J.J. (Father) and K.G. (Mother), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] K.G. (Mother) and J.J. (Father) separately appeal the termination of their parental rights as to A.J., their nine-year-old son. Two years before the termination, A.J. was deemed to be a Child in Need of Services (CHINS) after Mother was placed on an involuntary psychiatric hold and Father, who had not been in A.J.’s life since being convicted for domestic battery of Mother years earlier, could not be reached.

[2] On appeal, Mother argues that the Indiana Department of Child Services (DCS) failed to provide adequate services to address her mental health concerns and housing instability. However, Mother has waived her claim by raising it for the first time on appeal. Waiver aside, her argument fails, and we affirm the termination of her parental rights as to A.J.

[3] Father also appeals, claiming the trial court relied too heavily on his history of substance abuse, battery convictions, and housing instability despite his recent progress. He also challenges the court's determination that termination was in A.J.’s best interests because multiple witnesses acknowledged that Father's visits with A.J. were beneficial. Unpersuaded by these arguments, we also affirm the termination of Father's parental rights as to A.J.

Facts

[4] Mother and Father are the biological parents of A.J., who was born in 2016. The family lived together for the first few years of A.J.’s life, until Father was arrested for domestic battery of Mother, committed in A.J.’s presence. Father was later convicted of this offense and sentenced to two years of probation. A.J. continued to live with Mother, and Father had no contact with A.J. for the following four years.

[5] In November 2023, DCS received a report that Mother had inappropriately physically disciplined A.J. Two days later, Mother brought herself and A.J. to a local hospital. The hospital placed Mother on an involuntary psychiatric hold because she was exhibiting psychotic symptoms and could not take care of herself or A.J. DCS removed A.J. on an emergency basis and placed him in foster care. DCS filed a CHINS petition that same day. The petition stated that Father could not be reached and, thus, was unable or unwilling to care for A.J.

Mother's CHINS Case

[6] Mother failed to attend the fact-finding hearing on the CHINS petition and was defaulted as a result. The dispositional order that followed in April 2024 required Mother to, among other things: (1) stay in contact with DCS; (2) keep appointments with medical and psychiatric personnel; and (3) engage in services such as home-based case work, individual therapy, and visitation.

[7] Mother initially engaged in visitation with A.J., but the visits soon ended. Mother “consistently” violated the visitation facility rules and needed to be regularly reminded of them. Tr. Vol. I, p. 170. For instance, she repeatedly asked A.J. questions about his placement, which is not permitted. During one visit, A.J. started a fire in the back seat of a supervisor's car. In September 2024, Mother's visitation with A.J. was suspended and was not reinstated.

[8] As the CHINS case progressed, DCS could not maintain consistent contact with Mother. She continually failed to provide a verifiable residential address. When DCS's Family Case Manager (FCM) Matthew Franklin visited the address of a shelter that Mother had once provided, she could not be located there. Mail sent to that address was returned as undeliverable. Mother insisted on communicating only through email but was often not responsive to attempts to contact her. Mother also failed to attend various DCS check-in meetings.

[9] Meanwhile, A.J. moved between various foster homes. Around August 2024, he was placed with his paternal grandmother (Grandmother) and her husband, where he remained for the remainder of the proceedings.

[10] After a CHINS review hearing in December 2024, the trial court found that Mother was not compliant with her case plan and had been “dishonest and evasive” about her progress in services, her living situation, and her employment. App. Vol. II, p. 37. The court found that “DCS has had referrals in for therapy, homebased case work, and visitation; however, all referrals were closed because providers could not make contact with [Mother].” Exhs. Vol. I, p. 31. And though “DCS worked diligently” to set up a Child and Family Team Meeting (CFTM) with Mother, “she refused to stay in communication” with DCS and “never agreed to the time for the CFTM.” Id. at 30. The court accepted DCS's recommendation for Mother to engage in a clinical evaluation. DCS met with Mother to give her a gas card to travel to the evaluation.

[11] In February 2025, Mother met with and was evaluated by psychologist Daniel Westmoreland, Ph.D. During the evaluation, Mother disclosed “a history of complex trauma.” Id. at 92. However, “this evaluation was greatly limited due to [Mother's] defensive responses,” which rendered the data “mostly unusable.” Id. at 101. Dr. Westmoreland reported that Mother “appears to be a relatively well-adjusted individual on the surface; however, she likely suffers from unresolved distress, which likely led to her mental health crisis in November 2023.” Id. “There were no indications of delusional thinking,” but “her thought processes appeared slightly disorganized at times.” Id. at 93. Dr. Westmoreland noted that “there is minimal indication that [Mother] possesses such insight and/or is motivated to change.” Id. at 101.

[12] Ultimately, Dr. Westmoreland could not “provide a definitive diagnosis” due to Mother's “defensive and/or non-compliant” responses. Id. at 102. He suggested a re-evaluation with a different psychologist “if necessary.” Id. He also recommended Mother engage in therapy and home-based case work. DCS sent Mother the evaluation report but heard nothing from her. After speaking with Dr. Westmoreland, DCS decided not to pursue a re-evaluation. Soon after, DCS petitioned to terminate Mother's parental rights in mid-February 2025.

Father's CHINS Case

[13] After years without contact with A.J., Father heard about the CHINS proceeding from a friend who had seen a notice in the newspaper. When Father got in touch with DCS, he did not contest that A.J. was a CHINS. He entered into a mediated agreed dispositional order with DCS in March 2024. Under that order, Father agreed to complete fatherhood engagement, participate in visitation with A.J., comply with the terms of his probation, maintain a stable income, maintain “safe, stable, [and] appropriate housing,” and not use illegal substances. Id. at 19.

[14] Around this time, Father moved into a halfway house after participating in a substance abuse treatment program. Father began visitation with A.J., driving over an hour to A.J.’s foster placement. However, Father did not have reliable transportation, so visitation supervisors began to bring A.J. to Father. After A.J. moved into Grandmother's care in the summer of 2024, some visits occurred at Grandmother's home. Grandmother reported that during a visit, Father watched TV instead of engaging with A.J., who played in another room.

[15] In November 2024, Father's visitation with A.J. stopped after Father got into a disagreement with the visitation supervisor and the provider cancelled the referral. Soon after, in December 2024, Father enrolled in a 28-day in-patient treatment program after relapsing “on meth and THC.” App. Vol. II, p. 38. He successfully completed treatment in January 2025, then moved into a halfway house. DCS then began to restart Father's services but struggled to find a new visitation supervisor. Meanwhile, DCS initiated termination proceedings.

Termination Proceedings

[16] Over the course of three days in May and July 2025, the trial court conducted fact-finding hearings on the petitions to terminate Mother's and Father's parental rights as to A.J.

[17] During the hearings, FCM Franklin testified to Mother's minimal engagement in services and lack of cooperation with DCS. He explained that DCS did not have a verifiable address for Mother. In fact, at the initial hearing on the termination petition, Mother had provided a new address and claimed the owner of the house allowed her to live there, but she refused to provide the name of the owner, even when the court ordered her to do so.

[18] Mother's visitation supervisor testified that Mother “consistently” failed to follow program rules and the referral was eventually cancelled. Tr. Vol. I, p. 170. Dr. Westmoreland also testified as to his psychological assessment of Mother and its inconclusive results due to her “non-compliant and or defensive response style.” Id. at 162.

[19] As to Father, FCM Franklin recognized that, as of the hearing, Father was compliant with services. FCM Franklin acknowledged that DCS had trouble finding a visitation provider when Father was released from in-patient treatment in January 2025. Visits resumed in March 2025 and had since been going well. Though Father had yet to complete fatherhood engagement services, FCM Franklin had not put in that referral yet because Father was still working through home-based casework.

[20] FCM Franklin explained that Father's December 2024 relapse and in-patient treatment—just five months before the termination hearings began—had “derailed” his services. Id. at 78. Though FCM Franklin recognized Father's progress since then, he expressed concern about the stability of Father's current housing at the Oxford House, an independently run sober living home for men, and Father's lack of stable transportation.

[21] Father testified that he had been sober since mid-December 2024 and had been employed full-time at a steel fabrication facility for the past four or five months. Though he had recently obtained a vehicle, he admitted it had mechanical issues. Father explained that he planned to live with A.J. in a private bedroom at the Oxford House, and the president of that home testified in agreement. The president explained that, per house rules, residents must remain “100% sober” and “any relapse will get you immediately evicted.” Tr. Vol. II, p. 4. However, residents were not forcibly drug tested. The house was at full capacity—eight men—and a few residents were on home detention.

[22] Visitation supervisor Jourdan Metzger, who began working with Father around March 2025—when visits resumed post-treatment and after the termination proceedings had begun—testified to Father's consistent engagement. She reported “positive interactions” between Father and A.J., though Father sometimes had a “short temper” with A.J. Tr. Vol. I, pp. 221, 228. At one point, Metzger had recommended that Father progress to unsupervised visits, but FCM Franklin responded that he needed to consult his attorney and no progression occurred.

[23] Metzger further explained that after a June 2025 incident in which Father became “verbally abusive” with her, she was taken off the case. Id. at 219. Jamie Perez, who had already been working with Father on home-based casework since April 2025, then took over. Perez testified that the one visit he supervised was positive. Perez added that he did not have concerns about A.J. having visitation with Father at the Oxford House. And though Father had recently obtained a vehicle, Perez stated it was not reliable enough to travel more than ten or fifteen minutes from Father's residence.

[24] Grandmother, A.J.’s pre-adoptive placement, testified that A.J. was doing “[g]reat” in her care. Id. at 176. Though “there were some very deep issues that needed to be addressed” when A.J. first came into her care, he had been “working through them.” Id. at 181. A.J. was no longer in special education classes and had fewer altercations at school. Grandmother explained that Father had continued to visit A.J., but Mother had not seen or contacted A.J. since he was placed in her care a year earlier.

[25] Grandmother believed termination was in A.J.’s best interests “for his mental and physical health” and because he needed “a stable home.” Id. at 177, 205. She felt that her son, Father, was not ready for the responsibilities of parenting A.J. and needed to focus on maintaining his sobriety. Grandmother explained that Father had previously achieved short bursts of sobriety that did not hold. She stated: “[W]e've also seen him where he was stable for a year, or what looked to be stable for a year, and then we found out that he had been using.” Id. at 215. Grandmother testified that she wanted to keep A.J. safe but never intends to keep Mother and Father “from being a part of [A.J.’s] life,” so long as they are healthy. Id. at 178.

[26] Finally, the court-appointed special advocate (CASA) testified that termination was in A.J.’s best interests. She explained that he needed permanency and a stable home, and neither Mother nor Father could provide that. The CASA believed that “being in the system any longer” was not in A.J.’s best interests because “he's at an age where he is understanding things.” Id. at 128. She believed that terminating Father's parental rights would be “difficult” for A.J., but “he would understand.” Id. at 139. The CASA opined that A.J. benefitted from visits with Father, though ending them would not be detrimental. However, when asked about the effect of cutting Father out of A.J.’s life, she responded: “I think that would be detrimental[,] but I can't see it occurring” given Grandmother's intention to keep Father involved in A.J.’s life. Id. at 144.

[27] After the final fact-finding hearing concluded on July 18, 2025, the trial court took the termination matter under advisement. On November 3, 2025, DCS filed a motion for decision on the matter, noting that the 90-day timeline to issue a termination order had passed. The trial court issued an order the following day, terminating the parental rights of both Mother and Father. Each parent separately appeals.

Discussion and Decision

[28] A parent's right to establish a home and raise their children is protected under the Fourteenth Amendment to the United States Constitution. A.L., 223 N.E.3d 1126, 1137 (Ind. Ct. App. 2023), trans. denied. However, these parental rights “must be subordinated to the child's interests” when determining whether termination is warranted. Id. Termination is appropriate when parents are “unable or unwilling to meet their parental responsibilities.” Id.

[29] To terminate the parent-child relationship, DCS must prove three elements by clear and convincing evidence: (1) that termination is in the child's best interests; (2) that there is a satisfactory plan for the child's care; and (3) that one or more of the circumstances enumerated in Indiana Code § 31-35-2-4(d) exists. Ind. Code § 31-35-2-4(c) (2025) (elements for termination); In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (clear and convincing evidence standard). Here, DCS alleged that two subsection (d) circumstances existed:

• that A.J. had been removed for at least 15 of the most recent 22 months and, despite DCS's reasonable efforts, Mother and Father had been unable to remedy the circumstances that resulted in A.J.’s removal. See Ind. Code § 31-35-2-4(d)(2) (2025); and

• that there is a reasonable probability the conditions that resulted in A.J.’s removal or placement outside the home will not be remedied. See Ind. Code § 31-35-2-4(d)(3) (2025).

[30] The trial court determined that both subsection (d) circumstances existed and, as to both parents, that all three termination elements were proven by clear and convincing evidence. The court entered findings of fact and conclusions of law in support of this determination.

[31] When reviewing the termination of parental rights, we do not reweigh evidence or judge witness credibility. In re V.A., 51 N.E.3d at 1143. We consider only the evidence and reasonable inferences most favorable to the judgment, giving “due regard to the trial court's unique opportunity to judge the credibility of the witnesses.” Id. We set aside the judgment only if it is clearly erroneous. Id.

I. Mother's Appeal

[32] As a preliminary matter, Mother correctly observes that the portion of the trial court's order regarding Mother is a near-verbatim reproduction of DCS's proposed findings. Verbatim adoption of a party's proposed findings weakens appellate confidence that the findings reflect the trial court's independent judgment. See City of Bloomington v. Cnty. Residents Against Annexation, Inc., 270 N.E.3d 67, 72 (Ind. Ct. App. 2025), trans. denied. However, the question on appeal remains whether the findings as adopted are clearly erroneous. In re Moeder, 27 N.E.3d 1089, 1098 (Ind. Ct. App. 2015).

[33] Mother argues that she was deprived of due process because DCS allegedly failed to “provide services that would actually promote and improve [her] circumstances,” reflecting a “lack of reasonable efforts to preserve the parent-child relationship.” Mother's Br., p. 30.¹ But Mother did not raise a due process challenge at the fact-finding hearing. Our court has previously concluded that “a parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal.” S.L. v. Ind. Dep't of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013) (citing McBride v. Monroe Cnty. Off. of Fam & Child., 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003)). Mother has therefore waived this due process claim. Though there is a limited exception to waiver for claims of fundamental error, Mother did not argue fundamental error in her appellate briefing.

[34] Waiver notwithstanding, we cannot agree that Mother was denied due process. Determining whether a parent's due process rights have been violated requires balancing three factors: (1) “the private interests affected by the proceeding;” (2) “the risk of error created by the State's chosen procedure;” and (3) “the countervailing 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, 586 (Ind. Ct. App. 2019)). “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.” S.L., 997 N.E.2d at 1120.

[35] “[P]rocedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights.” Id. And though due process requires that “DCS must have made reasonable efforts to preserve and/or reunify the family unit” in the underlying CHINS case, those required efforts “vary by case” and services need not always be provided. In re T.W., 135 N.E.3d at 615.

[36] The record here demonstrates that DCS attempted to provide services to Mother in the face of her lack of cooperation and minimal engagement. Mother failed to comply with visitation rules, and the referral was later cancelled. At a CHINS case review hearing, the trial court found that DCS had opened numerous referrals but “all referrals were closed” due to an inability to reach Mother, who “refused to stay in communication” with DCS. Exhs. Vol. I, pp. 30-31. And though DCS “worked diligently” to set up a team meeting with Mother, she never agreed to a time. Id. at 30. DCS acknowledged that it did not initiate a referral for family therapy but cited Mother's prior unresponsiveness.

[37] Though Mother contends DCS should have provided her housing assistance, she never requested it and consistently told DCS that she had a home. The trial court found she was “dishonest and evasive” about her living situation. App. Vol. II, p. 37. DCS could not provide housing services when Mother denied needing them and prevented DCS from assessing her living situation. As to her mental health needs, DCS arranged for a psychological evaluation, but Mother's “non-compliant” and “defensive” responses rendered the assessment inconclusive. Tr. Vol. I, p. 162. DCS shared the evaluation report with Mother, but she never responded or requested a follow-up evaluation. The record does not reflect any instance in which Mother asked for additional services. Parents “may not sit idly by without asserting a need or desire for services and then successfully argue that [they were] denied services.” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).

[38] Given Mother's lack of engagement and failure to maintain contact with DCS, we cannot say that DCS's actions and provision of services deprived Mother of due process. Cf. In re T.W., 135 N.E.3d at 618 (finding due process violation where father cooperated and requested services, but DCS failed to provide them).

II. Father's Appeal

[39] Father's appeal challenges two of the three statutory elements required for termination: both of the subsection (d) circumstances and the best-interest determination. He does not dispute that there is a satisfactory plan for A.J.’s care.

[40] Because the trial court entered findings of fact and conclusions of law in support of its determination, we apply a two-tiered standard of review. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). “First, we determine whether the evidence supports the findings, and second[,] we determine whether the findings support the judgment.” Id. We do not reweigh evidence or judge witness credibility and look only to the evidence supporting the judgment. Id. “We will set aside the trial court's judgment only if it is clearly erroneous.” Id.

A. Subsection (d) Circumstances

[41] Because Indiana Code § 31-35-2-4(d) is written in the disjunctive, proof of one qualifying subsection (d) circumstance is sufficient to support termination. J.W., 259 N.E.3d 1039, 1045 (Ind. Ct. App. 2025), trans. denied. We address only subsection (d)(3), which is dispositive. This subsection requires a reasonable probability that the conditions resulting in the child's removal will not be remedied. But because Father did not have custody of A.J. at the time of removal, the inquiry shifts: we look to the reasons why A.J. was not placed with Father upon removal, then determine whether there is a reasonable probability those conditions will not be remedied. See In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010).

[42] At removal, Father was not involved in A.J.’s life, could not be located, and was deemed unwilling or unable to parent A.J. When Father got in touch with DCS, he was on probation and living in a halfway house. The trial court concluded that, by the time of the termination hearing, Father had not made sufficient progress to show that he can “safely, stably, and ․ permanently” parent A.J. App. Vol. II, p. 41. It concluded that there is a reasonable probability this condition will not be remedied.

[43] In challenging the trial court's conclusion, Father disputes multiple findings of fact. He claims four findings are unsupported by the evidence and two findings are contrary to law.

i. Challenge to Findings 31, 37, 59, and 60 as Unsupported by the Evidence

[44] Finding 31 states: “Father's visits with [A.J.] restarted in March of 2025, several weeks after a previous visit supervisor cancelled the referral with Father after a disagreement with him.” Id. at 39. Father argues that this finding “implies [he] caused the gap” when it was DCS that could not find a replacement supervisor. Father's Reply Br., p. 6. But the finding says nothing about blame for the length of delay. Instead, it recounts that Father's “disagreement” prompted the cancellation of the referral. That is directly supported by FCM Franklin's testimony that “there was [a] disagreement between [Father] and the ․ other supervise[d] visitation person and his visitations were stopped.” Tr. Vol. I, p. 72. Though Father argues the disagreement was a misunderstanding about rough housing, that is an impermissible request to reweigh evidence. See In re G.Y., 904 N.E.2d at 1260.

[45] Finding 37 states: “Father has not requested from FCM any services or accommodation that FCM has not provided.” App. Vol. II, p. 39. FCM Franklin proffered nearly identical testimony at trial. See Tr. Vol. I, p. 68. However, Father argues this finding is contradicted by his requests for CFTMs, to which DCS did not respond. Even if Finding 37 is erroneous in that respect, the error is harmless. First, the court made no finding penalizing Father for failing to attend CFTMs. Second, the CFTM requests that Father identifies occurred in the weeks and months after the termination petition was filed. While DCS's responsiveness is not wholly irrelevant to a parent's progress, we cannot say these late-in-the-game requests for CFTMs alter the analysis.

[46] Finding 59 states, in relevant part: “[Father's] plan to parent the child in a single bedroom of a self-managed sober living home wherein other addicts live is not an appropriate living arrangement in which to raise a nine year old [sic] child.” App. Vol. II, p. 40. Though Father points out that the term “addicts” is “stigmatizing,” this finding was not based on stigma or “assumption.” Father's Br., pp. 21-22. It summarized concerns about the physical living space and the management of the home. The record shows that Father proposed to live with A.J. in a 12-by-12-foot room with a shared bathroom in a house with eight adult men residents. Though organized as a sober-living home, it lacked independent oversight or mandated drug testing. Other children visited the home, but none lived there full-time. The trial court was entitled to conclude that this environment was not appropriate for a nine-year-old child.

[47] Finding 60 states, in relevant part: “Mother and Father have failed altogether or delayed engagement in the services offered by DCS[.]” App. Vol. II, p. 41. Father argues he was compliant with services. As this finding is phrased in the disjunctive, it can be reasonably read to mean that Father delayed engagement in services. That reading is supported by the record. Much of the compliance Father points to—his move from a halfway house to the Oxford House and his acquisition of a vehicle—came in the weeks before the termination hearings. Father's disagreement with a visitation supervisor necessitated a replacement, and Father's services “were stopped for a while” when he relapsed, which FCM Franklin agreed had “derailed somethings [sic].” Tr. Vol. I, pp. 69, 78. The trial court did not ignore Father's current compliance, as it separately found that “Father has been compliant with services” since moving to the Oxford House in April 2025. App. Vol. II, p. 39.

ii. Challenges to Findings 64 and 67 as Contrary to Law

[48] Father next challenges two findings regarding the adequacy of his progress. Finding 64 states Father “has simply not made sufficient sustained forward progress to convince the Court that he in short order will be able to safely, stably, and most importantly permanently, parent [A.J.].” Id. at 41. Similarly, Finding 67 states that, while Father's current progress is “commendable,” his “criminal record and substance abuse history remain significant concerns,” and the court “is not persuaded he is yet far enough removed from those issues to prevent relapse.” Id.

[49] Father contends these determinations rely too heavily on his history without fairly crediting his recent progress. He claims this approach is contrary to law, which requires assessing parental fitness “as of the time of the termination proceeding.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted). However, “[r]equiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.” Id. In fact, when determining whether there is a “reasonable probability” that the conditions resulting in the child's placement outside the home “will not be remedied,” the trial court must “balanc[e] a parent's recent improvements against ‘habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation.’ ” Id. (quoting K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013)). “We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” Id.

[50] Here, the trial court appropriately engaged in this balance. One year into the CHINS case, Father had not obtained stable housing; Father testified that he lived in his car or in halfway houses during most of 2024. He had not obtained reliable transportation and was still working on home-based casework and visitation without progression.² Then, Father relapsed in late 2024 and was just five months into sobriety by the time of the first fact-finding hearing. Grandmother testified that Father previously experienced periods of sobriety that did not hold. The trial court was also entitled to consider Father's apparent lack of insight into his addiction—evidenced by Father's testimony that he does not identify as a “real addict” because he “ha[s] no problem putting it down”—as bearing on the probability of a future relapse. Tr. Vol. II, p. 65.

[51] Finally, the trial court considered Father's “criminal record arising from anger issues,” including four convictions for battery. App. Vol. II, p. 38. It also heard testimony that, as recently as June 2025—during the fact-finding hearings—Father had been “verbally abusive” with the visitation supervisor and had a “short temper” with A.J. at times. Tr. Vol. I, pp. 219, 221.

[52] On the other hand, the court recognized Father's recent progress with all services. But it noted that this progress came only in the spring of 2025, after the termination petition was filed. “The time for parents to rehabilitate themselves ‘is during the CHINS process, prior to the filing of the petition for termination.’ ” In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) (quoting Prince v. Dep't of Child Servs., 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007)) (emphasis in original).

[53] Though Father cites to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012), we find that case distinguishable. There, DCS did not know about the mother's “eight months of solid progress in each area of concern” because DCS had not kept in touch or provided services to the mother since the termination petition was filed. Id. at 396. And it was “not a case where the parent's progress has been inconsistent or last-minute.” Id. at 404. Here, DCS continued to provide Father with services through the termination proceedings and, thus, was aware of his progress and able to deliver an informed opinion about his readiness to care for A.J. Additionally, Father's five months of sobriety, while meaningful, does not approach the eight months of across-the-board stability presented by the mother in Ma.J.

[54] Ultimately, the trial court expressly acknowledged Father's progress as commendable but found his historical conduct merited more weight. That is precisely the balancing that E.M. requires. 4 N.E.3d at 643. We will not disturb that balance on appeal. These challenged findings, which directly support the court's conclusion that the subsection (d)(3) circumstance is present, are supported by the evidence and reflect a legally proper balancing of Father's recent progress against his history.

B. Best-Interests Determination

[55] Finally, Father contends that the trial court's best-interests determination is not supported by sufficient evidence. He argues that the need for permanency alone is not enough and that “the same witnesses who recommended termination”—namely the CASA and Grandmother—“acknowledged that Father's relationship with [A.J.] is beneficial and that completely severing it would harm him.” Father's Reply Br., p. 11. However, looking at the record as a whole and considering our deferential standard of review, we cannot say that the court's best-interests determination was clearly erroneous.

[56] When determining the best interests of a child, the trial court must consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013). “In so doing, the trial court must subordinate the interests of the parent to those of the child” and “need not wait until a child is harmed irreversibly before terminating the parent-child relationship.” Id. at 290. The recommendations of the FCM and the CASA, together with evidence that the conditions resulting in removal will not be remedied, are sufficient to establish by clear and convincing evidence that termination is in the child's best interests. Id.

[57] Here, FCM Franklin, the CASA, and Grandmother all recommended termination. FCM Franklin acknowledged Father's recent progress and positive visits with A.J. but expressed concerns about Father's enduring stability and ability to safely parent A.J. Grandmother testified to Father's history of relapse, even after periods as long as a year. She intended to adopt A.J. and explained that she wanted to keep Father and Mother in A.J.’s life, but “on terms that keep him safe ․ mentally and physically.” Tr. Vol. I, p. 178.

[58] The CASA recognized A.J.’s positive relationship with Father and stated that termination of Father's parental rights would be difficult for A.J., though he would understand. When asked about the effect on A.J. if contact were to be cut off between Father and A.J., she responded: “I think that would be detrimental[,] but I can't see it occurring.” Id. at 144. However, the CASA clarified that despite Grandmother's intention to keep Father involved in A.J.’s life, she understood that termination would fully extinguish Father's right to visitation. Considering this, she still believed that termination was in A.J.’s best interests because she did not believe Father could provide A.J. with a sufficiently stable and safe home, even within the next three to six months, and because continued involvement in the child welfare system was not in A.J.’s interest.

[59] The trial court considered this testimony alongside its determination that there was a reasonable probability that the conditions resulting in A.J.’s placement outside of Father's care would not be remedied, as discussed in the previous section. See In re J.C., 994 N.E.2d at 290 (“A parent's historical inability to provide a suitable environment, along with the parent's current inability to do the same, supports finding termination of parental rights is in the best interests of the children.”).

[60] That the termination could be difficult for A.J. does not render the trial court's determination clearly erroneous. The CASA, aware of Father's progress and relationship with A.J., still recommended termination. The trial court was entitled to credit that recommendation, weigh it alongside the full record, and reach the conclusion it did. We will not disturb the court's assessment of the evidence, and we find no clear error in its determination that termination was in A.J.’s best interests.

Conclusion

[61] Waiver notwithstanding, Mother's due process claim fails. Mother was uncooperative with DCS, engaged minimally in referred services, and did not request further services.

[62] We are also unpersuaded by Father's challenges to the sufficiency of the evidence supporting the termination of his parental rights. The trial court was within its discretion to weigh Father's history of substance use, convictions related to anger issues, and housing instability more heavily than his recent progress. The trial court's determination that termination is in A.J.’s best interests is supported by the recommendations of multiple witnesses, who recognized that though Father has a positive relationship with A.J., he is not in a position to safely and stably parent A.J. and will not be in the near future.

[63] Accordingly, we affirm the trial court's order terminating Mother's and Father's parental rights as to A.J.

FOOTNOTES

1.   Mother sets out the due process standard of review, among others, and devotes most of her argument to discussion of DCS's efforts in the CHINS case. She cites repeatedly to the due process analysis in In re T.W., 135 N.E.3d 607 (Ind. Ct. App. 2019). Mother does not explicitly tie her argument to any of the statutory termination elements. To the extent that she intends to challenge the trial court's finding under Indiana Code § 31-35-2-4(d)(2)—that A.J. had been removed for the requisite period and, despite DCS's reasonable efforts, Mother had been unable to remedy the conditions resulting in removal—that argument fails. Mother does not challenge the court's alternate finding under subsection (d)(3), and only one subsection (d) circumstance is required. See J.W., 259 N.E.3d 1039, 1045 (Ind. Ct. App. 2025), trans. denied.

2.   Father argues that DCS failed to progress his visitations despite a recommendation from a visit supervisor. However, the recommendation that Father identifies came from Metzger, who began working with Father only in March 2025, during the termination proceedings and more than a year into the CHINS case. There is no evidence in the record to suggest that Father was recommended to progress any earlier. Instead, the record reflects that Father had a disagreement with a visitation supervisor that led to the cancellation of that referral in the fall of 2024.

Weissmann, Judge.

Chief Judge Tavitas concurs in result. Judge Foley concurs. Tavitas, C.J., concurs in result. Foley, J., concurs.