IN RE: the Termination of the Parent-Child Relationship of K.C.A. (Minor Child) and B.D. (Mother) and H.A. (Father) Appellant-Respondents (2025)

MEMORANDUM DECISION

Case Summary

[1] B.D. (Mother) and H.A. (Father) separately appeal the trial court's order terminating their parental rights over K.A. (Child). Mother disputes one of the trial court's findings of fact and argues the trial court clearly erred when it terminated her parental rights. Father, who did not appear at the fact-finding hearing on the termination petition, argues that he did not receive statutory notice of the hearing. We affirm.

Facts and Procedural History

1. Facts Specific to Mother's Appeal

[2] Mother gave birth to Child on September 14, 2022. Mother and Father were not married, but paternity was established by affidavit. On December 4, Mother's friend drove her and Child to Elkhart Hospital. Child was malnourished to the point that his “ribs [were] showing,” he had acute renal failure, and he had a “cold” and “black” ischemic right foot. Transcript Vol. 2 at 12; Tr. Vol. 3 at 174. At the hospital, Mother gave an Indiana Department of Child Services (DCS) Family Case Manager (FCM) inconsistent answers about how often Child was feeding and tried to explain the condition of his foot by saying that she was living in a cold homeless shelter. Mother seemed “focused on herself” and appeared to have “a lack of understanding of what was going on.” Tr. Vol. 3 at 231.

[3] Within approximately twenty-four hours of being admitted to Elkhart Hospital, Child was transported to Riley Hospital for Children (Riley) in Indianapolis. His condition was “life threatening.” Id. at 173, 234. His care team believed it was a bacterial infection that led to “hemolytic anemia” making the blood clot in Child's foot and giving it an appearance that should have “indicated to any parent to bring him to medical attention right away[.]” Id. at 183, 189. Child's right foot had to be amputated. The infection also resulted in Child experiencing “acute renal failure” requiring him to be placed on dialysis. Id. at 183. And he had difficulty swallowing, which necessitated the insertion of a feeding tube.¹

[4] Due to his condition, on December 6, the trial court granted DCS's request to take Child into emergency custody. Two days later, DCS filed a petition alleging that Child was a Child in Need of Services (CHINS) due to abuse or neglect. The trial court held a hearing that same day and continued Child's removal from the home and his placement with DCS.

[5] During Child's one-month stay at Riley, Mother only visited Child once despite DCS's offers to provide transportation for her. She visited Child more after he was released from the hospital. Even after he left Riley, Child required ongoing medical care related to his feeding tube, kidney function, prosthetic, and other medical issues he developed; specifically, eye procedures to remove blood found behind his retinas.

[6] On March 27, 2023, the trial court held a hearing on the CHINS petition, adjudicated Child a CHINS, and granted wardship of Child to DCS. It also entered a dispositional order requiring the parents to, among other things, learn how to manage the NG tube, attend supervised visitations, remain in touch with DCS, obtain evaluations and participate in referred services, maintain stable housing and income, and complete parenting assessments and recommended parenting services.

[7] FCM Kenyetta Brown referred Mother for many services, including clinical, psychological, and parenting assessments; individual therapy; home-based casework; and visitation with Child. Mother completed the assessments and “effectively participat[ed] in services” except for individual therapy, which she believed she did not need. Tr. Vol. 4 at 18. However, FCM Brown was concerned about Mother's “ability to understand why DCS was involved” and her “ability to follow the recommendations to ensure safety of [Child].” Id. at 12, 18. For example, Mother could not grasp Child's feeding issues and wanted to breastfeed Child on numerous occasions even though Child had an NG tube and could not be breastfed.

[8] In March 2023, Father moved into Mother's Section 8 housing and she would talk to him on the phone during visits with Child instead of “focusing in on [Child] and his needs.” Id. at 27. Mother cited stress caused by Father as a “barrier for her to keep going in services[.]” Id. at 18.

[9] In June 2023, the State charged Mother with Level 3 felony neglect of a dependent resulting in serious bodily injury related to Child's condition in December 2022. She was arrested in August and remained incarcerated for almost a year before the August 26, 2024 termination hearing. DCS employees visited Mother several times while she was incarcerated, but Mother was not able to visit with Child.

[10] In January 2024, DCS and Child's court-appointed special advocate (CASA) requested the addition of a concurrent plan of adoption to the existing permanency plan of reunification, which the trial court granted. On May 14, DCS petitioned for Mother and Father's parental rights to be terminated.

[11] On August 26, the trial court held a fact-finding hearing on the termination petition. By then, Child was almost two years old, and his physical development had progressed, but he was still “globally delayed and [ ] functioning at less than half of his chronological age.” Tr. Vol. 3 at 197. He was attending speech, physical, and occupational therapies. Child's pediatric nephrologist at Riley testified that it was important for Child's caregiver to understand his medical conditions and “monitor” him for certain symptoms that needed to be “prompt[ly]” relayed to Child's medical provider. Id. at 178. A nurse practitioner from Riley who evaluated Child regularly testified that although Child's use of a G tube had become “supplemental” to feeding by mouth, the tube would not be removed until Child could “safely [ ] take everything by mouth[.]” Id. at 184, 194. Until then, his caregiver must be “attentive” and conscious of the dangers attendant to his use of a feeding tube or mouth feeding. Id. at 197.

[12] Mother testified that before she was incarcerated, she did not have a phone, transportation, or job. While incarcerated, she completed programming designed to increase parenting and other life skills. Mother planned to live in a shelter upon being released from jail until she could relocate with Child to Atlanta, Georgia to be near family. She had also located a hospital accessible to her by public or medical transportation at which Child could receive care. Mother had even “looked into” jobs in Georgia and indicated she would “like to own [her] own business.” Id. at 224.

[13] FCM Allyson Clements began working with Mother in June 2023 and was her case manager at the time of the termination hearing. At the point at which she became involved, FCM Clements considered Mother “non-compliant” with services because she had missed “several” home-based casework sessions and visitation sessions in May and early June 2023. Tr. Vol. 4 at 44. During a meeting in July 2023, Mother told FCM Clements she “wanted to pause services, she needed to focus on herself, and her criminal charges[.]”² Id. at 35.

[14] When FCM Clements visited Mother “several times” during her incarceration, Mother appeared “hyper-fixated on the criminal charges” and less concerned with “case plan compliance[.]” Id. at 39, 45. FCM Clements testified that although Mother had “worked to increase [her] parenting skills” she had not shown an ability to care for Child given his extensive medical needs. Id. at 51. She believed “stable housing, employment, and transportation” would be barriers to Mother's ability to meet her parental responsibilities even after she was released from incarceration. Id. at 52. FCM Clements believed that the conditions resulting in Child's removal were still present because Mother continued to lack “an understanding of what led to this point and what the long-lasting impacts are on [Child].” Id. She doubted Mother's ability to “maintain organization” to ensure Child attends his “many [medical] appointments” that are “crucial to his well-being.” Id. at 53. FCM Clements testified that termination of Mother's parental rights would be in Child's best interests.

[15] Child's CASA testified that the conditions resulting in Child's removal would not be remedied because the parents lacked transportation and still did not understand “why [Child] need[ed] all these medical procedures ․ and doctor's appointments in different areas[.]” Id. at 108. She believed placing Child with Mother would threaten Child's well-being because she would not be able to address his medical needs. She also testified that termination of the parent-child relationship would be in Child's best interests because Child had been living with an “organized” and “very capable” pre-adoptive foster couple for twenty months, Mother remained incarcerated, and her “capacity for understanding is just not where it should be to care for a medically fragile child[.]” Id. at 110, 111.

[16] Following the hearing, the trial court entered its findings and conclusions thereon. In relevant part, the trial court found:

11. Mother had regularly participated in visitation prior to her incarceration; however, she has not engaged in visits with her child since her incarceration and has not formed a bond with the child.

․

17. Mother lost motivation due to stress from Father accusing Mother of being the cause of all the issues with the child. Despite accusations and stress, mother continued to participate in services to the best of her ability.

18. Mother engaged in RETA [Pregnancy Clinic & Family Resources] on her own accord as it was not a DCS referred service.

19. Mother was partially compliant in services prior to her incarceration and has been participating in programs since her incarceration.

20. Mother was engaged and visitation went well when the father was not a cause for distraction.

21. Mother was easily distracted by Father, regardless of whether or not Father was present or not.

22. Once distracted, Mother was difficult to redirect to focus on Child.

23. Mother's easy distraction from the care of Child is of grave concern, especially given the circumstances related to the loss of Child's [ ] foot at the onset of 20C01-2212-JC-105.

24. Mother and Father show an inability or an unwillingness to understand the child's medical, developmental, and safety needs.

25. Mother is still incarcerated for the foreseeable future and is awaiting trial and Father has failed to address his mental health needs and lacks stable housing.

26. Child suffers from multiple developmental delays including limited mobility, limited speech, and difficulty eating.

27. The child and the current foster placement are strongly bonded, and the child is doing very well in their care. DCS recommends that the child remain in the current placement and continue working toward establishing permanency through adoption.

28. The DCS case manager does not feel that the child's needs will be met if they are reunified with either parent.

Mother's Appendix Vol. 2 at 15-16.

[17] Based on these findings, the trial court concluded there was a reasonable probability that the conditions resulting in Child's removal would not be remedied, and that the continuation of both parent-child relationships posed a threat to the well-being of Child. Specifically, it found:

1. Mother and Father have done little to avail themselves of the services or opportunities offered to them, despite occasional participation in visitation.

2. When looking at Mother's and Father's pattern of conduct at the time of the termination, there has been pattern [sic] of noncompliance with services offered.

3. At the time of the termination hearing, neither parent can provide adequate housing for the child.

4. Despite having periods of time after the filing of the CHINS petition when parents were not incarcerated, they did not fully engage in the Court Ordered services to assist with reunification.

5. While Mother did establish a bond with the child, she is not stable enough to address the difficult special needs of [ ] child.

Id. at 16 (citations omitted).

[18] With respect to Child's best interests, the trial court found that Child needed permanency, and that both parents presented a historical and current inability to provide permanency for Child. The court stated that Child “needs regular schedules, structure, and medical treatment that neither parent can provide[,]” and the current placement had addressed those needs. Id. Finally, the trial court concluded that the plan for Child—adoption by his current foster placement—was satisfactory.

2. Facts Specific to Father's Appeal

[19] Father experienced intermittent homelessness over the course of the proceedings. At the May 30, 2024 initial hearing on the termination petition, Father provided his current South Bend address. The trial court set the termination hearing for July 12.

[20] On June 27, DCS sent notice of the termination hearing to the address Father provided at the May 30 hearing. The notice included the date, time, and place of the hearing. On July 11, the CASA requested a continuance of the termination hearing. On July 12, the trial court addressed the requested continuance. Because the parties agreed to it, the trial court reset the termination hearing for August 26. On the record, the trial court stated:

Mother is present in the courtroom. Father is present in the courtroom. Both are notified of the date in open court and that their failure to appear they understand the Court may act in their absence.

Tr. Vol. 3 at 166. The trial court issued a written order specifically advising the parties that if they failed to appear on August 26, “the Court may proceed with the trial in their absence[,]” and it provided copies to the parties of record. Father's Appendix Vol. 3 at 121.

[21] Father did not appear for the August 26 termination hearing. Before the presentation of evidence, the trial court stated:

[T]he Court will also show for purposes of the record that we were in court on July 12, Father was present in the courtroom, we addressed today's hearing. Father acknowledged today's hearing date, was notified that we would proceed in his absence if he was not present and is not present today.

Tr. Vol. 3 at 170. Father's counsel appeared, cross-examined witnesses, and made a final argument. The trial court's order terminating the parents’ parental rights stated that notice had been provided to the parents as required by statute, and that Father failed to appear, presented no evidence, and called no witnesses. The trial court made findings and conclusions related to Father and ultimately terminated Father's parental rights.

Discussion and Decision

[22] Mother and Father separately challenge the trial court's termination of their parental rights to Child. “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). “A parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). We recognize that “parental interests are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights.” Id. If “parents are unable or unwilling to meet their parental responsibilities[,]” termination of parental rights is appropriate. Id. The termination of a parent-child relationship is “an ‘extreme measure’ and should only be utilized as a ‘last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.’ ” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Off. of Fam. & Child., 841 N.E.2d 615, 623 (Ind. Ct. App. 2006), trans. denied).

1. Standard of Review

[23] Mindful of the trial court's “unique position to assess the evidence,” Indiana appellate courts rely on a “deferential standard of review in cases concerning the termination of parental rights.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans. dismissed. We neither reweigh evidence nor reassess the credibility of witnesses. See K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). “We consider only the evidence and any reasonable inferences” that support the trial court's judgment, and we accord deference to the trial court's “opportunity to judge the credibility of the witnesses firsthand.” Id.

2. Mother's Appeal

[24] Mother argues that DCS “failed to prove by clear and convincing evidence the statutory factors necessary to terminate her parental rights.” Mother's Brief at 28. In Indiana, before a parent's rights can be involuntarily terminated, DCS must file a petition to terminate the parent-child relationship. The Indiana General Assembly has provided:

(c) A petition ․ must allege:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for the care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

(d) A petition ․ must allege the existence of one (1) or more of the following circumstances:

․

(3) That there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

Ind. Code § 31-35-2-4 (2024).

[25] If the trial court finds that the allegations in the petition are true, it “shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). DCS has the burden to prove the required elements “by clear and convincing evidence.” C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014) (citing I.C. § 31-37-14-2). “[C]lear and convincing evidence requires the existence of a fact to ‘be highly probable.’ ” Id. (quoting In re D.W., 969 N.E.2d 89, 94 (Ind. Ct. App. 2012)).

[26] When reviewing the trial court's findings of fact and conclusions of law, we apply a two-tiered standard of review. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). “ ‘First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment.’ ” Id. (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). We will overturn the trial court only when its judgment is clearly erroneous. Bester, 839 N.E.2d at 147. A judgment is clearly erroneous if the trial court's findings of fact do not support its conclusions of law or if its legal conclusions do not support its ultimate decision to terminate parental rights. Matter of Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied, 140 S.Ct. 2835 (June 1, 2020).

A. Findings of Fact

[27] Initially, Mother disagrees with the trial court's “finding that she is not equipped or will ever be equipped to handle [Child's] ongoing medical concerns.” Mother's Br. at 31. DCS notes that the trial court never used this precise language; instead, the court found that “Mother and Father show an inability or an unwillingness to understand the child's medical, developmental, and safety needs.” Mother's App. Vol. 2 at 16. Assuming it is this finding that Mother challenges, we find sufficient support in the record.

[28] There is ample evidence that Mother was not able to understand Child's “life-threatening” medical situation as it unfolded. Tr. Vol. 3 at 234. Child had a black foot, was malnourished, and had acute renal failure when Mother first brought him to the hospital in December 2022. Mother could not grasp the “severity of [Child's] medical needs” or why DCS was involved. Id. Later, when she visited Child, she insisted on breastfeeding him despite being told this was not safe for Child given his NG tube. Although Mother worked on her parenting skills while she was incarcerated, FCM Clements did not believe that Mother's “basic parenting education” had adequately prepared her to care for a child with “significant medical diagnoses, medical fragility, [and] a G tube[.]” Id. at 51. In fact, at the termination hearing, FCM Clements and the CASA both testified that Mother had not developed an “understanding” of Child's extensive medical needs or how to effectively care for him. Tr. Vol. 4 at 52, 108, 110. There is sufficient evidence in the record to support the finding Mother challenges on appeal.

[29] Although Mother claims there is other evidence to which the trial court failed to give “appropriate weight[,]” she does not challenge other specific findings. We do not reweigh the evidence on appeal; thus, we take the trial court's remaining unchallenged findings as true. K.T.K., 989 N.E.2d at 1229; Matter of De.B., 144 N.E.3d 763, 772 (Ind. Ct. App. 2020) (“Any unchallenged findings stand as proven.”).

B. Remedying Conditions

[30] Mother claims that DCS failed to prove by clear and convincing evidence “[t]hat there is a reasonable probability that the conditions that resulted in [Child's] removal or the reasons for placement outside the home of the parents will not be remedied.” Indiana Code section 31-35-2-4(d)(3).

[31] We conduct a two-step analysis to determine whether the conditions that led to a child's placement outside the home will not be remedied. K.T.K., 989 N.E.2d at 1231. First, we consider the conditions that led to the child's placement and retention in foster care, and second, “ ‘whether there is a reasonable probability that those conditions will not be remedied.’ ” Id. (quoting I.A., 934 N.E.2d at 1134). During the second step of the analysis, 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 any recent improvements against ‘habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation.’ ” S.E. v. Ind. Dep't of Child Servs., 15 N.E.3d 37, 46 (Ind. Ct. App. 2014) (quoting In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)), trans. denied. The trial court may properly 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.” Moore v. Jasper Cnty. Dep't of Child Srvs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008). It may also consider the services offered by DCS and the parent's response to those services. A.F. v. Marion Cnty. Off. Of Fam. and Child., 762 N.E.2d 1244, 1252 (Ind. Ct. App. 2002), trans. denied.

[32] Here, Child was removed because his parents neglected his medical needs. By the time Child was admitted to the hospital in December 2022, he was malnourished, needed a long-term feeding tube for nourishment, required dialysis for acute renal failure, and his right foot had to be amputated because it was ischemic. Because of his tenuous medical condition, he had numerous health care providers and required ongoing follow-up appointments. Child's need for high-level care persisted at the time of the termination hearing, and he required a caregiver who would understand his various medical conditions, organize his many appointments, and remain attentive to symptoms and other dangers that could befall him.

[33] Before a warrant was issued for her arrest in June 2023, Mother participated in most DCS-referred services. However, Mother did not take full advantage of all services offered or opportunities to attend Child's medical appointments. She let herself be distracted by Father during her visits with Child. After the arrest warrant was issued, Mother stopped engaging in services for some time. During her incarceration, Mother took courses to build her parenting skills, which we commend her for, but FCM Clements testified that Mother's “basic parenting education” had not enabled her to meet her parental responsibilities given Child's high medical needs. Tr. Vol. 4 at 51. At the termination hearing, FCM Clements and the CASA both testified that Mother's “understanding” of Child's medical needs was not sufficient to remedy the conditions that resulted in Child's removal. Id. at 51, 108, 110. Even if she was released from incarceration, Mother faced major roadblocks that would make it difficult for her to meet Child's high needs, including her lack of “stable housing, employment, and transportation.” Id. at 52.

[34] Nor was the trial court persuaded by Mother's plan to support and care for Child after she got out of jail. Mother talked of moving to Georgia, but she had no definitive job prospects and would have to rely on public transportation to take Child to his appointments with entirely new medical providers. In determining that there was a reasonable probability the conditions resulting in Child's removal would not be remedied, the trial court not only focused on Mother's incarceration, but an array of factors that contributed to this conclusion. The evidence and unchallenged findings show the trial court did not err when it concluded that there is a reasonable probability that the conditions resulting in Child's removal will not be remedied.

[35] Because Indiana Code section 31-35-2-4(d) is written in the disjunctive and we find that the trial court did not err in concluding the conditions that led to Child's removal were unlikely to be remedied, we need not consider Mother's challenge to whether the continuation of the parent-child relationship between her and Child would pose a threat to Child's well-being. See In re S.K., 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019), trans. denied. However, because neglect or inattention to Child's medical needs is a condition resulting in removal that has not been remedied, and the persistence of this condition necessarily threatens Child's health and well-being, we find that the same evidence supports the trial court's conclusion as to each factor.

C. Best Interests

[36] Mother also challenges the trial court's conclusion that termination of her parental rights was in Child's best interests. In determining the best interests of a child, “trial courts must look at the totality of the evidence and, in doing so, subordinate the parents’ interests to those of the children.” Ma.H., 134 N.E.3d at 49.

[37] We find that the evidence cited above also supports the trial court's conclusion that termination of Mother's parental rights was in Child's best interests. See A.K., 924 N.E.2d at 221. “ ‘A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.’ ” Id. (quoting Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied). While parental rights have a constitutional dimension, “ ‘the law allows for their termination when parties are unable or unwilling to meet[ ] their responsibility as parents.’ ” Id. (quoting Castro, 842 N.E.2d at 374). Additionally, FCM Clements and the CASA both recommended that Mother's parental rights be terminated. See In re P.B., 199 N.E.3d 790, 799 (Ind. Ct. App. 2022) (“[T]he recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence 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.”), reh'g denied, trans. denied.

[38] The child's need for permanency is also critical in a best-interests analysis. Ma.H., 134 N.E.3d at 49. At the time of the termination hearing, Child had been removed from Mother's care for over twenty months and there had been no visitation while Mother was incarcerated. The trial court emphasized the importance of permanency given Child's high needs, finding that “[C]hild needs regular schedules, structure, and medical treatment that neither parent can provide; current placement has been able to address the child's structural, medical, and developmental needs.” Mother's App. Vol. 2 at 16. The Indiana Supreme Court has recognized that “children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). This proposition rings especially true given Child's extensive medical needs. For these reasons, the trial court did not err in determining that termination of the parent-child relationship was in Child's best interests.

D. Satisfactory Plan

[39] Mother also challenges the trial court's determination that DCS had a satisfactory plan in place for the care and treatment of Child. DCS's plan for Child was adoption by his foster parents.

[40] A plan for a child's care and treatment need not be detailed and is satisfactory “ ‘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 A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (quoting Lang v. Starke Cnty. Off. of Fam. & Child., 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied), trans. denied. “A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the child[ ].” Id. A plan need not identify a specific family to adopt the child nor guarantee a suitable adoption will take place. Id. Ultimately, it is the adoption court, not the termination court, that determines whether an adoptive placement is appropriate. Id.

[41] At the time of the fact-finding hearing, Child had been in the foster couple's care for almost twenty months and had developed a “strong bond” with both prospective adoptive parents. Tr. Vol. 4 at 43. Importantly, his foster parents had “advocated extensively for [Child's] medical needs[,]” possessed the “organizational skill” necessary to maintain Child's multiple appointments each month and were “very knowledgeable” about Child's needs. Id. at 43, 106. Accordingly, the trial court did not err in determining that DCS's plan for Child was satisfactory.³

[42] For the foregoing reasons, we cannot say that the trial court's judgment terminating Mother's parental rights to Child was clearly erroneous.

3. Father's Appeal

[43] The sole issue raised by Father on appeal is whether he is entitled to reversal of the order terminating his parental rights because DCS failed to provide him with statutory notice of the August 26, 2024 termination hearing. Father does not challenge the trial court's findings of fact or conclusions thereon as clearly erroneous. Accordingly, he has waived any argument regarding the sufficiency of the trial court's unchallenged findings and conclusions.⁴ See Matter of C.C., 170 N.E.3d 669, 675 (Ind. Ct. App. 2021) (finding that a mother's failure to challenge the trial court's conclusions resulted in her concession “that DCS proved, by clear and convincing evidence, the allegations in the petition to terminate her parental rights”).

[44] Indiana Code section 31-35-2-6.5 provides, in relevant part:

At least ten (10) days before a hearing on a petition or motion under this chapter:[ ] the person or entity who filed the petition to terminate the parent-child relationship ․ shall send notice of the review to ․ [t]he child's parent ․ and ․ [a]ny other party to the [CHINS] proceeding.

[45] The statute “does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component.” C.C., 170 N.E.3d at 675. Instead, the petitioner, here DCS, need only comply with Indiana Trial Rule 5, which governs the service of subsequent pleadings and papers and requires “ ‘[s]ervice upon the attorney or party ․ by delivering or mailing a copy of the papers to [the attorney or party] at his last known address.’ ” Id. at 675-76 (quoting In re B.J., 879 N.E.2d 7, 15 (Ind. Ct. App. 2008), trans. denied).

[46] Compliance with this statutory notice requirement is “ ‘mandatory to effect termination of parental rights.’ ” In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quoting In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005)). However, statutory notice is not an element of the petitioner's claim, so “[f]ailure to comply with statutory notice is thus ‘a defense that must be asserted.’ ” Id. (quoting T.W., 831 N.E.2d at 1246). When properly placed at issue, the petitioner has the burden of proving compliance with the statute. Id.

[47] In Matter of C.C., the mother failed to appear at the termination hearing and her counsel did not argue there was a lack of statutory notice before the trial court. C.C., 170 N.E.3d at 674, 676. On appeal, we found that mother had waived the issue because it was not raised before the trial court. Id. at 676. Independently, and in addition to waiver, we determined that DCS had complied with the statutory notice requirement. Id. Further, we found that the mother had received actual notice of the fact-finding hearing from the trial court at two prior hearings. Id. The mother's rights were also protected because her counsel was able to cross-examine witnesses and present arguments at the fact-finding hearing. Id. We held that mother could not establish she lacked proper notice. Id.

[48] Here, similar to the mother in Matter of C.C., Father failed to appear at the August 26, 2024 termination hearing, and his counsel did not argue that Father lacked statutory notice. Accordingly, this issue is waived. Waiver notwithstanding, there is no dispute that DCS sent Father proper notice of the July 12, 2024 termination hearing, which was ultimately continued, by agreement of the parties, to August 26. While the statute is silent on whether notice must be renewed if a termination hearing is continued, Father received actual notice of the August 26 fact-finding hearing from the trial court at the July 12 hearing. The trial court knew Father's housing situation was precarious and it ensured Father was aware of the new termination hearing date by giving him this information on the record at the July 12 hearing. The court even warned Father of the consequences if he failed to appear on August 26. And despite Father's absence, his interests were protected at the termination hearing by his attorney, who thoroughly cross-examined witnesses and argued in support of Father's position. For these reasons, Father cannot establish that he lacked proper notice of the termination hearing.

Conclusion

[49] For the foregoing reasons, we affirm the trial court's termination of Mother and Father's parental rights.

[50] Affirmed.

FOOTNOTES

1.   Child initially had an “NG tube,” a type of tube that runs “through the nose and down the ․ esophagus into the stomach.” Tr. Vol. 3 at 195. He later received a longer term “G tube,” which was surgically placed “directly into [Child's] stomach[.]” Id. Mother participated in a training related to Child's NG tube but was incarcerated when Child received the G tube.

2.   Clements clarified that while there was an outstanding warrant Mother could not have visited with Child but could have continued home-based casework.

3.   Citing In re G.Y., 904 N.E.2d 1257, 1265-66 (Ind. 2009), reh'g denied, Mother blends a satisfactory plan and best interests argument and asserts that adoption was not in Child's best interests given her efforts to take advantage of services, even if reunification would not be imminent. In G.Y., the mother was about to be released from incarceration and there was no evidence that permanency through adoption was in G.Y.’s best interests. Id. Here, by contrast, at the time of the fact-finding hearing, it was uncertain how long Mother would be incarcerated—but more importantly, Child had extensive medical needs and there was ample evidence that adoption by his foster placement would serve his best interests.

4.   Even if Father had not waived these arguments, the record firmly supports the trial courts findings, which in turn support its conclusions and decision to terminate Father's parental rights to Child. The record shows that Father failed to consistently participate in services referred by DCS, did not attempt to address his readily apparent mental health needs, repeatedly acted inappropriately around Child during supervised visitations in ways that put Child's safety at risk, lacked stable housing and employment, and never came to understand the severity of Child's medical needs.

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.