IN RE: the Termination of the Parent-Child Relationship of: Jam.W. and Jas. W. (Minor Children) (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Twins Jam.W. and Jas.W. (collectively, “Children”) are the biological children of S.W. (“Mother”) and J.G. (“Father”) (collectively, “Parents”). Children were born exposed to marijuana and methamphetamine, so they were removed from Parents’ care, and a child in need of services (“CHINS”) petition was filed for both Children. Parents admitted Children were CHINS and then failed to meaningfully engage in court-ordered services. The trial court ultimately terminated Parents’ parental rights to Children. Parents now challenge that termination and collectively raise two issues for our review:

1. Whether the trial court erred by denying a motion to continue the termination factfinding hearing; and

2. Whether the trial court's decision to terminate Parents’ parental rights was clearly erroneous.

[2] We affirm.

Facts and Procedural History

[3] This case begins not with Children but with their older sibling Jan.W. (“Sibling”). In May 2021, Father was incarcerated, and Mother gave birth to Sibling, who was “born drug exposed,” having tested positive for methamphetamine and marijuana. Tr. Vol. III at 52. Mother abandoned Sibling at the hospital. Sibling was subsequently adjudicated a CHINS. In March 2023, Father was released from incarceration. In December 2023, Parents’ parental rights to Sibling were terminated after they failed to engage in court-ordered services and failed to attend the termination factfinding hearing.

[4] On January 29, 2024, less than two months after her parental rights to Sibling were terminated, Mother gave birth to Children. Like Sibling, Children were “born drug exposed to THC and Methamphetamine.” Appellants’ App. Vol. II at 125. At that time, Parents were homeless and had substance abuse issues. Children “were immediately removed” by the Indiana Department of Child Services (“DCS”). Id. at 126. A CHINS petition was filed soon thereafter. On November 14, the trial court adjudicated Children as CHINS pursuant to a stipulated agreement between Parents and DCS, and it entered a dispositional order. In particular, the trial court ordered Parents to maintain suitable, safe and stable housing; secure and maintain a legal and stable source of income; refrain from using illegal controlled substances; and participate in other appropriate services. On November 15, the trial court entered an order finding that “reasonable efforts to reunify” Children with Parents were “not required” based on the termination of Parents’ parental rights to Sibling. Tr. Vol. III at 30.

[5] On December 3, 2024, DCS filed a petition to terminate Parents’ parental rights to Children. On August 22, 2025, the termination factfinding hearing was held, at which Parents were represented by appointed attorneys. After arriving late, Parents made a motion to continue the hearing to hire private counsel (the “Motion”). DCS objected, and the trial court denied the request.

[6] On September 16, the trial court issued its order terminating Parents’ parental rights to Children, in which it entered the following relevant findings and conclusions:

7. [T]he Court [in Sibling's termination case] found that Mother and Father were unlikely to remedy the reason for removal because of their lack of engagement and compliance with services.

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10․ DCS setup opportunities for Mother and Father to visit with the Children. Visits were offered beginning in February until November of 2024.

11. Of the approximately 82 visits offered to Mother and Father, they only attended one or two․

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19. After [November 15, 2024,] DCS was no[t] obligated to provide services to Mother and Father, including visitations. But Mother and Father were not relieved of their duty to engage in services and remedy the reasons for DCS's involvement and the removal of [Children].

20. The only evidence that Mother and Father engaged in any services throughout this case was Father's testimony that he engaged in counseling through Hamilton Center. However, Father failed to provide any documentation that this counseling actually occurred.

21. In fact, DCS obtained a Release of Information from Mother and Father for Hamilton Center. Hamilton Center indicated to DCS that there were no records that either parent had engaged in counseling or services with them. The Court therefore finds that Mother and Father failed to engage in any counseling to address their substance abuse or mental health issues.

22. In a similar vein, Father testified that he had recently been approved for Social Security Disability. This new source of income would allow him to acquire stable housing in that Mother and he remained homeless at the time of the hearing. But again, no documentation was provided to corroborate Father's claim that he had been approved for Social Security Disability income or that he had actively applied for housing.

23. Father also testified that with his new income he would now be able to engage in services to remedy the other reasons for the Children's removal. As before, no other evidence was submitted to show that Father had at the very least signed-up for an assessment for services or counseling at the time of the hearing.

24. Since February of 2024, [Children] have been in the care of their placement. Both children are thriving in placement's care, and have bonded well with them․

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30. [T]he Court concludes that a court has entered a finding under I.C. § 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required for purposes of I.C. § 31-35-2-4(d).

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31. [T]here is a satisfactory plan for the care and treatment of the Children, that plan being adoption․

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32. The Court further concludes that termination of Mother and Father's parental rights is in the best interest of the Children.

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41. Here, Mother and Father have made little changes in their lives to remedy the conditions that led to removal․ Since the removal of the Children, Mother and Father have failed to engage in any services to address their substance abuse issues, and they remain homeless. While Father hopes his new SSD income will allow for him to engage in services and remedy his homelessness, his habitual patterns of failing to engage in these services makes the probability of Father's hopes becoming a reality unlikely.

42. Accordingly, the Court concludes that there is a reasonable probability that the conditions that resulted in the Children's removal – substance abuse and homelessness – will not be remedied.

Appellants’ App. Vol. II at 125–34 (internal record citations omitted). Mother and Father separately appealed this order, and we consolidated those appeals.¹ ,  ²

Discussion and Decision

1. The Trial Court Did Not Err by Denying the Motion

[7] Father challenges the trial court's denial of the Motion. When Parents made the Motion, the trial court questioned them about their efforts to obtain private counsel. Father indicated that neither he nor Mother had retained counsel and did not even know the names of the attorneys to whom they had allegedly spoken. DCS objected to the continuance because the termination petition had been pending for eight months and it believed Parents’ choice to hire private counsel “was a last[-]minute decision.” Tr. Vol. II at 40. The trial court denied the Motion, stating the denial was in Children's “best interest” and it did not “seem as though [Parents] ha[d] taken significant steps to” hire private counsel “in the recent months, knowing that this hearing was supposed to happen on August 11th.” Id. at 41.

[8] Father contends the trial court's denial of the Motion (a) was an abuse of discretion and (b) resulted in a violation of Father's due process rights. We address each contention in turn.

a. Abuse of Discretion

[9] Father first argues that the trial court's denial of the Motion was an abuse of discretion. We review a trial court's decision on a motion to continue for an abuse of discretion. In re K.W., 12 N.E.3d 241, 243–44 (Ind. 2014) (Rowlett v. Vanderburgh Cnty. Off. Fam. & Child., 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied). An abuse of discretion occurs if the trial court's decision “was against the logic and effect of the facts and circumstances before” it, Willow Haven on 106th St., LLC v. Nagireddy, 252 N.E.3d 418, 422 (Ind. 2025) (quoting Wisner v. Laney, 984 N.E.2d 1201, 1205 (Ind. 2012)), or if it misinterpreted the law, id. (citing Members of Med. Licensing Bd. of Ind. v. Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky., Inc., 211 N.E.3d 957, 964 (Ind.), reh'g denied, 214 N.E.3d 348 (Ind. 2023)).

[10] Here, the trial court denied the Motion because it was in Children's best interests “to move this case along and determine whether the parental rights are terminated or not” and because Parents had not “taken significant steps” to hire private counsel. Tr. Vol. II at 41. Parents also made the Motion after the factfinding hearing had already commenced. The trial court was well within its discretion to deny the Motion.

b. Due Process

[11] Father also argues that the trial court's denial of the Motion violated his due process rights.³ Father's fundamental (but not absolute) right to raise Child is protected by the Fourteenth Amendment to the United States Constitution. See In re I.P., 5 N.E.3d 750, 751–52 (Ind. 2014) (citing Bester v. Lake Cnty. Off. Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). “[W]hen the State seeks to terminate the parent-child relationship, it must do so in a manner that meets due process requirements.” Id. (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Appellate courts balance three factors to determine the process due in a termination case: “(1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.” Id. (citing C.G., 954 N.E.2d at 917).

[12] “Both a parent's interest in the care, custody, and control of a child, and the State's parens patriae interest in protecting a child's welfare are substantial.” I.P., 5 N.E.3d at 752 (emphasis in original) (citing C.G., 954 N.E.2d at 917). At issue here is whether the trial court's denial of the Motion—that is, it's decision to hold the factfinding hearing without giving Parents an opportunity to obtain private counsel—created a risk of error such that a due process violation occurred.

[13] Father specifically argues that he was prejudiced by denial of the Motion because he was not able to obtain and provide “documentation of changed circumstances occurring just a month” before the hearing, Father's Br. at 16, and because he was not “allowed ․ time to obtain an apartment and solve the issues associated with homelessness,” Father's Reply Br. at 6–7. But Parents did not provide these arguments when making the Motion. The only reason given in support of the Motion was that Parents wanted to hire private counsel. Neither Father nor Mother mentioned anything about the need to obtain additional evidence. And neither Father nor Mother re-raised the Motion after evidence was presented regarding the lack of documentation supporting Parents’ allegedly changed circumstances.

[14] A party may not present one basis for its motion to continue at trial and seek reversal of the denial thereof using a different basis on appeal. Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004) (“At a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.”). Father has therefore waived his argument regarding the Motion to the extent that argument relies on reasons not provided to the trial court. See Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 313 (Ind. 2024) (citing Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013)) (“Generally, we limit appellate review to arguments the parties first presented to the trial court.”).

[15] Furthermore, Father was represented by counsel at the factfinding hearing. The risk of error in proceeding with the factfinding hearing with appointed counsel as opposed to private counsel was minimal at most. In balancing Father's fundamental interest, the State's compelling interest, and the minimal risk of error, we conclude that the trial court did not violate Father's due process rights by denying the Motion.

2. The Trial Court's Decision to Terminate Parents’ Parental Rights to Children Was Not Clearly Erroneous

[16] Parents challenge the trial court's termination of their parental rights over Children. “Parents have a fundamental right to raise their children—but this right is not absolute. When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” In re Ma.H., 134 N.E.3d 41, 45–46 (Ind. 2019) (internal citations omitted) (citing In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013)), cert. denied. We will affirm a trial court's termination of parental rights unless that decision is clearly erroneous. Ma.H., 134 N.E.3d at 45 (citing In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)). A trial court's termination decision is clearly erroneous if the court's findings of fact do not support its legal conclusions or if the legal conclusions do not support its ultimate decision. Id. (citing E.M., 4 N.E.3d at 642). We will not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the court's decision. Id. (citing In re K.E., 39 N.E.3d 641, 646 (Ind. 2015)). Furthermore, we accept as true any findings which Father does not challenge on appeal. See R.M. v. Ind. Dep't Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. not sought.

[17] To terminate Parents’ parental rights under Indiana Code section 31-35-2-4(d) (effective Mar. 11, 2024, to June 30, 2025), DCS had to prove by clear and convincing that, among other things, (1) a court has entered a finding under Indiana Code section 31-34-21-5.6 that “reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made,” id. § 31-35-2-4(c)(1), (d)(1); (2) there is a satisfactory plan for care and treatment of Children, id. § 31-35-2-4(c)(2); and (3) termination of the parent-child relationship is in Children's best interests, id. § 31-35-2-4(c)(3). Parents challenge the trial court's conclusion that termination of their relationships with Children is in Children's best interests.⁴

[18] In support of its conclusion that termination is in Children's best interest, the trial court entered the following relevant findings and conclusions:

35․ Mother and Father's parental rights were terminated regarding [Sibling] due to their homelessness and substance abuse issues. Furthermore, throughout the duration of the underlying CHINS matter as well as the [termination] matter, Mother and Father have been homeless and have failed to address their substance abuse issues. Thus, they have a history of failing to provide adequate housing and stability to [Children].

36. Furthermore, their failure to address their substance abuse and mental health issues show that they continue to lack the ability to properly supervise the Children.

37. Additionally, the fact that Mother and Father remain homeless at the time of the hearing, show they currently lack the ability to provide adequate housing and stability to the Children.

38. Therefore, it is in the best interest of [Children] to terminate the parental relationship with Mother and Father because Mother and Father have a historical inability to provide adequate housing, stability, and supervision to the Children and are currently unable to provide the same.

Appellants’ App. Vol. II at 132–33.

[19] To determine the best interests of a child, a trial court looks at the totality of the evidence and subordinates the interests of the parents to those of the child. In re P.B., 199 N.E.3d 790, 799 (Ind. Ct. App. 2022) (citing In re A.B., 887 N.E.2d 158, 167–68 (Ind. Ct. App. 2008)), reh'g denied (Jan. 25, 2023), trans. denied sub nom. A.B. v. Ind. Dep't Child Servs., 209 N.E.3d 1168 (Ind. 2023). A central consideration in this determination is the child's need for permanency. Id. (citing In re K.T.K., 989 N.E.2d 1225, 1235 (Ind. 2013)). The trial court also considers whether a child's emotional and physical development is threatened by the parent-child relationship. Id. (citing K.T.K., 989 N.E.2d at 1235). Permanent impairment of physical, mental, or social development is not necessary before a trial court may terminate the parent-child relationship. Id. (citing K.T.K., 989 N.E.2d at 1235).

[20] Parents’ appellate arguments are merely an invitation for us to reweigh the evidence and reassess witness credibility, which we cannot do. See Ma.H., 134 N.E.3d at 45 (citing E.M., 4 N.E.3d at 642). For example, Father argues that he “did not have the opportunity to substantiate” the “changed circumstances.” Father's Br. at 17. Father did have an opportunity to demonstrate his allegedly changed circumstances—he testified that he would be receiving disability benefits, which he believed would allow him to obtain stable housing, among other things. The trial court expressly discredited this testimony, finding that Parents did not demonstrate a current ability to provide for Children, and that Father's “habitual patterns of failing to engage in ․ services makes the probability of Father's hopes [of changed circumstances] becoming a reality unlikely,” Appellants’ App. Vol. II at 134.

[21] Similarly, Mother argues the trial court “ignored evidence of Parents’ changed circumstances at the time of the termination hearing.” Mother's Br. at 11; see also id. at 10. Again, the trial court discredited Father's testimony about the allegedly changed circumstances, and we will not second guess that decision, see Ma.H., 134 N.E.3d at 45 (citing K.E., 39 N.E.3d at 646). Mother also argues that “DCS failed to adequately investigate potential family placements for” Children, Mother's Br. at 11, and “DCS refused to accommodate Parents’ circumstances so they could comply with services,” id. at 10. Mother does not explain how these alleged failures undermine the trial court's best-interests conclusion. See Ind. Appellate Rule 46(A)(8)(a) (requiring cogent reasoning); Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)) (“We will not step in the shoes of the advocate and fashion arguments on his behalf ․”).

[22] Considering only the evidence and reasonable inferences that support the trial court's decision, we cannot say that the trial court clearly erred by concluding that termination is in Children's best interests. Accordingly, we cannot say the trial court clearly erred by terminating Parents’ parental rights to Children.

Conclusion

[23] In sum, the trial court did not err by denying the Motion, and it did not clearly err by terminating Parents’ parental rights to Children. We therefore affirm the trial court on all issues raised.

[24] Affirmed.

FOOTNOTES

1.   Parents filed separate briefs and a joint appendix.

2.   Indiana Appellate Rule 28(A) and Item 13 of Appendix A to the Appellate Rules require a court reporter to prepare a table of contents for the entire transcript that, among other things, lists each witness and the volume and page where that witness's direct, cross, and redirect examination begins. Here, the court reporter prepared a table of contents, but it does not include any information regarding the August 22, 2025, factfinding hearing.

3.   Father did not specifically raise procedural due process at the trial level, so he did not provide the trial court “a bona fide opportunity to pass upon the merits” of his claim before seeking an opinion on appeal. Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). Accordingly, Father has waived this issue for our review by raising it for the first time on appeal. See Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 313 (Ind. 2024) (citing Plank v. Cmty. Hosps. Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013)) (“Generally, we limit appellate review to arguments the parties first presented to the trial court.”). We nevertheless choose to address the merits of Father's due process claim, see Plank, 981 N.E.2d at 54 (citing Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992)) (“[A] reviewing court may exercise its discretion to review a constitutional claim on its own accord.”), particularly because Father's parental rights are at stake here, see In re M.I., 127 N.E.3d 1168, 1170–71 (Ind. 2019) (quoting Neal v. DeKalb Cnty. Div. Fam. & Child., 796 N.E.2d 280, 285 (Ind. 2003)) (“[T]he parent–child relationship ‘is one of the most valued relationships in our culture.’ ”).

4.   Father also challenges the trial court's conclusion that there is a reasonable probability that the conditions that result in Children's removal or the reasons for placement outside Parents’ care will not be remedied. DCS only needed to prove either that a finding had been made under Indiana Code section 31-34-21-5.6 or that there was not a reasonable probability Parents would remedy the reasons for removal. Ind. Code § 31-35-2-4(c)(1), (d). Because Father does not challenge that a finding was made under Indiana Code section 31-34-21-5.6, we need not address his argument regarding remediation of the reasons for removal.

Felix, Judge.

May, J., and Mathias, J., concur.