MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 03 2019, 8:37 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Halbert                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     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                          January 3, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          18A-JT-1786
A.B. (Minor Child)                                        Appeal from the Marion Superior
                                                          Court
      and
                                                          The Honorable Marilyn A. Moores,
A.S. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Larry E. Bradley,
                                                          Magistrate
        v.                                                Trial Court Cause No.
                                                          49D09-1711-JT-1019
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019                   Page 1 of 10
      Bailey, Judge.



                                               Case Summary
[1]   A.S. (“Father”) appeals the termination of his parental rights as to A.B.

      (“Child”).1 We affirm.



                                                         Issues
[2]   Father presents the following restated issues:


                 I.       Whether Father was deprived of due process because he
                          had no meaningful opportunity to contest allegations that
                          Child was a Child in Need of Services (“CHINS”), despite
                          having waived the right to a CHINS fact-finding hearing.


                 II.      Whether the evidence is sufficient to support termination
                          of Father’s parental rights.


                                Facts and Procedural History
[3]   Child was born in May 2013 to D.B. (“Mother”). At some point, Mother told

      the Marion County Department of Child Services (“DCS”) that D.F. was

      Child’s father. In June 2015, when Mother was incarcerated, DCS filed a

      petition alleging Child was a CHINS. Child was placed in foster care.




      1
          Child’s mother consented to adoption, and does not actively participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019               Page 2 of 10
[4]   After Mother admitted Child was a CHINS and D.F. waived a hearing, the

      juvenile court adjudicated Child a CHINS in October 2015. The next month,

      the court entered a dispositional decree and ordered D.F. to submit to DNA

      testing. At some point, Father contacted DCS about the possibility of being

      Child’s biological father. Both Father and D.F. submitted to DNA testing,

      which indicated that Father was Child’s biological father. In early 2016, (1) the

      juvenile court dismissed D.F. from the matter, (2) DCS amended its petition to

      include Father, and (3) the court conducted an initial CHINS hearing as to

      Father. Without vacating its prior CHINS adjudication, the juvenile court

      scheduled—as to Father only—a fact-finding hearing on the amended CHINS

      allegations. In July 2016, Father waived his right to a fact-finding hearing, and

      requested that Child be placed in kinship care with C.C. (“Crosley”).


[5]   In August 2016, the juvenile court entered an order adjudicating Child a

      CHINS and authorizing placement with Crosley. The court later entered a

      dispositional decree as to Father only, with a permanency plan of reunification.

      The court also ordered Father to submit to drug and alcohol screens, complete a

      father-engagement program, and engage in home-based therapy, following all

      recommendations. At that time, Child remained in kinship care with Crosley.


[6]   In November 2017, DCS filed a petition to terminate parental rights. The

      juvenile court held a hearing on the petition in July 2018, and later entered an

      order terminating Father’s parental rights. Father now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 3 of 10
                                   Discussion and Decision
                                                 Due Process
[7]   “Due process requires ‘the opportunity to be heard at a meaningful time and in

      a meaningful manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting

      Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The process due in CHINS

      matters as well as actions to terminate parental rights “turns on balancing three

      Mathews 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.” Id.

      Whether a party has been deprived of due process is a question of law that we

      review de novo. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008).


[8]   In this case, Father claims he was deprived of due process because, at the time

      the juvenile court offered a fact-finding hearing on the CHINS allegations, the

      court had already adjudicated Child a CHINS.2 Father points out that the court

      never vacated its initial adjudication, and he argues that a “second CHINS

      hearing was a meaningless sham with no legal significance whatsoever.” Br. of

      Appellant at 11-12. According to Father, “[a]lthough his counsel should have




      2
       Although Father is appealing from the order terminating parental rights—long after the separate CHINS
      adjudication—Indiana appellate courts have at times addressed procedural issues in the underlying CHINS
      proceedings when considering the propriety of a subsequent termination order. See, e.g., A.P. v. Porter Cty.
      Office of Family & Children, 734 N.E.2d 1107, 1118 (Ind. Ct. App. 2000) (“[W]hen, as here, a record is replete
      with procedural irregularities throughout CHINS and termination proceedings that are plain, numerous, and
      substantial, we are compelled to reverse a termination judgment on procedural due process grounds.”). We
      assume without deciding that Father’s challenge is timely, and thus proceed to the merits of his argument.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019                   Page 4 of 10
       objected to the fundamental violation of [his] rights, this violation requires

       reversal even though there was no objection made at trial.” Id.


[9]    In arguing that he was entitled to a fact-finding hearing without the shadow of

       an existing CHINS adjudication, Father directs us to several cases. Yet, unlike

       the parents in those cases, Father did not contest the CHINS allegations and

       instead chose to waive his right to a fact-finding hearing. Cf., e.g., In re K.D.,

       962 N.E.2d at 1258-59 (identifying a violation of due process where the court

       did not hold the requested fact-finding hearing and instead held a contested

       dispositional hearing); In re L.C., 23 N.E.3d 37, 42 (Ind. Ct. App. 2015)

       (identifying a violation under facts similar to those in In re K.D.), trans. denied; In

       re S.A., 15 N.E.3d 602, 609 (Ind. Ct. App. 2014) (identifying a violation where

       the court held a fact-finding hearing but “had already determined” the child was

       a CHINS in light of the other parent’s admission), aff’d on reh’g, trans. denied.


[10]   At bottom, Father is arguing that the fact-finding hearing—had it been held—

       would have been constitutionally deficient. Yet, because Father waived his

       right to the hearing, we are unpersuaded that he was deprived of due process.


                                   Sufficiency of the Evidence
[11]   “A parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). “Our General Assembly has thus set a high

       bar for terminating parental rights.” In re Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 5 of 10
[12]   Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

       parent-child relationship must allege, in pertinent 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. . . .


               (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. . . .


               (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.


[13]   The petitioner must prove each element by clear and convincing evidence. Ind.

       Code § 31-37-14-2. If the court determines the allegations are true, “the court

       shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so,

       the court must enter findings and conclusions, irrespective of whether the

       parties have requested them. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52. We

       will not “set aside the findings or judgment unless clearly erroneous,” T.R.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 6 of 10
       52(A); clear error is “that which leaves us with a definite and firm conviction

       that a mistake has been made,” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592

       N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to

       “whether the evidence supports the findings, and whether the findings support

       the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover,

       we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S.,

       56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity

       of the trial court to judge the credibility of the witnesses,” T.R. 52(A).


[14]   Father does not dispute the sufficiency of the evidence under subsections (A),

       (C), and (D) of the termination statute. He instead focuses on subsection (B),

       directing argument toward the propriety of termination under (B)(i) (pertaining

       to changed conditions) and (B)(ii) (pertaining to the well-being of a child). As

       this portion of the statute is written in the disjunctive, we need only address

       subsection (B)(ii)—as to which the court made the following finding:


               There is a reasonable probability that the continuation of the
               parent-child relationship poses a threat to [Child’s] well-being in
               that it would pose a barrier to obtaining permanency for her
               through an adoption into an appropriate home that she has
               known for two years, and obviously wishes to stay. [Child’s]
               therapist believes that it would be devastating to [Child] to be
               moved. There was evidence of her behavior toward [Father]
               which would highly suggest there is an acute lack of bond
               between [Child] and [Father].


       Appellant’s App. Vol. 2 at 16.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 7 of 10
[15]   At the hearing, there was evidence that Child suffers from Reactive Attachment

       Disorder arising from a lack of long-term bonding with a caregiver, and that

       Child needs stability, consistency, and “reassurance that . . . nobody is going to

       leave her.” Tr. Vol. II at 55. Children with the disorder tend to have “difficulty

       with affect regulation, expressing feelings, [and] building trust with caregivers.”

       Id. at 37. Father did not have a relationship with Child until he became a part

       of the CHINS proceedings in 2016, when Child was almost three years old.

       Father initially received supervised parenting time. His parenting time was

       suspended in December 2016 due to inconsistent participation. Because of

       Child’s “behaviors based off of [Father’s] inconsistencies” and “the severity of

       her behaviors at the time,” the goal turned to reintroducing Father on “a

       therapeutic level starting with talking about him” and “showing her pictures.”

       Id. at 60. When Child “had more coping skills in terms of being able to manage

       her anxiety enough to be able to engage in . . . phone calls,” Child’s therapist

       recommended therapeutic phone calls progressing toward video calls. Id. at 43.


[16]   Father participated in phone calls from June to September 2017 and then video

       calls from October to December 2017, but was inconsistent in his participation.

       During calls, Child’s therapist observed Child “run out of the room, verbally

       protest calling,” hide, and exhibit increased defiance. Id. at 38. At least once,

       Child sought “a lot of reassurance from Ms. Crosley after the phone calls that

       she wasn’t going anywhere.” Tr. Vol. II at 38. At some point, Father said he

       would consent to adoption if he could remain in Child’s life. Providers then

       decided “it would be in the best interest of everybody involved to start visitation


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 8 of 10
       time so that [Child] was comfortable with [Father] prior to an adoption

       happening and then Ms. Crosley not having support from a provider in

       initiating those meetings.” Id. at 38-39. Father began supervised parenting time

       in January 2018, but participated in only six of ten opportunities. According to

       Child’s therapist, Child seemed distressed by the parenting time, and Father’s

       “inconsistency . . . plays into the distress that it’s causing her.” Id. at 41.


[17]   There was evidence that Child had been living with Crosley since August 2016.

       Child’s therapist opined that if Child were to leave Crosley’s care “it would be

       very detrimental to her overall well-being,” in that Child “formed a bond with

       Ms. Crosley and that’s been who she considered her mother for the past several

       years.” Id. at 42. At the hearing, Father agreed that it was important to be

       there for Child when he said he was going to be there, and that it was also

       detrimental to Child when he was not there when she expected him to be there.


[18]   In arguing that the evidence is insufficient to support termination, Father

       contends that a lack of bonding and a need for permanency should not be

       enough. Father asserts that any child who has been removed for the statutory

       period “will likely have formed a bond with [a] foster or pre-adoptive

       caregiver,” making continuation of the parent-child relationship “a barrier to

       ‘permanently’ resolving the situation” in all cases. Br. of Appellant at 17.

       Father also directs our attention to his struggles with homelessness and poverty.

       He contends that, under his circumstances, “DCS made it impossible for [him]

       to comply with all its requirements,” id. at 21, and that “DCS deliberately

       placed barriers” that made it difficult for him to establish a bond. Id. at 18.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 9 of 10
[19]   Nevertheless, we cannot reweigh evidence, which indicates that Father’s

       inconsistent participation was partly his choice, with testimony that “one

       minute he wanted to” participate in parenting time and “one minute he didn’t,”

       and “if he has a bad day . . . he doesn’t want to talk, he doesn’t want to see

       her.” Tr. Vol. II at 14. Indeed, the court found that Father “voices interest in

       having his daughter placed with him,” but “has not demonstrated he is willing

       to be a full-time Father.” Appellant’s App. Vol. 2 at 15. Ultimately, in light of

       Child’s diagnosis of Reactive Attachment Disorder and Father’s inconsistent

       participation in parenting time over the course of two years, we cannot say that

       the juvenile court clearly erred in identifying a reasonable probability that

       continuation of the relationship posed a threat to the well-being of Child.



                                                Conclusion
[20]   Father was not deprived of due process, and there is sufficient evidence

       supporting the juvenile court’s decision to terminate Father’s parental rights.


[21]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1786 | January 3, 2019   Page 10 of 10
