In re the Termination of the Parent-Child Relationship of A.J., D.J., and C.J. (Minor Children) and F.J. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 11, 2019
• Docket: 18A-JT-1815
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 11 2019, 10:15 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Rebecca Eimerman Curtis T. Hill, Jr. Zionsville, Indiana Attorney General of Indiana Katherine A. Cornelius Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the February 11, 2019 Parent-Child Relationship of Court of Appeals Case No. A.J., D.J., and C.J. (Minor 18A-JT-1815 Children) and Appeal from the Hamilton Circuit F.J. (Father), Court

Appellant-Respondent, The Honorable Paul A. Felix, Judge v. The Honorable Todd L. Ruetz, Magistrate Indiana Department of Child Trial Court Cause Nos. Services, 29C01-1705-JT-654 29C01-1705-JT-655 Appellee-Petitioner. 29C01-1705-JT-656

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 1 of 11 [1] F.J. (“Father”) appeals the Hamilton Circuit Court’s order terminating his

parental rights to his three minor children. Father argues that he was denied

due process during the termination proceedings and underlying Child in Need

of Services (“CHINS”) proceedings. He also claims that the Department of

Child Services (“DCS”) did not present sufficient evidence to support the

termination of his parental rights.

[2] We affirm.

Facts and Procedural History [3] H.J (“Mother”) and Father had three children: A.J. born in July 2003, C.J.

born in August 2004, and D.J. born in June 2005 (collectively “the children”).

Due to domestic violence in Mother’s home and substance abuse, the children

were adjudicated CHINS in August 2014.1 Father’s whereabouts were initially

not known. On some date prior to a dispositional hearing held on July 6, 2015,

DCS learned that Father was incarcerated in Oklahoma.

[4] During the CHINS proceedings, Mother moved from Indiana. She eventually

relinquished her parental rights to the children.

[5] Father’s initial hearing was held in September 2015, and a CHINS fact-finding

hearing was held as to Father on January 7, 2016. Due to Father’s incarceration

1 Mother has not seen the children since May 2015. She voluntarily consented to the termination of her parental rights to all three children on May 14, 2018.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 2 of 11 and inability to provide the necessary care and supervision for the children, the

children remained CHINS.

[6] Father has not seen the children for at least ten years. Father is serving an eight-

year prison term in the Oklahoma Department of Corrections, and he remained

incarcerated throughout these proceedings. Father does not have a relationship

with or bond with the children. DCS encouraged Father to attempt to establish

a bond with the children by writing them letters. Father only wrote a few letters,

and those letters were not given to the children because they contained

promises to the children that Father might not be able to keep. Tr. p. 30. Aside

from encouraging communication with the children, DCS could not offer

services to Father because he was incarcerated out of state. When he is released

from prison, Father plans to live in a trailer he owns in Oklahoma that is not

big enough to accommodate the children.

[7] On May 18, 2017, the DCS filed petitions to terminate Father’s parental rights

to each child. A fact-finding hearing was held on June 6, 2018. On the date of

the hearing, two of the three children were in residential treatment because they

have special needs. The youngest child was placed in a pre-adoptive home.

[8] At the hearing, Father testified that his earliest possible release date from

incarceration is in January 2019. Father also testified that during his

incarceration he completed anger management classes, cognitive behavior

therapy, and a program titled “Thinking for a Change.” He also obtained his

GED.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 3 of 11 [9] On July 9, 2018, the trial court issued orders terminating Father’s parental

rights to each of the three children after finding that

There is a reasonable probability that the conditions that resulted in the Child’s removal or the reasons for the placement outside Father’s home will not be remedied due to Father’s unwillingness to take even the most basic and simple steps towards reunification such as letter writing.

There is a reasonable probability that the parent-child relationship poses a threat to the Child due to Father’s lack of involvement in the Child’s life both during the underlying CHINS matter and before.

By Father’s own testimony, upon his release his plan is to live in Oklahoma in a home that he acknowledges is not big enough for the Child and the Child’s siblings.

It is clear to this Court that Father’s intent is not to reunify with the Child but instead to have the option to interact with the Child from afar which is not in the best interest of the Child and is not a reason to keep this Child’s permanency in limbo and is also not even something that Father has been doing while he has had the chance through something as basic as letter writing.

Termination is in the best interest of the child so that she may be placed for adoption and have permanency in her life. Not only permanency, but also the potential for permanency is greater for the Child with the termination of parental rights.

The DCS has a satisfactory place for the care and treatment of the Child, which is adoption. The guardian ad litem testified that he is in agreement with this plan.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 4 of 11 Appellant’s App. pp. 35–36.2 Father now appeals.

Standard of Review [10] “We have long had a highly deferential standard of review in cases involving

the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

85, 92 (Ind. Ct. App. 2014).

We neither reweigh evidence nor assess witness credibility. We consider only the evidence and reasonable inferences favorable to the trial court's judgment. 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. 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. at 92–93 (citations omitted). “A judgment is clearly erroneous if the findings

do not support the trial court's conclusions or the conclusions do not support

the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

Due Process [11] Father argues that DCS and the trial court violated his due process rights

throughout the CHINS and termination proceedings. “When the State seeks to

2 The Appellant included the trial court’s order terminating Father’s parental rights to A.J. in his appendix. The orders terminating Father’s parental rights to C.J. and D.J. were not included in the appendix but were submitted with the record on appeal. We cite to the order contained in the appendix because the findings of fact and conclusions of law are the same in all three orders.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 5 of 11 terminate the parent-child relationship, it must do so in a manner that meets the

requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). “Due

Process has never been defined, but the phrase embodies a requirement of

‘fundamental fairness.’” Id. (citation omitted). “The U.S. Supreme Court has

written that ‘the fundamental requirement of due process is the opportunity to

be heard at a meaningful time and in a meaningful manner.’” Id. (quoting

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[12] “The process due in a termination of parental rights proceeding turns on the

balancing of 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.” Id. Because both a parent’s and the State’s countervailing interests

are substantial, when faced with a claim of denial of due process in a

termination of parental rights, we focus on the second factor, the risk of error

created by the State’s chosen procedure in the case. Id. at 918.

[13] Father argues that the following procedural irregularities denied him due

process: 1) DCS’s failure to serve him with the CHINS petition by publication

pursuant to Trial Rule 4.13 because his whereabouts were initially unknown; 2)

the trial court held initial hearings and factfinding hearings beyond the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 6 of 11 deadlines proscribed by statute; and, 3) the trial court’s failure to order DCS to

provide services to Father.3

[14] DCS argues that Father failed to raise his due process claims in the trial court,

and therefore, his claims are waived. We agree. See Hite v. Vanderburgh Cnty.

Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (“It is well

established that we may consider a party’s constitutional claim waived when it

is raised for the first time on appeal.”).

[15] However, Father attempts to salvage his claims by arguing that “[i]t was

fundamental error for Father to be deprived of his due process in the underlying

CHINS and termination cases.” Appellant’s Br. at 25. Father’s only reasoning

in support of this argument is that “[t]here is no way to tell at this stage what

impact the multiple and ongoing procedural irregularities had on the parties’

ability to reunify with the children, to rehabilitate the children with their

parents, and to prevent termination.” Id. at 25–26.

[16] 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.” In re

G.P., 4 N.E.3d 1158, 1167 n. 8 (Ind. 2014). For an appellate court to overturn a

3 DCS’s failure to provide services to Father did not violate his due process rights. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 7 of 11 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.” S.M. v. Elkhart Cnty. Office of Family & Children, 706 N.E.2d 596,

600 (Ind. Ct. App. 1999) (citation omitted).

[17] The proceedings in this case were complicated by the fact that Father’s

whereabouts were initially unknown because he was incarcerated in Oklahoma,

and Mother left Indiana during the CHINS proceedings. As a result, the

proceedings were continued on the parties’ motions and the court’s own

motions, several times. Ultimately, Father was served with the CHINS and

termination petitions, appeared telephonically at hearings, and had the

opportunity to be heard. For these reasons, we conclude that Father has not

established that belated service of process or timeliness of the hearings amounts

to fundamental error that would allow Father to proceed despite waiver.

Sufficient Evidence [18] Father also argues that the evidence is insufficient to support the termination of

his parental rights. “The purpose of terminating parental rights is not to punish

the parents but, instead, to protect their children. Thus, although parental rights

are of a constitutional dimension, the law provides for the termination of these

rights when the parents are unable or unwilling to meet their parental

responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

omitted). “[T]ermination is intended as a last resort, available only when all

other reasonable efforts have failed.” Id. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 8 of 11 [19] A petition for the involuntary termination of parental rights must allege in

pertinent part:

(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.

Ind. Code § 31-35-2-4(b)(2).

[20] DCS must prove that termination is appropriate by a showing of clear and

convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). If the trial

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). Finally, because Indiana

Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need

only find that one of the three requirements of that subsection has been

established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,

987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 9 of 11 [21] Father only argues that the DCS presented insufficient evidence to prove that

there is a reasonable probability that the conditions that resulted in the

children’s removal will not be remedied. However, with regard to each child,

the trial court also found that “there is a reasonable probability that the parent-

child relationship poses a threat to the Child due to Father’s lack of

involvement in the Child’s life both during the underlying CHINS matter and

before.” See Appellant’s App. p. 35. Father does not challenge the sufficiency of

the evidence to support this finding, and therefore, he has waived the issue. See

Appellate Rule 46(A)(8)(a).

[22] Waiver notwithstanding, we observe that to evaluate whether continuation of

the parent-child relationship poses a threat to the child, a trial court “should

consider a parent’s habitual pattern of conduct to determine whether there is a

substantial probability of future neglect or deprivation” while also judging a

parent’s fitness to care for his child as of the time of the termination

proceedings. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). Moreover, the

trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that his physical, mental, and social growth is permanently

impaired before termination of the parent-child relationship. In re E.S., 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002).

[23] It is undisputed that on the date of the termination hearing, Father had not seen

his children for at least ten years. Father abandoned his children, and then on

some later date, was incarcerated in Oklahoma. The children are not bonded

with Father and require stability that Father is unable to provide.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 10 of 11 [24] Finally, we note that Father also does not challenge the trial court’s finding that

termination of his parental rights is in the children’s best interests. And there is

ample evidence in the record establishing that termination of Father’s parental

rights is in the children’s best interests.

[25] For all of these reasons, we conclude that the trial court’s orders terminating

Father’s parental rights to his three minor children are supported by clear and

convincing evidence.

Conclusion [26] Father waived his due process claims, and none of the alleged due process

violations rise to the level of fundamental error. In addition, the trial court’s

orders terminating Father’s parental rights to his three children are supported by

clear and convincing evidence.

[27] Affirmed.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019 Page 11 of 11