In the Matter of the Termination of the Parent-Child Relationship of N.F. (Minor Child) S.F. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 28, 2019
• Docket: 19A-JT-770
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 28 2019, 7:43 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Curtis T. Hill, Jr. Zionsville, Indiana Attorney General of Indiana

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 28, 2019 of the Parent-Child Relationship Court of Appeals Case No. of N.F. (Minor Child); 19A-JT-770 S.F. (Father), Appeal from the Marion Superior Court Appellant-Respondent, The Honorable Marilyn A. v. Moores, Judge The Honorable Scott Stowers, Indiana Department of Child Magistrate Services, Trial Court Cause No. 49D09-1809-JT-1083 Appellee-Petitioner,

and

Child Advocates, Inc.,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 1 of 7 Appellee-Guardian Ad Litem.

Najam, Judge.

Statement of the Case [1] S.F. (“Father”) appeals the trial court’s termination of his parental rights over

his minor child N.F. (“Child”). Father presents a single issue for our review,

namely, whether the Indiana Department of Child Services (“DCS”) deprived

him of his right to due process when it failed to make reasonable efforts to

reunify Father with Child. We affirm.

Facts and Procedural History [2] On January 23, 2005, Child was born to Father and S.J. (“Mother”). Father

has a lengthy criminal history, and he has been incarcerated for approximately

seven of the past ten years. In 2015, a juvenile court found that Child was a

Child in Need of Services (“CHINS”) after substantiating “allegations of abuse

and neglect,” and the court granted wardship of Child to DCS. Appellant’s

App. Vol. 2 at 52. Following convictions for five counts of “Felon in

Possession of a Firearm” in a federal court, in March 2017, Father was

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 2 of 7 sentenced to an aggregate term of eighty months in a Kentucky prison. Id. at

53. Father’s expected out date is July 24, 2020. Father also has a pending

“arrest warrant out of Marion County Indiana.” Id.

[3] In December 2015, the juvenile court changed the permanency plan from

reunification to adoption, and the court terminated Mother’s parental rights

over Child. It was not until September 13, 2018, that DCS filed its petition to

terminate Father’s parental rights over Child. Following a final fact-finding

hearing, the court granted DCS’ petition. In its findings and conclusions, the

court stated in part as follows:

20. [Father] has not seen the child in approximately a year and a half.

***

33. [Father] last had telephone contact with [Child] in December 2018 or January 2019.

34. Following that telephone contact with his father, [Child] became withdrawn, upset, and depressed.

35. [Father] has been incarcerated for the majority of [Child]’s life.

36. [Father] has not had a meaningful role in [Child]’s life and is not bonded with the child.

Id. at 53-54. The court also found that Child is “comfortable” and “feels loved”

in his pre-adoptive foster home, where he had lived for fourteen months as of

the final hearing. Id. at 54. This appeal ensued. Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 3 of 7 Discussion and Decision [4] Father contends that DCS “made no efforts, let alone statutorily-required

reasonable efforts, to reunify S.F. with his son. [DCS’] failure to follow the

statutory requirements violated Father’s right to procedural due process.”

Appellant’s Br. at 14. In particular, Father states that “a parent’s right to DCS’

reasonable efforts to reunify a family is codified at Indiana Code Section 31-34-

21-5.5.” 1 Id. at 15. While Father acknowledges the “challenge” to DCS in

providing services to Father while he is incarcerated, he finds “troubling” DCS’

failure to “find a way to fulfill its statutory duty to provide reasonable efforts.”

Id. at 16. Father does not challenge the sufficiency of the evidence to support

the termination order.

[5] We begin our review of this issue by acknowledging that “[t]he traditional right

of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

denied. However, a trial court must subordinate the interests of the parents to

those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

832, 837 (Ind. Ct. App. 2001).

1 Indiana Code Section 31-34-21-5.5 provides in relevant part that DCS “shall make reasonable efforts to preserve and reunify families as follows: . . . to make it possible for the child to return safely to the child’s home as soon as possible.”

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 4 of 7 [6] As this Court has explained,

[w]hen the State seeks the termination of a parent-child relationship, it must do so in a manner that meets the requirements of the Due Process Clause. Hite v. Vanderburgh County Office of Family and Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006). The parent must be afforded the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Due process in parental rights cases involves 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 government interest supporting the use of the challenged procedure. Id.

A parent’s interest in the care, custody, and control of his or her children is a fundamental liberty interest; thus, the private interest involved is substantial. Id. The government’s interest is also substantial, as the State of Indiana has a compelling interest in protecting the welfare of its children. Id.

A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 147 (Ind. Ct. App.

2009).

[7] In In re H.L., we addressed the father’s contention that he had a right “to receive

services despite his incarceration” and that he was denied due process when

DCS did not provide services. Id. Father was incarcerated “throughout the

CHINS proceedings” and, on appeal from the termination of his parental

rights, he alleged that he “was unable to participate in services,” which were not

provided at the county jails where he was incarcerated. Id. at 148. We

reiterated that “DCS is generally required to make reasonable efforts to preserve

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 5 of 7 and reunify families during CHINS proceedings” pursuant to Indiana Code

Section 31-34-21-5.5. Id. But we held as follows:

Father has not shown that the DCS failed to make reasonable efforts toward family preservation. In a strict sense, the record supports Father’s assertions that the DCS did not actively promote the development of his relationship with H.L., whom Father has apparently not met. Nevertheless, the absence of services was due to Father’s incarceration and he does not point to any evidence that he specifically requested visitation or other services.

As of the termination hearing, Father had been sentenced to four years imprisonment (with one and one-half years suspended) for Forgery and Theft committed in Carroll County and two years for Residential Entry committed in Cass County. Thus, the DCS was unable to offer services to Father or fully evaluate him to determine what services might have been needed. The inability to provide services in such circumstances does not amount to a denial of due process. See Castro v. State Office of Family and Children, 842 N.E.2d 367, 377 (Ind. Ct. App. 2006), trans. denied.

Id. (emphasis added).

[8] Likewise, here, Father blames DCS for its failure to facilitate contact between

Father and Child in an effort at reunification. But Father does not direct us to

any evidence that he had made any effort to contact Child after their last phone

call in December 2018 or January 2019 or after their last visit more than one

year prior to the final hearing. And Father does not direct us to any evidence

that he sought help from DCS or other sources in finding appropriate services

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 6 of 7 that might have been available to him in prison. Moreover, as DCS points out,

once the juvenile court changed the permanency plan from reunification to

adoption in December of 2015, DCS was not thereafter required to provide

services to Father towards reunification. Wedding v. Dep’t of Child Servs. of

Vanderburgh Cty. (In re A.D.W.), 907 N.E.2d 533, 538 (Ind. Ct. App. 2008)

(citing I.C. § 31-34-21-5.8). We hold that Father was not denied his right to due

process as the result of DCS’ inability to provide Father with services while

incarcerated. See id.

[9] Affirmed.

Bailey, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019 Page 7 of 7