CRONE, Judge.
C.L. ("Mother") and H.L. ("Father") each appeal the involuntary termination of their parental rights to their minor children, P.L. and D.L. We affirm.
In its termination order, dated April 15, 2014, the trial court made eighty-six findings of fact, some of which follow:
Mother's App. at 132-36.
The trial court made numerous additional findings regarding Mother's and Father's failure to participate and/or follow through with DCS services and recommended treatments, including substance abuse treatment programs and individual mental health assessments and therapy. From October 10, 2012, through June 27, 2013, Mother tested positive for illegal drugs including methamphetamine and THC on fifteen occasions. From October 4, 2012, through July 2, 2013, Father tested positive twenty times for illegal drugs and was arrested and convicted on drug-related charges. In July 2013, the court ordered the visitation of both parents with the children terminated and relieved DCS of having to provide further reunification services due to the parents' failure to abide by the court's dispositional orders, failure to participate in services, and their continued positive drug screens. The trial court made additional findings that it was suspected that Mother had suffered domestic abuse at the hands of Father.
DCS filed petitions to terminate parental rights on August 20, 2013. As for the children, the trial court found that when initially removed from their parents in October 2012, the children were not clean and D.L. would not allow any male to change her diaper. D.L. was seen by a doctor and, due to a significant vaginal bacterial infection, the doctor reported "a non-specific" finding concerning possible molestation. Id. at 142. Since removal, the children have been thriving in the relative care of their maternal aunt and uncle, who are available and willing to adopt the children.
At the time of the termination hearing, Mother was unemployed and without transportation. Father was a self-employed floor installer but has remained without transportation since his vehicle was impounded by law enforcement. During the termination hearing, Mother admitted using drugs within the preceding three or four weeks. Father admitted that he would test positive for marijuana if tested during the hearing. The trial court found that Mother "nodded off" at least six different times during the termination hearing. Id. at 138.
Based upon the extensive findings of fact, the trial court concluded that: (1) there is a reasonable probability that the conditions that resulted in the removal of the children and their continued placement outside the home will not be remedied by either Mother or Father; (2) there is a reasonable probability that the continuation of the parent-child relationship between the children and both Mother and Father poses a threat to the well-being of the children; (3) termination of the parent-child relationship between both parents and the children is in the best interests of the children; and (4) DCS has a satisfactory plan for the care and treatment of the children, which is adoption. Accordingly, the trial court determined that DCS had proven the allegations of the petition to terminate parental rights by clear and convincing evidence and therefore terminated Mother's and Father's parental rights. Both parents appeal. Additional facts will be provided as necessary.
"The purpose of terminating parental rights is not to punish parents but to protect their children. Although parental rights have a constitutional dimension, the law allows for their termination when parties are unable or unwilling to meet their responsibility as parents." In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental interests "must be subordinated to the child's interests" in determining the proper disposition of a petition to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).
Mother and Father filed separate briefs on appeal, raising some of the same and some different legal challenges. Mother and Father both assert that the trial court lacked subject matter jurisdiction to adjudicate the termination of parental rights. They also both assert that certain court-ordered drug testing violated their due process rights. Father points to additional alleged procedural irregularities of both the CHINS and termination proceedings that he asserts violated due process. Mother alone challenges the trial court's conclusion that termination of her parental rights is in the children's best interests. We will address these arguments in turn.
At the outset, Mother and Father both challenge the Hendricks Superior Court's subject matter jurisdiction over the termination proceedings. "Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs." K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). "A tribunal receives subject matter jurisdiction over a class of cases only from the constitution or from statutes." Georgetown Bd. of Zoning Appeals v. Keele, 743 N.E.2d 301, 303 (Ind. Ct. App. 2001). When a court lacks subject matter jurisdiction, its actions are void ab initio and have no effect whatsoever. Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000). "Subject matter jurisdiction is an issue of law to which we apply a de novo standard of review." Lombardi v. Van Deusen, 938 N.E.2d 219, 223 (Ind. Ct. App. 2010).
Indiana Code Sections 33-29-1-1.5 and 33-29-1.5-2 provide that all standard and nonstandard superior courts have original and concurrent jurisdiction in all civil cases and in all criminal cases. Similarly, Indiana Code Section 33-28-1-2 provides that all circuit courts have original and concurrent jurisdiction in all civil cases and in all criminal cases. Courts of such general jurisdiction are presumed to have subject matter jurisdiction. Mishler v. County of Elkhart, 544 N.E.2d 149, 151 (Ind. 1989). Regarding the filing of a petition to terminate parental rights specifically, Indiana Code Section 31-35-2-3 provides that the "probate court has concurrent original jurisdiction with the juvenile court in proceedings on a petition to terminate the parent-child relationship" involving a child in need of services. Our statutory law further provides that a "petition to terminate the parent-child relationship" involving a child in need of services "may be signed and filed with the juvenile or probate court . . . ." Ind. Code § 31-35-2-4.
As Hendricks County has neither a statutorily created separate probate court nor a juvenile court, subject matter jurisdiction for termination of parental rights cases remains vested concurrently in the county's circuit and superior courts pursuant to statute.
Mother and Father maintain that Hendricks County Local Court Rules mandate that all termination of parental rights cases be filed in the Hendricks Circuit Court. See LR32-AR1-1 (2013) (providing that all cases with a designation of JT "shall be filed in the Hendricks Circuit Court.").
Therefore, although we agree with Mother and Father that Hendricks Superior Court was not the proper venue for the termination of parental rights pursuant to local court rules, as with other trial court errors, such error is available upon appeal only if a specific and timely objection was made. See Buckalew, 754 N.E.2d at 898. Here, neither Mother nor Father objected to venue in Hendricks Superior Court nor filed a motion to transfer the termination proceedings. Therefore, any claim of improper venue is waived and the parties may not now attack the court's termination order on that basis.
Next, both Mother and Father point to certain alleged procedural irregularities during the CHINS and termination proceedings which they claim violated their due process rights.
Our supreme court recently explained that CHINS, termination, and adoption proceedings "line up somewhat like dominoes; although one proceeding may not necessarily tip over onto the next, neither can it usually fall without being pushed by the proceeding before it." See id. Accordingly, any procedural 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. Nevertheless, it is well settled 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. McBride v. Monroe Cnty. Office of Family & Children, 997 N.E.2d 1114, 1120 (Ind. 2013).
Both parents concede that they did not object to any of the alleged procedural irregularities or otherwise bring their due process claims to the attention of the trial court during either the CHINS or termination proceeding and that they raise these issues for the first time on appeal. They each attempt to avoid waiver of their claims by asserting that the alleged due process violations constitute fundamental error.
Mother alone challenges the trial court's conclusion that termination of her parental rights is in P.L. and D.L.'s best interests. Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental rights must meet the following relevant requirements:
DCS must prove "each and every element" by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. If the court finds that the allegations in a petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
We have long had a highly deferential standard of review in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the trial court's judgment. Id. Where the trial court enters findings of fact and conclusions thereon, we apply a two-tiered standard of review: we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. Id. In deference to the trial court's unique position to assess the evidence, we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous. Id. Clear error is that which "leaves us with a definite and firm conviction that a mistake has been made." J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans. denied.
In determining the best interests of a child, the trial court must look beyond the factors identified by DCS and consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). "In so doing, the trial court must subordinate the interests of the parent to those of the child." Id. The court court need not wait until a child is harmed irreversibly before terminating the parent-child relationship. Id. We have previously held that the recommendations of the case manager and court-appointed advocate, in addition to 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.
Here, FCM supervisor Jessica Klatte testified that she believed that termination of Mother's parental rights is in both P.L. and D.L.'s best interests.
Similarly, GAL Suzanne Conger opined that termination of Mother's parental rights was in P.L. and D.L.'s best interests. Conger specifically noted Mother's lack of progress and unwillingness to complete DCS services, her continued drug abuse, and her repeated failures to demonstrate that she could provide a safe and stable home for her children. Conger explained that Mother has insisted on staying in a relationship with Father and that his drug addiction and control over Mother continues to have a negative effect on Mother's ability to change her conduct and to adequately parent the children. Conger opined that "the children and this family have been involved with DCS for quite some time" and that despite ample opportunities, Mother has "continued on a downward [spiral]" preventing her from being able to "provide the stability that the children need." Id. at 413.
Mother does not challenge the validity of these opinions but simply maintains that "[d]espite poverty, few resources, a limited support system and drug dependency, [she] was a loving and attentive parent." Mother's Br. at 28. Still, the trial court must consider a parent's habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005). DCS is not required to rule out all possibilities of change; rather, it need only establish "that there is a reasonable probability that the parent's behavior will not change." In re Kay L.. 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). This record is replete with evidence of Mother's habitual patterns of poor decisionmaking as evidenced by her continued drug use and relationship with Father. Although Mother points to evidence which she asserts is favorable to her, her argument is merely an invitation for us to reweigh the evidence, which we cannot do. See D.B., 942 N.E.2d at 871. In light of the testimony of FCM Klatte and GAL Conger, coupled with Mother's habitual patterns of conduct indicating that there is a reasonable probability that the conditions that led to the children's removal will not be remedied, we cannot say that the trial court's conclusion that termination of Mother's parental rights is in P.L. and D.L.'s best interests is clearly erroneous.
The Hendricks Superior Court had subject matter jurisdiction to adjudicate the termination of parental rights, and its judgment is not void. Mother and Father have waived any claim that the Hendricks Superior Court was not the proper venue. Similarly, both parents' claims of fundamental error based upon alleged due process violations that occurred during the CHINS and termination proceedings are waived. The trial court's conclusion that termination of Mother's parental rights is the best interest of the children is supported by clear and convincing evidence and is not clearly erroneous. Therefore, we affirm the trial court's order terminating both Mother's and Father's parental rights to P.L. and D.L.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
