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.) ( 2019 )

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.
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[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.
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[17] Affirmed.
Baker, J., and May, J., concur.
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