In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services , 2016 Ind. App. LEXIS 198 ( 2016 )

FILED
Jun 21 2016, 6:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven J. Halbert Gregory F. Zoeller
Carmel, Indiana Attorney General
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the June 21, 2016
Parent-Child Relationship of Court of Appeals Case No.
N.C. (Minor Child) and A.C. 49A02-1510-JT-1711
(Father), Appeal from the Marion Superior
Appellant-Respondent, Court
The Honorable Marilyn A.
v. Moores, Judge
The Honorable Larry E. Bradley,
The Indiana Department of Magistrate.
Child Services, Trial Court Cause No.
Appellee-Petitioner 49D09-1405-JT-216
Mathias, Judge.
[1] A.C. (“Father”) appeals the involuntary termination of his parental rights to his
minor son N.C. (“Child”). Father presents one issue, which we restate as
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whether the American with Disabilities Act (“ADA”) applies in termination
proceedings.
[2] We affirm.
Facts and Procedural History
[3] Child was born on February 17, 1999 to Mother1 and Father. On January 29,
2007, the Indiana Department of Child Services (“DCS”) filed a petition
alleging Child to be a child in need of services (“CHINS”) after the health
department condemned Mother’s apartment. The petition alleged, “[t]he
condition of the home was such that there was no eatable food in the residence,
trash was overflowing, fecal matter was piled in the bathroom and the kitchen
floor, the bath tub would not properly drain so no one in the household could
use it, and the child’s clothing and body were unclean.” Ex. Vol., State’s Ex. 2.
Child was removed from the home and placed in foster care after Mother was
admitted in a psychiatric facility for suicidal thoughts and Father could not be
located.2
[4] A continued initial hearing was held on March 6, 2007, where Father admitted
to the allegations in the CHINS petition and agreed to participate in a parenting
assessment, a psychological evaluation, and a drug and alcohol assessment. On
June 5, 2007, a CHINS review hearing was held and the court found that
1
Mother signed a general consent for Child’s adoption in 2008 and does not participate in this appeal.
2
Father was incarcerated around the time of the dispositional hearing, but was released on June 3, 2007.
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Father was not participating in services, so his visitation rights were suspended.
Between June and September 2007, DCS family case manager Yoranda Caudill
(“Caudill”) worked with Father to explain the purpose of the assessments that
the court ordered and to coordinate with Deaf Community Services to provide
accommodations for him.3 Father was also homeless at this time.
[5] On September 11, 2007, Father completed a psychological evaluation and was
diagnosed with Depressive Disorder Not Otherwise Specified (“NOS”),
Cognitive Disorder NOS, and Intermittent Explosive Disorder. Based on these
diagnoses, DCS recommended supervised visitation, evaluation by a
psychiatrist for psychotropic medication, individual counseling, and for Father
to continue to follow the recommendations of the court. However, Father did
not participate in counseling or any of the recommended services and did not
complete the court-ordered parenting assessment4 or drug and alcohol
assessment. After the evaluation, DCS also noted concern with Father’s
cognitive ability, parenting capabilities, and mental heath.
[6] The trial court ordered the permanency plan to be changed to adoption on June
4, 2008. In September 2008, Father signed a specific consent for Child to be
adopted by his foster parents.
3
Father is deaf, and English is not his first language.
4
The trial court’s order indicates that Father partially completed the parenting assessment but did not have
the communication and cognitive skills to fully complete it.
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[7] After the foster parents reported some behavioral issues, Child was enrolled at
Damar Services in a residential program in June 2010.5 Child is diagnosed with
autism spectrum, attention deficit and hyperactivity disorders and depression.
While Child was enrolled at Damar, the foster parents decided that they no
longer wanted to adopt him.
[8] Around the same time Child moved to Damar, Father contacted DCS and
requested visitation with Child. The court granted supervised visitation based
on the recommendation of the Child’s therapist. On May 13, 2011, Father had
a supervised visit with Child at Damar, but Father argued with staff and
expressed concern that he was not able to visit Child alone. After that, Father
participated in monthly supervised visits with Child that generally went well.
However, Father still failed to participate in services and he did not attend any
review hearings in the CHINS case between December 2008 and May 2015.
[9] Child transitioned from Damar into a new foster home in July 2012. Around
the same time, the visits began confusing Child because Father made unrealistic
promises, like taking Child on a trip to Washington D.C. DCS attempted to
discuss Father’s conduct and DCS’s visitation expectations, but Father could
not be reached at the time. Because of the new foster home placement, DCS
notified and reminded Father that his visitation scheduled would change.
5
Damar provides a variety of services to children and adults with developmental, behavioral challenges, and
autism. Children come to Damar requiring different levels of care and safety, from high levels of supervision
to less intensive support. Damar provides a full spectrum of innovative and individualized residential
services. See http://www.damar.org/children-youth/residential-campus-services.
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However, Father failed to attend the next visit with Child and another visit to
celebrate Child’s birthday on February 11, 2013. The visitation provider
cancelled all future visitation due to Father’s missed visits. DCS then referred
Father to another visitation provider to reestablish supervised visitation.
[10] At a visit on July 1, 2013, Father promised Child that he would live with him.
The visit facilitator reminded Father not to make statements like that, and
Father became “very hostile and angry.” Ex. Vol., p. 244. During that same
visit, Father expressed anger toward Child’s foster mother and threatened that
he was “coming to get her.” Id. After this encounter, Child indicated that he no
longer wanted to visit with Father because of Father’s behavior and false
promises. Father did not schedule any more visits with Child and had not seen
Child for two years prior to the termination hearing.
[11] DCS filed a petition to terminate Father’s parental rights on May 19, 2014.
After DCS filed the termination petition, the trial court ordered Father to
participate in a mental status examination at the request of DCS. Although
Father made several appointments for the exam, he never showed up, and as a
result, the examiner would not make any future appointments. The trial court
then held an evidentiary hearing on the termination petition on September 23,
2015. Child indicated that he is doing well in his current foster home, loves his
foster mother, and wants her to adopt him.6 Based on Child’s diagnoses, Child’s
6
Child was sixteen years old at the time of the termination hearing.
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therapist Henry Smith (“Smith”) reported that he has special needs but also
requires structure and stability. Over the past two years that Child has spent in
his current placement, his behavior has stabilized and remained constant. Smith
is concerned that if Child transitions into an unstable environment that the
progress that Child has made will be disrupted. Child also has expressed a
desire to go to college and Smith believes that if his environment changes that
he might “give up on that.” Tr. p. 111.
[12] Child’s guardian ad litem Carolyn Thurston (“Thurston”) agreed that he needs
stability and adoption is in Child’s best interests. Thurston further explained
that Father has not completed services to effectively meet the needs of Child
and Child’s foster mother makes an active effort to meet Child’s educational
and emotional needs. Tr. p. 134
[13] On September 29, 2015, the trial court entered an order terminating Father’s
parental rights. Father now appeals.
Discussion and Decision
[14] Father argues that because he is deaf and has cognitive and mental health
problems that DCS was required to provide him accommodations under the
ADA. He specifically contends that DCS’s failure to accommodate his
disability is a defense in this termination proceeding.
[15] Although Father makes this argument on appeal, after review of the record, we
cannot agree that he raised this issue before the trial court. Father concedes that
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he did not specifically mention the ADA issue during the termination hearing,
but rather argues that Father’s counsel repeatedly raised the failure of DCS to
accommodate his disability.
[16] However, the record is devoid of such statements that Father alleges in his
brief.7 See Appellant’s Br. at 16. Indiana Appellate Rule 46(A)(8)(a) provides:
The argument must contain the contentions of the appellant on
the issues present, supported by cogent reasoning. Each
contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal
relied on.
A party waives an issue where the party fails to develop a cogent
argument or provide adequate citation to authority and portions of the
record. York v. Frederic, 947 N.E.2d 969, 979 (Ind. Ct. App. 2011), trans.
denied. Further, a party may not raise an issue for the first time on appeal.
See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001). Therefore,
the issue is waived for failure to develop an argument supported by
cogent reasoning and because it was raised for the first time on appeal.
7
We recognize that during the termination hearing, Father complained of not being satisfied with the
interpreters he was provided. See Tr. p. 74. When Father’s counsel asked him if he had ever told anyone in
juvenile court that he was having problems understanding because of the interpreter, Father responded, “The
interpreter was, wasn’t good, and then the next interpreter wasn’t good. I don’t know. The interpreter wasn’t
good so I, I got put in jail.” Counsel repeated the question and Father again responded, “I, I, there were
signing and I tried but no, I didn’t, I just got put in jail and I was like okay, fine, I got put in jail.” Based on
Father’s responses, it appears that he was dissatisfied with the interpreters provided during the course of his
criminal proceeding, not the CHINS or termination proceeding.
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[17] Father additionally argues that even if he waived DCS’s alleged violation of the
ADA on appeal, it constitutes fundamental error that deprived him of his
constitutional right to parent under the Fourteenth Amendment of the United
States Constitution. The fundamental error doctrine is a narrow exception to
the waiver doctrine and applies to an “error that was so egregious and
abhorrent to fundamental due process that the trial judge should or should not
have acted, irrespective of the parties’ failure to object or otherwise preserve the
error for appeal.” In re G.P., 4 N.E.3d 1158, 1167 n. 8 (Ind. 2014). For our court
to overturn a trial court ruling based on fundamental error, the error must have
been “a clearly blatant violation of basic and elementary principles, and the
harm or potential for harm therefrom must be substantial and appear clearly
and prospectively. S.M. v. Elkhart Cnty. Office of Family and Children, 706 N.E.2d
596, 600 (Ind. Ct. App. 1999) (emphasis added).
[18] Here, Father misapplies the fundamental error doctrine by arguing that the
error occurred when DCS failed to accommodate his disability under the
ADA.8 Moreover, it is well settled under Stone that the ADA does not apply in
termination proceedings and Father was not denied services that
accommodated his disability. See Infra at p. 9. DCS coordinated with Deaf
Community Services to provide interpreters and family case manager Caudill
set up a meeting to explain to Father the importance of completing the court
8
Although Father argues fundamental error, his argument is more akin to a due process violation. See In re
G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).
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ordered services to meet Child’s needs. Father still chose not to participate in
the court-ordered and recommended services.
[19] Waiver notwithstanding, we address Father’s argument that he should be
entitled to use DCS’s alleged failure to comply with the ADA as a defense to
the termination of his parental rights. Congress enacted the ADA to eliminate
discrimination and create causes of action for qualified people who have faced
discrimination. See 42 U.S.C. § 12101(b). The ADA provides in relevant part:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. The ADA requires that the public entity make
“reasonable accommodation” to allow the disabled person to receive the
services or to participate in the public entity’s programs. 28 C.F.R. §
35.130(b)(7).
[20] Our court was presented with whether the ADA applies in proceedings for the
termination of parental rights in Stone v. Daviess Cnty. Div. of Children and Family
Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995). In Stone, we held:
the services the DCFS provided to Father and Mother were
provided in connection with the CHINS proceedings and not in
connection with or as a prerequisite to the termination
proceedings. We emphasize that the remedy Father and Mother
seek for the DCFS’s alleged failure in its provision of services is
reversal of the trial court’s termination of their parental rights. If
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our termination statute required that services be provided to all
parents prior to the termination of parental rights, under the
doctrine of preemption an ADA violation by the DCFS in
fulfilling that statutory duty would provide grounds for attacking
a termination pursuant to the statute. Such services, however, are
not required in Indiana. Therefore, we hold that Father and
Mother’s discrimination claim cannot serve as a basis to attack
the termination order itself.
Id. at 830.
[21] The intent of the ADA is to ensure disabled individuals are not denied the
benefits provided by a public entity. See 42 U.S.C. § 12101(b). If the ADA
applied to termination of parental rights proceedings, DCS would be required to
reasonably accommodate Father’s disability.
[22] Here, Father was provided an interpreter by DCS through Deaf Community
Services. He expressed no issues with understanding any of the provided
interpreters. Family case manager Caudill also explained to Father why he was
required to complete the court-ordered services. Visitation with Child was
contingent on Father participating in these services, which is a common and
productive condition in CHINS proceedings.9
9
Although Father argues that he was denied visitation with Child, the record reflects that supervised
visitation with Child was reinstated after a recommendation from Child’s therapist in 2010. Father did not
complete the court-ordered services to which he consented in the agreed entry but was still able to visit Child
on a monthly basis.
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[23] Further, based on Father’s psychiatric evaluation, DCS recommended
counseling and that he see a psychiatrist to obtain medication. Like other court-
ordered and DCS-recommended services, Father failed to comply. He also
denied during the termination proceeding that he had any cognitive or thinking
issues that limit his ability to understand what was occurring. Based on the
record, we hold that DCS reasonably accommodated Father’s disability, and
we cannot say that DCS discriminated against Father in violation of the ADA.
[24] Father cites to a recent United States Department of Justice, Civil Rights
Division and United States Department of Health and Human Services, Civil
Rights Division joint decision which he claims rejected the argument that the
ADA could not be raised as a defense in a termination hearing. See DJ No. 204-
36-216, HHS No. 14-182176.10 However, Father fails to explain how a federal
investigation of the Massachusetts Department of Children and Family is
binding precedent under Indiana law. Father also cites to a recent Utah
Supreme Court case, State In Interest of K.C., 362 P.3d 1248 (Utah 2015) to
support his position. In K.C., the court held that the ADA applies in
termination proceedings, but found that under the circumstances that DCFS
provided reasonable accommodations to mother and affirmed the termination
of her parental rights. Id. at 1249.
10
Available at http://www.ada.gov/ma_docf_lof.doc
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[25] K.C. is distinguishable because the mother in K.C. raised her ADA claim during
the termination hearing, which Father failed to do in the case before us. Rather,
he raises this issue for the first time on appeal. Similarly, we have concluded in
this case that DCS provided reasonable accommodations to Father. Finally, the
cases to which Father cites are at most persuasive and not binding in our
jurisdiction. Therefore, we decline to abandon our prior holding in Stone
regarding the ADA’s application in termination of parental rights proceedings.
[26] For all of these reasons, we conclude that Father waived the issue of whether
the ADA applies in a termination of parental rights proceeding. Waiver
notwithstanding, Father’s discrimination claim cannot serve as a basis to attack
the trial court’s termination order.
[27] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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