In the Matter of the Termination of the Parent-Child Relationship of A.K. (Minor Child) and V.K. (Father) v. Indiana Department of Child Services (mem. dec.)

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 Jun 21 2018, 9:07 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

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

Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 21, 2018 of the Parent-Child Relationship Court of Appeals Case No. of A.K. (Minor Child) 18A-JT-83 Appeal from the Marion Superior and Court The Honorable Marilyn A. V.K. (Father), Moores, Judge Appellant-Respondent, The Honorable Larry Bradley, Magistrate v. Trial Court Cause No. 49D09-1704-JT-351 Indiana Department of Child Services, Appellee-Petitioner.

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Bradford, Judge.

Case Summary [1] V.K. (“Father”) appeals the juvenile court’s order terminating his parental

rights to A.K. (“the Child”). At all times relevant to this appeal, Father worked

as a semi-truck driver and was away from home for multiple days at a time.

While Father was away from home, the Child was left in her mother’s care.

The Indiana Department of Child Services (“DCS”) became involved in the

Child’s life after receiving reports of an incident involving the Child’s mother.

The Child was subsequently determined to be a child in need of services

(“CHINS”) and Father was ordered to complete a parenting assessment as well

as any services deemed necessary. Father, however, failed to complete the

parenting assessment or participate in services. [2] DCS filed a petition seeking the termination of Father’s parental rights to the

Child on April 5, 2017. Following an evidentiary hearing, the juvenile court

issued an order granting DCS’s petition. On appeal, Father argues that DCS

violated his due process rights by failing to offer him services aimed at

reunification. Concluding otherwise, we affirm.

Facts and Procedural History

Court of Appeals of Indiana | Memorandum Decision 18A-JT-83 | June 21, 2018 Page 2 of 9 [3] Father and H.K. (“Mother”) are married and are the biological parents of the

Child, who was born on December 15, 2014.1 At all times relevant to this

appeal, Father was employed as a truck driver. As a result of his employment,

Father was often absent from home for days and weeks at a time. While Father

was away from home, Mother was the Child’s primary caregiver. [4] DCS Family Case Manager (“FCM”) Chijuana Lockridge became involved

with the Child in November of 2015, after receiving reports of (1) a domestic

disturbance involving Mother and (2) potential drug or alcohol use by Mother.

DCS filed a petition alleging the Child was a CHINS on November 3, 2015.

Father was not named on this petition because DCS did not initially know that

he was the Child’s father. In March of 2016, DCS first learned that Father was

the Child’s father after Mother informed DCS that she was married; the

individual that DCS initially believed to be the Child’s father was not the

Child’s father; and that her husband, Father, was the Child’s father. DCS then

amended the CHINS petition to include Father. [5] Father appeared before the juvenile court for the first time on March 3, 2016.

At this time, Father informed FCM Lockridge that “he was not present at the

time of the incident and that he is always on the road driving and that he’s

never really home and that [Mother] has friends over to the house from time to

1 Mother’s parental rights to the Child were previously terminated and Mother does not participate in this appeal.

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time and he doesn’t know who those friends are.” Tr. Vol. II, p. 24. FCM

Lockridge also spoke to Father about potential services, explaining

that if there was a need for any assistance with housing, there’s home-based case management. There’s home-based therapy for the family, the visitations in the supervised setting, if there were any substance abuse issues we have random screens and IOP that can be referred. And, any other services that he felt he needed as a parent that he would be able to benefit from.

Tr. Vol. II, p. 40. FCM Lockridge attempted to impress upon Father the

importance of services. Father, however, informed her that “he was always on

the road and wouldn’t be able to complete services.” Tr. Vol. II, p. 25. FCM

Lockridge asked Father to “give [her] a call” when his schedule permitted so

that she could help arrange the assessment and services around Father’s work

schedule. Tr. Vol. II, p. 42. [6] At the conclusion of the March 3, 2016 hearing, Father was “authorized to

have supervised parenting time” with the Child. DCS Ex. 2. Father attended a

supervised visit with the Child and Mother in April of 2016. During this visit,

there was no reaction from the Child when Father entered the room, no

interaction between Father and the Child, and “it didn’t appear that [the Child]

even knew who he was.” Tr. Vol. II, p. 25. In addition, Father was “on his

phone most of the visit.” Tr. Vol. II, p. 25. [7] Also in April of 2016, Patricia Doberneck, the Court-Appointed Special

Advocate (“CASA”) assigned to the case, went to the family’s home for a

previously-scheduled home visit. However, upon arriving at the home, Father Court of Appeals of Indiana | Memorandum Decision 18A-JT-83 | June 21, 2018 Page 4 of 9

came out of the house and “would not let [Doberneck] in.” Tr. Vol. II, p. 12.

Father’s actions gave Doberneck the impression that “they were hiding

something.” Tr. Vol. II, p. 14. [8] Father attended a second supervised visit with the Child in August of 2016.

Father did not attend any other supervised visits with the Child. Other than the

April and August visits, Father has had no contact with the Child since she was

removed from Mother’s care in November of 2015. [9] With respect to Father, the Child was adjudicated to be a CHINS on August

15, 2016. On September 8, 2016, the juvenile court entered a dispositional

order in which it ordered Father to complete a parenting assessment and to

follow all recommendations. Father, however, never completed the court-

ordered parenting assessment. FCM Lockridge unsuccessfully attempted to

contact Father “a couple times.” Tr. Vol. II, p. 42. She was left with the

understanding that Father would let her know when he would be able to

complete the assessment and any necessary services. Despite being given her

contact information in March of 2016, Father did not contact FCM Lockridge

until June of 2017. [10] Father appeared before the juvenile court for a hearing on December 8, 2016.

During this hearing, Father indicated that he would take the steps necessary to

become more involved in the Child’s life. Father, however, did not do so. [11] On April 5, 2017, DCS filed a petition seeking the termination of Father’s

parental rights to the Child. The juvenile court conducted an evidentiary

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hearing on DCS’s petition on December 11, 2017. During the evidentiary

hearing, DCS presented evidence demonstrating that Father had (1) failed to

complete the court-ordered parenting assessment and (2) indicated that he could

not participate in services due to his work schedule. Doberneck testified that

she had “seen very little motivation on [Father’s] part as far as wanting to be

involved with [the Child]” and that she was “just not sure that there’s been

much interest on [Father’s] part in spending time with [the Child].” Tr. Vol. II,

pp. 12–13. DCS also presented evidence that (1) Mother continued to struggle

with substance abuse and was not in a position to care for the Child, (2) the

Child was thriving in her current placement, and (3) its plan was for the Child

to be adopted by her current foster parents. On January 18, 2018, the juvenile

court issued an order terminating Father’s parental rights to the Child.

Discussion and Decision [12] “The involuntary termination of parental rights is an extreme measure that is

designed to be used only as a last resort when all other reasonable efforts have

failed.” A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112

(Ind. Ct. App. 2000) (internal citation omitted).

Choices about marriage, family life, and the upbringing of children are among associational rights the United States Supreme Court has ranked as of basic importance in our society and are rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect. A case involving the State’s authority to permanently sever a parent-child bond demands the close consideration the Supreme

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Court has long required when a family association so undeniably important is at stake.

Id. (internal citations omitted).

I. Procedural Due Process [13] The nature of the process due in parental rights termination proceedings turns on a balancing of the ‘three distinct factors’ specified in [Mathews v. Eldridge, 424 U.S. 319, 335 (1976)]: the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.

Id. (internal citation omitted). “Finally, we must keep in mind the general

proposition that if the State imparts a due process right, then it must give that

right.” Id. (internal citation omitted). [14] Father contends that the juvenile court’s termination order should be reversed

because DCS violated his due process rights by failing to offer him services.

The Indiana Supreme Court has long recognized that, in seeking termination of parental rights, the DCS has no obligation to plead and prove that services have been offered to the parent to assist in fulfilling parental obligations. Likewise, we have stated on several occasions that, although the 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.

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In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (internal quotations

and citations omitted, emphasis in original). Like the parties in In re J.W., Jr.,

Father’s argument on appeal effectively amounts to “a request to make the

providing of services by the DCS a basis on which to directly attack the

termination order.” See id. As we concluded in that case, such a request “is

contrary to our case law, and reads into our termination statutes a provision

that our legislature has not [seen] fit to include.” Id. (rejecting the Appellants’

argument that the termination order should be set aside because DCS allegedly

failed to provide services during the underlying CHINS proceedings). [15] Review of the record clearly demonstrates that DCS was prepared to offer

Father any services that were deemed necessary, but that Father rejected the

services because of his work schedule. We have previously concluded that “a

parent may not sit idly by 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); see also

Jackson v. Madison Cty. Dept. of Family and Children, 690 N.E.2d 792, 793 (Ind.

Ct. App. 1998). [16] In this case, Father did not merely “sit idly by” but rather expressly declined the

opportunity to complete a parenting assessment or participate in services. As is

outlined above, on March 3, 2016, Father informed FCM Lockridge that “he

was always on the road and wouldn’t be able to complete services.” Tr. Vol. II,

p. 25. Although being authorized to have supervised parenting time, Father

only visited the Child twice between March of 2016 and August of 2016. Other

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than these two visits, Father has had no contact with the Child since November

of 2015. Father also failed to complete the court-ordered parenting assessment,

completion of which was important to determine what services, if any, were

necessary before the Child could be returned to Father’s care. Further,

although FCM Lockridge reached out to Father and offered to arrange the

assessment and services around his work schedule, Father did not take

advantage of FCM Lockridge’s offer. [17] It was “within the [juvenile] court’s purview to credit or not credit” Father’s

claim that DCS refused to offer him the services necessary for reunification with

the Child. See In re J.W., Jr., 27 N.E.3d at 1191. Given the facts and

circumstances of this case, we will not disturb the juvenile court’s decision in

this regard. [18] The judgment of the juvenile court is affirmed.

Baker, J., and Kirsch, J., concur.

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