In the Matter of the Involuntary Termination of the Parent-Child Relationship of: L.F. (Minor Child), and A.M.-J. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 19 2019, 10:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, 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 Involuntary February 19, 2019 Termination of the Parent-Child Court of Appeals Case No. Relationship of: L.F. (Minor 18A-JT-1900 Child), Appeal from the Marion Superior and Court The Honorable Larry Bradley, A.M.-J. (Mother), Magistrate Appellant-Respondent, Trial Court Cause No. 49D09-1709-JT-748 v.

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The Indiana Department of Child Services, Appellee-Plaintiff,

and

Child Advocates, Inc., Guardian ad Litem.

Tavitas, Judge.

Case Summary [1] A.M.-J. (“Mother”) appeals the termination of her parental rights to her child,

L.F. (the “Child”). We affirm.

Issue [2] Mother raises one issue, which we restate as whether Mother’s due process

rights were violated by the failure of the Marion County Department of Child

Services (“DCS”) to offer her services while she was incarcerated.

Facts [3] The Child was born in June 2013 to Mother and M.F. (“Father”). At some

point, Father was awarded custody of the Child, and Mother was granted

supervised visitation. Mother, however, has not seen the Child since the Child

was approximately eighteen months old. In February 2016, Mother was

charged with arson, a Level 4 felony, in Grant County.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1900 | February 19, 2019 Page 2 of 9 [4] On March 8, 2016, DCS filed a petition alleging that the Child was a child in

need of services (“CHINS”) because the Child had several unexplained bruises

and Father refused to meet with the family case manager. Father entered an

admission to the petition, and Mother waived a fact-finding hearing. At that

time, both Mother and Father were incarcerated. The trial court found that the

Child was a CHINS, and the Child was placed with relatives. In the

dispositional order, the trial court ordered both Mother and Father to contact

DCS after being released from incarceration. [5] In March 2017, Mother pleaded guilty to arson, a Level 4 felony, and she was

sentenced to six years in the Department of Correction. In September 2017,

DCS filed a petition to terminate Mother’s and Father’s parental rights. Father

signed a consent to the Child’s adoption, and Mother proceeded to an

evidentiary hearing. 1 At the time of the hearing in June 2018, Mother testified

that she was scheduled to be released from prison in January 2021. Mother

testified that she was “working on getting into the purposeful program” 2 and

getting years of time cut from her sentence. Tr. Vol. II p. 25. Although there

were other programs in the prison that could shorten Mother’s sentence, she

was not eligible for the programs at that time due to her multiple behavioral

1 This appeal concerns only Mother’s parental rights to the Child. 2 We presume Mother is referring to the Purposeful Incarceration program, which allows a trial court to consider a sentence modification if the offender successfully completes certain substance abuse treatment programs. See https://www.in.gov/idoc/2798.htm (last visited February 8, 2019). According to Mother, the program is “more therapeutic and religious based” and takes six to twelve months to complete. Tr. Vol. II p. 28.

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incidents. DCS family case manager, Alice Wyatt, testified that termination of

Mother’s parental rights was in the Child’s best interest because there was no

guarantee when Mother would be released from prison and the Child needed

permanency and stability. The trial court entered findings of fact and

conclusions of law terminating Mother’s parental rights. Mother now appeals.

Analysis [6] Mother challenges the termination of her parental relationship with the Child.

The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. In re

K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is

‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

(2000)). We recognize, of course, that parental interests are not absolute and

must be subordinated to the child’s interests when determining the proper

disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental

rights may be terminated when the parents are unable or unwilling to meet their

parental responsibilities by failing to provide for the child’s immediate and long-

term needs.’” K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004), trans. denied). [7] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

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the court shall terminate the parent-child relationship.” DCS must establish

these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140,

1144 (Ind. 2016). Mother, however, does not challenge the trial court’s findings

on any of the required factors in the termination of her parental rights. Rather,

Mother’s only argument is that her due process rights were violated because

DCS did not provide services to her during the CHINS proceeding while she

was incarcerated. [8] “[A] party on appeal may waive a constitutional claim, including a claimed

violation of due process rights, by raising it for the first time on appeal.” In re

N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). DCS is generally required to make

reasonable efforts to preserve and reunify families during CHINS proceedings.

In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009); Ind. Code § 31-34-21-5.5.

We also note that Indiana Code Section 31-35-2-4.5 allows the filing of a

motion to dismiss a petition for termination of parental rights under certain

circumstances if DCS has failed to provide appropriate family services. There is

no indication in the record that Mother challenged the lack of services during

the CHINS proceedings, filed a motion to dismiss the termination proceedings,

or made a due process argument to the trial court. Mother’s argument is, thus,

waived. [9] Waiver notwithstanding, we will address her claim. “Due process protections

bar ‘state action that deprives a person of life, liberty, or property without a fair

proceeding.’” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quoting In re C.G.,

Z.G. v. Marion Cnty. Dep’t of Child Servs., 954 N.E.2d 910, 916 (Ind. 2011)). “It is

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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 ‘[w]hen the State seeks to terminate the parent-child

relationship, it must do so in a manner that meets the requirements of due

process.’” Id. (quoting C.G., 954 N.E.2d at 916-17). [10] The question here is whether DCS’s failure to provide Mother with services

during her incarceration was a violation of due process. Our court has

repeatedly rejected similar arguments. We have held that “the CHINS

provision 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.” H.L., 915 N.E.2d at 148 n.3; see

also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“[T]he provision of

family services is not a requisite element of our parental rights termination

statute, and thus, even a complete failure to provide services would not serve to

negate a necessary element of the termination statute and require reversal.”). [11] The absence of services here was due to Mother’s incarceration. Mother was

incarcerated for the duration of the CHINS and termination proceedings, and

she did not expect to be released until 2021. Mother testified that, although the

prison had relevant programs for her, she was not eligible for the programs at

that time due to her multiple behavioral incidents. Alice Wyatt, DCS family

case manager, sent letters to Mother in jail, but Wyatt did not receive any

response or request for services. At one point, Mother discussed with the

family case manager a program that allowed Mother to read a book to the Child

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and send the recording to the Child; Mother, however, did not follow through.

Another DCS family case manager, Divina Castanda Thrasher, testified that

she had also sent a letter to Mother. Mother did not request services from

Thrasher and did not request parenting time. [12] Mother had no contact with the Child during the CHINS or termination

proceedings. The absence of services was directly due to Mother’s

incarceration, and Mother’s due process rights were not violated. See, e.g., H.L.,

915 N.E.2d at 148 (holding that the absence of services was due to Father’s

incarceration and Father did not point to any evidence that he specifically

requested visitation or other services); E.E., 736 N.E.2d at 796 (holding that the

parent could “not directly attack the termination order on the grounds that she

was denied appropriate family services because of her mental disability”). [13] Despite our holdings in H.L. and E.E., Mother argues that we should address

the issue under the three-factor analysis used in G.P., 4 N.E.3d at 1165, and In

re I.P., 5 N.E.3d 750, 751-52 (Ind. 2014). Even if we apply that analysis,

Mother’s argument fails. The process due in a termination case 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. I.P., 5 N.E.3d at 751-52; G.P., 4 N.E.3d at 1165. “In termination

cases, both the private interests of the parents and the countervailing

governmental interests that are affected by the proceeding are substantial.” C.T.

v. Marion Cty. Dep’t of Child Servs., 896 N.E.2d 571, 587 (Ind. Ct. App. 2008),

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trans. denied. Thus, we consider the risk of error created by DCS’ failure to

provide services to Mother. [14] Mother argues there is a “tremendous risk of error when DCS fails to make

reasonable efforts to reunify families.” Appellant’s Br. p. 15. DCS argues that

the risk of error was minimal given: (1) Mother’s incarceration; (2) Mother’s

failure to have a relationship with the Child even before the CHINS

proceedings; (3) Mother’s failure to request parenting time or services; (4)

Mother’s failure to complete any programs while incarcerated; and (5) Mother’s

failure to assert what services should have been provided or how the lack of

services impacted her ability to remedy the situation. [15] We agree with DCS. Even before the CHINS proceeding was initiated, Mother

had not seen the Child for over one year. Mother’s incarceration began even

before the CHINS proceeding, and she was incarcerated during the entire

CHINS and termination proceedings. It is unclear what services could have

been offered to Mother by DCS during her incarceration. While incarcerated,

she was unable to participate in programs offered by the prison due to her

repeated behavioral issues. Under these circumstances, the risk of error was

minimal. Weighing the factors, we find no due process violation.

Conclusion [16] Mother failed to demonstrate that her due process rights were violated. The

trial court’s termination of Mother’s parental rights to the Child is not clearly

erroneous. We affirm.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1900 | February 19, 2019 Page 8 of 9 [17] Affirmed.

Baker, J., and May, J., concur.

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