Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                Mar 11 2014, 10:16 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT (Mother):                      ATTORNEYS FOR APPELLEE:
CRAIG C. PARKER                                       GREGORY F. ZOELLER
Parker Law, LLC                                       Attorney General of Indiana
Richmond, Indiana
                                                      ROBERT J. HENKE
ATTORNEY FOR APPELLANT (Father):                      DAVID E. COREY
J. CLAYTON MILLER                                     Deputy Attorneys General
Jordan Law, LLC                                       Indianapolis, Indiana
Richmond, Indiana

                              IN THE
                    COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary Termination of  )
the Parent-Child Relationship of B.P., C.P., and )
D.P., the minor children, and A.H., the Mother, and
                                                  )
J.P., the Father:                                )
                                                 )
A.H. and J.P.,                                   )
                                                 )
       Appellants-Respondents,                   )       No. 89A04-1310-JT-525
                                                 )
               vs.                               )
                                                 )
THE INDIANA DEPARTMENT OF CHILD                  )
SERVICES,                                        )
                                                 )
       Appellee-Petitioner.                      )
                                                 )
                    APPEAL FROM THE WAYNE SUPERIOR COURT
                         The Honorable Darrin M. Dolehanty, Judge
                            Cause Nos. 89D03-1306-JT-5, -6, and -7

                                         March 11, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       A.H. (“Mother”) and J.P. (“Father”) appeal from the involuntary termination of their

parental rights to their children B.P., C.P., and D.P. In so doing, Mother and Father each

contend that their due process rights were violated by the juvenile court’s inclusion in its

termination order findings of their lack of participation in services during their

incarceration on pending criminal charges, and by finding and concluding that the Wayne

County Department of Child Services (“WCDCS”) had a satisfactory plan for the care and

treatment of the children.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the juvenile court’s decision reveal that Mother and

Father were the biological parents of C.P., born on February 22, 2008, D.P., born on April

23, 2009, and B.P., born on July 14, 2010. On February 5, 2012, Richmond Police

Department Captain Neal VanMiddlesworth was sent to Mother and Father’s home. While

there, Captain VanMiddlesworth observed emergency medical technicians and other law

enforcement officers present at the house, as well as other members of Mother’s and

Father’s family. Mother, Father, and two or three other children were also present in the

home. The EMTs were working with an infant later identified as K.H., Mother and Father’s

youngest child. The EMTs carried K.H., who was deceased, out of the home.

       Captain Van Middlesworth testified that, had the children remained in the home, he

would have contacted the local health department because of the condition of the home.

He described the conditions in the home as deplorable and trashy. In particular, he

observed used food containers, the odor of urine and feces, feces smeared on the wall, and

                                             2
dirty diapers in view.

       Almost contemporaneously with the report to law enforcement, the WCDCS

received a report that the condition of Mother and Father’s home was possibly unsafe.

WCDCS received a second report pertaining to the family, this one involving K.H.’s death.

As a result of this report, WCDCS family case manager Megan Beck (“FCM Beck”) went

to Reid Memorial Hospital where she observed K.H. FCM Beck described K.H. as

deceased, small, pale, with sunken and loose skin. K.H.’s bones were prominent and

portions of his skin had deteriorated. FCM Beck spoke with family members at the hospital

and was told by Mother that K.H. had received regular medical care throughout his life and

that it was typical for K.H. to be isolated in his bedroom for the entire day.

       FCM Beck then visited with K.H.’s siblings, C.P., D.P. and B.P. who were in the

care of relatives. FCM Beck observed that the children appeared clean and were dressed

appropriately, but were small in size for their ages. FCM Beck then went to Mother and

Father’s home. There she observed fecal material smeared on the window, the wall, and

in the carpet, a dirty diaper that was full, a plate, food wrappers and containers, and trash

on the floors. The kitchen was cluttered and dirty, and piles of clutter, clothes, and other

items were located throughout the home.

       WCDCS filed a request to take the children into custody, which was granted on

February 6, 2012. The children were taken into protective custody and the emergency

custody order included findings that leaving the children in the home would be contrary to

their welfare as their sibling, K.H., appeared to have died as a result of neglect and that the

residence was not fit for human habitation. The emergency custody order was filed, and

                                              3
child in need of services (“CHINS”) proceedings instituted on behalf of the children. At

the detention hearing, the juvenile court made the children temporary wards of WCDCS,

and the foster placement which was already in place, was approved for continuation by the

juvenile court.

       At a placement hearing held in the three CHINS cases, the juvenile court rejected

Mother’s proposed placement of the children with a relative and entered an order for the

continuation of the foster placement, which could not be changed without prior approval

from the juvenile court. Amended CHINS petitions were filed with respect to each of the

children, and a fact-finding hearing regarding those petitions was held on March 26, 2012.

Several witnesses testified at the hearing including FCM Beck, a detective from the

Richmond Police Department, and the pathologist who performed the autopsy on K.H. The

three children were each adjudicated as CHINS, and the order contained findings

supporting the adjudication, including but not limited to, the following: 1) that K.H. was

born weighing eight pounds and seven ounces, but at the time of his death at approximately

four months of age, he weighed six pounds and eight ounces; 2) the cause of K.H.’s death

was dehydration due to starvation; 3) Mother and Father were incarcerated and charged

with K.H.’s murder; 4) there was human or animal feces in the home with some spread on

the walls of the home; and 5) the children had both speech and behavioral problems that

had improved since their placement in foster care.

       The juvenile court entered a dispositional order on April 20, 2012 granting wardship

of the children to WCDCS and maintaining the children’s placement in foster care. Mother

and Father were ordered to notify the WCDCS case manager of any changes in address,

                                            4
household composition, or contact information, and to execute the releases necessary for

WCDCS to monitor Mother’s and Father’s compliance. Included in the juvenile court’s

periodic review hearing order entered on August 24, 2012, the parents were required to

participate in parenting instruction and counseling made available to them in the course of

their incarceration. The order also acknowledged that Mother and Father had not visited

the children due to Mother’s and Father’s continued incarceration.

       A permanency plan hearing was held on February 13, 2013. The juvenile court’s

order noted Mother and Father remained incarcerated and had been convicted of crimes

involving the death of K.H. The order also acknowledged that Mother and Father had not

participated in services due to their criminal charges and upon the advice of their respective

attorneys. The juvenile court approved a permanency plan for each of the children

involving the termination of Mother’s and Father’s parental rights and for adoption of the

children. At a review hearing held on July 1, 2013, the juvenile court noted that Mother

and Father remained incarcerated and that neither parent had visited with the children.

       The WCDCS filed its termination petitions regarding each of the children on June

4, 2013. The evidentiary hearing on the termination petitions was held on September 26,

2013, at which both Mother and Father appeared in custody and represented by counsel.

Although Mother’s and Father’s challenges to the juvenile court’s order terminating their

parental rights involve the findings that they failed to participate in services and that

WCDCS had a satisfactory plan for the care and treatment of the children, we also set forth

the balance of the evidence presented to and found by the juvenile court at the termination

hearing.

                                              5
       On February 15, 2012, the State charged Mother and Father with murder and three

counts of neglect of a dependent, each as a Class A felony. During Mother’s trial the

pathologist testified that, at the time of K.H.’s death, he was at the end of the state of

malnutrition and that his body had deteriorated substantially. The pathologist opined that

the process of malnutrition likely lasted approximately three months. At the conclusion of

Mother’s jury trial, she was convicted of the murder of K.H. and was subsequently

sentenced to a term of sixty years executed in the Indiana Department of Correction with

no time suspended. Mother pleaded guilty to three counts of neglect of a dependent, each

as a Class D felony, pertaining to the children. The trial court sentenced Mother to three,

concurrently-served, two-year sentences executed in the Indiana Department of Correction

with no time suspended. The trial court’s order reflected that those concurrent sentences

would be served consecutively to Mother’s sentence for murder.

       Father’s jury trial resulted in a verdict of guilty but mentally ill for reckless homicide

on various counts. The trial court sentenced Father on his conviction of guilty but mentally

ill for neglect of a dependent as a Class A felony to a term of thirty-seven years executed

in the Indiana Department of Correction with no time suspended. Father pleaded guilty

but mentally ill to three counts of neglect of a dependent, each as a Class D felony, with

respect to the children. The trial court sentenced Father to three, concurrently-served, two-

year sentences executed in the Indiana Department of Correction with no time suspended.

The trial court’s order reflected that those concurrent sentences were to be served

consecutively to Father’s previously-imposed, thirty-seven-year executed sentence.

       Since the children’s removal from the home, they were provided with significant

                                               6
therapy. FCM Dana Burton was assigned to the children’s cases. While assigned to the

cases, FCM Burton had the children undergo a variety of assessments to determine the

appropriate services to provide to each child. She saw the children daily for the first six

months, then weekly, then every other week, as the children progressed.

       When FCM Burton first met with the children on February 6, 2012, she observed

that they were fussy, did not speak much, were screaming, and were upset. The children

were also infested with lice. During frequent visits early on to the foster home, FCM

Burton observed that the children would not speak, did not know each other’s names, and

did not know the names for common objects around them. D.P. was angry, frequently

growled, and clenched his fists a lot. The children did not know how to play with toys and

could not turn the pages of a book. On March 26, 2013, during her last visit with the

children, FCM Burton noted that children did not exhibit any of that past behavior.

       Since the children were removed from their home, Mother and Father have visited

with them only once. WCDCS scheduled a visit with the children the day after their

removal, but Mother and Father overslept and missed the visit. Mother and Father did

attend the second visit that was scheduled on February 8, 2012. Mother and Father did not

have any additional visitation with the children because they have remained incarcerated

since February 13, 2012. Mother wrote to the children on a daily basis, but Father did not

contact the children by letter or telephone.

       The children resided with their foster mother, Melissa Todd, from the date of their

removal through mid-September 2012, when they were placed in another foster home,

where they have remained since. Todd had served as a foster parent for eight other children

                                               7
prior to the children’s placement with her. She noted that the children came to her looking

pale and malnourished. For the first week of their placement with Todd, the children had

a bad odor, were dirty, had digestive problems, and were infested with lice. The children

did not seek each other’s comfort and did not recognize any relationship with each other.

The children spoke very little and referred to any food item as either pizza or a cookie.

D.P.’s vocabulary consisted mostly of curse words. The children’s eating habits were

unusually unhealthy, and their sleeping patterns were disrupted with night terrors or other

behavior indicative of a significant need for comfort. B.P. initially refused to be bathed,

expressing terror of anything in the bathroom, but by the time she left Todd’s care loved to

take baths. C.P.’s digestive problems resolved after doctors successfully removed several

impacted hair balls from his digestive system.

       By the time the children left Todd’s care they knew their own names and those of

their siblings, they had relationships with each other, knew the names of body parts, and

could use utensils to feed themselves. The children’s behavioral clinician since early on in

the course of their therapy, and who had worked with over two hundred families and many

abused children, described the children as the neediest children with whom she had worked.

Although she still works with the children, the volume of services she has provided the

children has steadily decreased. CASA Director Karen Bowen worked with the children

during the course of the CHINS cases. She described the children’s progression from

appearing to be haunted, to becoming beautiful and sparkly children.

       After taking the matter under advisement at the conclusion of the termination

hearing, the trial court entered its findings and orders terminating Mother’s and Father’s

                                             8
parental rights to each of the children. Mother and Father both separately appeal the orders,

but raise the same contentions.

                            DISCUSSION AND DECISION

       With respect to Mother’s and Father’s due-process-violation claims, our Supreme

Court has recently stated the following with respect to the analysis:

       It is well established that the involuntary termination of parental rights is an
       extreme measure that is designed to be used as a last resort when all other
       reasonable efforts have failed. Choices about marriage, family life, and the
       upbringing of children are among associational rights the United States
       Supreme Court has ranked as of basic importance in our society and are rights
       sheltered by the Fourteenth Amendment against the State’s unwarranted
       usurpation, disregard, or disrespect. “If any freedom not specifically
       mentioned in the Bill of Rights enjoys a ‘preferred position’ in the law it is
       most certainly the family.”
       “The Due Process Clause of the U.S. Constitution and the Due Course of
       Law Clause of the Indiana Constitution prohibit state action that deprives a
       person of life, liberty, or property without a fair proceeding.” Parental rights
       constitute an important interest warranting deference and protection, and a
       termination of that interest is a “unique kind of deprivation.” However,
       children have an interest in terminating parental rights that prevent adoption
       and inhibit establishing secure, stable, long-term, continuous relationships.
       When the State seeks to terminate the parent-child relationship, it must do so
       in a manner that meets the requirements of due process. The U.S. Supreme
       Court has written on the importance of heightened due process protections
       whenever the State wishes to sever the parental bonds of children:
              The fundamental liberty interest of natural parents in the care,
              custody, and management of their child does not evaporate
              simply because they have not been model parents or have lost
              temporary custody of their child to the State. Even when blood
              relationships are strained, parents retain a vital interest in
              preventing the irretrievable destruction of their family life. If
              anything, persons faced with forced dissolution of their
              parental rights have a more critical need for procedural
              protections than do those resisting state intervention into
              ongoing family affairs. When the State moves to destroy
              weakened familial bonds, it must provide the parents with
              fundamentally fair procedures.

                                              9
       Due Process has never been defined, but the phrase embodies a requirement
       of “fundamental fairness.” The U.S. Supreme Court has written that “the
       fundamental requirement of due process is the opportunity to be heard at a
       meaningful time and in a meaningful manner.” The process due in a
       termination of parental rights proceeding turns on 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
       governmental interest supporting use of the challenged procedure. The
       balancing of these factors recognizes that although due process is not
       dependent on the underlying facts of the particular case, it is nevertheless
       “flexible and calls for such procedural protections as the particular situation
       demands.” Finally, we must keep in mind the general principle that “if the
       State imparts a due process right, then it must give that right.” A parent in a
       proceeding to terminate the parent-child relationship is statutorily entitled to
       (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by
       compulsory process, and (3) introduce evidence on behalf of the parent.
       In balancing the three-prong Mathews test, we first note that the private
       interest affected by the proceeding is substantial-a parent’s interest in the
       care, custody, and control of her child. We also note the countervailing
       Mathews factor, that the State’s parens patriae interest in protecting the
       welfare of a child is also substantial. Both the State and the parent have
       substantial interests affected by the proceeding.
In re C.G., 954 N.E.2d 910, 916-18 (Ind. 2011) (internal citations omitted).

       Here, Mother and Father assert that the juvenile court deprived them of their due

process rights because the court relied upon their invocation of their constitutional rights

to silence under the Fifth Amendment and consequent failure to participate in services upon

the advice of counsel as a justification to terminate their parental rights. They claim that

they were forced to choose between their liberty and their future relationship with their

children.

       In the termination orders the juvenile court made two references to Mother’s and

Father’s participation in services. In particular, paragraph 23 reads as follows:

       Permanency Plan Hearing was held on February 13, 2013. The Parents were
       still in custody. The Order noted that the parents did not participate in

                                             10
       services, upon advice of counsel. The permanency plan for each was ordered
       as “termination of parental rights and adoption.”
Mother’s App. at 24. In paragraph (d) of the juvenile court’s conclusions, the following

appears:

       Neither parent engaged in any service offered by the [WCDCS], and there is
       no evidence to support a finding that the parents engaged in services on their
       own.
Id. at 26.

       Also, in the termination proceeding, WCDCS admitted orders from the CHINS

proceedings in which reference was made to Mother’s and Father’s participation in

services. In the August 24, 2012 order, the juvenile court found that Mother and Father

should participate in parenting instruction and counseling available to them during their

incarceration. In the February 13, 2013 order, the juvenile court found that Mother and

Father had not participated in services because of their pending criminal charges and upon

the advice of their attorneys. In the July 1, 2013 order, the juvenile court found that Mother

and Father had not been offered services at the request of their attorneys in their criminal

cases and because of their incarceration. No objections were made to the admission of

those exhibits at the termination hearing.

       Mother and Father have arguably waived their constitutional claims because they

are presenting them for the first time on appeal. See Runkel v. Miami Cnty. Dep’t of Child

Servs., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (“Issues not raised at the trial court are

waived on appeal.”); Hite v Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d

175, 180 (Ind. Ct. App. 2006) (“It is well established that we may consider a party’s

constitutional claim waived when it is raised for the first time on appeal.”). Nevertheless

                                             11
we will address the merits of their claims.

       Both parents cite to Everhart v. Scott County Office of Family & Children, 779

N.E.2d 1225 (Ind. Ct. App. 2002) in support of their arguments. In Everhart, the father

was incarcerated pending charges of aggravated battery and neglect of a dependent relating

to the child who was the subject of the petition for termination of parental rights. During

the pendency of both cases, father participated in counseling sessions in which he discussed

his own situation, but refused to discuss any events related to the child on the advice of

counsel, invoking his Fifth Amendment right against self-incrimination. On appeal, after

his parental rights were terminated, and he had pleaded guilty to the criminal charges, the

father alleged that the DCS had violated his right to due process by offering him services

while his criminal charges were pending, and then using his assertion of his right to silence

as evidence that he had no interest in his children. We noted that the father’s concern was

that the information relayed to the social worker might be used in his criminal proceedings

more than he was concerned about its use in the termination proceeding.

       Finding no precedent to guide us in that particular context, we used the five-factor

test set forth in Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), cert. denied, 475 U.S.

1031 (1986), to determine whether a violation of due process is harmless. We determined

that the four of those five factors to be considered in a termination proceeding are: 1) the

use to which the fact of the invocation of the right against self-incrimination is used; 2)

who elected to pursue the line of questioning; 3) the amount of other evidence supporting

the termination of parental rights; and, 4) the intensity and frequency of the reference.

Everhart, 779 N.E.2d at 1231. Assuming a violation of the father’s rights to due process,

                                              12
we found that violation harmless in light of the amount of other evidence supporting the

termination of his parental rights. Id. at 1231-32.

       Turning to the present case, assuming arguendo that Mother’s and Father’s due

process rights were violated, after applying the Bieghler test, we conclude that such

violation was harmless in light of the overwhelming evidence supporting the termination

of their parental rights to the children. The only reference to Mother’s and Father’s

invocation of their right to remain silent was taken from the orders in the underlying

CHINS proceedings, to which Mother and Father did not object. Counsel for the WCDCS

attempted to ask FCM Beck about why Mother and Father did not participate in services,

Father’s counsel objected, and the juvenile court did not allow FCM Beck to testify about

the reasons why Mother and Father did not participate in services. Additionally, counsel

for DCS did not mention Mother’s and Father’s participation in services during closing

arguments. The amount of evidence supporting the termination of Mother’s and Father’s

parental rights is overwhelming such that we conclude that the violation of Mother’s and

Father’s due process rights, if any, was harmless.

       As for Mother’s and Father’s challenges to the sufficiency of the juvenile court’s

finding of a satisfactory plan for the children, we begin our review by acknowledging that

this court has long had a highly deferential standard of review in cases concerning the

termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When

reviewing a termination of parental rights case, we will not reweigh the evidence or judge

the credibility of the witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),

trans. denied. Instead, we consider only the evidence and reasonable inferences that are

                                             13
most favorable to the judgment. Id. Moreover, in deference to the trial court’s unique

position to assess the evidence, we will set aside the court’s judgment terminating a parent-

child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

       Here, in terminating Mother’s and Father’s parental rights, the juvenile court entered

specific findings and conclusions in each of its orders. When a juvenile court’s judgment

contains specific findings of fact and conclusions thereon, we apply a two-tiered standard

of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.

2005). First, we determine whether the evidence supports the findings, and second, we

determine whether the findings support the judgment. Id. “Findings are clearly erroneous

only when the record contains no facts to support them either directly or by inference.”

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support

the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

       Before an involuntary termination of parental rights may occur, the State is required

to allege and prove, among other things:

       (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;


                                             14
       (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.

Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these allegations

in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the juvenile

court finds that the allegations in a petition described in section 4 of this chapter are true,

the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis

supplied). At issue here is Mother’s and Father’s challenge to the sufficiency of the

evidence that the WCDCS had a satisfactory plan for the care and treatment of the children.

       We observe that Mother and Father have not challenged the juvenile court’s findings

of fact; thus, they stand as proven. A party waives a challenge to the sufficiency of the

evidence supporting the trial court’s findings when the party does not provide any argument

relating to the sufficiency of the findings of the trial court on appeal. City of Whiting v.

City of E. Chicago, 266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). Even so, the record in

this matter supports the juvenile court’s findings.

       Mother and Father argue that WCDCS was required to present more detailed

evidence, i.e., present testimony from the pre-adoptive family or the identification of a

specific, prospective adoptive family, to demonstrate its plan for the adoption of the

children. However, WCDCS bears no such burden. We have stated that “[t]his plan need

not be detailed, so long as it offers a general sense of the direction in which the child will

be going after the parent-child relationship is terminated.” In re D.D., 804 N.E.2d at 268.

“Attempting to find suitable parents to adopt the children is clearly a satisfactory plan.”

                                              15
Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App.

2007). “The fact that there was not a specific family in place to adopt the children does

not make the plan unsatisfactory.” Id.

       The juvenile court had before it the testimony of FCM Beck that the plan for the

children was adoption. In September of 2012, the WCDCS identified a pre-adoptive home,

and the children were transitioned from Todd’s care to that pre-adoptive home, where they

remained at the time of the hearing. CASA Bowen understood adoption was WCDCS’s

plan for the children in the event of the termination of Mother’s and Father’s parental rights.

It was CASA Bowen’s opinion that adoption was in the best interests of the children. We

find no error in the juvenile court’s finding.

       We will reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake has been

made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592

N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the

juvenile court’s termination of Mother’s and Father’s parental rights to the children was

clearly erroneous. We therefore affirm the juvenile court’s judgment.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                                 16
