In the Matter of the Involuntary Termination of the Parent-Child Relationship of F.P., J.P., M.C., (Minor Children) and C.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 20 2019, 9:16 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle Curtis T. Hill, Jr.
Thomasson, Thomasson, Long & Attorney General
Guthrie, P.C.
Columbus, Indiana Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary September 20, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of F.P., J.P., M.C., 19A-JT-590
(Minor Children) Appeal from the Bartholomew
and Circuit Court
The Honorable Kelly Benjamin,
C.C. (Mother), Judge
Appellant-Respondent, The Honorable Heather Mollo,
Magistrate
v.
Trial Court Cause Nos.
03C01-1709-JT-4847, -48, -49
The Indiana Department of
Child Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] C.C. (“Mother”) appeals the involuntary termination of her parental rights to
F.P., J.P., and M.C. (“Children”). 1 She argues that the trial court committed
clear error in concluding that there is a reasonable probability that the
conditions that resulted in the Children’s removal and continued placement
outside the home will not be remedied and that termination is in the Children’s
best interests. She also argues that she was denied due process after disposition
in the children in need of services (“CHINS”) case because she was not
represented by counsel at subsequent CHINS hearings. We conclude that the
trial court’s conclusions are clearly and convincingly supported by the
unchallenged findings of fact and that Mother waived her due process claim by
raising it for the first time on appeal. Therefore, we affirm.
Facts and Procedural History
[2] The unchallenged findings of fact show that Mother is paralyzed from the waist
down and uses a wheelchair as a result of being struck while riding a bicycle
when she was eleven years old. 2 M.C. was born in August 2013. F.P. and J.P.
are twins born in December 2014.
1
F.P. and J.P.’s father executed consents for their adoption. M.C.’s father’s parental rights were terminated
in the same order as Mother’s, but he does not appeal.
2
Mother received a $200,000 settlement from the accident, which is managed by a trustee.
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[3] On January 22, 2015, the Indiana Department of Child Services (“DCS”)
received a report that the Children were abused and/or neglected due to unsafe
sleeping and feeding conditions in Mother’s home. Appealed Order at 2
(Finding #7). At that time, F.P. and J.P.’s father (“Father”) lived with the
family. On January 26, 2015, DCS Family Case Manager (“FCM”) Amy
Pawlus visited Mother’s home. Pawlus smelled rotting food, dirty diapers, and
urine and “observed garbage bags overflowing, sharp items within reach of the
Children, excessive flies in the home, flies on baby bottles, and formula
spoiling.” Id. at 3 (#8). Pawlus also observed F.P. and J.P. “being fed with
propped up bottles in their cribs without proper supervision.” 3 Id.
[4] On February 13, 2015, Pawlus visited the home again and found that
conditions remained substantially the same; some of the same dishes, food, and
garbage bags that Pawlus had seen at the earlier visit were still present. Id. (#9).
Also, F.P. and J.P. were asleep in their cribs with bottles propped up for
feeding. Id. Crusted formula was in their hair, and flies were on their faces and
bottles. Id. Mother was indifferent and unconcerned about the feeding and
sleeping practices. Id. (#10). Initially, Mother was offered a program of
informal adjustment, but no improvement was observed. Id. (#11). During
March 2015, Pawlus never observed the home in a condition that was safe for
3
The bottles contained eight ounces of formula, contrary to the doctor’s order for two ounces of formula per
feeding. Tr. Vol. 2 at 49.
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the ages of the Children. Id. M.C. was mobile, but there was rotting food on
the floor, and there were sharps containers within her reach with openings large
enough for her hand. Id. The Children were often seen wearing the same
urine-soaked clothing. 4 Id.
[5] On March 19, 2015, the Children were removed from Mother’s care. On
March 22, 2015, DCS filed a petition alleging that the Children were CHINS.
Mother admitted that she was struggling to care for the Children and the home,
there was a buildup of garbage, dirty dishes, and dog feces, 5 the home was not
appropriate for the Children in its present state, and the Children were CHINS.
Id. (#16). The dispositional order required Mother to participate in home-based
case management, a parenting curriculum, and supervised visitation with the
Children. Initially, Mother had supervised visitation with the Children for two
hours three times a week.
[6] After removal from Mother’s home, the Children were placed in foster care.
When they first arrived at their foster home, “they were physically dirty, had an
odor, did not like to take baths, and struggled to sleep at night.” Id. at 11
4
Pawlus testified that the Children were dirty, and their clothes usually smelled of and were soaked in urine.
Tr. Vol. 2 at 59. She also testified that the smell from the rotting food, garbage, dirty diapers, and urine was
“overpowering.” Id. at 53.
5
The presence of dog feces appears to apply to the Children’s grandmother’s home, which was attached to
Mother’s home.
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(#90). M.C. and J.P. were evaluated by First Steps. 6 M.C. “was found to be
globally deficient and required developmental therapy, occupational therapy,
and physical therapy.” Id. at 10 (#88). M.C. “quickly made progress and
completed services within two months.” Id. J.P. was diagnosed with torticollis
and required physical therapy for a longer period of time. 7 Id. (#89). While in
foster care, the Children “started hitting their developmental milestones.” Id. at
11 (#92).
[7] DCS providers determined that Mother had problems with anxiety and
depression, which affected her daily living, and offered her individual therapy.
Id. at 4 (#6). From July 2015 to June 2017, Jeannie Arbuckle served as
Mother’s individual therapist. Id. (#7). Arbuckle used several therapeutic
techniques to help Mother, but Mother saw them as chores, and there was not
much progress. Id. (#8). In early 2016, Arbuckle recommended that, in
addition to therapy, Mother seek medication management for her depression
and anxiety. Id. at 5 (#14). Mother agreed, but her regularity in taking the
medication was questionable. Id. (#15).
[8] In the early months of the case, Mother was able to improve the conditions of
the home. Sometime between March 14 and June 28, 2016, the Children had
6
First Steps is a program administered by the Indiana Family and Social Services Administration for
children under the age of three who are experiencing developmental delays. IN.gov, FSSA: First Steps
Home, https://www.in.gov/fssa/4655.htm (last visited Sept. 3, 2019).
7
Torticollis is “a tightening of the neck muscle” and apparently caused J.P.’s head to tilt in one direction.
Tr. Vol. 2 at 98.
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their first overnight visitation with Mother. Id. at 6 (#30). During that visit,
Mother violated the Children’s safety plan by leaving one of the Children asleep
on a changing table. Id. “It was particularly troubling to have these incidents
still occurring one year after the opening of the CHINS case despite home based
services and a safety plan.” Id. Afterward, DCS resumed supervised visitation.
[9] Over the course of 2016, safety conditions in the home had to be continually
addressed. Prescription bottles and inhalers were left within reach of the
Children. Id. (#31). The Children’s training potty was not properly emptied,
with fecal matter and urine left unattended. Id. There was exposed wiring near
the Children’s cribs, and a heavy headboard leaning against a dresser. The
Children were seen eating food off the floor. Id. “Used diapers were left
unattended and the house smelled of urine.” Id. (#32). In November 2016,
DCS recommended that Mother hire a cleaning service. Id. (#33). For six
months, DCS “worked in earnest to assist Mother” with hiring a cleaning
service. Id. Finally, a deep clean was scheduled for March 2017, but it never
occurred. Id.
[10] On March 22, 2017, the Children began a trial home visit with Mother.
However, after two and a half months, the Children were removed due to
numerous concerns for their safety and well-being: the condition of the home
deteriorated and was unsafe, with dishes piling up and latex gloves and exposed
wiring within the Children’s reach; Mother failed to remediate safety issues in a
timely manner; the Children appeared unkempt; the Children displayed
increased aggression, with hitting, screaming, and biting; there was a lack of
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physical contact or emotional warmth from Mother toward the Children; the
Children sought each other out for comfort rather than Mother; the Children
were left unattended in the bathtub; two of the Children got out of the house
and into the street unattended because Mother “forgot to lock the door”;
Mother quit trying to have the Children take naps; there appeared to be no
routine; and M.C. required a short hospital stay for a health issue that may have
been a psychosomatic symptom due to stress. Id. at 7-8 (#38-54). Also, during
the trial home visit, J.P. was engaged in a physical therapy program for a delay
in walking and balance. However, Mother did not seem interested in
participating, and it was not until J.P. was returned to foster care that she made
sufficient progress to be successfully discharged from therapy. Id. at 7 (#37). In
addition, there was an instance of domestic violence, during which Father
physically assaulted the Children’s grandmother, Mother held a ten- to twelve-
inch knife against Father’s throat, and one of the Children got pushed down.
Id. at 8-9 (#56). After the incident, Father moved out of Mother’s home.
[11] On June 6, 2017, the Children were removed from Mother’s care and returned
to foster care, and supervised visitation resumed. During visitation, “Mother
required frequent prompting … regarding safety concerns” and “did not
consistently implement recommendations from providers that were crucial to
child safety and often blatantly ignored prompts from providers.” Id. at 11
(#101). The Children became reluctant to visit Mother and verbally expressed
that they did not want to attend visits. Id. at 12 (#106). F.P. physically resisted
attending a visit, and J.P. was “hard to console when she understood that a visit
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with Mother was going to occur.” Id. M.C. “displayed a stress response of
needing to immediately go to the bathroom at the start of a visit with Mother.”
Id. During visitation, “Mother put her own needs before those of the
Children” and “required prompting to interact with the Children in a warm and
loving manner.” Id. (#105). “Mother was unwilling to implement changes in
her parenting and became frustrated when things [did] not go her way.” Id. at
11 (#103). By September 2017, the Children’s therapist recommended that
visitation be discontinued due to the level of distress it caused the Children. Id.
at 12 (#107). The trial court reduced visitation to one hour per week and set a
status hearing for six weeks to give Mother time to make positive changes. Id.
However, supervised visits never progressed beyond one hour per week. Id.
(#108). Mother had opportunities to attend the Children’s appointments with
medical providers but attended less than half. Id. at 9-10 (#69, 73). For
example, she missed F.P. and J.P.’s two-year physical. Id. at 9 (#70).
According to Mother, she failed to attend the Children’s appointments because
she slept late due to her depression, forgot, or had conflicts. Id. at 10 (#73).
[12] After the trial home visit, domestic violence and safe relationships were added
to Mother’s treatment goals in therapy and case management. Id. at 9 (#58).
Despite this counseling, Mother became a pen pal with a person who was
incarcerated and planned to have him move into her home when he was
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released. 8 Id. (#63). “Even after Mother was cautioned that unhealthy
romantic relationships could delay reunification with the Children, she visited
the pen pal in jail.” Id. (#64).
[13] In July 2017, Arbuckle stopped serving as Mother’s therapist. At the time
Arbuckle stopped therapy, “Mother was still working on the same initial goals
in therapy – anxiety, depression, coping strategies, and routines.” Id. at 5
(#16). From September 2017 to December 2017, Mother had individual
therapy with Cathy Gentry. Id. (#21). Gentry diagnosed Mother with major
depressive disorder. Id. (#22). Gentry’s primary goal of therapy was for
“Mother to learn how to take care of herself before taking care of the Children.”
Id. (#23). Gentry “found Mother to be receptive to therapy, but that she lacked
follow through.” Id. (#26). Mother typically failed to complete assigned goals,
and failed “to create a schedule for herself so that she would not sleep all day.”
Id. (#26-27). When Gentry stopped therapy with Mother, “Mother had not
progressed to the point of being able to take care of herself,” and Gentry had
concerns for the Children’s safety if they were returned to Mother. Id. at 6
(#28). In January 2018, Lee Hamlin became Mother’s therapist. Id. at 10
(#78). After an initial meeting, Mother failed to attend a scheduled
appointment and cancelled the next two appointments. Id. (#79-80).
8
The inmate was in prison on a drug-related conviction, including possession of methamphetamine. Ex. at
45.
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[14] On September 6, 2017, DCS filed petitions for the involuntary termination of
the parent-child relationships. On March 23 and May 18, 2018, the trial court
conducted an evidentiary hearing. The Children’s therapist supported the
Children being adopted by foster parents based upon the bonds and attachments
of the Children. Id. at 12 (#109). The Children’s current court appointed
special advocate (“CASA”) also supported adoption of the Children by the
foster parents and believed “visits with Mother were a disruption to the
Children’s lives.” Id. at 13 (#114, 122). Three different family case managers
opined that “it would be detrimental to the Children from a psychological and
emotional standpoint to continue efforts of reunification with Mother.” Id.
(#117). “The detrimental harm is the combination of Mother struggling to
understand age appropriate parenting and development, Mother’s lack of
nurturing and inability to comfort, Mother’s lack of self-care and inability to be
fully present as a parent, and an ongoing inability to maintain safe living
conditions for the Children.” Id. On February 11, 2019, the trial court issued
findings of fact and conclusions thereon, terminating Mother’s parental rights to
the Children. This appeal ensued.
Discussion and Decision
[15] Mother seeks reversal of the termination of her parental rights. In considering
her appeal, we recognize that “a parent’s interest in the care, custody, and
control of his or her children is ‘perhaps the oldest of the fundamental liberty
interests.’” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)). “[A]lthough
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parental rights are of a constitutional dimension, the law provides for the
termination of these rights when the parents are unable or unwilling to meet
their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App.
2008). Involuntary termination of parental rights is the most extreme sanction,
and therefore “termination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id.
[16] Because “the Fourteenth Amendment to the United States Constitution protects
the traditional right of parents to establish a home and raise their children,” we
apply a heightened standard of review to termination proceedings. In re V.A.,
51 N.E.3d 1140, 1144 (Ind. 2016) (quoting In re Adoption of O.R., 16 N.E.3d
965, 972 (Ind. 2014)).
In considering whether the termination of parental rights is
appropriate, we do not reweigh the evidence or judge witness
credibility. We consider only the evidence and any reasonable
inferences therefrom that support the judgment, and give due
regard to the trial court’s opportunity to judge the credibility of
the witnesses firsthand. Where a trial court has entered findings
of fact and conclusions of law, we will not set aside the trial
court’s findings or judgment unless clearly erroneous. [Ind. Trial
Rule 52(A)]. In evaluating whether the trial court’s decision to
terminate parental rights is clearly erroneous, we review the trial
court’s judgment to determine whether the evidence clearly and
convincingly supports the findings and the findings clearly and
convincingly support the judgment.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013)
(citations and quotation marks omitted).
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[17] A petition to terminate a parent-child relationship involving a CHINS must,
among other things, allege:
(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
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.
Ind. Code § 31-35-2-4(b)(2) (emphasis added). DCS must also allege that
termination is in the best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C).
DCS must prove each element by “clear and convincing evidence.” R.S., 56
N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the
allegations in the petition are true, the court shall terminate the parent-child
relationship. Ind. Code § 31-35-2-8(a).
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Section 1 – The trial court did not clearly err in concluding
that there is a reasonable probability that the conditions that
resulted in the Children’s removal or the reasons for
placement outside Mother’s home will not be remedied.
[18] Mother asserts that “[t]he trial court committed error when it failed to show by
clear and convincing evidence” that there is a reasonable probability that the
conditions that resulted in the Children’s removal and continued placement
outside Mother’s home will not be remedied. Appellant’s Br. at 18. Initially,
we observe that DCS, not the trial court, has the burden of proving the elements
required under Section 31-35-2-4 by clear and convincing evidence. We further
note that even though Mother’s argument refers to the sufficiency of the
evidence, Mother has not directly challenged any of the trial court’s findings.
When findings of fact are unchallenged, this Court accepts them as true. In re
S.S., 120 N.E.3d 605, 608, n.2 (Ind. Ct. App. 2019). As such, if the
unchallenged findings clearly and convincingly support the judgment, we will
affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans.
denied; T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App.
2012), trans. denied.
[19] In reviewing whether there is a reasonable probability that the conditions that
resulted in the Children’s removal or the reasons for placement outside
Mother’s home will not be remedied, we engage in a two-step analysis. K.T.K.,
989 N.E.2d at 1231. First, “we must ascertain what conditions led to
placement and retention in foster care.” Id. Second, we “determine whether
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there is a reasonable probability that those conditions will not be remedied.” Id.
(quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). When the trial court
makes its determination, it must evaluate a parent’s fitness at the time of the
termination hearing, taking into consideration evidence of changed conditions
and balancing a parent’s recent improvements against “habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “A court may properly consider evidence of a parent’s prior
criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and lack of adequate housing and employment.” McBride v. Monroe
Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). In
addition, a trial court may consider services offered by DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. “Where there are only temporary improvements and the pattern
of conduct shows no overall progress, the court might reasonably find that
under the circumstances, the problematic situation will not improve.” In re
A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not required to
provide evidence ruling out all possibilities of change; rather, it need only
establish ‘that there is a reasonable probability that the parent’s behavior will
not change.’” A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d
236, 242 (Ind. Ct. App. 2007)).
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[20] Here, the conditions that resulted in the Children’s removal and placement
outside Mother’s home were Mother’s failures to provide the Children with a
safe environment. Mother contends that she made significant progress in
improving the conditions of the home over the course of the CHINS case, the
trial court’s orders show that she made progress, and DCS’s disapproval of the
home conditions can be primarily attributable to a difference in housekeeping
standards. Mother’s argument emphasizes the improvements in the cleanliness
of her home, but that was only one aspect of the home environment that was
unsafe for the Children and led to their removal. The unchallenged findings of
fact show that Mother’s parenting significantly contributed to the creation of
unsafe conditions. FCM Pawlus observed that one-month-old F.P. and J.P.
were left unattended in their cribs to feed themselves with propped-up bottles,
and obvious safety hazards such as Mother’s sharps container were left within
fifteen-month-old M.C.’s reach.
[21] Safe parenting remained an issue throughout the CHINS case. During the first
overnight visitation the Children had with Mother in the spring of 2016, safety
was an issue. After a year of services covering child safety and parenting,
Mother allowed one of the twins to sleep on a changing table in violation of the
Children’s safety plan. Over the course of 2016, unsafe conditions in the home
were a consistent problem: DCS providers observed prescription bottles and
inhalers left within the Children’s reach, exposed wiring, and fecal matter and
urine left unattended in the training potty. Mother seemed not to recognize that
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some conditions were a safety hazard to the Children, such as the headboard
left leaning against a dresser.
[22] During the trial home visit from March 22 to June 6, 2017, Mother had two
and a half months to practice safe parenting, strengthen the bond with her
Children, and demonstrate that she was able to care for the Children and
manage the home. However, the trial home visit had to be terminated due to
safety and parenting issues. As for safety concerns, dangerous items were left
within the Children’s reach, Mother failed to timely remedy dangerous
conditions, the Children were left unattended in the bathtub, and two of the
Children got out of the house and into the street unattended. As for parenting
concerns, there was a lack of emotional warmth from Mother toward the
Children, the Children sought each other out for comfort rather than Mother,
Mother did not seem interested in participating in J.P.’s therapy, the Children
appeared unkempt, they were seen eating off the floor, and they displayed
escalating aggression, including hitting, screaming, and biting. There was also
a physical altercation when Father attacked the Children’s grandmother, and
Mother held a knife to his neck. Although Father left after the altercation,
Mother pursued a relationship with an incarcerated individual even after she
was counseled that unhealthy romantic relationships could delay reunification
with the Children.
[23] Mother also failed to progress in her individual therapy. When Arbuckle
stopped therapy with Mother in July 2017, Mother was still working on the
same initial therapy goals. When Gentry stopped therapy with Mother in
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December 2017, Gentry did not believe Mother had progressed to the point of
being able to take care of herself, and Gentry had concerns for the Children’s
safety if they were returned to Mother. Another therapist met with Mother
once in January 2018, but Mother missed the next appointment and cancelled
two others.
[24] In addition to the lack of progress in safe parenting and individual therapy,
Mother’s relationship with the Children also deteriorated. This occurred even
after the Children had lived with Mother for two and a half months during the
trial home visit. Mother still “required frequent prompting during visits
regarding safety concerns” and “did not consistently implement
recommendations from providers that were crucial to child safety and often
blatantly ignored prompts from providers.” Appealed Order at 11 (#101).
Mother put her own needs before the Children’s and required prompting to
interact with the Children in a loving manner. Id. at 12 (#105). Also, “Mother
was unwilling to implement changes in her parenting and became frustrated
when things [did] not go her way.” Id. at 11 (#103). Eventually, the Children
expressed reluctance to visit Mother. Due to the level of distress the Children
experienced as a result of visitation, their therapist recommended that visits be
reduced to one hour a week.
[25] The trial court’s findings show that over the two and a half to three years that
DCS had been providing services, Mother may have made progress in keeping
her house relatively clean, but she was unable to parent in a way that
maintained a safe, secure, and stable environment for the Children. We
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conclude that the findings clearly and convincingly support the trial court’s
conclusion that there is a reasonable probability that the conditions that resulted
in the Children’s removal and the reasons for continued placement outside the
home will not be remedied. 9
Section 2 – The trial court did not clearly err in concluding
that termination of Mother’s parental rights is in the
Children’s best interests.
[26] Mother also challenges the trial court’s conclusion that termination of the
parent-child relationship is in the Children’s best interests.
[I]n determining what is in the best interests of a child, the trial
court is required to look beyond the factors identified by [DCS]
and to consider the totality of the evidence. In so doing, the trial
court must subordinate the interests of the parent to those of the
child. The court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship.
Moreover, we have previously held that the recommendations of
the case manager and court-appointed advocate to terminate
parental rights, in addition to evidence that the conditions
resulting in removal will not be remedied, is sufficient to show by
clear and convincing evidence that termination is in the child’s
best interests.
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted).
9
Due to our resolution of this issue, we need not address Mother’s argument that the trial court erred in
concluding that there is a reasonable probability that the continuation of the parent-child relationship poses a
threat to the Children’s well-being.
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[27] Here, the CASA and the Children’s therapist supported termination of parental
rights and adoption by the foster parents, and three different family case
managers opined that continued efforts toward reunification would be
detrimental to the Children’s psychological and emotional well-being. We have
already concluded that there is a reasonable probability that the conditions that
resulted in the Children’s removal from Mother’s care will not be remedied.
Accordingly, we conclude that the trial court did not clearly err in concluding
that termination is in the Children’s best interests.
Section 3 – Mother waived her claim that her due process
rights were violated.
[28] At the initial hearing in the CHINS case, Mother requested and was appointed
counsel. Ex. at 6. At the conclusion of the dispositional hearing, Mother’s
counsel requested to withdraw his appearance. The record does not indicate
the reason for the request. The trial court granted counsel’s request but ordered
that counsel “shall remain available should [M]other have any questions that
arise during the progression of the case.” Id. at 12. Mother did not appeal the
dispositional decree.
[29] On August 7, 2017, after the trial home visit ended and the Children were
removed from Mother’s care, Mother wrote a letter to the trial court requesting
a public defender. On August 30, 2017, the trial court granted Mother’s request
and appointed public defender Christopher Clerc to represent Mother. On
September 6, 2017, DCS filed the petitions for involuntary termination of the
parent-child relationships. Mother did not file a motion to dismiss the
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termination petition. At the evidentiary hearings on March 23 and May 18,
2018, Clerc appeared on Mother’s behalf. Clerc did not raise the issue that
Mother had not been represented by counsel throughout the CHINS
proceedings. Mother now argues for the first time that failure to provide her
with counsel through all stages of the CHINS proceeding violated her
constitutional and statutory due process rights.
[30] It is well established that “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). And “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.E. v. Ind. Dep’t of Child Servs., 15
N.E.3d 37, 43-44 (Ind. Ct. App. 2014), trans. denied; see also McBride, 798 N.E.2d
at 194 (affirming termination of parental rights and concluding that mother
waived claim that her due process rights were violated by numerous alleged
deficiencies in the CHINS proceedings because she did not raise the issue to the
trial court); In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (affirming
termination of parental rights and concluding that mother waived due process
claim that trial court violated her rights in failing to follow statutory
requirements governing permanency hearings, case plans, and dispositional
orders by raising issue for the first time on appeal). Mother could have raised
her due process claim in a motion to dismiss or brought it to the trial court’s
attention during the termination proceedings. She failed to do so. Accordingly,
she has waived her due process claim.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-590 |September 20, 2019 Page 20 of 21
[31] Based on the foregoing, we affirm the termination of Mother’s parental
relationship to the Children.
[32] Affirmed.
Baker, J., and Kirsch, J., concur.
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