submission of discovery,” we find no merit to this argument.
    Father’s Br. p. 23. Father made it clear that he was going to represent himself and concedes that he received
    the State’s discovery “in open court,” “no more than ten days” before the termination hearing.
    Id. at 22.
           Accordingly, any claim that he now makes that his “second chair” did not have time to review the State’s
    discovery was because of his own doing.
    6
    Father does not challenge the sufficiency of the evidence supporting the trial court’s termination order.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                         Page 22 of 27
    we review whether the evidence supports the trial court’s findings and whether
    the findings support the judgment. In re V.A., 
    51 N.E.3d 1140
    , 1143 (Ind. 2016).
    [39]   A petition to terminate parental rights must allege, 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. In re 
    K.T.K., 989 N.E.2d at 1231
    . If the court finds
    that the allegations in a petition are true, the court shall terminate the parent-
    child relationship. Ind. Code § 31-35-2-8(a).
    [40]   Mother first challenges the trial court’s conclusion that there is a reasonable
    probability that the conditions resulting in Children’s removal will not be
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 23 of 27
    remedied. In determining whether there is a reasonable probability that the
    conditions that resulted in a child’s removal will not be remedied, the trial court
    engages in a two-step analysis. First, the trial court must ascertain what
    conditions led to the child’s placement and retention in foster care. In re 
    K.T.K., 989 N.E.2d at 1231
    . Second, the trial court determines whether there is a
    reasonable probability that those conditions will not be remedied.
    Id. “The trial
    court must consider a parent’s habitual pattern of conduct to determine whether
    there is a substantial probability of future neglect or deprivation.”
    Id. The trial
    court has discretion to weigh a parent’s prior history more heavily than efforts
    made only shortly before termination, and the court may find that a parent’s
    past behavior is the best predictor of her future behavior. In re A.W., 
    62 N.E.3d 1267
    , 1273 (Ind. Ct. App. 2016).
    [41]   Here, even after six years, Mother failed to demonstrate that she was any closer
    to providing Children a safe, stable home than she was at the beginning of the
    CHINS case in July 2013. The trial court’s unchallenged findings on this issue
    support its conclusion that there is a reasonable probability that the conditions
    resulting in Children’s removal will not be remedied. See, e.g., In re E.M., 
    4 N.E.3d 636
    , 644 (Ind. 2014) (findings regarding father’s non-compliance with
    services supported trial court’s conclusion that conditions resulting in children’s
    removal from father’s care would not be remedied). That is, the trial court
    found:
    The children have been removed from their parents since July 20,
    2013, which is over six (6) years. [Mother] has changed her
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 24 of 27
    residence at least six (6) times. [Father] has changed his residence
    at least five (5) times. [Father] has been in and out of jail
    numerous times and was “on the lam” in Georgia before being
    arrested and extradited back to Indiana earlier this year. For both
    [Mother] and [Father], drug use and alcohol abuse continue. The
    children’s exposure to their parent[s’] bizarre behaviors continue.
    The events that occurred on and immediately before February
    15, 2019, were the last straw. As a result of those events, [D.F.]
    and [J.F.] were, again, removed. [S.F.] was still in foster care.
    Even after that, [Mother] ingested methamphetamine in
    September of this year.
    Father’s App. Vol. II p. 40. Accordingly, the trial court did not err when it
    concluded that there is a reasonable probability that the conditions resulting in
    Children’s removal and continued placement outside the home will not be
    remedied.7
    [42]   Mother also challenges the trial court’s conclusion that termination is in
    Children’s best interests. To determine what is in the child’s best interests, the
    trial court must look to the totality of the evidence. In re A.D.S., 
    987 N.E.2d 1150
    , 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
    subordinate the interests of the parents to those of the child.
    Id. The trial
    court
    need not wait until the child is irreversibly harmed before terminating the
    7
    Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
    resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
    reasonable probability that the continuation of the parent-child relationships poses a threat to the well-being
    of Children. See In re A.G., 
    45 N.E.3d 471
    , 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B)
    is written in the disjunctive and requires the trial court to find that only one of the two requirements of
    subsection (B) has been established by clear and convincing evidence), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020                       Page 25 of 27
    parent-child relationship.
    Id. Moreover, we
    have previously held that the
    recommendation by both the case manager and child advocate to terminate
    parental rights, in addition to evidence that the conditions resulting in removal
    will not be remedied, is sufficient to show by clear and convincing evidence that
    termination is in the child’s best interests.
    Id. at 1158-59.
    [43]   Here, FCMs Eiler and Spratt as well as CASA Cole all testified that termination
    of Parents’ parental rights is in Children’s best interests. See Tr. Vol. II p. 153;
    see also Tr. Vol. III pp. 17, 53-54. Furthermore, all of Children’s therapists
    expressed that the child they worked with suffered trauma and needed
    permanency. See Tr. Vol. II pp. 63, 81, 93-94; see also In re 
    A.D.S., 987 N.E.2d at 1159
    (“permanency is a central consideration in determining the best interests
    of a child”). The trial court found that Children “need to be in safe and secure
    surroundings. History show [Parents] cannot and will not provide that. None of
    the services [Mother] has engaged in will change that.” Father’s App. Vol. II p.
    45; see also In re 
    K.T.K., 989 N.E.2d at 1230
    (finding that “children have an
    interest in terminating parental rights that prevent adoption and inhibit
    establishing secure, stable, long-term, continuous relationships”). As such, the
    trial court did not err by finding that termination is in Children’s best interests.
    [44]   Finally, Mother argues that the trial court erred in concluding that there is a
    satisfactory plan for Children’s care and treatment. In order for the trial court to
    terminate a parent-child relationship, it must find that there is a satisfactory
    plan for the care and treatment of the child. See Ind. Code § 31-35-2-4(b)(2)(D).
    Such a plan need not be detailed, so long as it offers a general sense of the
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 26 of 27
    direction the child will go after the parent-child relationship is terminated. Lang
    v. Starke Cty. Office of Family & Children, 
    861 N.E.2d 366
    , 374 (Ind. Ct. App.
    2007), trans. denied. Adoption is generally a satisfactory plan, even when a
    potential adoptive family has not been identified. See
    id. at 375.
    Part of the
    reason for this is that it is within the authority of the adoption court, not the
    termination court, to decide whether an adoptive placement is appropriate. In re
    A.S., 
    17 N.E.3d 994
    , 1007 (Ind. Ct. App. 2014), trans. denied.
    [45]   Here, DCS’s plan is adoption. FCM Eiler agreed with this plan. Mother
    contends that adoption is not a satisfactory plan. Instead, she argues that
    “maintaining the status quo, i.e. the Children remaining in foster placement
    while Mother completes additional services is a very satisfactory plan.”
    Mother’s Br. p. 35. The trial court found that Mother was provided services for
    over six years but failed to benefit from them and that Children “should suffer
    no more.” Father’s App. Vol. II p. 45; see also In re S.P.H., 
    806 N.E.2d 874
    , 883
    (Ind. Ct. App. 2004) (children’s needs are too substantial to force them to wait
    while determining if their parents will be able to parent them). Therefore, the
    trial court did not err in concluding that adoption is a satisfactory plan for
    Children.
    [46]   Affirmed.
    May, J., and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-2837 | May 18, 2020   Page 27 of 27