In the Matter of the Termination of the Parent-Child Relationship of K.C. (Minor Child) and J.S. (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 Jul 31 2020, 10:23 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 J.S. ATTORNEYS FOR APPELLEE
Steven J. Halbert Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 31, 2020
of the Parent–Child Relationship Court of Appeals Case No.
of K.C. (Minor Child) 20A-JT-433
and Appeal from the Marion Superior
Court
J.S. (Father),
The Honorable Mark A. Jones,
Appellant-Respondent, Judge
v. The Honorable Peter Haughan,
Magistrate
The Indiana Department of Trial Court Cause No.
49D15-1901-JT-111
Child Services,
Appellee-Petitioner.
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Bradford, Chief Judge.
Case Summary
[1] J.S. (“Father”) and M.C. (“Mother”) are the parents of K.C. (“Child”). In
January of 2020, the juvenile court terminated Father’s parental rights to Child.
On appeal, Father contends that his due process rights were violated by the
Department of Child Services’s (“DCS”) failure to make reasonable efforts to
reunify him and Child by failing to provide him with services, case plans, and
other documents. We affirm.1
Facts and Procedural History
[2] On December 6, 2016, Child was born and tested positive for opiates. Child
was removed from Mother’s care, and DCS petitioned for Child to be
adjudicated a child in need of services (“CHINS”) on December 12, 2016. At
the time of Child’s birth, Father was incarcerated after having been convicted of
check fraud, identity deception, and methamphetamine possession. On April 6,
2017, the juvenile court adjudicated Child to be a CHINS and entered a
dispositional decree. In November of 2018, Father was released from
incarceration, and the juvenile court modified its dispositional decree, ordering
Father to participate in the parental participation order. On January 17, 2019,
1
Mother does not participate in this appeal.
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the juvenile court changed the permanency plan to adoption. On February 7,
2019, DCS petitioned for the termination of Mother and Father’s parental
rights. On February 28, 2019, the juvenile court ordered Father to complete a
parenting assessment, comply with all recommendations, and complete a
father-engagement program.
[3] The juvenile court held a factfinding hearing regarding DCS’s termination
petition on August 19, September 5, October 24, and November 21, 2019. On
October 24, 2019, Father was scheduled to present evidence at the factfinding
hearing but failed to appear, and his attorney was unable to contact him,
leading the juvenile court to continue the hearing. On November 21, 2019,
Father again failed to appear at the factfinding hearing, and the juvenile court
noted that there remained an active warrant for his arrest in another case. On
January 24, 2020, the juvenile court terminated Father’s parental rights to
Child, in doing so, the court concluded, inter alia, that
f. The conditions that led to the Child’s removal or placement
and retention outside the home of Father are: Father’s issues
with substance abuse; his lack of safe and stable housing; his lack
of stable employment; and his criminal behavior and
involvement with the criminal justice system.
g. These conditions have not been remedied.
h. It is highly probable that these conditions will not be remedied,
even if Father was given additional time to remedy the
conditions. The Child’s CHINS case has been open for over three
(3) years. Throughout this time, Father has continued to engage
in ongoing substance abuse by using heroin, methamphetamine,
and alcohol. He has consistently failed to provide safe and stable
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housing for the Child and maintain stable employment. Although
Father completed a parenting assessment and a substance abuse
assessment, he did not consistently engage in or successfully
complete the services recommended by those assessments: home-
based therapy, home-based case management, and the
recommended substance abuse treatment. Father currently has a
pending criminal case and the criminal court issued a warrant for
his arrest. Father subsequently failed to appear for trial in this
matter. Father failed to consistently visit with the Child.
i. Father has demonstrated a lack of commitment to preserve the
parent-child relationship.
j. There is a substantial probability that future neglect or
deprivation will occur because of Father’s failure to remedy the
conditions.
Appellant’s App. Vol. II p. 25.
Discussion and Decision
[4] At the outset, we note that Father does not directly challenge the juvenile
court’s termination of his parental rights to Child, but, rather, only contends
that his due process rights were violated by DCS’s failure to make reasonable
efforts to reunify him and Child by failing to provide him services, case plans,
and other documents.
[5] We conclude that Father’s contention fails for multiple reasons. First, because
Father failed to raise his contention in the juvenile court, it is waived for
appellate review. See Hite v. Vanderburgh Cty. Office of Family and Children, 845
N.E.2d 175, 180 (Ind. Ct. App. 2006) (“It is well established that we may
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consider a party’s constitutional claim waived when it is raised for the first time
on appeal.”). Moreover, Father’s claim is based on DCS’s alleged failure to
provide him with additional services, which he seems to believe were needed;
however, Father failed to request these additional services and cannot use
DCS’s alleged failure on appeal to challenge the termination of his parental
rights. See In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (“[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.”).
[6] Finally, in In re J.W., Jr., we noted that
The Indiana Supreme Court has long recognized that, in
“seeking termination of parental rights,” the 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 Cnty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992).
Likewise, we have stated on several occasions that, although
“[t]he 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) (emphasis added) (citing I.C. § 31-34-21-5.5); see also Elkins
v. Marion Cnty. 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
Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind.
Ct. App. 1995) (“under Indiana law, even a complete failure to
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provide services cannot serve as a basis to attack the termination
of parental rights.”), trans. denied.
27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (emphasis in original), trans. denied.
Based on our caselaw, Father’s contention cannot serve as a basis to attack the
juvenile court’s termination of his parental rights.
[7] The judgment of the juvenile court is affirmed.
Najam, J., and Mathias, J., concur.
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