MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                     Jul 24 2020, 9:00 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
Roberta L. Renbarger                                      Curtis T. Hill, Jr.
Fort Wayne, 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 Termination                          July 24, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.S. (Child) and R.B. (Father);                        20A-JT-491
                                                          Appeal from the Allen Superior
                                                          Court
R.B. (Father),
                                                          The Honorable Charles F. Pratt,
Appellant-Respondent,                                     Judge

        v.                                                The Honorable Lori K. Morgan,
                                                          Magistrate

The Indiana Department of                                 Trial Court Cause No.
                                                          02D08-1906-JT-321
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020                 Page 1 of 14
[1]   R.B. (“Father”) appeals the involuntary termination of his parental rights to J.S.

      (“Child”). Father argues the trial court violated his due process rights when it

      denied his motion to dismiss the Department of Child Services’ (“DCS”)

      petition to terminate his parental rights. We affirm.



                                Facts and Procedural History
[2]   B.S. (“Mother”) 1 gave birth to J.S. on January 29, 2018. On March 12, 2018,

      DCS removed Child and his older sister, A.B. (“Sister”), 2 from Mother and

      Father’s care based on their living situation and use of illegal substances. On

      July 11, 2018, the trial court adjudicated Child and Sister as Children in Need

      of Services (“CHINS”) because “at the time of [C]hild’s birth, [Mother and

      Father] were residing in a two-bed hotel room with another couple . . . [and]

      since that time, [Mother and Father] had resided in three different motels.”

      (App. Vol. II at 10.) Father admitted that he “was unemployed and without

      stable housing and that he was unable to provide [Child] with an environment

      free from illegal substances.” (Id. at 11.) The trial court entered its

      dispositional order on September 4, 2018, requiring Father to, among other

      things, refrain from all criminal activity, maintain stable housing, notify DCS

      within forty-eight hours of any change in address, cooperate with caseworkers,




      1
          Mother’s parental rights to Child were also terminated but she does not participate in this appeal.
      2
       Mother and Father voluntarily relinquished their parental rights to Sister during a hearing on September 4,
      2018.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020                         Page 2 of 14
      obtain a drug and alcohol assessment and follow all recommendations, engage

      in home-based services, obtain a psychological evaluation and follow all

      recommendations, submit to random drug and alcohol screens, and visit with

      Child.


[3]   Father did not complete services as ordered. He did not regularly submit to

      drug screens, did not complete his psychological evaluation, and “had a

      number of outbursts” during visitation with Child. (Id. at 12.) On February 21,

      2019, the trial court held a permanency hearing during which Father was

      present. The trial court changed Child’s permanency plan from reunification to

      termination and adoption. The trial court ordered Father to be present at the

      next review hearing on August 20, 2019. On July 17, 2019, DCS filed its

      petition to terminate parental rights based on non-compliance with services.


[4]   The trial court scheduled the initial hearing on the termination petition for

      August 20, 2019. On August 8, 2019, DCS filed an affidavit of non-service

      because Father was no longer living at the last address he gave to DCS. At the

      August 20, 2019, hearing, Father’s attorney appeared but Father did not. The

      trial court continued the initial hearing to September 23, 2019. On September

      19, 2019, DCS filed an affidavit indicating that, after a diligent search, it could

      not locate Father, and asking the trial court’s permission to serve Father by

      publication. The trial court granted the request. On September 23, 2019, the

      trial court attempted to hold an initial hearing, but Father again was not

      present, though his counsel was in court.



      Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 3 of 14
[5]   On November 4, 2019, DCS filed proof it had served Father via publication.

      The trial court held a case management conference on December 10, 2019, and

      Father’s counsel was present. On December 16, 2019, the trial court held a

      fact-finding hearing on the termination petition. Father’s counsel was present,

      but Father was not. Father’s counsel moved to dismiss the termination petition

      because the trial court had not held an initial hearing in the matter within

      ninety days of DCS’s filing of the petition as required by Indiana Code section

      31-35-2-6(a)(1). The trial court denied that motion and held the hearing as

      scheduled. The trial court held an additional fact-finding hearing on December

      17, 2019, and Father was again absent. On February 7, 2020, the trial court

      terminated Father’s parental rights to Child.



                                 Discussion and Decision
[6]   We review termination of parental rights with great deference. In re K.S., 750

      N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      credibility of 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

      most favorable to the judgment. Id. In deference to the juvenile court’s unique

      position to assess the evidence, we will set aside a judgment terminating a

      parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).


[7]   “The traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.” In

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 4 of 14
      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

      subordinate the interests of the parents to those of the children when evaluating

      the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

      The right to raise one’s own children should not be terminated solely because

      there is a better home available for the children, id., but parental rights may be

      terminated when a parent is unable or unwilling to meet parental

      responsibilities. Id. at 836.


[8]   To terminate a parent-child relationship, the State must allege and prove:


              (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;


              (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.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020    Page 5 of 14
      Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

      of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

      denied. If the court finds the allegations in the petition are true, it must

      terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[9]   In a termination of parental rights proceeding, parents have certain due process

      rights:


                When a State seeks to terminate the parent-child relationship, it
                must do so in a manner that meets the requirements of the due
                process clause. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
                71 L.Ed.2d 599 (1982). Although due process has never been
                precisely defined, the phrase embodies a requirement of
                “fundamental fairness.” E.P. v. Marion County Office of Family &
                Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting
                Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,
                68 L.Ed.2d 640 (1981)). Citing Mathews v. Eldridge, 424 U.S. 319,
                96 S. Ct. 893, 47 L.Ed.2d 18 (1976), this court has recently
                acknowledged that the nature of the process due in parental
                rights termination proceedings turns on a 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. A.P. v. Porter County Office of Family and
                Children, 734 N.E.2d 1107 (Ind. Ct. App. 2000)[, reh’g denied].


      J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.

      App. 2000), reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion

      Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004) (regarding

      effectiveness of trial counsel in a termination proceeding). Father argues the

      trial court violated his due process rights when it denied his motion to dismiss

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 6 of 14
       based on DCS’s alleged non-compliance with Indiana Code section 31-35-2-

       6(a)(1).


[10]   Indiana Code section 31-35-2-6, which governs requests for hearings after DCS

       has filed a petition for the termination of parental rights, states:


               (a) Except when a hearing is required after June 30, 1999, under
               section 4.5 of this chapter, the person filing the petition shall
               request the court to set the petition for a hearing. Whenever a
               hearing is requested under this chapter, the court shall:


                        (1) commence a hearing on the petition not more than
                        ninety (90) days after a petition is filed under this chapter;
                        and


                        (2) complete a hearing on the petition not more than one
                        hundred eighty (180) days after a petition is filed under
                        this chapter.


               (b) If a hearing is not held within the time set forth in subsection
               (a), upon filing a motion with the court by a party, the court shall
               dismiss the petition to terminate the parent-child relationship
               without prejudice.


       DCS filed its petition to terminate Mother and Father’s parental rights to Child

       on July 17, 2019. The trial court scheduled initial hearings for August 20, and

       September 23, 2019, but those hearings did not occur because DCS could not

       find Father to serve him with notice of the hearings. DCS served Father via

       publication as of November 4, 2019. At a case management hearing on

       December 10, 2019, the trial court decided to hold the initial hearing as part of


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020      Page 7 of 14
       the first day of the fact-finding hearing. The trial court held fact-finding

       hearings on the termination petition on December 16 and 17, 2019. Father’s

       counsel orally moved to dismiss the termination petition based on non-

       compliance with Indiana Code section 31-35-2-6(a)(1) because the trial court

       failed to hold an initial hearing within ninety days of when DCS filed its

       petition to terminate Father’s rights to Child.


[11]   In denying counsels’ motions to dismiss, the trial court stated:


               I believe the Court set the [initial] hearing because I didn’t see a
               written request or motion by the Department to actually set the
               matter for an Initial Hearing I believe the Court set that matter
               for an Initial Hearing on its own I don’t – I’ll – I can look
               through the chronological case summary but I don’t see a written
               motion for a hearing I’ll look in Quest and see but – and you can
               look along with me you’re certainly welcome to do that [clears
               throat] and there is a case that says – and this is Newby versus
               Boone County Division of Family and Children 799 N.E.2d 63
               it’s an Indiana Court of Appeals decision it says contrary to New
               – Newby’s this was heard in 03 assertions on appeal Indiana law
               does not mandate that a hearing be held within 90 days after a
               termination petition is filed in fact [coughing] Indiana law does
               not impose any specific time requirement for the setting of an
               Initial Hearing or Factfinding Hearing unless a party specifically
               requests a hearing see Indiana Code § 31-35-2-6 only after a party
               specifically requests a hearing does a 90-day – does a 90-day
               deadline for the commencement of a hearing become applicable
               and again that cites the code [coughing] and I don’t see a record
               of any party requesting [a hearing]. . . so the Oral Motion to
               Dismiss is denied[.]




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 8 of 14
(Tr. Vol. II at 50-1) (errors in original). As a preliminary matter, we note that

the trial court’s reliance on Newby v. Boone County Division of Family and Children,

799 N.E.2d 63 (Ind. Ct. App. 2003), is misplaced because the opinion in Newby

was based on a prior version of Indiana Code section 31-35-2-6. When our

court decided Newby in 2003, the statute read:


        Except when a hearing is required after June 30, 1999, under
        section 4.5 of this chapter, the person filing the petition may
        request the court to set the petition for a hearing. Whenever a
        hearing is requested under this chapter, the court shall commence
        a hearing on the petition not more than ninety (90) days after a
        petition is filed under this chapter.


Ind. Code § 31-35-2-6 (1998) (emphasis added). However, the statute has been

revised and now reads, in relevant part:


        (a) Except when a hearing is required after June 30, 1999, under
        section 4.5 of this chapter, the person filing the petition shall
        request the court to set the petition for a hearing. Whenever a
        hearing is requested under this chapter, the court shall:


                 (1) commence a hearing on the petition not more than
                 ninety (90) days after a petition if filed under this chapter;


Ind. Code § 31-35-2-6(a)(1) (2012) (emphasis added). Thus, the revision now

requires that DCS request a hearing and the trial court is then required to

schedule said hearing within ninety days. See, e.g., Robertson v. State, 141

N.E.3d 1224, 1228 (Ind. 2020) (noting that the word “may” is “permissive

language” and “shall” is “mandatory language[.]”). Therefore, under Indiana


Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020      Page 9 of 14
       Code section 31-35-2-6(a)(1), DCS did not request a hearing as required and

       thus the trial court did not hold a hearing.


       When a trial court does not hold a hearing within the required time frame, the

       trial court shall dismiss the termination petition “upon filing a motion with the

       court by a party[.]” Ind. Code § 31-35-2-6(b). Here, Father’s counsel made an

       oral, not a written, motion to dismiss during the December 16, 2019, hearing

       and thus did not comply with the requirements of Indiana Code section 31-35-

       2-6(b). See Matter of N.C., 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (noting

       Indiana Code section 31-35-2-6(b) requires that a party file a written motion to

       dismiss based on non-compliance with statutory deadlines).3


[12]   Further, Father’s own conduct invited any error he now alleges. Invited error,

       which is based on the legal principle of estoppel, forbids a party from taking

       “‘advantage of an error that she commits, invites, or which is the natural

       consequence of her own neglect or misconduct.’” Durden v. State, 99 N.E.3d

       645, 651 (Ind. 2018) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)).

       “A party may not invite error, then later argue that the error supports reversal,

       because error invited by the complaining party is not reversible error.” Booher v.

       State, 773 N.E.2d 814, 823 (Ind. 2002). Here, the trial court ordered Father to




       3
         Father also argues the trial court erred when it denied his motion to dismiss because DCS did not provide
       him notice of an initial hearing within ten days of the hearing date pursuant to Indiana Code section 31-35-2-
       6.5(b). However, Father did not make that argument before the trial court and thus it is waived. See S.L. v.
       Indiana Dept. of Child Servs., 997 N.E.2d 1114, 1118 (Ind. Ct. App. 2013) (father may not make a due process
       argument for the first time on appeal and thus the argument is waived).

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020                     Page 10 of 14
       update DCS with any change in address within forty-eight hours of the change.

       He did not do so, which resulted in DCS being unable to find Father to serve

       him with notice and, thus, the delay about which he now complains.


[13]   Finally, the evidence supporting the termination of Father’s parental rights was

       overwhelming. Father does not challenge the trial court’s findings and, thus,

       they stand proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

       (“Because Madlem does not challenge the findings of the trial court, they must

       be accepted as correct.”). In terminating Father’s parental rights to Child, the

       trial court found:


               [T]he Department of Child Services made a referral to Lifeline
               for the parents to participate in parenting instruction and to assist
               the parents with finding housing and employment as well as
               finding and utilizing community resources. The parents attended
               the first session on July 2, 2019, which was an intake session.
               [Mother] engaged in discussion with the Lifeline caseworker
               during the first session which lasted 1 1/2 hours, however,
               [Father] told the caseworker that he had somewhere to go. . . .
               [Father] did not attend the second appointment that had been
               scheduled but did attend two or three other appointments. He
               worked with the caseworker on finding employment and was
               able to find employment through Leader Staffing[,] a temporary
               employment agency and also received assistance from the
               caseworker on obtaining a replacement social security card and
               on obtaining food from a food pantry. From the testimony of
               Lifeline caseworker Zachary Hannan, the Court finds that during
               the time that the parents worked with him, they resided with
               friends. They were not interested in finding new or independent
               housing and did not initiate parenting skills training. The
               Lifeline referral was closed out for non-compliance on August
               20, 2019.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 11 of 14
        As part of the Parent Participation Plans that were ordered by the
        Court and incorporated into the Dispositional Decree, the
        parents were ordered to obtain psychological evaluations and to
        comply with the recommendations from the psychological
        evaluations. . . . [Father] failed to complete his evaluation.


        As part of the Parent Participation Plans that were ordered by the
        Court and incorporated into the Dispositional Decree, the
        parents were ordered to submit to drug and alcohol assessments
        and follow all recommendations from the assessments. From the
        testimony of family casemanager [sic] Jasmine Hamilton, the
        Court finds that the parents tested positive for illegal drugs at the
        time of [Child’s] removal from the home and that their drug of
        choice was spice. There have been ongoing concerns about drug
        usage by the parents. . . . The parents did not regularly submit to
        drug screens conducted by the DCS or other agencies.


        [Father] was ordered participate in medication management
        services and he failed to do so. From the testimony of the
        Guardian ad Litem, the Court finds that during the course of the
        proceedings, he had a number of outbursts and would use foul
        language and would leave the courthouse and or [sic] courtroom
        in a fit of anger. This type of behavior was witnessed by Zachary
        Hannan from Lifeline during the second visitation that occurred
        at the Allen County Public Library between the parents and
        children. The children and [M]other were inside during the
        visitation and [Father] was outside smoking a cigarette. The
        visitation supervisor went outside to encourage [Father] to join
        the visitation and [Father] began to curse and informed him that
        no one tells him what to do. He then refused to talk to the
        visitation supervisor and the visit was then cut short.


        . . . [T[he parents last visited with [Child] in October of 2019.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 12 of 14
               . . . Throughout the course of the proceedings in the underlying
               CHINS case, the parents have been unable to maintain stable
               housing and employment. Referrals were made for their
               participation in services that were designed to assist them in
               remedying the reasons for removal of [Child] from the home and
               in remedying the continued placement of [Child] outside the
               home, however, they have failed to regularly participate and/or
               benefit from services provided. They do not have appropriate
               housing and have not demonstrated that they have the willness
               [sic] or ability to provide for [Child]. [Mother] and [Father] have
               failed to remedy the reasons for removal of [Child] from the
               home and the reasons for continued placement of [Child] from
               the home.


       (App. Vol. II at 11-13.) Based thereon, we conclude the trial court did not err

       when it terminated Father’s parental rights to Child. See In re E.M., 4 N.E.3d

       636, 644 (Ind. 2014) (termination of father’s parental rights supported by

       father’s continued non-compliance with services); see also Smith v. Marion Cty.

       Dept. of Pub. Welfare, 635 N.E.2d 1144, 1149 (Ind. Ct. App. 1994) (“One who

       seeks to disturb a trial court’s judgment must affirmatively show an erroneous

       ruling and prejudice resulting therefrom.”), trans. denied.



                                                Conclusion
[14]   Despite the fact that DCS did not request, and the trial court did not hold, a

       hearing within ninety days of DCS’s filing the petition to terminate Father’s

       parental rights, the trial court did not err when it denied Father’s motion to

       dismiss because his motion was not in writing as required by Indiana Code

       section 31-35-2-6(b). Further, Father has not demonstrated DCS and the trial

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 13 of 14
       court’s non-compliance with Indiana Code section 31-35-2-6(a)(1) prejudiced

       him or substantially affected his rights. Accordingly, we affirm the termination

       of Father’s parental rights to Child.


[15]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-491 | July 24, 2020   Page 14 of 14
