In the Matter of the Involuntary Termination of the Parent-Child Relationship of: Mi.T. and Ma.T. (Minor Children), and G.T. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 18 2020, 6:10 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:
(FATHER) INDIANA DEPARTMENT OF
Cara Schaefer Wieneke CHILD SERVICES
Brooklyn, Indiana Curtis T. Hill, Jr.
ATTORNEY FOR APPELLANT Attorney General of Indiana
(MOTHER) Robert J. Henke
Deputy Attorney General
Mark Small
Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
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In the Matter of the Involuntary June 18, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: Mi.T. and 20A-JT-181
Ma.T. (Minor Children), Appeal from the Greene Circuit
and Court
The Honorable Erik C. Allen,
G.T. (Mother) and S.T. (Father), Judge
Appellants-Respondents, Trial Court Cause No.
28C01-1904-JT-12
v. 28C01-1904-JT-13
The Indiana Department of
Child Services,
Appellee-Petitioner.
Tavitas, Judge.
Case Summary
[1] G.T. (“Mother”) and S.T. (“Father”) appeal from the termination of their
parental rights to Ma.T. and Mi.T. (“the Children”). We affirm.
Issues
[2] Mother and Father separately allege denials of due process.
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Facts
[3] Mother and Father are the biological parents of twins, Ma.T. and Mi.T., who
were born in November 2015. 1 On July 21, 2017, and July 22, 2017, the
Greene County Office of the Department of Child Services (“DCS”) received
allegations of: (1) domestic violence; (2) Mother’s abuse of methamphetamine;
(3) Father’s abuse of Xanax, marijuana, and prescription pain medication; (4)
Mother’s mental health issues, including a July 2017 suicide attempt when the
Children were present in the home; and (5) neglect. Father subsequently
admitted that he was also abusing methamphetamine.
[4] DCS instituted an informal adjustment, during which the Children remained in
the care of Mother and Father. In August 2017, DCS deemed the informal
adjustment to be a failure. Mother was “screening negative in the beginning”;
however, Father continued to test positive for methamphetamine. Tr. Vol. I-II
p. 147. After Mother relapsed during the informal adjustment period, DCS
removed the Children from the home, and the Children have not since returned
to Mother’s or Father’s care.
[5] DCS filed petitions alleging that the Children were children in need of services
(“CHINS”) on November 13, 2017. On March 5, 2018, the trial court
conducted a fact-finding hearing and adjudicated the Children as CHINS based
1
Mother and Father are divorced and were not in a relationship at the time of the termination hearing.
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on Mother’s and Father’s ongoing substance abuse, failed drug tests, and failure
to maintain sobriety.
[6] Pursuant to the trial court’s dispositional order of April 5, 2018, Mother and
Father were each required to: (1) abstain from consuming alcohol or ingesting
controlled substances; (2) undergo a parenting assessment and comply with
ensuing recommendations; (3) complete substance abuse assessments; (4)
submit to random drug tests; (5) maintain stable and secure home environments
free of abuse or neglect; and (6) provide effective caregiving. It is undisputed
that Mother and Father abused controlled substances and/or prescription pain
medication throughout the majority of this matter.
[7] During the pendency of this action, DCS briefly referred Mother to individual
therapy for her chronic “mild to severe” depression. Id. at 102. Due to a
change in service provider contracts, DCS did not refer Mother to therapy to
address her mental health for a one-year period during the pendency; during
that period, DCS referred Mother to therapy for substance abuse alone.
Following Mother’s suicide attempt, Mother “did therapy and worked through”
her suicidal ideations. Id. With respect to Mother’s mental health, Mother is
also under a doctor’s care; takes prescription medication; “attend[s] therapy
monthly”; and undergoes monthly mental health examinations. Id.
[8] Also during the pendency of this matter, Mother and Father resisted DCS’s
referrals for certain services. Mother: (1) refused at least one drug screen; (2)
cancelled multiple Child and Family Team (“CFT”) meetings; (3) missed at
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least one supervised visit because she was sick due to substance abuse; and (4)
opposed DCS’s referral to the Hamilton Center for a psychological evaluation.
Mother rejected DCS’s repeated efforts to enroll her in intensive outpatient
(“IOP”) drug rehabilitation programming. See id. at 131-32 (testimony that
Mother insisted she could fight her methamphetamine addiction on her own).
[9] On one such occasion, in 2019, family case manager (“FCM”) Carrie Goodwin
took Mother to an immediately-available drug rehabilitation facility, with the
costs to be borne by DCS; Mother refused to attend. At the time, Mother was
residing in a house that lacked “power or [running] water”; however, Mother
rejected the drug rehabilitation facility because it was, in her view, “very dirty,
unsanitary”; “looked like a penitentiary”; and was “more of a rehabilitation
[facility] for [ ] criminal charges rather than [for] rehabilitation for substance
abuse[.]” Id. at 100-01, 122, 133, 151. Mother insisted on attending a drug
rehabilitation facility of her own choosing, despite being told that enrollment in
the other facilities was subject to placement on waiting lists. After Mother
rejected DCS’s drug rehabilitation referral, DCS declined to make further drug
rehabilitation referrals for Mother.
[10] Likewise, Father has also rejected certain DCS-referred services. Id. at 170. At
one stage of the CHINS period, DCS referred Father to IOP drug rehabilitation
services, which Father rejected because he “didn’t need it.” Id. at 58. Also,
Father was admitted to Tara Treatment Center, a substance abuse facility,
where Father completed the treatment program for methamphetamine addicts
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without disclosing during intake that Father also abused prescription
medication.
[11] Further, Mother and Father have jointly rejected services. Mother and Father
“declined” the first four weeks of supervised visitation because the Children’s
initial kinship placement appears to have allowed Mother and Father to visit
with the Children and to skirt DCS’s visitation parameters. Id. at 170.
[12] On April 16, 2019, DCS filed a petition to terminate Mother’s and Father’s
parental rights. The trial court conducted an evidentiary hearing on August 22,
2019, and September 12, 2019. DCS presented evidence that Mother and
Father have continued to use illegal controlled substances and/or abused
prescription medication throughout this action. FCM Goodwin testified that:
(1) DCS was involved in the matter due to Mother’s and Father’s substance
abuse; (2) DCS referred Mother and Father to drug rehabilitation services; and
(3) Mother and Father “are still impaired by drugs or overly prescribed pain
medication.” Id. at 233. FCM Goodwin also testified that Father’s
unwillingness to be “honest” with service providers about his addictions
significantly reduced the likelihood that referred services could be effective. See
Tr. Vol. III-IV p. 2. On January 14, 2020, the trial court entered findings of fact
and conclusions thereon terminating Mother’s and Father’s parental rights.
Mother and Father now appeal separately. 2
2
On March 20, 2020, we granted DCS’s motion to file a consolidated brief as to Mother and Father.
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Analysis
[13] Mother and Father appeal from the termination of their parental rights. The
Fourteenth Amendment to the United States Constitution protects the
traditional rights of parents to establish a home and raise their children. In re
K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,
1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is
‘perhaps the oldest of the fundamental liberty interests recognized by th[e]
[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054(2000)). We recognize, of course, that parental interests are not absolute and
must be subordinated to the child’s best interests when determining the proper
disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental
rights may be terminated when the parents are unable or unwilling to meet their
parental responsibilities by failing to provide for the child’s immediate and long-
term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d
258, 265 (Ind. Ct. App. 2004), trans. denied).
[14] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re. I.A., 934 N.E.2d 1127, 1132 (Ind.
Ct. App. 2010). We consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. We must also give “due regard” to the
trial court’s unique opportunity to judge the credibility of the witnesses. Id.(quoting Ind. Trial Rule 52(A)).
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[15] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b).” Here, the trial court entered findings of fact and conclusions
thereon in granting DCS’s petition to terminate Mother’s and Father’s parental
rights. When reviewing findings of fact and conclusions thereon entered in a
case involving a termination of parental rights, we apply a two-tiered standard
of review. First, we determine whether the evidence supports the findings, and
second, we determine whether the findings support the judgment. Id. We will
set aside the trial court’s judgment only if it is clearly erroneous. Id. A
judgment is clearly erroneous if the findings do not support the trial court’s
conclusions or the conclusions do not support the judgment. Id.[16] 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) 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.
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(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(B) that termination is in the best interests of the child; and
(C) 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).
I. Findings
[17] We initially note that neither Mother nor Father challenges the trial court’s
findings as being clearly erroneous. Any challenge to the trial court’s findings is
waived. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (holding,
where the mother failed to challenge the trial court’s findings, that “[t]o the
extent that [the m]other argues that the trial court’s findings or conclusions are
clearly erroneous, [the m]other has waived this issue by failing to make a cogent
argument.”); see Ind. Appellate Rule 46(A)(8)(a).
II. Due Process
[18] Mother and Father each argue that they were denied due process because DCS
failed to make reasonable efforts to provide services to assist in reunifying them
with the Children. Mother argues that the trial court erred in terminating her
parental rights because her underlying mental health condition never was
addressed in the DCS-referred services. Father argues that DCS failed to “refer
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Father to an outpatient treatment program” and failed to “provide him with
other assistance to treat his opioid addiction.” Father’s Br. pp. 14-15.
[19] Neither Mother nor Father asserted due process arguments below. Arguments
may not be presented for the first time on appeal. See In re K.S., 750 N.E.2d
832, 834 n.1 (Ind. Ct. App. 2001) (holding that the mother waived the issue
concerning the alleged due process violation because the issue was raised for the
first time on appeal); see also Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d
306, 311 (Ind. Ct. App. 2015). Thus, these arguments are also waived.
[20] Mother and Father ask us to consider their due process arguments pursuant to
the fundamental error doctrine. “The fundamental error doctrine is a narrow
exception to the waiver doctrine and applies to an error that was so egregious
and abhorrent to fundamental due process that the trial judge should or should
not have acted, irrespective of the parties’ failure to object or otherwise preserve
the error for appeal.” In Re N.C., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans.
denied. For this Court to overturn a trial court ruling as fundamental error, the
error “must be a clearly blatant violation of basic and elementary principles,
and the harm or potential for harm therefrom must be substantial and appear
clearly and prospectively.” Id.[21] “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.’” In re
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J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (quoting S.E.S. v. Grant
Cnty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992)).
. . . [A]lthough “[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.” [S]ee 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 provide services cannot serve as a basis
to attack the termination of parental rights.”) . . . .
Id. (citations omitted); see In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)
(“. . .[E]ven a complete failure to provide services would not . . . negate a
necessary element of the termination statute and require reversal.”).
[22] To the extent that Mother’s and Father’s due process claims hinge upon DCS’s
alleged failure to provide certain services, such is not a proper basis on which to
attack the trial court’s termination of their respective parental rights. See id.Absent a proper basis upon which to challenge the judgment, Mother and
Father cannot demonstrate that the trial court’s order of termination implicated
“a clearly blatant violation of basic and elementary principles” from which
Mother and Father suffered substantial harm or potential for harm. See N.C., 56
N.E.3d at 69. Mother and Father, therefore, have not carried their burden to
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establish fundamental error. Moreover, it appears from the record that DCS’s
unwillingness to provide certain services stems from Mother’s and Father’s
record of rejecting proffered services at will.
Conclusion
[23] Neither Mother nor Father was denied due process of law. The trial court did
not commit fundamental error. We affirm.
[24] Affirmed.
Riley, J., and Mathias, J., concur.
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