In the Matter of the Termination of the Parent-Child Relationship of T.B. (Child) and S.M. (Father) S.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 9, 2020
• Docket: 19A-JT-1242
• 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 Apr 09 2020, 9:37 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 Ryan D. Bower Curtis T. Hill, Jr. Bower Law Office, LLC Attorney General of Indiana New Albany, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 9, 2020 of the Parent-Child Relationship Court of Appeals Case No. of T.B. (Child) and S.M. 19A-JT-1242 (Father); Appeal from the Orange Circuit S.M (Father), Court The Honorable Steven L. Owen, Appellant-Respondent, Judge v. Trial Court Cause No. 59C01-1804-JT-83 The Indiana Department of Child Services, Appellee-Petitioner

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 1 of 12 [1] S.M. (“Father”) appeals the involuntary termination of his parental rights to

T.B. (“Child”). Father presents two issues for our review, which we restate as:

1. Whether the trial court erred when it adjudicated Child a Child in Need of Services (“CHINS”) absent Father’s admission Child was a CHINS; and

2. Whether the trial court erred when it terminated Father’s parental rights to Child because the Department of Child Services (“DCS”) allegedly did not offer Father services for reunification.

We affirm.

Facts and Procedural History [2] S.M. is the biological father of T.B., who was born to K.B. 1 (“Mother”) on

April 6, 2007. Since birth, Child has been in Mother’s custody and Father has

exercised sporadic parenting time. On July 9, 2015, DCS removed Child and

his two younger siblings, E.B. and S.O.C., from Mother’s home due to

concerns about Mother’s substance abuse and domestic violence between

Mother and S.O.C.’s father (“Stepfather”). DCS placed Child in relative care

with Maternal Grandparents, where he has remained for the entirety of these

proceedings.

1 Mother consented to Child’s adoption by Maternal Grandfather (Maternal Grandmother passed away during the proceedings) and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 2 of 12 [3] On July 13, 2015, DCS filed a petition alleging Child, E.B., and S.O.C. were

CHINS based on Mother’s substance abuse and the domestic violence in

Mother’s home. The trial court held a hearing on the CHINS petition for all

children and noted Mother, Father, Stepfather, and E.B.’s father were present.

The trial court adjudicated Child, E.B., and S.O.C. as CHINS and in its order

stated, “Parents agree that the children are children in need of services.” (Ex.

Vol. I at 38.)

[4] The trial court held a dispositional hearing on November 9, 2015. Father did

not appear at the hearing. The trial court’s dispositional order identified Father

as Child’s Father but did not order Father to complete services related to Child.

On May 11, 2016, Father wrote a letter to the trial court requesting that Child

be placed with him. On May 16, 2016, the trial court responded to Father via

letter and advised him that he was entitled to the appointment of an attorney in

the CHINS case and that DCS would be able to explain the process to place

Child with Father. On March 6, 2017, the trial court appointed counsel for

Father.

[5] In its report to the trial court on December 20, 2017, DCS reported, regarding

Father:

[Father] was not involved in the reasons for removal, and has not been asked to participate in any services other than those pertaining to visitation.

*****

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 3 of 12 [Father] is [sic] offered supervised visitation with [Child] but has not been consistent. The visits are supervised by Ireland Home Based Services. In August, [Father] only had one visit out of four. In November, [Father] did not have any visits. [Father] is on a 24 hour and 2 hour visit confirmation. He is not consistently participating.

(Ex. Vol. I at 140-1.) In its order on the March 14, 2018, review hearing, the

trial court found, “[Father] has not visited [Child].” (Id. at 158.)

[6] On June 1, 2018, DCS filed its petition to terminate Father’s parental rights to

Child. At the initial hearing on the termination petition on July 18, 2018,

Father argued that communication between Father and DCS had been difficult

and the Family Case Manager confirmed that there may have been confusion

between the visitation coordinator and Father. The Family Case Manager also

testified about why Father was required to confirm visitation with Child:

It is my understanding that in the past we have been picking up [Child], arranging the transportation to set up the visitation, taking [Child] to that location, and [Father] either would – didn’t show up or something had happened. I don’t know the fine details, but it wasn’t happening as planned, so we were essentially picking up [Child] for no reason. So in order to prevent that, it was, you know, we need these confirmations to make sure we weren’t picking up [Child] for no reason essentially.

(Tr. Vol. II at 19.)

[7] Based thereon, DCS requested that Father’s services be stopped. The trial court

denied that request, stating:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 4 of 12 I want services to still be rendered. We will readdress that issue in the October meeting. And this is probably addressed more to you, [Father], than anybody else, but it’s real important that we take advantage of this because if I come back in October and we’re not doing anything, then I’ll grant the request, okay? It’s real important that we start – I’m giving you that opportunity because I do agree maybe – and they’ve had some turnover and I understand that, but it’s real important in these next three months that we start making some progress. If not, if you’re not going to take advantage of it, then just let – that’s okay. But, I mean, we’ll have to proceed a different way, okay?

(Id. at 21-2.) Father did not appear at the October 3, 2018, or January 2, 2019,

review hearings. DCS’s report to the trial court as part of the January 2, 2019,

hearing indicated:

From December 2017 to August 2018, [Father] did not have any visits with [Child]. In September 2018, [Father] completed three visits with [Child]. Two visits were canceled by [Father] in September. In October 2018, [Father] completed three visits. In November 2018, [Father] completed one visit. In December 2018, [Father] did not have any visits with [Child].

(Ex. Vol. I at 184.) The report also noted that Child “expresses fear and anxiety

related to living with [Father].” (Id. at 183.)

[8] On April 5, 2019, the trial court held a hearing on DCS’s petition to terminate

Father’s parental rights to Child. On June 21, 2019, the trial court entered its

order terminating Father’s parental rights to Child, finding, in part:

7. Father did nothing illegal to cause removal of [Child]; [Child’s] removal was not a result of any action by Father.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 5 of 12 8. Father allowed [Maternal Grandparents] to raise [Child], allowing [Child] to become dependent on [Maternal Grandparents].

9. Father failed to be a part of [Child’s] life, even before DCS became involved with [Child], based on the following:

a. Father had some visits prior to removal, but the Court does not believe that Father engaged in regular visits.

b. Father’s visits were sporadic up to time of DCS involvement.

c. In 2014, Father filed a Petition to Establish Parenting Time . . . .

d. The Court issued an order awarding Father parenting time pursuant to the Indiana Parenting Time Guidelines.

e. Father did not take advantage of the parenting time allotted to him since September 2014.

f. Father claimed that he pursued establishing paternity of [Child], but the Court finds Father’s assertion not credible.

g. The Court filings establish that Mother through the IV- D Prosecuting Attorney filed the Petition to Establish Paternity for the purposes of obtaining a child support obligation for Father.

10. Father failed to exercise consistent visitation with [Child] after DCS became involved in July 2015.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 6 of 12 11. The credible evidence was that Father only exercised around three (3) overnight visits with [Child] in the past 3-4 years.

12. On November 4, 2016, Father sought to enforce parenting time through the JP/PL Cause.

13. On November 4, 2016, the permanency plan for [Child] in the CHINS case had already been changed to Adoption.

14. The Court informed Father at the JP/PL hearing in July 2017:

a. Father needed to start establishing a relationship with [Child].

b. It is very important for Father to participate in the supervised visits.

c. The Court thought it would be great if Father would step up and regularly see [Child].

15. The Court finds that since 2017 the credible evidence is that Father had three (3) visits totaling eight (8) hours of time with [Child] until September 2018. Father did not step up. Father did not make [Child] a priority.

16. Father alleged that he visited consistently with [Child] since September 2018.

17. The Court disagrees with Father, as the undisputed evidence was that Father made 7 of 12 available visits with [Child] since September 2018. The Court finds that Father remained inconsistent with visits since September 2018.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 7 of 12 18. [Child] is now almost 12 years old, and Father made a poor effort to establish a relationship with [Child].

19. Father sent text messages to [Child] in November/December 2018; these were isolated efforts by Father.

20. Court records/hearing orders indicated that Father was absent for several Court hearings concerning [Child], even after Father knew that the permanency plan for [Child] had been changed to adoption.

21. The Court finds that services for visits with [Child] were afforded to Father. The visits just didn’t happen.

22. Father requested family services from DCS to foster the relationship with [Child]; however, Father first asked for family services at the Fact Finding Hearing on 4/5/2019.

(App. Vol. II at 229-30.)

Discussion and Decision 1. Father’s Challenge to CHINS Adjudication [9] Father argues that since he did not admit Child was a CHINS, that the trial

court erred when it adjudicated Child as a CHINS. Father was present at the

initial hearing and, sporadically, at subsequent review and permanency

hearings over the following three years. At no time during the proceedings did

Father object to Child’s adjudication as a CHINS. “At a minimum, a party

must show that it gave the trial court a bona fide opportunity to pass upon the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 8 of 12 merits of the claim before seeking an opinion on appeal.” Endres v. Ind. State

Police, 809 N.E.2d 320, 322 (Ind. 2004). Because Father raised this argument

for the first time on appeal, it is waived. In re S.P.H., 806 N.E.2d 874, 877-78

(Ind. Ct. App. 2004). 2

[10] Waiver notwithstanding, Father’s alleged issues are unavailable for appeal. It is

well-established a “CHINS adjudication focuses on the conditions of the child

[and] the acts or omissions of one parent can cause a condition that creates the

need for court intervention.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The

trial court adjudicated Child as a CHINS based on Mother’s admitted drug use

and the domestic violence in Mother’s home in 2015. As Mother admitted

Child was a CHINS, the trial court properly adjudicated Child as such. 3 See id.

at 106 (After mother’s admission that child was a CHINS based on domestic

violence in mother’s home, “it was not necessary for the CHINS petition to

make any allegations with respect to Father. We conclude the trial court

properly adjudicated N.E. a CHINS.”).

2 Father also argues, in passing, that he was denied due process because the trial court did not appoint him counsel in the CHINS matter until after Child was adjudicated a CHINS. However, Father did not present this argument before the trial court, and on appeal he does not make a cogent argument, cite case law, or point to statutory language supporting his argument. Therefore, the argument is waived. See In re S.P.H., 806 N.E.2d at 877-78 (party waives argument raised for the first time on appeal); and see In re A.D.S., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (failure to make a cogent argument waives issue on appeal), trans. denied. 3 As noted in the facts, the trial court, in its order adjudicating Child a CHINS, stated, “Parents agree that the children are children in need of services.” (Ex. Vol. I at 38.) Father argues the trial court’s statement did not include him because the parties referenced in the order were Mother and stepfather. If Father disagreed with this statement, the time to appeal it has long since passed. However, we need not decide that issue because Mother’s admission was sufficient to adjudicate Child a CHINS.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 9 of 12 2. Termination of Father’s Parental Rights to Child [11] We review termination of parental rights with great deference. In re K.S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),

trans. denied. Instead, we consider only the evidence and reasonable inferences

most favorable to the judgment. Id. In deference to the juvenile court’s unique

position to assess the evidence, we will set aside a judgment terminating a

parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).

[12] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

subordinate the interests of the parents to those of the children when evaluating

the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

The right to raise one’s own children should not be terminated solely because

there is a better home available for the children, id., but parental rights may be

terminated when a parent is unable or unwilling to meet parental

responsibilities. Id. at 836.

[13] To terminate a parent-child relationship, the State must allege and prove:

(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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 10 of 12 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). The State must provide clear and convincing proof

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

denied. If the court finds the allegations in the petition are true, it must

terminate the parent-child relationship. Ind. Code § 31-35-2-8.

[14] Father does not challenge any of the trial court’s findings or conclusions.

Instead, he argues the trial court erred when it involuntarily terminated his

parental rights to Child because DCS “offered only remarkably inconvenient,

third-party provider supervised visitations as the sole services to Father.” (Br.

of Appellant at 12) (emphasis omitted). In his brief, Father complains that

visits “occurred more than an hour and fifteen minutes (one-way) from Father’s

home and work,” and claims “much of the visitation was logistically near

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 11 of 12 impossible without [Father] losing his job or other significant hardship.” (Id. at

12-13.)

[15] However, “failure to provide services does not serve as a basis on which to

directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

145, 148 n.3 (Ind. Ct. App. 2009). Further, “a parent may not sit idly without

asserting a need or desire for services and then successfully argue that he was

denied services to assist him with his parenting.” In re B.D.J., 728 N.E.2d 195,

201 (Ind. Ct. App. 2000). Based thereon, we conclude the trial court did not err

when it terminated Father’s parental rights to Child despite any alleged

deficiencies in the services DCS offered to Father.

Conclusion [16] The trial court did not err when it adjudicated Child a CHINS based on

Parents’ admissions. Further, Father has not demonstrated the trial court erred

when it terminated Father’s parental rights to Child. Accordingly, we affirm.

[17] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020 Page 12 of 12