MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 28 2020, 5:50 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE A.C. (MOTHER) Robert J. Henke Anthony C. Lawrence Deputy Attorney General Anderson, Indiana Indianapolis, Indiana
ATTORNEY FOR APPELLANT M.B. (FATHER) Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the May 28, 2020 Parent-Child Relationship of Court of Appeals Case No. A.B. (Minor Child) and 19A-JT-2537 A.C. (Mother) and Appeal from the Henry Circuit Court M.B. (Father), The Honorable Bob A. Witham, Appellants-Respondents, Judge
v. Trial Court Cause No. 33C01-1906-JT-52
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 1 of 24 Mathias, Judge.
[1] A.C. (“Mother”) and M.B. (“Father”) (collectively “the Parents”) challenge the
order of the Henry Circuit Court terminating their parental rights to their minor
child A.B. (“Son”). On appeal, the Parents present two arguments, which we
reorder and restate as: (1) whether there was sufficient evidence to support the
trial court’s termination order, and (2) whether fundamental error occurred
because the Parents’ procedural and substantive due process rights were
violated by the failure of the Indiana Department of Child Services (“DCS”) to
provide the Parents with services.
[2] We affirm.
Facts and Procedural History [3] The facts favorable to the trial court’s judgment reveal that, prior to Son’s birth
in 2017, both Parents had a history of drug abuse and criminal behavior.
I. Mother’s History Prior to Son’s Birth
[4] Mother has used illicit drugs since the age of thirteen. She has a history of DCS
involvement: her two other children were removed from her care and placed
with Mother’s father. Mother’s criminal history prior to Son’s birth includes the
following: in May 2005, Mother was charged with dealing a schedule II
controlled substance and a schedule IV controlled substance. The trial court in
that case ordered Mother to be treated at a methadone clinic because she was
pregnant at the time. In March 2007, Mother pleaded guilty and was sentenced
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 2 of 24 to concurrent terms of five years on both counts, with two years on home
detention and three years suspended. Mother violated the terms of her
probation in that case twice, resulting in her serving time in jail. In December
2014, Mother was charged with theft and ultimately pleaded guilty to Level 6
felony theft. Mother was sentenced to one year executed in community
corrections.
II. Father’s History Prior to Son’s Birth
[5] Father too has a history of involvement with DCS with a previously born child.
Father has a long history of substance abuse and resulting criminal behavior. In
November 2010, Father was charged with two counts of Class D felony
domestic battery, to which he pleaded guilty in February 2011. He was
sentenced to time served. In July 2012, Father was arrested and charged with
Class B felony dealing in cocaine or a narcotic drug, Class D felony
maintaining a common nuisance, and two counts of Class A misdemeanor
maintaining a common nuisance endangering a minor. In September 2013,
Father pleaded guilty to the dealing count and was sentenced to eight years of
incarceration.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 3 of 24 III. The Parents’ Relationship and Son’s Birth
[6] Mother and Father began dating in 2016, and Mother became pregnant with
Son. During her pregnancy, Mother used Subutex,1 for which she claimed to
have a prescription. She was also charged with Class A misdemeanor operating
while intoxicated endangering a person, Class C misdemeanor operating with a
schedule I or II substance in a person’s body, and Class B misdemeanor public
intoxication. Mother pleaded guilty in March 2018 to the Class A misdemeanor
and was sentenced to one year suspended to probation.
[7] Son was born on August 12, 2017, and he tested positive for buprenorphine at
birth. Son was removed from the Parents’ care while he was still in the hospital.
DCS filed a petition alleging that Son was a child in need of services
(“CHINS”) on August 17, 2017. Both Parents subsequently admitted that Son
was in need of services, and the trial court issued an order finding son to be a
CHINS on August 31, 2017.
[8] On October 16, 2017, the trial court issued a dispositional order requiring the
Parents to, among other things, enroll and participate in all referred services
and assessments; undergo parenting, substance abuse, and domestic violence
assessments; successfully engage in and complete all recommended treatments
and recommended services; obtain and maintain safe and stable housing; secure
1 Subutex is a brand name for buprenorphine, an opioid partial agonist-antagonist medication used to treat opioid dependence. See Buprenorphine Sublingual and Buccal (opioid dependence), Medline Plus, https://medlineplus.gov/druginfo/meds/a605002.html (last visited May 12, 2020) [https://perma.cc/BPL7- X2TC].
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 4 of 24 a legal source of income; refrain from using illicit drugs or controlled substances
unless prescribed by a physician; submit to random drug screens; not commit
any crimes; and participate in home-based counseling.
IV. Mother’s Behavior During the CHINS Case
[9] After Son’s birth, DCS helped Mother get into an inpatient treatment center,
but Mother left after only five days, after which she continued her criminal
behavior. On August 21, 2017, just days after giving birth to Son, Mother was
charged with Class A misdemeanor possession of a controlled substance and
Class B misdemeanor public intoxication. She pleaded guilty to the Class A
misdemeanor possession charge on March 13, 2018, and was sentenced to one
year in home detention. Less than a month later, on April 4, 2018, the State
filed a petition to revoke Mother’s placement. Mother was arrested and
admitted to the violation. The trial court revoked her placement and ordered
her to serve the balance of her sentence in jail.
[10] In October 2017, Mother was again arrested and charged with Class A
misdemeanor possession of a controlled substance, Class B misdemeanor
possession of marijuana, and Class B misdemeanor public intoxication. Mother
pleaded guilty to the possession charges in February 2018. The trial court
released her to inpatient drug treatment and sentenced her the following month
to one year suspended to probation.
[11] In September 2018, Mother was charged with Level 5 felony possession of
methamphetamine, Class B misdemeanor possession of marijuana, Class C
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 5 of 24 misdemeanor possession of paraphernalia, and Class A misdemeanor
possession of marijuana with a prior conviction. Mother pleaded guilty to the
felony possession charge in November 2018 and was sentenced to six years of
incarceration, with one year suspended to probation. Because of her unabated
criminal behavior, Mother was incarcerated at various times during the CHINS
case, and she was still incarcerated at the time of the termination hearing. 2 As a
result, DCS was unable to offer many services to Mother. She participated in
approximately six or eight visitations with Son. And she tested positive for
buprenorphine on two occasions in June 2018.
V. Father’s Behavior During the CHINS Case
[12] On November 3, 2017, Father was charged with Level 6 felony maintaining a
common nuisance and Class C misdemeanor driving with a false certificate of
registration. He pleaded guilty in June 2018 to the Level 6 felony and was
sentenced to 452 days in jail. Because of his continued criminal conduct, Father
was also incarcerated throughout most of the CHINS case, including at the
time of the termination hearing.3
[13] On November 16, 2017, Father was charged with Level 5 felony possession of
methamphetamine, Level 6 felony possession of methamphetamine, Level 6
felony unlawful possession of syringe, Level 6 felony maintaining a common
nuisance, Class B misdemeanor possession of marijuana, and Class C
2 Mother’s earliest possible release date is March 14, 2023. 3 Father’s earliest possible release date is August 17, 2020.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 6 of 24 misdemeanor possession of paraphernalia. Father pleaded guilty in May 2018
to Level 5 felony possession of methamphetamine and was sentenced to five
years with three years suspended.
[14] Father has been incarcerated since November 2017 and has therefore been
unable to provide any assistance to Son. DCS maintained contact with Father
while he was in prison and arranged for him to participate in the “Fatherhood
Engagement” program in prison. The DCS Family Case Manager (“FCM”)
assigned to Son’s case spoke with Father twice. During the first conversation,
Father screamed at the FCM and was subsequently disciplined in jail for his
behavior. During their second conversation, Father hung up on the FCM when
the FCM told Father that Son’s permanency plan had been changed to
adoption and that termination of his parental rights was possible. Father also
refused to sign for court reports while incarcerated. Due to Father’s
incarceration, DCS was unable to provide Father with services.
VI. Termination Proceedings
[15] On June 10, 2019, DCS filed a petition to terminate the Parents’ parental rights.
The court held an evidentiary hearing on the termination petition on September
9, 2019. On October 3, 2019, the trial court entered an order, accompanied by
findings of fact and conclusions of law, terminating the Parents’ parental rights.
This order provides in relevant part:
22. [Mother] has participated in various aspects of substance abuse treatment, including the Henry County Drug Court; intensive outpatient therapy at Meridian Services in 2008; and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 7 of 24 inpatient treatment at the Anderson Center at age 16 and the ARC in Richmond, IN, in November of 2018.
23. [Mother] relapsed into substance abuse disorder after each of her involvements with treatment and reports that her longest period of sobriety since age 13 has been six (6) months.
24. Neither [Mother] nor [Father] has a firm offer of employment upon his/her release from incarceration, although both have investigated possibilities of post-release work.
25. The Department offered [Mother] treatment through intensive outpatient therapy, which she declined.
26. The Department offered [Mother] supervised visitation with [Son] which she accessed inconsistently prior to her incarceration.
27. The Department offered to engage [Mother] and [Father] in several family team meetings which resulted in either cancellations or becoming case staffings due to the parents’ failure to appear or participate.
28. [Court Appointed Special Advocate (“CASA”)] reports that [Son] is a happy, affectionate and well-adjusted child in his current relative placement home where he is considered to be a member of the family.
29. CASA expressed significant concern about disrupting the child’s relative placement at this time, believing that disruption would be an additional trauma the child would be forced to overcome.
30. Both the Department of Child Services and CASA suggest that it is in [Son]’s best interest that the parent-child relationship be severed and that he be placed for adoption with the current relative placement.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 8 of 24 The child has been removed from his parent(s) for at least six (6) months under a disposition decree of the Henry Court, dated October 5, 2017 in cause number 33C01-1708-JC-000096.
The child has been removed from his parent(s) and has been under the supervision of the Indiana Department of Child Services or the county probation department for at least fifteen (15) of the last twenty-two (22) months.
There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for the placement outside the parent’s home will not be remedied in that:
1. Both parents are currently unavailable to parent the child due to incarceration;
2. Both parents have a substantial criminal conviction history, with convictions occurring both before and after the birth of the child.
3. [Father], on at least two occasions during the pending CHINS investigation and case, presented oral swab samples that later tested positive for methamphetamine, amphetamine and THC after having arrived at the testing laboratory in substantially the same condition as at the time when [Father] provided the samples and they were sealed into testing shipment containers in his presence.
4. [Mother] has struggled with substance abuse disorder since she was thirteen (13) years old and represents that her most extensive period of sobriety as an adult is six (6) months.
5. Neither parent has taken full advantage of the services that the Department of Child Services has offered.
Termination is in the child’s best interests of the child [sic] in that it will secure for the child a permanent and stable family relationship with the only “parents” the child has ever known rather than having him wait for one of his parents to be released
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 9 of 24 from imprisonment perchance that that parent can maintain his/her liberty and sobriety sufficiently to establish a safe, nurturing home for [Son].
The Department of Child Services has a satisfactory plan for the care and treatment of the child, which is adoption by the current placement family.
Appellant’s App. pp. 34–35. The Parents now appeal.
Termination of Parental Rights [16] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights must allege:
(B) that one (1) of the following is true: (i) 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. (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services; (C) that termination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child.
[17] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). But because Indiana
Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 10 of 24 required to find that only one prong of subsection 4(b)(2)(B) has been
established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010), trans. dismissed.
[18] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[19] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. 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 at 1259.
Standard of Review [20] Indiana appellate courts 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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 11 of 24 favorable to the trial court’s 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 Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.
App. 2004), trans. denied.4
I. Sufficiency of the Evidence
[21] Parents argue that the trial court clearly erred in determining that DCS
presented sufficient evidence to terminate their parental rights.
A. Findings of Fact
[22] The Parents challenge two of the trial court’s findings of fact as clearly
erroneous. The first challenged finding states:
5. The Court found [Son] to be a Child in Need of Services on August 31, 2017, after Mother, Father and Custodian all admitted that [Son] was in need of services due to Mother’s addictions and the Court’s intervention [was needed] to ensure he received those services.
Appellant’s App. p. 33. The Parents contend that this finding was not supported
by any evidence in the record. We disagree.
4 We also note that the Parents challenge only two of the trial court’s factual findings as being clearly erroneous. We therefore accept the trial court’s other findings as true. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans. denied).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 12 of 24 [23] The State submitted into evidence a copy of the chronological case summary
from the CHINS case, which contains an entry stating:
Hearing Journal Entry (Judicial Officer : Witham, Bob A) Hearing Date: 08/31/2017 Appearances : DCS FCM. Kayla Miller; Attorney, Deborah Reasoner; Mother, []: Attorney, Jeff Galyen; Father, []; Attorney, Joe Lansinger; CASA. Pre- trial Conference held. ADMISSION entered and factual basis established as to both parents. Child is adjudicated a CHINS. DCS to prepare a PDR. Dispositional Hearing 10-5-17 at 10:45 a.m.
Ex. Vol. p. 71 (italics in original, bold emphasis added). In addition, Mother
testified at the termination hearing that she had previously admitted that Son
was a CHINS due to her substance abuse problems. Tr. p. 89. This is sufficient
to support the trial court’s finding of fact No. 5.
[24] The Parents next contend that finding of fact No. 24 is clearly erroneous. This
finding states:
24. Neither [Mother] nor [Father] has a firm offer of employment upon his/her release from incarceration, although both have investigated possibilities of post-release work.
Appellant’s App. p. 34. Despite the Parents’ argument that this finding is clearly
erroneous, the facts favoring the trial court’s judgment, and the reasonable
inferences that may be drawn from this evidence, support the trial court’s
finding.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 13 of 24 [25] Father testified that he had a “job lined up,” explaining that he could “go right
back to work to Foam Rubber where I was working at before I got arrested.”
Tr. p. 133. He continued, “I also got Mr. Yocky I was working for and he will
take me back in a heartbeat.” Id. The trial court was not obligated to credit
Father’s testimony.5 And even if the trial court believed this testimony, it does
not establish that Father had a “firm offer” of employment. It establishes that
Father believed he could get a job after his release.
[26] With regard to her employment prospects, Mother testified that she had “a job
when I get out,” but explained that this was at “TS Tech,” where she had
worked for approximately three months prior to her incarceration and had been
told that she could “have [her] job back.” Tr. p. 107. Again, the trial court was
not required to believe Mother’s testimony. And Mother also admitted that her
substance abuse problems had cost her jobs in the past. Therefore, the trial court
was under no obligation to consider Mother’s testimony as evidence of a “firm
offer” of employment. More importantly, even if this finding of fact was clearly
erroneous, it would not alter our ultimate conclusions, as the trial court’s
conclusions were not based solely on the Parents’ lack of employment.
B. Conditions that Resulted in Child’s Removal
[27] The Parents next argue that the trial court erred by concluding that there was a
reasonable probability that the conditions that resulted in Son’s removal from
5 The trial court was under no obligation to believe the Parents’ testimony, even if uncontradicted. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not required to believe a witness’s testimony even when it is uncontradicted.”).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 14 of 24 their care, or the reasons for Son’s continued placement outside the Parents’
home, would not be remedied. When deciding whether there is a reasonable
probability that the conditions resulting in a child’s removal or continued
placement outside of a parent’s care will not be remedied, the trial court must
determine a parent’s fitness to care for the child at the time of the termination
hearing while also taking into consideration evidence of changed
circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57
(Ind. Ct. App. 2013), trans. denied. The trial court may disregard efforts made
only shortly before termination and give more weight to a parent’s history of
conduct prior to those efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).
[28] Here, the condition that led to Son’s removal was Mother’s substance abuse.
And the reason for his continued placement outside the home was the Parents’
continued substance abuse and criminal behavior. The Parents argue that they
have maintained sobriety during their incarceration and that the conditions that
led to Son’s removal no longer exist. But Mother has a long history of drug use
and admitted that her longest period of sobriety had been only six months. She
testified that she “lost it” after Son’s removal, and she was repeatedly
incarcerated on drug-related offenses during the CHINS case. Tr. p. 86. Indeed,
throughout this case and her previous CHINS case with her other children,
Mother continued in a pattern of relapse and incarceration. Tr. p. 117. And
Father had a history of drug use and incarceration for drug-related offenses.
During this case, he tested positive for methamphetamine, and was incarcerated
for nearly the entire CHINS case on a drug-related offense.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 15 of 24 [29] The trial court could reasonably conclude that the Parents would continue in
this behavior unabated once they were released from incarceration. In short, the
trial court did not clearly err by concluding that there was a reasonable
probability that the conditions that resulted in Son’s removal from their care, or
the reasons for Son’s continued placement outside the Parents’ home, would
not be remedied.
C. Best Interests of the Child
[30] The Parents also claim that the trial court erred in concluding that termination
of their parental rights was in Son’s best interests. In determining what is in the
best interests of a child, the trial court must look to the totality of the evidence,
beyond the factors identified by DCS. A.D.S., 987 N.E.2d at 1158. The trial
court must subordinate the interests of the parent to those of the child and need
not wait until the child is irreversibly harmed before terminating the parent-
child relationship. Id. A recommendation by the case manager or a child
advocate, such as a guardian ad litem, to terminate parental rights is sufficient
to show by clear and convincing evidence that termination is in the child’s best
interests. Id. at 1158–59.
[31] “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.” In re A.K., 924 N.E.2d at 221 (citing Castro v. State Office of Family and
Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied). A child’s need
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 16 of 24 for permanency is a “central consideration” in determining the best interests of
a child. In re G.Y., 904 N.E.2d at 1265.
[32] Here, Son’s FCM testified that it was his opinion that termination of the
Parents’ parental rights was in the best interests of Son. The CASA for Son
testified similarly that it was in Son’s best interests for the Parents’ parental
rights to be terminated. The evidence favorable to the trial court’s judgment
supports their testimony. Father had been incarcerated during most of the
CHINS case and had never been able to provide for Son. Mother was
frequently incarcerated during the CHINS case and also had never been able to
provide for Son. Even before the Parents were incarcerated, they were
“transient” and hard for DCS to contact. And Son has done well in foster care,
where he is considered a member of the family and well bonded. The foster
parents are the only parents Son has ever known, and to remove him from that
environment would be traumatic to him. Thus, there was sufficient evidence to
support the trial court’s conclusion that termination of the Parents’ parental
rights was in the best interests of Son.
II. Denial of Due Process
[33] Mother also contends that DCS violated her due process rights during the
CHINS case and termination proceedings. She claims that there was no
reasonable effort to reunify the family, specifically referring to the fact that DCS
had multiple family case managers assigned to this particular case, the “chaotic
approach to her case,” and a general lack of communication and coordination.
Mother’s Appellant’s Br. at 15. This, Mother claims, created a serious risk of Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 17 of 24 error by the State and therefore constitutes fundamental error. Father makes a
similar argument, claiming that DCS violated his due process rights by failing
to make reasonable efforts to reunify him with Son by not establishing any
visitation with Son during the CHINS case.
[34] Neither party presented their due process arguments to the trial court. It is
axiomatic that an argument cannot be presented for the first time on appeal.
Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015).
“[A]ppellate review presupposes that a litigant’s arguments have been raised
and considered in the trial court.” Plank v. Cmty. Hospitals of Ind., Inc., 981
N.E.2d 49, 53 (Ind. 2013). Because the Parents did not present their due process
argument to the trial court, this argument is waived for purposes of appeal. See
id.
[35] The Parents argue that we should nevertheless consider their arguments under
the fundamental error doctrine. We explained the fundamental error doctrine in
N.C. v. Indiana Dep’t of Child Servs., as follows:
The fundamental error doctrine is a narrow exception to the waiver doctrine and applies to an error that was so egregious and abhorrent to fundamental due process that the trial judge should or should not have acted, irrespective of the parties’ failure to object or otherwise preserve the error for appeal. For our court to overturn a trial court ruling based on fundamental error, the error must have been a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 18 of 24 56 N.E.3d 65, 69 (Ind. Ct. App. 2016) (citations and internal quotation marks
omitted), trans. denied.6 Our courts have applied the fundamental error doctrine
in termination cases. S.M. v. Elkhart Cty. Office of Family & Children, 706 N.E.2d
596, 599 (Ind. Ct. App. 1999).
[36] We disagree with the Parents that DCS’s alleged failure to make reasonable
efforts to reunify the family violated their due process rights. “Parental rights
constitute an important interest warranting deference and protection, and a
termination of that interest is a ‘unique kind of deprivation.’” In re C.G., 954
N.E.2d 910, 916–17 (Ind. 2011) (quoting Lassiter v. Dept. of Soc. Servs., 452 U.S.
18, 27 (1981)). Children also have an interest in terminating parental rights that
prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships. Id. at 917. (citing Lehman v. Lycoming County Children’s Servs.
Agency, 458 U.S. 502, 513 (1982)). Thus, when the State seeks to terminate the
parent-child relationship, it must do so in a manner that meets the requirements
of due process. Id.
[37] Our supreme court has explained that “the process due in a termination of
parental rights action turns on balancing three Mathews7 factors: (1) the private
6 To the extent that the Parents argue that DCS violated their due process rights by failing to abide by the relevant statutes, this argument is misplaced. A violation of state law does not establish a due process violation. Garwood v. State, 77 N.E.3d 204, 220 (Ind. Ct. App. 2017), trans. granted, aff’d in relevant part 84 N.E.3d 624 (Ind. 2017) (citing Charleston v. Bd. of Trustees, 741 F.3d 769, 773 (7th Cir. 2013) (“[W]e will be clear once more: a plaintiff does not have a federal constitutional right to state-mandated process.”); Ind. Land Co. v. City of Greenwood, 378 F.3d 705, 711 (7th Cir. 2004) (“[A]n error of state law is not a violation of due process.”)). 7 Mathews v. Eldridge, 424 U.S. 319 (1976).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 19 of 24 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 K.D., 962 N.E.2d 1249, 1257 (Ind. 2012)
(citing In re C.G., 954 N.E.2d at 917). As recognized in In re C.G., in termination
cases, both the State and the parent have substantial interests affected by the
proceedings. 954 N.E.2d at 917–18. We therefore focus on the risk of error
created by DCS’s actions and the trial court’s actions. Id. at 918.
[38] We have held before that numerous procedural irregularities in a CHINS
proceeding can amount to a deprivation of due process. In re A.P., 734 N.E.2d
1107, 1112–13 (Ind. Ct. App. 2000), trans. denied. In In re A.P., the procedural
irregularities included: the parents not being provided copies of the case plan;
the lack of the required allegations in the termination petition; the failure of the
trial court to hold a permanency hearing; the denial of the father’s right to be
present at the hearings; and the lack of statutorily required findings in the trial
court’s orders. Id. at 1114–17. We held that these irregularities deprived the
parents of due process. Id. at 1117. Nothing like this occurred in the present
case.
[39] Still, the Parents insist that their due process rights were violated by DCS’s
failure to provide services to assist in reunifying the family. We have repeatedly
rejected similar arguments. In In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct.
App. 2015), trans. denied, we summarized our case law in this area:
The Indiana Supreme Court has long recognized that, in “seeking termination of parental rights,” the DCS has no Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 20 of 24 obligation “to plead and prove that services have been offered to the parent to assist in fulfilling parental obligations.” S.E.S. v. Grant Cnty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992). Likewise, we have stated on several occasions that, although “[t]he DCS is generally required to make reasonable efforts to preserve and reunify families during the CHINS proceedings,” that requirement under our CHINS statutes “is not a requisite element of our parental rights termination statute, and a failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 148 & n.3 (Ind. Ct. App. 2009) (emphasis added) (citing I.C. § 31-34-21-5.5); see also Elkins v. Marion Cnty. Office of Family & Children (In re E.E.), 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“even a complete failure to provide services would not serve to negate a necessary element of the termination statute and require reversal.”); Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995) (“under Indiana law, even a complete failure to provide services cannot serve as a basis to attack the termination of parental rights.”), trans. denied.
Under this precedent, it is clear that DCS’s alleged failure to provide the
Parents services cannot act as a basis to attack a termination order.
[40] Moreover, the underlying reason DCS was unable to provide the Parents with
services was the fact that, during the CHINS case, both Parents were repeatedly
incarcerated. See In re H.L., 915 N.E.2d at 148 (holding that DCS’s inability to
provide father with services, which was due to his incarceration, did not
amount to a denial of due process) (citing Castro, 842 N.E.2d at 377 (same)); see
also Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615, 622
(Ind. Ct. App. 2006) (noting that the Office of Family and Children was not
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 21 of 24 required to provide father with services directed at reuniting him with his
children while he was incarcerated), trans. denied.
[41] We find the Parents’ citation to In re T.W., 135 N.E.3d 607, 609 (Ind. Ct. App.
2019), trans. denied.,8 to be unavailing. In that case, a panel of this court held sua
sponte that
for a parent’s due process rights to be protected in the context of termination proceedings, DCS must have made reasonable efforts to preserve and/or reunify the family unit in the CHINS case (unless the no reasonable efforts exception applies). What constitutes “reasonable efforts” will vary by case, and . . . it does not necessarily always mean that services must be provided to the parents.
Id. at 615 (emphasis added).
[42] The facts in In re T.W. are quite different than those presented here. In that case,
the father was incarcerated when his child was born. Even before the child was
born, Father proactively contacted DCS, acknowledged paternity, requested
assistance, and asked that the child be placed with his mother. Approximately
one year after the child’s birth, father was released from incarceration.
Thereafter, he consistently attempted to engage with DCS and participate in
reunification services. Despite this, DCS failed to assist father in his attempt to
establish paternity, failed to inform him about scheduled drug screens, set up
8 DCS notes that, at the time the parties filed their briefs, the opinion in In re T.W. was not yet certified, and a petition to transfer was pending. Our supreme court subsequently denied transfer. See T.K. v. Indiana Dep’t of Child Servs., 2020 WL 1166859 (Ind. Mar. 5, 2020).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 22 of 24 and then cancelled visitations without father’s knowledge, and failed to refer
father to a parent aide. Under these facts and circumstances, the In re T.W.
court concluded: “DCS did not make reasonable efforts to reunify Father with
Child. Likewise, we can only conclude that the insufficient process employed in
the CHINS case created a risk of the erroneous filing of a petition to terminate
Father’s parental rights to Child, in violation of Father’s due process rights.” Id.
at 618.
[43] In contrast, here, neither parent diligently sought services in a manner similar to
the father in In re T.W. To the contrary, Mother abruptly left the inpatient
treatment center that DCS had helped her get into. She participated in only a
few visits with Son, and she tested positive for buprenorphine on two occasions
in June 2018. Mother was repeatedly arrested and incarcerated throughout the
CHINS proceedings and was incarcerated at the time of the termination
hearing. Father’s behavior during the CHINS case followed a similar course.
After he was sentenced to prison, DCS arranged for him to participate in a
fatherhood program while incarcerated. But Father was uncooperative and
unreceptive to attempts by the FCM to engage him in services. Father also
refused to sign for court reports while in prison. This stands in stark contrast to
the behavior of the father in In re T.W. Therefore, unlike the court in In re T.W.,
we do not think that the DCS’s behavior during the CHINS case created a “risk
of the erroneous filing of a petition to terminate [the Parents’] parental rights to
[Son], in violation of [the Parents’] due process rights. Id. at 614.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 23 of 24 Conclusion [44] The trial court did not clearly err in concluding that there was a reasonable
probability that the conditions that resulted in Son’s removal from the Parents’
care, or the reasons for Son’s continued placement outside the Parents’ home,
would not be remedied and that termination of the Parents’ parental rights was
in the best interests of Son. Furthermore, DCS did not violate the Parents’ due
process rights by failing to provide services. We therefore affirm the judgment
of the trial court.
[45] Affirmed.
Riley, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2537 | May 28, 2020 Page 24 of 24