In the Matter of the Termination of the Parent-Child Relationship of N.F. (Minor Child) S.F. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Oct 28 2019, 7:43 am
regarded as precedent or cited before any
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
Anna Onaitis Holden Curtis T. Hill, Jr.
Zionsville, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination October 28, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of N.F. (Minor Child); 19A-JT-770
S.F. (Father), Appeal from the Marion Superior
Court
Appellant-Respondent,
The Honorable Marilyn A.
v. Moores, Judge
The Honorable Scott Stowers,
Indiana Department of Child Magistrate
Services, Trial Court Cause No.
49D09-1809-JT-1083
Appellee-Petitioner,
and
Child Advocates, Inc.,
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Appellee-Guardian Ad Litem.
Najam, Judge.
Statement of the Case
[1] S.F. (“Father”) appeals the trial court’s termination of his parental rights over
his minor child N.F. (“Child”). Father presents a single issue for our review,
namely, whether the Indiana Department of Child Services (“DCS”) deprived
him of his right to due process when it failed to make reasonable efforts to
reunify Father with Child. We affirm.
Facts and Procedural History
[2] On January 23, 2005, Child was born to Father and S.J. (“Mother”). Father
has a lengthy criminal history, and he has been incarcerated for approximately
seven of the past ten years. In 2015, a juvenile court found that Child was a
Child in Need of Services (“CHINS”) after substantiating “allegations of abuse
and neglect,” and the court granted wardship of Child to DCS. Appellant’s
App. Vol. 2 at 52. Following convictions for five counts of “Felon in
Possession of a Firearm” in a federal court, in March 2017, Father was
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sentenced to an aggregate term of eighty months in a Kentucky prison. Id. at
53. Father’s expected out date is July 24, 2020. Father also has a pending
“arrest warrant out of Marion County Indiana.” Id.
[3] In December 2015, the juvenile court changed the permanency plan from
reunification to adoption, and the court terminated Mother’s parental rights
over Child. It was not until September 13, 2018, that DCS filed its petition to
terminate Father’s parental rights over Child. Following a final fact-finding
hearing, the court granted DCS’ petition. In its findings and conclusions, the
court stated in part as follows:
20. [Father] has not seen the child in approximately a year and
a half.
***
33. [Father] last had telephone contact with [Child] in
December 2018 or January 2019.
34. Following that telephone contact with his father, [Child]
became withdrawn, upset, and depressed.
35. [Father] has been incarcerated for the majority of [Child]’s
life.
36. [Father] has not had a meaningful role in [Child]’s life and
is not bonded with the child.
Id. at 53-54. The court also found that Child is “comfortable” and “feels loved”
in his pre-adoptive foster home, where he had lived for fourteen months as of
the final hearing. Id. at 54. This appeal ensued.
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Discussion and Decision
[4] Father contends that DCS “made no efforts, let alone statutorily-required
reasonable efforts, to reunify S.F. with his son. [DCS’] failure to follow the
statutory requirements violated Father’s right to procedural due process.”
Appellant’s Br. at 14. In particular, Father states that “a parent’s right to DCS’
reasonable efforts to reunify a family is codified at Indiana Code Section 31-34-
21-5.5.” 1 Id. at 15. While Father acknowledges the “challenge” to DCS in
providing services to Father while he is incarcerated, he finds “troubling” DCS’
failure to “find a way to fulfill its statutory duty to provide reasonable efforts.”
Id. at 16. Father does not challenge the sufficiency of the evidence to support
the termination order.
[5] We begin our review of this issue by acknowledging that “[t]he traditional right
of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001).
1
Indiana Code Section 31-34-21-5.5 provides in relevant part that DCS “shall make reasonable efforts to
preserve and reunify families as follows: . . . to make it possible for the child to return safely to the child’s
home as soon as possible.”
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[6] As this Court has explained,
[w]hen the State seeks the termination of a parent-child
relationship, it must do so in a manner that meets the
requirements of the Due Process Clause. Hite v. Vanderburgh
County Office of Family and Children, 845 N.E.2d 175, 181 (Ind. Ct.
App. 2006). The parent must be afforded the opportunity to be
heard at a meaningful time and in a meaningful manner. Id.
Due process in parental rights cases involves the balancing of
three factors: (1) the private interests affected by the proceeding;
(2) the risk of error created by the State’s chosen procedure; and
(3) the countervailing government interest supporting the use of
the challenged procedure. Id.
A parent’s interest in the care, custody, and control of his or her
children is a fundamental liberty interest; thus, the private
interest involved is substantial. Id. The government’s interest is
also substantial, as the State of Indiana has a compelling interest
in protecting the welfare of its children. Id.
A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 147 (Ind. Ct. App.
2009).
[7] In In re H.L., we addressed the father’s contention that he had a right “to receive
services despite his incarceration” and that he was denied due process when
DCS did not provide services. Id. Father was incarcerated “throughout the
CHINS proceedings” and, on appeal from the termination of his parental
rights, he alleged that he “was unable to participate in services,” which were not
provided at the county jails where he was incarcerated. Id. at 148. We
reiterated that “DCS is generally required to make reasonable efforts to preserve
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and reunify families during CHINS proceedings” pursuant to Indiana Code
Section 31-34-21-5.5. Id. But we held as follows:
Father has not shown that the DCS failed to make reasonable
efforts toward family preservation. In a strict sense, the record
supports Father’s assertions that the DCS did not actively
promote the development of his relationship with H.L., whom
Father has apparently not met. Nevertheless, the absence of
services was due to Father’s incarceration and he does not point
to any evidence that he specifically requested visitation or other
services.
***
As of the termination hearing, Father had been sentenced to four
years imprisonment (with one and one-half years suspended) for
Forgery and Theft committed in Carroll County and two years
for Residential Entry committed in Cass County. Thus, the DCS
was unable to offer services to Father or fully evaluate him to
determine what services might have been needed. The inability to
provide services in such circumstances does not amount to a denial of due
process. See Castro v. State Office of Family and Children, 842 N.E.2d
367, 377 (Ind. Ct. App. 2006), trans. denied.
Id. (emphasis added).
[8] Likewise, here, Father blames DCS for its failure to facilitate contact between
Father and Child in an effort at reunification. But Father does not direct us to
any evidence that he had made any effort to contact Child after their last phone
call in December 2018 or January 2019 or after their last visit more than one
year prior to the final hearing. And Father does not direct us to any evidence
that he sought help from DCS or other sources in finding appropriate services
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that might have been available to him in prison. Moreover, as DCS points out,
once the juvenile court changed the permanency plan from reunification to
adoption in December of 2015, DCS was not thereafter required to provide
services to Father towards reunification. Wedding v. Dep’t of Child Servs. of
Vanderburgh Cty. (In re A.D.W.), 907 N.E.2d 533, 538 (Ind. Ct. App. 2008)
(citing I.C. § 31-34-21-5.8). We hold that Father was not denied his right to due
process as the result of DCS’ inability to provide Father with services while
incarcerated. See id.
[9] Affirmed.
Bailey, J., and May, J., concur.
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