Opinion
24A-JT-414
09-25-2024
In the Matter of the Termination of the Parent-Child Relationship of R.L., Father, and L.D., B.L., and E.D., Children, R.L., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Katharine Vanost Jones Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburgh Superior Court The Honorable Renee Allen Ferguson, Magistrate Trial Court Cause Nos. 82D04-2305-JT-898, 82D04-2305-JT-897, 82D04-2305-JT-896.
ATTORNEY FOR APPELLANT Katharine Vanost Jones Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
Judges Vaidik and Weissmann concur.
MEMORANDUM DECISION
Foley, Judge
[¶1] R.L. ("Father") appeals the trial court's order terminating his parental rights to L.D., B.L., and E.D. (together, "the Children"). He raises several issues for our review, which we consolidate and restate as:
I. Whether Father's right to due process was violated because: (A) he contends that the Indiana Department of Child Services ("DCS") violated the Americans with Disabilities Act ("ADA") by not making reasonable accommodations for him in providing him services, (B) of various alleged actions taken by the trial court toward him during the proceedings, and (C) the trial court allowed DCS to present its exhibits in compact disc ("CD") form; and
II. Whether Father received ineffective assistance of his counsel during the proceedings.
[¶2] We affirm.
Facts and Procedural History
[¶3] Father is the biological father of L.D., born October 2, 2018, B.L., born October 26, 2019, and E.D., born March 3, 2021. J.D. was the biological mother of the Children; however, she was deceased at the time of the proceedings at issue. Father has a long and extensive criminal history that spans from 2005, when he was eighteen, until 2023, while these proceedings were pending. His convictions included numerous theft-related offenses and multiple drug offenses for both possession and dealing. Based on these convictions, Father was given several executed sentences, serving time either in jail or the Indiana Department of Correction ("DOC").
[¶4] Prior to the underlying Child in Need of Services ("CHINS") cases here, the Children were adjudicated as CHINS in September 2021, due to Mother's continued drug use and failure to supervise the Children. DCS was initially unable to locate Father, and Mother reported he was homeless at that time. After the 2021 CHINS adjudication, Father was ordered to participate in services under a dispositional decree, including substance abuse treatment and random drug screens. In January 2022, DCS requested that the wardship be terminated because Mother had completed parenting classes, had maintained her sobriety for six months, and was employed, and the trial court terminated wardship. At the time the previous CHINS case was terminated, Father had been charged with three Level 4 felony possession charges, two Level 2 felony dealing charges, two Class A misdemeanor possession charges, and one Class A misdemeanor driving while suspended charge and eventually pleaded guilty in June 2022 to Level 5 felony possession of a narcotic drug, Class A misdemeanor possession of a controlled substance, Class A misdemeanor possession of marijuana, and Class A misdemeanor driving while suspended with prior conviction. Also in June 2022, Father was convicted of Level 6 felony theft in a separate cause number. Father was sentenced to one year in the DOC with credit for 347 days served for each cause number with both sentences to run concurrently.
[¶5] On July 24, 2022, DCS received a report that the Children were the victims of neglect because the Children were present in the home when their mother fatally overdosed on methamphetamine and fentanyl. At that time, L.D. was three years old, B.L. was two years old, and E.D. was one year old. DCS removed the Children from the home that day. On July 25, 2022, DCS located Father and spoke with him. Father admitted to using methamphetamine with Mother a few days before her death while the Children were asleep in the home. Father told DCS that he felt guilty for this and had taken suboxone "to try to come off of [the methamphetamine]." Tr. Vol. II p. 44. He also informed DCS that, on July 25, he had taken Xanax that was not prescribed to him. DCS determined that Father was not a suitable placement for the Children at that time because he was homeless and actively using drugs. Father told the family case manager ("FCM") that he had not been "actively involved" in the Children's lives because he "was incarcerated the majority of their lives." Id. at 43. At the time, Father did not have housing of his own and lived with his mother ("Paternal Grandmother"). The assessment worker visited Paternal Grandmother's home and found that she "appeared to be under the influence." Id. at 51.
[¶6] On July 26, 2022, DCS filed a petition alleging the Children were CHINS, and on September 13, 2022, after a fact-finding hearing, the trial court adjudicated the Children as CHINS. A dispositional hearing was held, and on October 25, 2022, the trial court issued a dispositional decree ordering Father to participate in services. Father was to maintain stable housing, refrain from drug and alcohol use, submit to random drug screens, participate in supervised visitation, complete a parenting assessment and all recommended services, and complete a substance abuse and mental health evaluation and all recommended treatment.
[¶7] Throughout the CHINS case, Father failed to comply with services and continued to use methamphetamine and other drugs, as evidenced by multiple positive drug screens in October and December 2022. Specifically, Father's drug screens indicated: (1) October 12, 2022-positive for THC; (2) December 1, 2022-positive for methamphetamine; (3) December 2, 2022-positive for amphetamine, THC, fentanyl, and norfentanyl; (4) December 7, 2022-positive for amphetamine, methamphetamine, THC, fentanyl, and norfentanyl. December 30, 2022, was the last date that Father submitted to a drug screen, and he tested positive for amphetamine and methamphetamine on that date. Between February 27, 2023, and May 25, 2023, Father missed sixty-two calls for random drug screens; however, he was incarcerated for a portion of that time, which accounted for thirteen of those calls, resulting in forty-nine actual missed calls.
[¶8] In mid-October 2022, Father was admitted to Stepping Stone for inpatient substance abuse treatment. After being re-admitted on November 1, after a medical discharge, Father was unsuccessfully discharged from Stepping Stone in mid-November 2022 "due to having inappropriate relationships with another female" client. Id. at 43. When asked about it, Father said "it was his free right [who] he could have relationships with and that would be a barrier in future treatment." Id. at 44. Father did not see the purpose of refraining from the use of drugs because the Children were not in his care at that time. Father attended inpatient substance abuse treatment at NOW Counseling in January 2023 but left treatment in the middle of that month against medical advice because "he was not ready to be sober." Ex. Vol. VI p. 202. As a result of Father leaving the facility, he was unsuccessfully discharged from the program. On January 26, 2023, Father completed an assessment for services at Counseling for Change. During the assessment, Father reported that he began using marijuana at ten years old and methamphetamine at fourteen years old. Father reported that in the past year his longest period of sobriety from all drugs and alcohol was one month. He reported having previously received treatment for drugs and alcohol on four separate occasions and admitted to using drugs daily at the time of the assessment. Father was discharged from services with Counseling for Change on March 31, 2023, due to his non-compliance.
[¶9] Supervised visitation with the Children was set up through Ireland Home-Based Services ("Ireland"). Father was offered thirty-five supervised visits with the Children between July 27, 2022, and June 9, 2023, but he attended only fifteen of those visits. Father missed several visits because he did not call ahead or because he was not prepared with essentials for the Children, such as food and diapers. Father's last visit was in April 2023.
These numbers reflected the actual visits offered and excluded times when Father was incarcerated or in inpatient treatment.
[¶10] On January 21, 2023, Father underwent a Vineland behavioral assessment as part of a parenting and family assessment performed by Ireland, which resulted in a completed assessment on March 21, 2023. The Vineland assessment determined that Father's overall functioning was "moderately low." Ex. Vol. VIII p. 21. Father scored low for receptive communication, moderately low for expressive communication, and adequate for written communication. The assessor stated that in terms of "understanding, listening and attending, and following instructions, [Father] is functionally similarly to a four year, eightmonth-old." Id. at 20. She recommended that based on the Vineland results, that "all service providers [] be aware of [Father's] cognitive challenges." Id. at 12. The assessor further recommended Father participate in parent-child interaction therapy with the Children "to address disrupted attachment and to establish parental authority," outpatient substance abuse treatment, parent education, parent aide services, and individual therapy. Id. at 12. She recommended that Father "be consistently and regularly monitored by another adult to determine his current understanding of the [C]hildren's needs, especially as they age." Id. at 22.
[¶11] On April 4, 2023, the trial court held a rule to show cause hearing due to Father's noncompliance with services. The trial court found Father in contempt for failing to comply with substance abuse treatment, failing to submit to random drug screens, and for his continued positive screens, finding his failure to comply was willful. The trial court sentenced Father to a suspended ninety days in jail.
[¶12] On May 9, 2023, Father was arrested on possession and dealing charges, for which he remained incarcerated. FCM Amanda Smith ("FCM Smith") met with Father in jail a week later and explained that DCS would be filing a petition to terminate Father's parental rights. In response, he stated that he did not "understand why it needed to be filed" because he "wasn't a danger" to the Children and that he was not "the reason for [DCS] involvement." Tr. Vol. II p. 47.
[¶13] On May 31, 2023, DCS filed a petition to terminate Father's parental rights to the Children. In July 2023, a jury found Father guilty of Level 2 felony dealing in methamphetamine, Level 6 felony possession of a narcotic drug, two counts of Class A misdemeanor possession of controlled substances, and Level 2 felony dealing in a narcotic drug. The trial court sentenced Father to twenty-two years executed in the DOC. After a twenty-two-year period of incarceration, L.D. will be twenty-seven years old, B.L. will be twenty-six years old, and E.D. will be twenty-four years old.
[¶14] At the July 11, 2023, initial hearing on the termination petition, the trial court advised Father of his rights, including his right to appointed counsel; his right to a termination trial where he can cross-examine witnesses, call his own witnesses, and present his own evidence; and his right to appeal prior to an adoption taking place. When asked whether he understood his rights, Father did not give the trial court a yes or no answer and instead seemed to ask the court about his right to counsel, stating that he was "confused about the attorney situation." Tr. Vol. II pp. 15-16. The trial court then appointed Father counsel who was already present in the courtroom and had represented him in the CHINS case. See Ex. Vol. II p. 33 (showing attorney appeared in the CHINS in January 2023). At that time, the trial court asked Father's counsel if he was "agreeable to waive time lines [sic]" for the termination hearing, and Father's counsel answered affirmatively. Tr. Vol. II p. 17. Father then asked if he could "move pro se[,]" and the trial court told him that he could not. Id.
[¶15] On November 20, 2023, the trial court held the termination hearing. At the beginning of the hearing, Father's counsel expressed "[a] little confusion" regarding whether he was standby counsel and whether Father was representing himself. Id. at 26. The trial court responded that Father's counsel was counsel of record and was representing Father during the termination proceedings. Father's counsel represented Father throughout the termination proceeding, performing functions such as questioning witnesses and objecting to evidence. In presenting its case, DCS introduced its exhibits in CD form, but other than objecting to the admission of Father's criminal records on relevancy grounds, Father did not object to the format of DCS's exhibits, and they were admitted into evidence.
[¶16] At the time of the hearing, the Children were doing well in their placement with their great aunt and uncle. In addition to testifying regarding Father's failure to complete the court-ordered services, especially substance abuse treatment, FCM Smith testified that she recommended termination of Father's parental rights as being in the best interest of the Children. The Children's court appointed special advocate ("CASA") testified that she believed that it was in the best interests of the Children for Father's parental rights to be terminated because she did not think that he had the ability psychologically to parent the Children the way they needed.
[¶17] On January 23, 2024, the trial court issued its order terminating Father's parental rights to the Children. The trial court concluded that there was a reasonable probability Father would not remedy the conditions and that continuation of the parent-child relationship posed a threat to the Children's well-being due to Father's lengthy criminal history, his continued engagement in criminal activity resulting in his current incarceration, his failure to maintain contact with the Children during the case, his failure to establish overall stability and safety for his reunification with the Children, and his lack of commitment to the Children, showing a reasonable probability that he would continue to fail them. The trial court also concluded that termination of Father's parental rights was in the Children's best interests "because the children['s] need for permanency is paramount" and that DCS's plan of adoption was satisfactory. Appellant's App. Vol. II p. 14. Father now appeals.
Discussion and Decision
I. Due Process Violation
[¶18] When the State seeks to terminate parental rights, "it must do so in a manner that meets the requirements of due process." In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (quotations and citations omitted). "The nature of the process due in any proceeding is governed by a balance of three factors: 'the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.'" In re T.W., 135 N.E.3d 607, 613 (Ind.Ct.App. 2019) (quoting In re D.H., 119 N.E.3d 578, 588 (Ind.Ct.App. 2019), trans. denied), trans. denied. In the context of termination proceedings, these interests and the balancing of the factors have been described as:
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.K.M. v. Ind. Dept. of Child Servs., 997 N.E.2d 1114, 1120 (Ind.Ct.App. 2013) (internal citations omitted).
A. ADA and Due Process
[¶19] Father first argues that his due process rights were violated because the DCS failed to make reasonable efforts to comply with the ADA when it offered him services. He asserts that under the ADA, DCS was required to make reasonable efforts to accommodate his cognitive disability when it provided him services through the CHINS proceedings. Father contends that if DCS had done so he may have been able to complete the services that were designed to resolve the issues that resulted in the CHINS petition being filed.
[¶20] "Congress enacted the ADA to eliminate discrimination and create causes of action for qualified people who have faced discrimination." N.C. v. Ind. Dep't of Child Servs., 56 N.E.3d 65, 69 (Ind.Ct.App. 2016) (citing 42 U.S.C. § 12101(b)), trans. denied. The ADA provides in pertinent part: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "The ADA requires that the public entity make 'reasonable accommodation' to allow the disabled person to receive the services or to participate in the public entity's programs." N.C. , 56 N.E.3d at 69-70 (quoting 28 C.F.R. § 35.130(b)(7)).
[¶21] Initially, we note that Father raises this issue for the first time on appeal. It is well settled that "a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal." In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). There is no indication in the record that Father challenged the services offered to him by DCS during the CHINS or termination proceedings or made a due process argument to the trial court. Father's argument is, thus, waived.
[¶22] Waiver notwithstanding, Father's due process rights were not violated in the way that DCS offered him services during the proceedings. Our court was presented with whether the ADA applies in proceedings for the termination of parental rights in Stone v. Daviess County Division of Children and Family Services, 656 N.E.2d 824 (Ind.Ct.App. 1995), trans. denied. There, we held that a discrimination claim under the ADA cannot serve as a basis for the reversal of a termination order because the services provided to the parents were provided in connection with the CHINS proceedings and not in connection with or as a prerequisite to the termination proceedings. Id. at 830. "If our termination statute required that services be provided to all parents prior to the termination of parental rights, under the doctrine of preemption an ADA violation by the [DCS] in fulfilling that statutory duty would provide grounds for attacking a termination pursuant to the statute." Id. However, such services are not required in Indiana. Id.
[¶23] Even assuming that Father could assert non-compliance with the ADA as a defense to the termination of his parental rights in these circumstances, we cannot say that reversal is warranted. The intent of the ADA is to ensure disabled individuals are not denied the benefits provided by a public entity. N.C. , 56 N.E.3d at 70 (citing 42 U.S.C. § 12101(b)). If Father is able to assert an ADA claim at this stage of the proceedings, he could prevail only if DCS did not reasonably accommodate Father's disabilities during the CHINS proceedings in providing Father services aimed toward reunification. See id.
[¶24] Here, during the course of the CHINS proceedings, Father participated in a Vineland assessment, which was completed on March 21, 2023. The Vineland assessment determined that Father's overall functioning was "moderately low," with Father scoring low for receptive communication, moderately low for expressive communication, and adequate for written communication. Ex. Vol. VIII p. 21. In terms of "understanding, listening and attending, and following instructions, [Father] is functionally similarly to a four year, eight-month-old." Id. at 20. The assessor recommended that based on the Vineland results, "all service providers [] be aware of [Father's] cognitive challenges, especially in regard to receptive language skills" and that "[d]ue to the difficulty with receptive language, it would be helpful to utilize verbal reinforcement of ideas and concepts." Id. at 12. Additionally, it was recommended that Father "be consistently and regularly monitored by another adult to determine his current understanding of the [C]hildren's needs, especially as they age." Id. at 22.
[¶25] To the extent that Father's cognitive deficits entitled him to reasonable accommodations under the ADA, he has not presented any evidence that DCS violated the ADA. First, Father does not point to any evidence that DCS knew the extent of Father's cognitive impairment prior to receiving the assessment in late March 2023, which was less than two months before Father became incarcerated for the offenses that he was eventually sentenced to over twenty years in the DOC. In fact, it is noted in the substance abuse assessment that Father completed in January 2023 that "[t]here is no evidence of a developmental delay and/or client has no developmental problems or intellectual disability." Ex. Vol. I p. 14. Further, even if DCS had knowledge of Father's cognitive deficits prior to March 2023, the recommendation that Father's service providers be made aware of his cognitive challenges was not done until March 21, 2023. Within a few weeks of this, Father was arrested on May 9, 2023, and remained incarcerated throughout the rest of the case.
[¶26] During that time frame, there were no service providers for DCS to inform of Father's cognitive challenges. In his argument, Father refers to substance abuse treatment at Stepping Stone, NOW, and Counseling for a Change as times where he should have received reasonable accommodations, but his attempts at treatment with these service providers were all prior to the Vineland assessment being completed. Father asserts that what he "needed most as a result of his disability was reinforcement and rewards," but Father was not consistently compliant with services over the course of the case. Rather, between February 27, 2023, and May 25, 2023, Father missed sixty-two calls for drug screens. In addition, Father continued to engage in criminal activity throughout the length of the CHINS case such that just prior to the termination petition being filed, he was arrested for several high-level felonies for which he was eventually sentenced to over twenty years in the DOC. DCS was not required to provide Father with services while he was incarcerated. See In re H.L., 915 N.E.2d 145, 148 (Ind.Ct.App. 2009) (the inability to provide services where a parent is incarcerated does not amount to a denial of due process). Therefore, Father's own actions contributed to his inability to complete services and resolve the issues that led to the removal of the Children. Father has failed to demonstrate that his due process rights were violated by DCS's alleged failure to provide reasonable accommodations in compliance with the ADA.
B. Actions During Proceedings
[¶27] Father next asserts that his due process rights were violated by certain actions taken by the trial court during both the CHINS and termination proceedings. He contends that the trial court "did not grant Father the courtesy and respect he was entitled to under the Code of Judicial Conduct." Appellant's Br. pp. 24-25. In his brief, Father notes a litany of occurrences where he argues that the trial court violated his right to due process. He also specifically maintains that the trial court failed to ascertain whether he understood his rights after they were read to him at the initial hearing of the termination proceedings.
[¶28] First, as to Father's assertion of lack of courtesy and respect regarding the trial interactions with him, Father later admits that those interactions "may not have risen to the level of violation of his Due Process rights." Appellant's Br. p. 27. Further, beyond mentioning the instances of which he complains, Father does not develop why such interactions deprived him of his right to due process. He has, therefore, waived these arguments for failure to develop a cogent argument. See N.C. , 56 N.E.3d at 69 ("A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record."). Despite Father's waiver of this argument, having reviewed the portions of the record Father relies on, we agree with his suggestion that the interactions did not amount to a deprivation of due process.
[¶29] As to Father's arguments about the trial court's alleged failure to ensure that he understood his rights with respect to the termination proceedings, the trial court did not violate Father's due process rights in that regard. Courts in Indiana have held that parents whose parental rights are being involuntarily terminated have three rights: "(1) the right to be represented by counsel; (2) the right to have counsel provided if the parent is indigent; and (3) the right to be informed of the two preceding rights." I.B. v. Ind. Dep't of Child Servs., 933 N.E.2d 1264, 1267 (Ind. 2010); see also Ind. Code §§ 31-32-2-5, 31-32-4-1, 31-32-4-3. Here, during the initial hearing in the termination proceedings, the trial court advised Father of his rights, including that, "[t]he Court can appoint a Public Defender to represent you at no cost to you, or you may waive your right to an attorney." Tr. Vol. II p. 15. After advising him of his rights, the trial court asked him if he understood his rights. The trial court then seemed to express some frustration when Father did not answer "yes or no" and instead stated he was "confused about the attorney situation." Id. at 16. However, at that time, the trial court proceeded to appoint Father counsel to represent him during the termination proceedings. Father's due process rights were not violated by his confusion regarding counsel where the trial court appointed him counsel, and Father does not elaborate as to how the trial court's alleged failure "to ascertain [that] Father was truly informed of his rights was a violation of his [d]ue [p]rocess rights." Appellant's Br. p. 27. This was not a situation where the trial court did not ensure that Father understood he had a right to counsel and then failed to appoint him counsel or found that Father knowingly or voluntarily waived his right to counsel. See, e.g., In re Adoption of C.J., 71 N.E.3d 436, 444 (Ind.Ct.App. 2017) (holding that the mother was denied due process during adoption proceeding where, after she made it clear that she preferred to have the assistance of counsel rather than proceed pro se, the trial court did not offer her an opportunity to secure a private attorney or encourage her to do so, and instead, proceeded with the hearing on the basis that the mother had waived her right to counsel). We, therefore, conclude that Father has not established that he was deprived of his right to due process.
C. Admission of Evidence
[¶30] Father frames this issue as one in which the trial court violated his due process rights by allowing DCS to submit exhibits in CD form in violation of the Best Evidence Rule because the way in which DCS submitted the exhibits limited his counsel's ability to object to specific exhibits or portions of exhibits and because it interfered with the ability to cross examine witnesses regarding the information contained in the records. However, his assertion seems to actually be that the trial court abused its discretion in admitting the evidence because it violated the Best Evidence Rule. We initially note that Father did not raise this issue before the trial court and has, therefore, waived it on appeal. In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007), trans. denied.
[¶31] Waiver notwithstanding, the admission of exhibits in CD form did not violate the Best Evidence Rule. We review a trial court's admission or exclusion of evidence for an abuse of discretion. In re L.T., 145 N.E.3d 864, 868 (Ind.Ct.App. 2020). We will reverse only where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. However, errors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party. Id.
[¶32] The Best Evidence Rule states: "An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise." Ind. Evidence Rule 1002. An "original" is defined as "the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, 'original' means any printout or other output readable by sight if it accurately reflects the information." Evid. R. 1001(d). "'The purpose of [the Best Evidence Rule] is to assure that the trier of the facts had submitted to it the evidence upon any issue that will best enable it to arrive at the truth.'" Higgason v. State, 210 N.E.3d 868, 881-82 (Ind.Ct.App. 2023) (quoting Pinkerton v. State, 283 N.E.2d 376, 382 (Ind. 1972)), trans. denied. However, pursuant to Evidence Rule 1003, a "duplicate is admissible to the same extent as an original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate." Further, "the party opposing the admission of a duplicate bears the burden of showing the existence of a genuine issue as to authenticity, and the challenge must be more than hypothetical." Arlton v. Schraut, 936 N.E.2d 831, 837 (Ind.Ct.App. 2010), trans. denied.
[¶33] Here, there is no evidence that the exhibits that were admitted in CD form were not exact duplicates of the original records reflected on the CD. Father does not make any argument as to the authenticity of the original documents. The CD format of the exhibits did not inhibit the trial court from reviewing the exhibits, and Father does not make an argument to the contrary. We, therefore, conclude that the trial court did not abuse its discretion in admitting the exhibits in CD form.
[¶34] To the extent Father argues that the admission of the exhibits violated his due process rights, we disagree. He asserts that "allowing a party to submit documents in CD format violates the Due Process protections of the Constitution because it interferes with the ability of a litigant and his counsel to cross examine witnesses and confront them with exculpatory information contained on the records." Appellant's Br. p. 28. However, he points to no place in the record where the form of the exhibits inhibited the ability of his counsel to cross examine witnesses or confront them with exculpatory evidence. Nor does he point to what exculpatory evidence could have been presented if the exhibits had not been in CD form. Father has not proven any error from evidence being submitted and admitted in CD form.
II. Ineffective Assistance of Counsel
[¶35] Father argues that he received ineffective assistance of counsel due to multiple alleged errors made by his counsel during the termination evidentiary hearing. "Where parents whose rights were terminated upon trial claim on appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination." Baker v. Marion Cnty. Off. of Fam. &Child., 810 N.E.2d 1035, 1041 (Ind. 2004). Accordingly, "[t]he question is not whether the lawyer might have objected to this or that, but whether the lawyer's overall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child[ren]'s best interest." Id. Thus, to determine whether Father received effective representation, we must also examine the evidence supporting the termination of his parental rights. In re A.P., 882 N.E.2d 799, 806 (Ind.Ct.App. 2008).
[¶36] Father contends that his counsel was ineffective for numerous reasons, including that counsel did not abide by Father's wishes to move the case forward; counsel was not prepared on the date of the termination evidentiary hearing; due to this alleged unpreparedness, counsel did not thoroughly cross examine several of DCS's witnesses; counsel failed to object to the exhibits in CD form; counsel failed to file a witness and exhibit list; and counsel failed to submit proposed findings and conclusions. Given all of these alleged deficiencies, Father asserts that counsel's "overall performance was so defective" that this court "cannot say with confidence that the conditions that led to removal are [un]likely to be remedied and that termination is in the [Children's] best interests." Appellant's Br. p. 33. However, Father does not challenge any of the trial court's findings of fact or conclusions of law and fails to meet his burden.
[¶37] In determining whether there is a reasonable probability that the conditions that led to a child's removal and continued placement outside the home will not be remedied, a trial court determines what conditions led to the child's placement and retention in foster care and whether there is a reasonable probability that those conditions will not be remedied. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). The trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing a parent's recent improvements against "'habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.'" E.M. v. Ind. Dep't of Child Servs., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). Trial courts can consider 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).
[¶38] Here, the evidence presented by DCS revealed that Father had a long history of substance abuse and criminal activity that prevented him from being a stable parent and a part of the Children's lives. At the commencement of the CHINS case, the Children were not placed with Father because of his active drug use, and he continued to use methamphetamine and other drugs during the case. He also continued to engage in criminal activity as he was arrested in May 2023 on several drug-related crimes and was eventually convicted of the crimes and sentenced to twenty-two years in the DOC. Thus, following a twenty-two year term, all of the Children will be in their twenties. Father's "habitual pattern[s] of conduct" demonstrated that there was a reasonable probability that the conditions that led to the Children's removal and continued placement outside the home will not be remedied. E.M., 4 N.E.3d at 643.
[¶39] In determining whether termination is in the best interests of the child, a trial court is required to look at the totality of the evidence and must subordinate the interest of a parent to those of the child. In re A.K., 924 N.E.2d 212, 224 (Ind.Ct.App. 2010), trans. dismissed. A parent's historical inability to provide a suitable, stable home environment along with the parent's current inability to do so supports a finding that termination is in the best interests of the child. In re A.P., 981 N.E.2d 75, 82 (Ind.Ct.App. 2012). Testimony of the service providers, in addition to evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child's best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.Ct.App. 2014), trans. denied.
[¶40] Here, the totality of the evidence that Father's continued drug use and incarceration and historical inability to provide the Children with a stable home environment established that termination was in the Children's best interests. Father told FCM Smith that, at the time of removal, he had not been actively involved in the Children's lives because he "was incarcerated the majority of their lives," which did not change during the length of the case as he never progressed past supervised visitation and only attended fifteen of thirty-five offered visits with the Children between July 27, 2022, and June 9, 2023. Tr. Vol. II p. 43. Additionally, both FCM Smith and the Children's CASA recommended that termination of Father's parental rights was in the Children's best interests. Thus, the totality of the evidence supported that termination was in the Children's best interests.
[¶41] In sum, we conclude that DCS presented sufficient evidence to support the trial court's order terminating Father's parental rights to the Children. In looking at Father's assertions regarding his counsel's alleged ineffective assistance during the termination evidentiary hearing, even assuming that these actions or inactions by counsel constituted deficient performance, we cannot say that our confidence has been undermined regarding the trial court's determinations that the conditions leading to the removal of the Children were unlikely to be remedied and that termination was in the Children's best interests. We conclude that Father has not shown that he received ineffective assistance of counsel.
Conclusion
[¶42] We, therefore, conclude that Father's due process rights were not violated by the actions of DCS or the trial court and that Father did not receive ineffective assistance of counsel during the termination proceedings.
[¶43] Affirmed.
Vaidik, J. and Weissmann, J., concur.