In the Matter of the Termination of the Parent-Child Relationship of O.K. & B.K. (Minor Children) and T.A. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 17, 2020
• Docket: 20A-JT-618
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 17 2020, 8:39 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Offices, LLC Attorney General of Indiana Brooklyn, Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 17, 2020 of the Parent-Child Relationship Court of Appeals Case No. of O.K. & B.K. (Minor Children) 20A-JT-618 Appeal from the Steuben Circuit and Court The Honorable Allen N. Wheat, T.A. (Mother), Judge Appellant-Respondent, Trial Court Cause Nos. 76C01-1910-JT-187 v. 76C01-1910-JT-188

Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 1 of 10 Bradford, Chief Judge.

Case Summary [1] T.A. (“Mother”) is the biological mother of B.K. and O.K. (collectively, “the

Children”).1 The Department of Child Services (“DCS”) became involved with

Mother and the Children due to concerns of domestic violence in the family’s

home and drug use by Mother. On July 5, 2018, the Children were removed

from Mother’s care and alleged to be children in need of services (“CHINS”).

Mother subsequently admitted that the Children were CHINS and the juvenile

court adjudged them as such. Following the CHINS adjudication, Mother was

ordered to complete certain services, but failed to successfully do so. In light of

Mother’s failure to successfully complete services, DCS eventually petitioned to

terminate her parental rights to the Children. Following an evidentiary hearing,

the juvenile court granted DCS’s termination petition. On appeal, Mother

contends that DCS failed to make reasonable efforts to reunify the family, thus

depriving her of due process. Concluding otherwise, we affirm.

Facts and Procedural History [2] Mother is the biological mother of O.K., who was born on January 12, 2006,

and B.K., who was born on April 18, 2007. DCS became involved with

1 The Children’s biological father is deceased.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 2 of 10 Mother and the Children on July 5, 2018, after police responded to a domestic

incident at the family’s residence and one of the Children claimed that Mother

had used drugs in her presence. DCS removed the Children from Mother’s care

and alleged the Children to be CHINS.

[3] On September 19, 2018, Mother admitted that the Children were CHINS and

acknowledged that she had “substance abuse issues and [a] dysfunctional

family.” Ex. Vol. p. 37. The juvenile court, noting Mother’s admission,

adjudged the Children to be CHINS and entered a dispositional decree. In its

decree, the juvenile court ordered Mother, inter alia, to do the following:

• contact the Family Case Manager (“FCM”) every week;

• notify the FCM of any changes in address, household composition, employment, or telephone number within five days;

• notify the FCM of an arrest or criminal charges for any household member within five days;

• allow the FCM and other service providers to make announced and unannounced visits with the Children and to the family residence;

• enroll in all programs recommended by DCS or service providers within a reasonable time;

• participate in all recommended programs;

• keep all appointments with DCS and service providers;

• maintain safe and suitable housing and keep the family residence in a manner that is structurally sound, sanitary, clean from clutter and safe for the children;

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 3 of 10 • secure and maintain a legal and stable source of income;

• refrain from the use of alcohol or any illegal controlled substance;

• obey the law;

• complete a parenting assessment and follow all recommendations;

• complete a substance-abuse assessment and follow all treatments and recommendations;

• submit to random drug screens;

• complete a psychological evaluation and complete any recommended services;

• refrain from committing any acts of domestic violence;

• do not allow Mother’s fiancée to have any contact with Mother or the Children; and

• attend scheduled visits with the Children.

[4] On June 25, 2019, the juvenile court approved a modified permanency plan for

the Children. In its order, the juvenile court noted that the Children had

engaged in individual therapy, had worked with a skills coach, and were

progressing well. It noted that DCS had provided Mother with substance-abuse

treatment; home-based services, including counseling and supervised visitation;

and random drug screens. Mother, however, had displayed a lack of progress;

had not complied with the case plans; was not fully engaged in services, many

of which had been suspended; continued to test positive for illegal substances;

and was not consistent with visitation with O.K. The juvenile court approved a

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 4 of 10 plan for reunification with a concurrent plan for the termination of Mother’s

parental rights and adoption.

[5] On October 7, 2019, DCS filed petitions to terminate Mother’s parental rights

to the Children. The juvenile court conducted an evidentiary hearing on

January 28, 2020. During this hearing, DCS presented evidence outlining

Mother’s failure to comply with services, remain drug free, and make any

significant progress in improving her ability to provide the necessary care for

the Children. Following the conclusion of the evidence, the juvenile court took

the matter under advisement. On February 11, 2020, the juvenile court issued

an order terminating Mother’s parental rights to the Children.

Discussion and Decision [6] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when parents are unable or unwilling to meet their

parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

trans. denied. Parental rights, therefore, are not absolute and must be

subordinated to the best interests of the children. Id. Termination of parental

rights is proper where the children’s emotional and physical development is

threatened. Id. The juvenile court need not wait until the children are

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 5 of 10 irreversibly harmed such that their physical, mental, and social development is

permanently impaired before terminating the parent–child relationship. Id.

[7] In challenging the termination of her parental rights, Mother does not challenge

the juvenile court’s findings or conclusions thereon. Mother’s sole contention is

that she “was denied due process of law where DCS failed to make reasonable

efforts to reunify the family.” Appellant’s Br. p. 4.

Due process protections bar state action that deprives a person of life, liberty, or property without a fair proceeding. It is unequivocal that the termination of a parent-child relationship by the State constitutes the deprivation of an important interest warranting deference and protection, and therefore when the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.

In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (internal quotations omitted).

[8] Mother acknowledges that she did not raise her due process argument to the

juvenile 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). Thus, because Mother did

not present her due process argument to the juvenile court, it is waived for

purposes of appeal. See id.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 6 of 10 [9] Mother argues, however, that we should nevertheless consider her due process

argument under the fundamental error doctrine.

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.

N.C v. Ind. Dep’t of Child Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016) (citations

and internal quotation marks omitted), trans. denied.

[10] The Indiana Supreme Court has explained that “the process due in a

termination of parental rights action turns on balancing three Mathews[2] 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 K.D., 962 N.E.2d

1249, 1257 (Ind. 2012) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). 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.

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

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 7 of 10 We therefore focus on the risk of error created by DCS’s actions and the trial

court’s actions. Id. at 918.

[11] We have previously concluded that numerous procedural irregularities in a

CHINS proceeding can amount to a deprivation of due process. See In re A.P.,

734 N.E.2d 1107, 1112–13 (Ind. Ct. App. 2000), trans. denied. Mother,

however, does not allege that there were procedural irregularities in the instant

matter, instead arguing that her due process rights were violated by DCS’s

failure to provide services to assist in reunifying the family. Specifically,

Mother asserts that “DCS’s failure to make a referral for family therapy for

Mother and her two daughters until after it had already begun parental rights

termination proceedings created a great risk of error and demonstrated DCS’s

failure to make reasonable efforts towards reunifying this family.” Appellant’s

Br. p. 15. We disagree.

[12] “What constitutes ‘reasonable efforts’ will vary by case” and the requirement

that DCS make reasonable efforts to reunite a family “does not necessarily

always mean that services must be provided to the parents.” In re T.W., 135

N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied. In this case, the record

provides that Mother was referred to various services. Specifically, with regard

to family therapy, the record reveals it was initially recommended that Mother

participate in individual therapy occurring “in the future” and “as

recommended.” Ex. Vol. pp. 61, 89. Service providers indicated that Mother

and the Children needed to work on individual issues before family therapy

would likely have been productive.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 8 of 10 [13] Despite Mother’s inconsistent participation in and lack of progress with

services, FCM Kerrye Herbin eventually referred Mother and the Children for

family therapy. Mother and O.K. participated in family therapy, with the pair

participating in two of the seven scheduled sessions. In addition, the Children

were referred to family therapy without Mother present and the family was

collectively referred to family therapy. In describing her efforts to reunify the

family, FCM Herbin testified as follows:

I have put in referrals. I have um allowed mom to call um [B.K.] at a visit with [O.K.]. Um I have allowed the girls to spend time with each other um at previous foster mom’s home, house and current foster mom’s house. Um and I’ve attempted to set up family therapy together. It’s hard to set up family therapy when I don’t hear anything from [Mother].

Tr. Vol. II p. 193.

[14] Contrary to Mother’s claim on appeal, the record reveals that DCS offered

Mother reasonable services aimed at reunification. Mother’s lack of

communication with DCS and participation in services negatively affected

progress towards reunification. Mother failed to make the individual progress

that service providers deemed necessary before they believed family therapy

would be effective and, when the family was referred to family therapy, Mother

failed to engage with service providers or consistently participate. Based on the

record before us, we conclude that Mother has failed to establish that she was

denied due process in relation to the termination of her parental rights to the

Children.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 9 of 10 [15] The judgment of the juvenile court is affirmed.

Najam, J., and, Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-618 | November 17, 2020 Page 10 of 10