In the Matter of the Involuntary Termination of the Parent-Child Relationship of: D.A. (Minor Child) and S.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 27 2019, 8:57 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:
Clifford M. Robinson INDIANA DEPARTMENT OF
Rensselaer, Indiana CHILD SERVICES
Curtis T. Hill, Jr.
Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary November 27, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 19A-JT-1396
D.A. (Minor Child), Appeal from the Jasper Circuit
and Court
The Honorable John Potter, Judge
S.A. (Father), Trial Court Cause No.
Appellant-Respondent, 37C01-1811-JT-260
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Tavitas, Judge.
Case Summary
[1] S.A. (“Father”) appeals the termination of his parental rights to D.A. (the
“Child”). We affirm.
Issue
[2] Father raises one issue, which we restate as whether Father’s due process rights
were violated by the failure to provide services to him during his incarceration.
Facts
[3] The Child was born in May 2016 to Father and J.B. (“Mother”). On May 26,
2016, the State charged Father in Boone County with unlawful possession of a
firearm by a serious violent felon, a Level 4 felony, and carrying a handgun
without a license, a Level 5 felony, in Cause No. 06D02-1605-F4-456 (“Cause
456”). On August 13, 2016, the State arrested Father and charged him in
Jasper County with unlawful possession of a firearm by a serious violent felon,
a Level 4 felony; disarming a law enforcement officer, a Level 5 felony; battery
with bodily injury to a public safety officer, a Level 5 felony; and resisting law
enforcement, a Level 6 felony, in Cause No. 37C01-1608-F4-661 (“Cause
661”).
[4] On November 28, 2016, Father pleaded guilty in Cause 661 to unlawful
possession of a firearm by a serious violent felon, a Level 4 felony, and battery
resulting in bodily injury to a public safety officer, a Level 5 felony. The trial
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court sentenced Father to eleven years in the Department of Correction
(“DOC”). On May 14, 2018, Father pleaded guilty in Cause 456 to unlawful
possession of a firearm by a serious violent felony, a Level 4 felony, and he was
sentenced to eight years in the DOC with two years suspended. The trial court
ordered his sentence to be served consecutively to his sentence in Cause 661.
Father’s current release date is in 2028.
[5] On December 14, 2017, the Jasper County Department of Child Services
(“DCS”) removed the Child from Mother’s care after it received a report that an
overdose occurred at Mother’s residence and that Mother abused drugs.
Mother tested positive for methamphetamine at that time. Mother had been
involved in three prior CHINS cases involving substance abuse.
[6] On February 9, 2018, the trial court found that the Child was a CHINS. A
March 2018 dispositional decree ordered Mother to participate in services and
ordered Father to sign releases. Mother, however, was not compliant with
services and continued to test positive for methamphetamine.
[7] On November 27, 2018, DCS filed a petition to terminate Mother’s and
Father’s parental rights to the Child. A hearing was held on the petition on
May 20, 2019. The trial court entered findings of fact and conclusions of law
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terminating Mother’s and Father’s parental rights to the Child. 1 With respect to
Father, the trial court found:
[Father] has been incarcerated at the Indiana DOC for nearly the
entire life of the CHINS case. His earliest possible release date is
in 2028 at which time the child will be at least 12 years old.
*****
Father was incarcerated at the time of removal and has remained
incarcerated for all but 3 months of the child’s life. No services
or visitations have been offered to him. Further, Father has
provided no proof to DCS that he participated in any services
while in the DOC.
Father cannot take care of the child while incarcerated and is not
scheduled to be released until 2028.
Therefore, Father is not a viable option for placement due to his
lengthy incarceration[.] Father is currently incarcerated for two
separate felony cases. He is incarcerated for possession of a
handgun by a violent felon and battery with bodily injury to a
public safety officer.
Father has had no relationship or bond with the child. Father
was only with the child for a short time when he was a baby and
Father was on the run from criminal charges.
1
Mother did not appear for the termination of parental rights hearing, and she does not participate in this
appeal.
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Father has been able to reduce the time he is required to serve by
obtaining his GED and participating in a problem solving course.
He is currently on a waiting list for other courses and college
classes.
Father understands the situation he has placed himself in with
regards to the child.
*****
Father cannot care for the child due to his incarceration.
Appellant’s App. Vol. II pp. 24-25. Father now appeals.
Analysis
[8] Father does not challenge the trial court’s findings in support of termination of
his parental rights under Indiana Code Section 31-35-2-4. 2 Rather, Father
2
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, the court shall terminate the parent-child
relationship.” Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate a parent-child
relationship involving a child in need of services must allege, in part:
(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) The 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 local office or probation department for at least fifteen (15)
months of the most recent twenty-two (22) 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:
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argues that his due process rights were violated by DCS’s failure to provide him
with services during his incarceration.
[9] DCS contends that Father waived any argument that he was deprived of due
process rights by the failure to provide him with services. A parent may waive a
due process claim in a CHINS or termination proceeding by raising that claim
for the first time on appeal. S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d
1114, 1120 (Ind. Ct. App. 2013) (citing McBride v. Monroe Cnty. Office of Family &
Children, 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003)). Father never raised a
due process claim at the trial level; therefore, he has waived his constitutional
challenge with respect to the termination proceedings.
[10] Waiver notwithstanding, Father’s argument fails. 3 The Fourteenth
Amendment to the United States Constitution provides that “no person shall be
deprived of life, liberty, or property without due process of law.” U.S. Const.
(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.
DCS must establish these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
(Ind. 2016).
3
Father cites the Indiana Administrative Orders and Procedures Act and applies the arbitrary and capricious
standard of review. The State properly points out that Father is appealing from a final judgment, not an
agency decision, and this standard of review is inapplicable.
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amend. XIV. “We have repeatedly noted that the right to raise one’s children is
more basic, essential, and precious than property rights and is protected by the
Due Process Clause.” Hite v. Vanderburgh Cty. Office of Family & Children, 845
N.E.2d 175, 181 (Ind. Ct. App. 2006). “When the State seeks to terminate the
parent-child relationship, it must do so in a manner that meets the requirements
of the due process clause.” Id.
[11] We have long recognized, however, that the inability to provide services to an
incarcerated parent does not amount to a denial of due process. See In re H.L.,
915 N.E.2d 145, 148 (Ind. Ct. App. 2009) (holding that DCS’s failure to
provide parental visitation and classes during the father’s incarceration was not
a denial of due process); Castro v. State Office of Family & Children, 842 N.E.2d
367, 377 (Ind. Ct. App. 2006) (“Because of Castro’s incarceration, not only was
the MCOFC unable to offer services to him, but it was unable to even fully
evaluate him to determine what services are necessary. MCOFC’s failure to
offer services to Castro does not constitute a deprivation of his due process
rights.”), trans. denied; In re S.K., 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019)
(finding no denial of due process where the father was incarcerated for killing
the children’s mother and “DCS was unable to offer services to Father or to
evaluate him to determine what services might benefit him”), trans. denied.
Here, DCS was unable to provide services to Father due to his incarceration.
The inability to provide such services did not result in a denial of Father’s due
process rights.
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Conclusion
[12] Father waived his due process argument. Waiver notwithstanding, DCS’s
inability to provide services to Father during his incarceration did not result in a
denial of Father’s due process rights. We affirm.
[13] Affirmed.
Brown, J., and Altice, J., concur.
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