In the Matter of the Termination of the Parent-Child Relationship of S.D. (Child) and L v. (Father) L v. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 19 2019, 8:54 am
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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 19, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of S.D. (Child) and L.V. 18A-JT-2973
(Father); Appeal from the Vigo Circuit
L.V. (Father), Court
The Honorable Sarah K. Mullican,
Appellant-Defendant,
Judge
v. The Honorable Daniel W. Kelly,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 84C01-1806-JT-658
Appellee-Plaintiff
May, Judge.
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[1] L.V. (“Father”) appeals the termination of his parental rights to S.D. 1 Father
raises two issues, which we restate as: (1) whether Father’s due process rights
were violated by procedural deficiencies during the Child in Need of Services
(“CHINS”) case that hindered Father’s opportunity for reunification; and (2)
whether the trial court’s judgment terminating Father’s parental rights was
clearly erroneous because the Indiana Department of Child Services (“DCS”)
failed to prove termination of Father’s parental rights was in S.D.’s best
interests. We affirm.
Facts and Procedural History
[2] S.D. was born on April 9, 2015. On April 7, 2017, S.D. was removed from
Mother’s care when Mother was arrested for probation violations. At the time
of removal, the identity of S.D.’s biological father was not known. Father
requested a DNA test to establish he was S.D.’s biological father. Prior to that
determination, DCS filed a petition asking the court to declare S.D. a CHINS.
[3] On April 18, 2017, Mother admitted S.D. was in need of services due to her
incarceration. On June 1, 2017, DCS received the DNA results and informed
Father that he was S.D.’s biological father. On June 20, 2017, the court held a
factfinding hearing and concluded S.D. was a CHINS for two reasons: (1)
1
Mother voluntarily terminated her parental rights, and she does not participate in this appeal.
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Father was a noncustodial parent and was therefore unable to protect S.D.; and
(2) Mother admitted S.D. was a CHINS.
[4] On January 2, 2018, the court ordered Father to participate in services,
including regular supervised visits with S.D., case management participation to
obtain stable employment and transportation, weekly contact with the Family
Case Manager, random drug screening, and any recommendations for
addiction treatment.
[5] On June 14, 2018, DCS filed its petition for involuntary termination of parent-
child relationship. On June 20, 2018, DCS moved to modify the dispositional
decree to discontinue Father’s services and visitation because Mother had
voluntarily terminated her parental rights, Father continued to test positive for
illegal drugs, Father did not engage with S.D. during visits, and Father failed to
maintain contact with DCS for approximately two months.
[6] On August 3, 2018, the court took the matter under advisement and informed
Father that if he failed any drug screens, failed to show for any drug screens, or
missed any scheduled visits with S.D., the court would grant the requested
modification. On August 15, 2018, DCS informed the court that Father failed
to follow the Court’s order because Father’s random drug screen tested positive
for THC and cocaine. On August 17, 2018, the court ordered DCS was no
longer required to pay for or offer services to Father due to his positive drug
screen.
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[7] On October 9, 2018, the court held a hearing on DCS’s petition for involuntary
termination of parent-child relationship. On November 13, 2018, the court
permanently terminated all rights, powers, privileges, immunities, duties, and
obligations pertaining to the parent-child relationship between Father and S.D.
Discussion and Decision
Procedural Arguments
[8] Father claims his right to due process, under both the federal and state
constitutions, was violated because of numerous procedural deficiencies in this
case that hindered Father’s opportunity for reunification. However, the record
does not demonstrate that his claims were raised at any time during the
underlying CHINS proceedings. “At a minimum, a party must show that it
gave the trial court a bona fide opportunity to pass upon the 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 his due process arguments for the first
time on appeal, they are waived. In re S.P.H., 806 N.E.2d 874, 877-78 (Ind. Ct.
App. 2004). Waiver notwithstanding, Father’s alleged issues are unavailable
for appeal.
[9] First, Father challenges the services provided by DCS:
A. Why was S.D. not allowed to remain in Father’s care at
the inception of this case?
B. Why, despite the lack of any evidence that Father abused
or neglected S.D., was Father only allowed two brief
supervised visits per week with S.D?
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C. Finally, and perhaps most troubling, why did DCS wait
over 8 months to put a referral in place for Father to begin
substance abuse evaluation and treatment?
D. Why, despite being required by law to do so, did DCS never
initiate a paternity action on S.D.’s behalf to legally establish
paternity?
(Appellant’s Br. at 2) (some formatting omitted).
[10] Our Indiana Supreme Court has long recognized that, in “seeking termination
of parental rights,” DCS has no obligation “to plead and prove that services
have been offered to the parent to assist in fulfilling parental obligations.”
S.E.S. v. Grant Cty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992). Likewise,
we have stated on several occasions that, although “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.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145,
148 & n.3 (Ind. Ct. App. 2009) (citing I.C. § 31-34-21-5.5); see also Elkins v.
Marion Cty. Office of Family & Children (In re E.E.), 736 N.E.2d 791, 796 (Ind. Ct.
App. 2000) (“even a complete failure to provide services would not serve to
negate a necessary element of the termination statute and require reversal”);
Stone v. Daviess Cty. Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind.
Ct. App. 1995) (“under Indiana law, even a complete failure to provide services
cannot serve as a basis to attack the termination of parental rights”), trans.
denied.
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[11] Nor do we find merit in Father’s attempt to discredit the termination order by
attacking the services provided by DCS. Father did not ask for S.D. to remain
in his care at the inception of the case, and Father did not ask for more visits per
week with S.D. Regarding the substance abuse evaluation and treatment
referral, it is well settled 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). Father cannot raise this argument when he did not
request substance abuse treatment.
[12] Next, while the court did not issue an order mandating DCS initiate paternity
proceedings, it advised Father that DCS could instruct him on how to file a
petition. The court also instructed Father about how to establish paternity.
(CHINS Tr. Vol. VI at 10, 14.) Father failed to establish his paternity of S.D.
sooner; he cannot now allege that as error on appeal. See Herron v. Herron, 457
N.E.2d 564, 569 (Ind. Ct. App. 1983) (“a party may not take advantage of an
error which he commits, invites, or which is the natural consequence of his own
neglect or misconduct”).
[13] Finally, Father challenges S.D.’s placement after establishment of his paternity,
arguing: “Once Father proved he was S.D.’s biological father, why was S.D.
not placed in his care?” (Appellant’s Br. at 2.) However, the record reveals that
Father did not want to get involved with the case until paternity was
established. (Ex. Vol. at 63, 77; TPR Tr. Vol. II at 16; CHINS Tr. Vol. I at 5-6.)
After paternity was established, no evidence in the record shows Father
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requested S.D. be placed into his care. Father should have requested S.D. be
placed with him if that was his desire. We cannot fault DCS for not
considering placing S.D. in Father’s care when Father did not so request. See
C.T. v. Marion Cty. Dep’t of Child Servs., 896 N.E.2d 571, 588 (Ind. Ct. App.
2008) (“In failing to respond to his attorney’s letters or to communicate with his
attorney prior to the termination hearing, despite his actual knowledge of the
hearing, [Parent] has invited the alleged error of which he now complains.”),
trans. denied.
[14] We find no merit in any of Father’s allegations that he was deprived of due
process during the CHINS proceedings.
Child’s Best Interests
[15] Next, Father questions whether DCS presented sufficient evidence to prove that
termination was in S.D.’s best interests. DCS filed a petition to terminate
Father’s parental rights.
A petition to terminate a parent-child relationship must allege:
(A) that one (1) of the following is true:
(i) the child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and
has been under the supervision of a county office of
a family and children or probation department for at
least fifteen (15) months of the most recent twenty-
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two (2) months, beginning with the date the child is
removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(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 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).
[16] “When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010). We consider only the evidence and reasonable inferences most favorable
to the judgment. Id. “We must also give ‘due regard’ to the trial court’s unique
opportunity to judge the credibility of the witnesses.” Id. (quoting Indiana Trial
Rule 52(A)).
[17] Where a trial court enters findings of fact and conclusions thereon, as the trial
court did here, we apply a two-tiered standard of review. Id. “First, we
determine whether the evidence supports the findings, and second we determine
whether the findings support the judgment.” Id. We will set aside the trial
court’s judgment only if it is clearly erroneous, which occurs if the findings do
not support the trial court’s conclusions or the conclusions do not support the
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judgment. Id. Father does not challenge any of the trial court’s findings, and
thus they stand proven. Madlem v. Arko, 581 N.E.2d 1290, 1295 (Ind. Ct. App.
1991). Father asserts only that DCS failed to prove that termination of his
parental rights was in S.D.’s best interests.
[18] Pursuant to Indiana Code section 31-35-2-4(b)(2)(C), DCS must provide
sufficient evidence “that termination is in the best interests of the child.” In
determining what is in the best interests of a child, the trial court is required to
look beyond the factors identified by DCS and consider the totality of the
evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the
trial court must subordinate the interests of the parent to those of the child. Id.
The court need not wait until a child is harmed irreversibly before terminating
the parent-child relationship. Id. Recommendations of the case manager and
court-appointed advocate, in addition to evidence the conditions resulting in
removal will not be remedied, are sufficient to show by clear and convincing
evidence that termination is in the child’s best interests. Id.
[19] Father bases his argument on the fact that he has a loving bond with S.D., that
S.D. recognizes him as “dad,” and that he did most of what DCS required of
him. (Appellant’s Br. at 20.) However, we are not persuaded those facts are
enough to reverse the termination of his parental rights as to S.D. Father
submitted a number of drug screens, all of which were positive for illegal
substances such as marijuana, cocaine, and methamphetamine. (Tr. Vol. II at
7.) In order to “see if motivation to engage in [substance abuse] treatment and
make changes could be elicited,” (id. at 34), Father was recommended for
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motivational interviewing, but he refused to participate. (Id. at 49.)
Subsequently, at the time of the fact-finding hearing, Father was incarcerated
with pending charges for Level 2 Felony dealing in methamphetamine, 2 Level 4
Felony possession of methamphetamine, 3 and three other counts. Those
pending charges were in addition to his lengthy criminal history, including
charges for which he had served time. The trial court found:
d. There is reasonable probability that the conditions which
resulted in the removal of the child from his parents will not be
remedied or the reasons for placement outside of the home of the
parents will not be remedied or that the continuation of the
parent-child relationship poses a threat to the well-being of the
child as follows:
1. On or about April 7, 2017, DCS received a report that
Mother was in the Vigo County Jail, Father of the children
was unknown, that [A.D.], a sibling of [S.D.’s], had been
taken from Mother and was in kinship placement and that
Mother had been hiding [S.D.] from DCS for the previous
two months. The reporting person was concerned about
[S.D.’s] well-being and did not know in whose care he had
been placed.
2. Father was recommended for motivational interviewing,
in hopes of supplying him with motivation to participate in
substance abuse treatment, which he was refusing to do.
2
Ind. Code § 35-48-4-1.1 (2017).
3
Ind. Code § 35-48-4-6.1 (2014).
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3. Father submitted to a number of drug screens, usually on
the day of his supervised visits with [S.D.]. All of them
were positive for illegal substances, most often marijuana
and cocaine, but was [sic] also positive for
methamphetamine.
4. Father has a lengthy criminal history, for which there was
evidence from DCS and the court’s judicial notice,
including the following:
[Father’s Criminal History includes: one cause possession
of cocaine and marijuana; one cause possession of
marijuana, resisting law enforcement, and battery resulting
in bodily injury; one cause three counts dealing cocaine
within 1000 ft of school; one cause operating vehicle
without ever receiving license; one cause two counts
resisting law enforcement, driving while suspended, and
battery; one cause battery; one cause domestic battery; two
causes invasion of privacy; one cause operating without
ever receiving license, and open alcoholic beverage
container during operation of a motor vehicle; one cause
domestic battery with enhancement, and domestic battery;
one cause three counts theft; one cause conversion; one
cause failure to stop after accident causing damage to non-
vehicle, operation of vehicle without ever receiving a
license, and failure to stop after accident with unattended
vehicle; one cause operation without ever receiving
license; one cause false informing, and possession of
marijuana; one cause domestic battery, and refusal to be
photographed when taken into custody; one cause
operation without ever receiving a license, operation
without proof of financial responsibility, and improper
plates; one cause domestic battery in presence of child
under 16, felony intimidation, and two counts domestic
battery; one cause domestic battery in presence of child
under 16, domestic battery, and domestic battery with
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prior conviction; one cause driving while suspended with
prior conviction, operation of vehicle without ever
receiving license, and speeding; one cause possession of
marijuana; and one cause driving while suspended.]
5. Despite his lengthy criminal history, with criminal cases
pending and the pending petition for involuntary
termination of the parent-child relationship, Father was
arrested yet again on or about September 21, 2018 and was
charged with the following charges, which are pending:
Ct. 1: Dealing in meth, more than 10 grams, F2;
Ct. 2: Poss of meth, bt 10-28 grams, F4;
Ct. 3: Maintaining common nuisance, F4;
Ct. 4 Resisting law enf. with vehicle, F6;
Ct. 5 Poss meth bt 10-28 grams, F3
6. Father’s continuous criminal arrests and incarcerations
render him an unsuitable caregiver and unlikely to be
consistently available to care for [S.D.].
*****
f. Termination is in the best interests of the minor child as
testified to by DCS and CASA. [S.D.] is placed with a sibling
with whom he has a close and loving relationship. The
placement seeks to adopt both children.
(Appellant’s App. Vol. II at 45-48.)
[20] Father’s criminal history and pending charges make it difficult for us to believe
Father’s termination of parental rights was not in S.D.’s best interests when the
trial court evaluated “the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of the child.” J.C.K. v. Fountain Cty.
Dep’t of Public Welfare, 470 N.E.2d 88, 92 (Ind. Ct. App. 1984) (citing In re
Perkins, 352 N.E.2d 502, 519 (Ind. Ct. App. 1976)). In light of Father’s
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continuing problems with criminal behavior and substance abuse, along with
the testimony of the CASA that termination was in S.D.’s best interests, we
affirm the trial court’s determination. See J.C.K., 470 N.E.2d at 93 (stating
termination of parental rights was in the best interest of children and not
erroneous because there was no evidence of a change in parent’s way of life that
would ensure a solid home and family life for children).
Conclusion
[21] We conclude the trial court did not violate Father’s due process rights hindering
Father’s opportunity for reunification. Also, the trial court’s judgment
terminating Father’s parental rights was not clearly erroneous because DCS
proved that termination of Father’s parental rights was in S.D.’s best interests.
Accordingly, we affirm.
[22] Affirmed.
Mathias, J., and Brown, J., concur.
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