In the Matter of the Termination of the Parent-Child Relationship of T.B. (Child) and S.M. (Father) S.M. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 09 2020, 9:37 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan D. Bower Curtis T. Hill, Jr.
Bower Law Office, LLC Attorney General of Indiana
New Albany, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 9, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of T.B. (Child) and S.M. 19A-JT-1242
(Father); Appeal from the Orange Circuit
S.M (Father), Court
The Honorable Steven L. Owen,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
59C01-1804-JT-83
The Indiana Department of
Child Services,
Appellee-Petitioner
May, Judge.
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[1] S.M. (“Father”) appeals the involuntary termination of his parental rights to
T.B. (“Child”). Father presents two issues for our review, which we restate as:
1. Whether the trial court erred when it adjudicated Child a
Child in Need of Services (“CHINS”) absent Father’s
admission Child was a CHINS; and
2. Whether the trial court erred when it terminated Father’s
parental rights to Child because the Department of Child
Services (“DCS”) allegedly did not offer Father services for
reunification.
We affirm.
Facts and Procedural History
[2] S.M. is the biological father of T.B., who was born to K.B. 1 (“Mother”) on
April 6, 2007. Since birth, Child has been in Mother’s custody and Father has
exercised sporadic parenting time. On July 9, 2015, DCS removed Child and
his two younger siblings, E.B. and S.O.C., from Mother’s home due to
concerns about Mother’s substance abuse and domestic violence between
Mother and S.O.C.’s father (“Stepfather”). DCS placed Child in relative care
with Maternal Grandparents, where he has remained for the entirety of these
proceedings.
1
Mother consented to Child’s adoption by Maternal Grandfather (Maternal Grandmother passed away
during the proceedings) and does not participate in this appeal.
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[3] On July 13, 2015, DCS filed a petition alleging Child, E.B., and S.O.C. were
CHINS based on Mother’s substance abuse and the domestic violence in
Mother’s home. The trial court held a hearing on the CHINS petition for all
children and noted Mother, Father, Stepfather, and E.B.’s father were present.
The trial court adjudicated Child, E.B., and S.O.C. as CHINS and in its order
stated, “Parents agree that the children are children in need of services.” (Ex.
Vol. I at 38.)
[4] The trial court held a dispositional hearing on November 9, 2015. Father did
not appear at the hearing. The trial court’s dispositional order identified Father
as Child’s Father but did not order Father to complete services related to Child.
On May 11, 2016, Father wrote a letter to the trial court requesting that Child
be placed with him. On May 16, 2016, the trial court responded to Father via
letter and advised him that he was entitled to the appointment of an attorney in
the CHINS case and that DCS would be able to explain the process to place
Child with Father. On March 6, 2017, the trial court appointed counsel for
Father.
[5] In its report to the trial court on December 20, 2017, DCS reported, regarding
Father:
[Father] was not involved in the reasons for removal, and has not
been asked to participate in any services other than those
pertaining to visitation.
*****
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[Father] is [sic] offered supervised visitation with [Child] but has
not been consistent. The visits are supervised by Ireland Home
Based Services. In August, [Father] only had one visit out of
four. In November, [Father] did not have any visits. [Father] is
on a 24 hour and 2 hour visit confirmation. He is not
consistently participating.
(Ex. Vol. I at 140-1.) In its order on the March 14, 2018, review hearing, the
trial court found, “[Father] has not visited [Child].” (Id. at 158.)
[6] On June 1, 2018, DCS filed its petition to terminate Father’s parental rights to
Child. At the initial hearing on the termination petition on July 18, 2018,
Father argued that communication between Father and DCS had been difficult
and the Family Case Manager confirmed that there may have been confusion
between the visitation coordinator and Father. The Family Case Manager also
testified about why Father was required to confirm visitation with Child:
It is my understanding that in the past we have been picking up
[Child], arranging the transportation to set up the visitation,
taking [Child] to that location, and [Father] either would – didn’t
show up or something had happened. I don’t know the fine
details, but it wasn’t happening as planned, so we were
essentially picking up [Child] for no reason. So in order to
prevent that, it was, you know, we need these confirmations to
make sure we weren’t picking up [Child] for no reason
essentially.
(Tr. Vol. II at 19.)
[7] Based thereon, DCS requested that Father’s services be stopped. The trial court
denied that request, stating:
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I want services to still be rendered. We will readdress that issue
in the October meeting. And this is probably addressed more to
you, [Father], than anybody else, but it’s real important that we
take advantage of this because if I come back in October and
we’re not doing anything, then I’ll grant the request, okay? It’s
real important that we start – I’m giving you that opportunity
because I do agree maybe – and they’ve had some turnover and I
understand that, but it’s real important in these next three
months that we start making some progress. If not, if you’re not
going to take advantage of it, then just let – that’s okay. But, I
mean, we’ll have to proceed a different way, okay?
(Id. at 21-2.) Father did not appear at the October 3, 2018, or January 2, 2019,
review hearings. DCS’s report to the trial court as part of the January 2, 2019,
hearing indicated:
From December 2017 to August 2018, [Father] did not have any
visits with [Child]. In September 2018, [Father] completed three
visits with [Child]. Two visits were canceled by [Father] in
September. In October 2018, [Father] completed three visits. In
November 2018, [Father] completed one visit. In December
2018, [Father] did not have any visits with [Child].
(Ex. Vol. I at 184.) The report also noted that Child “expresses fear and anxiety
related to living with [Father].” (Id. at 183.)
[8] On April 5, 2019, the trial court held a hearing on DCS’s petition to terminate
Father’s parental rights to Child. On June 21, 2019, the trial court entered its
order terminating Father’s parental rights to Child, finding, in part:
7. Father did nothing illegal to cause removal of [Child];
[Child’s] removal was not a result of any action by Father.
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8. Father allowed [Maternal Grandparents] to raise [Child],
allowing [Child] to become dependent on [Maternal
Grandparents].
9. Father failed to be a part of [Child’s] life, even before DCS
became involved with [Child], based on the following:
a. Father had some visits prior to removal, but the Court
does not believe that Father engaged in regular visits.
b. Father’s visits were sporadic up to time of DCS
involvement.
c. In 2014, Father filed a Petition to Establish Parenting
Time . . . .
d. The Court issued an order awarding Father parenting
time pursuant to the Indiana Parenting Time Guidelines.
e. Father did not take advantage of the parenting time
allotted to him since September 2014.
f. Father claimed that he pursued establishing paternity of
[Child], but the Court finds Father’s assertion not credible.
g. The Court filings establish that Mother through the IV-
D Prosecuting Attorney filed the Petition to Establish
Paternity for the purposes of obtaining a child support
obligation for Father.
10. Father failed to exercise consistent visitation with [Child]
after DCS became involved in July 2015.
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11. The credible evidence was that Father only exercised around
three (3) overnight visits with [Child] in the past 3-4 years.
12. On November 4, 2016, Father sought to enforce parenting
time through the JP/PL Cause.
13. On November 4, 2016, the permanency plan for [Child] in
the CHINS case had already been changed to Adoption.
14. The Court informed Father at the JP/PL hearing in July
2017:
a. Father needed to start establishing a relationship with
[Child].
b. It is very important for Father to participate in the
supervised visits.
c. The Court thought it would be great if Father would
step up and regularly see [Child].
15. The Court finds that since 2017 the credible evidence is that
Father had three (3) visits totaling eight (8) hours of time with
[Child] until September 2018. Father did not step up. Father did
not make [Child] a priority.
16. Father alleged that he visited consistently with [Child] since
September 2018.
17. The Court disagrees with Father, as the undisputed evidence
was that Father made 7 of 12 available visits with [Child] since
September 2018. The Court finds that Father remained
inconsistent with visits since September 2018.
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18. [Child] is now almost 12 years old, and Father made a poor
effort to establish a relationship with [Child].
19. Father sent text messages to [Child] in November/December
2018; these were isolated efforts by Father.
20. Court records/hearing orders indicated that Father was
absent for several Court hearings concerning [Child], even after
Father knew that the permanency plan for [Child] had been
changed to adoption.
21. The Court finds that services for visits with [Child] were
afforded to Father. The visits just didn’t happen.
22. Father requested family services from DCS to foster the
relationship with [Child]; however, Father first asked for family
services at the Fact Finding Hearing on 4/5/2019.
(App. Vol. II at 229-30.)
Discussion and Decision
1. Father’s Challenge to CHINS Adjudication
[9] Father argues that since he did not admit Child was a CHINS, that the trial
court erred when it adjudicated Child as a CHINS. Father was present at the
initial hearing and, sporadically, at subsequent review and permanency
hearings over the following three years. At no time during the proceedings did
Father object to Child’s adjudication as a CHINS. “At a minimum, a party
must show that it gave the trial court a bona fide opportunity to pass upon the
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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 this argument
for the first time on appeal, it is waived. In re S.P.H., 806 N.E.2d 874, 877-78
(Ind. Ct. App. 2004). 2
[10] Waiver notwithstanding, Father’s alleged issues are unavailable for appeal. It is
well-established a “CHINS adjudication focuses on the conditions of the child
[and] the acts or omissions of one parent can cause a condition that creates the
need for court intervention.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The
trial court adjudicated Child as a CHINS based on Mother’s admitted drug use
and the domestic violence in Mother’s home in 2015. As Mother admitted
Child was a CHINS, the trial court properly adjudicated Child as such. 3 See id.
at 106 (After mother’s admission that child was a CHINS based on domestic
violence in mother’s home, “it was not necessary for the CHINS petition to
make any allegations with respect to Father. We conclude the trial court
properly adjudicated N.E. a CHINS.”).
2
Father also argues, in passing, that he was denied due process because the trial court did not appoint him
counsel in the CHINS matter until after Child was adjudicated a CHINS. However, Father did not present
this argument before the trial court, and on appeal he does not make a cogent argument, cite case law, or
point to statutory language supporting his argument. Therefore, the argument is waived. See In re S.P.H., 806
N.E.2d at 877-78 (party waives argument raised for the first time on appeal); and see In re A.D.S., 987 N.E.2d
1150, 1156 n.4 (Ind. Ct. App. 2013) (failure to make a cogent argument waives issue on appeal), trans. denied.
3
As noted in the facts, the trial court, in its order adjudicating Child a CHINS, stated, “Parents agree that the
children are children in need of services.” (Ex. Vol. I at 38.) Father argues the trial court’s statement did not
include him because the parties referenced in the order were Mother and stepfather. If Father disagreed with
this statement, the time to appeal it has long since passed. However, we need not decide that issue because
Mother’s admission was sufficient to adjudicate Child a CHINS.
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2. Termination of Father’s Parental Rights to Child
[11] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),
trans. denied. Instead, we consider only the evidence and reasonable inferences
most favorable to the judgment. Id. In deference to the juvenile court’s unique
position to assess the evidence, we will set aside a judgment terminating a
parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).
[12] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children when evaluating
the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.
The right to raise one’s own children should not be terminated solely because
there is a better home available for the children, id., but parental rights may be
terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[13] To terminate a parent-child relationship, the State must allege and prove:
(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
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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). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[14] Father does not challenge any of the trial court’s findings or conclusions.
Instead, he argues the trial court erred when it involuntarily terminated his
parental rights to Child because DCS “offered only remarkably inconvenient,
third-party provider supervised visitations as the sole services to Father.” (Br.
of Appellant at 12) (emphasis omitted). In his brief, Father complains that
visits “occurred more than an hour and fifteen minutes (one-way) from Father’s
home and work,” and claims “much of the visitation was logistically near
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impossible without [Father] losing his job or other significant hardship.” (Id. at
12-13.)
[15] However, “failure to provide services does not serve as a basis on which to
directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d
145, 148 n.3 (Ind. Ct. App. 2009). Further, “a parent may not sit idly 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). Based thereon, we conclude the trial court did not err
when it terminated Father’s parental rights to Child despite any alleged
deficiencies in the services DCS offered to Father.
Conclusion
[16] The trial court did not err when it adjudicated Child a CHINS based on
Parents’ admissions. Further, Father has not demonstrated the trial court erred
when it terminated Father’s parental rights to Child. Accordingly, we affirm.
[17] Affirmed.
Crone, J., and Pyle, J., concur.
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