MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       Jul 19 2019, 8:54 am

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
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 19, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of S.D. (Child) and L.V.                                  18A-JT-2973
(Father);                                                 Appeal from the Vigo Circuit
L.V. (Father),                                            Court
                                                          The Honorable Sarah K. Mullican,
Appellant-Defendant,
                                                          Judge
        v.                                                The Honorable Daniel W. Kelly,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           84C01-1806-JT-658
Appellee-Plaintiff



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019                    Page 1 of 13
[1]   L.V. (“Father”) appeals the termination of his parental rights to S.D. 1 Father

      raises two issues, which we restate as: (1) whether Father’s due process rights

      were violated by procedural deficiencies during the Child in Need of Services

      (“CHINS”) case that hindered Father’s opportunity for reunification; and (2)

      whether the trial court’s judgment terminating Father’s parental rights was

      clearly erroneous because the Indiana Department of Child Services (“DCS”)

      failed to prove termination of Father’s parental rights was in S.D.’s best

      interests. We affirm.



                                Facts and Procedural History
[2]   S.D. was born on April 9, 2015. On April 7, 2017, S.D. was removed from

      Mother’s care when Mother was arrested for probation violations. At the time

      of removal, the identity of S.D.’s biological father was not known. Father

      requested a DNA test to establish he was S.D.’s biological father. Prior to that

      determination, DCS filed a petition asking the court to declare S.D. a CHINS.


[3]   On April 18, 2017, Mother admitted S.D. was in need of services due to her

      incarceration. On June 1, 2017, DCS received the DNA results and informed

      Father that he was S.D.’s biological father. On June 20, 2017, the court held a

      factfinding hearing and concluded S.D. was a CHINS for two reasons: (1)




      1
          Mother voluntarily terminated her parental rights, and she does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019                         Page 2 of 13
      Father was a noncustodial parent and was therefore unable to protect S.D.; and

      (2) Mother admitted S.D. was a CHINS.


[4]   On January 2, 2018, the court ordered Father to participate in services,

      including regular supervised visits with S.D., case management participation to

      obtain stable employment and transportation, weekly contact with the Family

      Case Manager, random drug screening, and any recommendations for

      addiction treatment.


[5]   On June 14, 2018, DCS filed its petition for involuntary termination of parent-

      child relationship. On June 20, 2018, DCS moved to modify the dispositional

      decree to discontinue Father’s services and visitation because Mother had

      voluntarily terminated her parental rights, Father continued to test positive for

      illegal drugs, Father did not engage with S.D. during visits, and Father failed to

      maintain contact with DCS for approximately two months.


[6]   On August 3, 2018, the court took the matter under advisement and informed

      Father that if he failed any drug screens, failed to show for any drug screens, or

      missed any scheduled visits with S.D., the court would grant the requested

      modification. On August 15, 2018, DCS informed the court that Father failed

      to follow the Court’s order because Father’s random drug screen tested positive

      for THC and cocaine. On August 17, 2018, the court ordered DCS was no

      longer required to pay for or offer services to Father due to his positive drug

      screen.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 3 of 13
[7]   On October 9, 2018, the court held a hearing on DCS’s petition for involuntary

      termination of parent-child relationship. On November 13, 2018, the court

      permanently terminated all rights, powers, privileges, immunities, duties, and

      obligations pertaining to the parent-child relationship between Father and S.D.



                                 Discussion and Decision
                                       Procedural Arguments
[8]   Father claims his right to due process, under both the federal and state

      constitutions, was violated because of numerous procedural deficiencies in this

      case that hindered Father’s opportunity for reunification. However, the record

      does not demonstrate that his claims were raised at any time during the

      underlying CHINS proceedings. “At a minimum, a party must show that it

      gave the trial court a bona fide opportunity to pass upon the merits of the claim

      before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320,

      322 (Ind. 2004). Because Father raised his due process arguments for the first

      time on appeal, they are waived. In re S.P.H., 806 N.E.2d 874, 877-78 (Ind. Ct.

      App. 2004). Waiver notwithstanding, Father’s alleged issues are unavailable

      for appeal.


[9]   First, Father challenges the services provided by DCS:


                   A. Why was S.D. not allowed to remain in Father’s care at
                      the inception of this case?
                   B. Why, despite the lack of any evidence that Father abused
                      or neglected S.D., was Father only allowed two brief
                      supervised visits per week with S.D?

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 4 of 13
                    C. Finally, and perhaps most troubling, why did DCS wait
                       over 8 months to put a referral in place for Father to begin
                       substance abuse evaluation and treatment?
                    D. Why, despite being required by law to do so, did DCS never
                       initiate a paternity action on S.D.’s behalf to legally establish
                       paternity?

       (Appellant’s Br. at 2) (some formatting omitted).


[10]   Our Indiana Supreme Court has long recognized that, in “seeking termination

       of parental rights,” DCS has no obligation “to plead and prove that services

       have been offered to the parent to assist in fulfilling parental obligations.”

       S.E.S. v. Grant Cty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992). Likewise,

       we have stated on several occasions that, although “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.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145,

       148 & n.3 (Ind. Ct. App. 2009) (citing I.C. § 31-34-21-5.5); see also Elkins v.

       Marion Cty. 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 Cty. 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”), trans.

       denied.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 5 of 13
[11]   Nor do we find merit in Father’s attempt to discredit the termination order by

       attacking the services provided by DCS. Father did not ask for S.D. to remain

       in his care at the inception of the case, and Father did not ask for more visits per

       week with S.D. Regarding the substance abuse evaluation and treatment

       referral, it is well settled that “a parent may not sit idly by without asserting a

       need or desire for services and then successfully argue that he was denied

       services to assist him with his parenting.” In re B.D.J., 728 N.E.2d 195, 201

       (Ind. Ct. App. 2000). Father cannot raise this argument when he did not

       request substance abuse treatment.


[12]   Next, while the court did not issue an order mandating DCS initiate paternity

       proceedings, it advised Father that DCS could instruct him on how to file a

       petition. The court also instructed Father about how to establish paternity.

       (CHINS Tr. Vol. VI at 10, 14.) Father failed to establish his paternity of S.D.

       sooner; he cannot now allege that as error on appeal. See Herron v. Herron, 457

       N.E.2d 564, 569 (Ind. Ct. App. 1983) (“a party may not take advantage of an

       error which he commits, invites, or which is the natural consequence of his own

       neglect or misconduct”).


[13]   Finally, Father challenges S.D.’s placement after establishment of his paternity,

       arguing: “Once Father proved he was S.D.’s biological father, why was S.D.

       not placed in his care?” (Appellant’s Br. at 2.) However, the record reveals that

       Father did not want to get involved with the case until paternity was

       established. (Ex. Vol. at 63, 77; TPR Tr. Vol. II at 16; CHINS Tr. Vol. I at 5-6.)

       After paternity was established, no evidence in the record shows Father

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 6 of 13
       requested S.D. be placed into his care. Father should have requested S.D. be

       placed with him if that was his desire. We cannot fault DCS for not

       considering placing S.D. in Father’s care when Father did not so request. See

       C.T. v. Marion Cty. Dep’t of Child Servs., 896 N.E.2d 571, 588 (Ind. Ct. App.

       2008) (“In failing to respond to his attorney’s letters or to communicate with his

       attorney prior to the termination hearing, despite his actual knowledge of the

       hearing, [Parent] has invited the alleged error of which he now complains.”),

       trans. denied.


[14]   We find no merit in any of Father’s allegations that he was deprived of due

       process during the CHINS proceedings.


                                         Child’s Best Interests
[15]   Next, Father questions whether DCS presented sufficient evidence to prove that

       termination was in S.D.’s best interests. DCS filed a petition to terminate

       Father’s parental rights.


               A petition to terminate a parent-child relationship must allege:
               (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.
                      (ii)   A court has entered a finding under IC 31-34-21-5.6
                             that reasonable efforts for family preservation or
                             reunification are not required, including a
                             description of the court’s finding, the date of the
                             finding, and the manner in which the finding was
                             made.
                      (iii) The child has been removed from the parent and
                             has been under the supervision of a county office of
                             a family and children or probation department for at
                             least fifteen (15) months of the most recent twenty-

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 7 of 13
                             two (2) months, beginning with the date the child is
                             removed from the home as a result of the child
                             being alleged to be a child in need of services or a
                             delinquent child;
               (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.

       Ind. Code § 31-35-2-4(b)(2).


[16]   “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.

       2010). We consider only the evidence and reasonable inferences 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 Indiana Trial

       Rule 52(A)).


[17]   Where a trial court enters findings of fact and conclusions thereon, as the trial

       court did here, we apply a two-tiered standard of review. Id. “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, which occurs if the findings do

       not support the trial court’s conclusions or the conclusions do not support the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 8 of 13
       judgment. Id. Father does not challenge any of the trial court’s findings, and

       thus they stand proven. Madlem v. Arko, 581 N.E.2d 1290, 1295 (Ind. Ct. App.

       1991). Father asserts only that DCS failed to prove that termination of his

       parental rights was in S.D.’s best interests.


[18]   Pursuant to Indiana Code section 31-35-2-4(b)(2)(C), DCS must provide

       sufficient evidence “that termination is in the best interests of the child.” In

       determining what is in the best interests of a child, the trial court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the

       trial court must subordinate the interests of the parent to those of the child. Id.

       The court need not wait until a child is harmed irreversibly before terminating

       the parent-child relationship. Id. Recommendations of the case manager and

       court-appointed advocate, in addition to evidence the conditions resulting in

       removal will not be remedied, are sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests. Id.


[19]   Father bases his argument on the fact that he has a loving bond with S.D., that

       S.D. recognizes him as “dad,” and that he did most of what DCS required of

       him. (Appellant’s Br. at 20.) However, we are not persuaded those facts are

       enough to reverse the termination of his parental rights as to S.D. Father

       submitted a number of drug screens, all of which were positive for illegal

       substances such as marijuana, cocaine, and methamphetamine. (Tr. Vol. II at

       7.) In order to “see if motivation to engage in [substance abuse] treatment and

       make changes could be elicited,” (id. at 34), Father was recommended for

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 9 of 13
motivational interviewing, but he refused to participate. (Id. at 49.)

Subsequently, at the time of the fact-finding hearing, Father was incarcerated

with pending charges for Level 2 Felony dealing in methamphetamine, 2 Level 4

Felony possession of methamphetamine, 3 and three other counts. Those

pending charges were in addition to his lengthy criminal history, including

charges for which he had served time. The trial court found:


           d. There is reasonable probability that the conditions which
           resulted in the removal of the child from his parents will not be
           remedied or the reasons for placement outside of the home of the
           parents will not be remedied or that the continuation of the
           parent-child relationship poses a threat to the well-being of the
           child as follows:


               1. On or about April 7, 2017, DCS received a report that
                  Mother was in the Vigo County Jail, Father of the children
                  was unknown, that [A.D.], a sibling of [S.D.’s], had been
                  taken from Mother and was in kinship placement and that
                  Mother had been hiding [S.D.] from DCS for the previous
                  two months. The reporting person was concerned about
                  [S.D.’s] well-being and did not know in whose care he had
                  been placed.


               2. Father was recommended for motivational interviewing,
                  in hopes of supplying him with motivation to participate in
                  substance abuse treatment, which he was refusing to do.




2
    Ind. Code § 35-48-4-1.1 (2017).
3
    Ind. Code § 35-48-4-6.1 (2014).


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 10 of 13
             3. Father submitted to a number of drug screens, usually on
                the day of his supervised visits with [S.D.]. All of them
                were positive for illegal substances, most often marijuana
                and cocaine, but was [sic] also positive for
                methamphetamine.


             4. Father has a lengthy criminal history, for which there was
                evidence from DCS and the court’s judicial notice,
                including the following:


                 [Father’s Criminal History includes: one cause possession
                 of cocaine and marijuana; one cause possession of
                 marijuana, resisting law enforcement, and battery resulting
                 in bodily injury; one cause three counts dealing cocaine
                 within 1000 ft of school; one cause operating vehicle
                 without ever receiving license; one cause two counts
                 resisting law enforcement, driving while suspended, and
                 battery; one cause battery; one cause domestic battery; two
                 causes invasion of privacy; one cause operating without
                 ever receiving license, and open alcoholic beverage
                 container during operation of a motor vehicle; one cause
                 domestic battery with enhancement, and domestic battery;
                 one cause three counts theft; one cause conversion; one
                 cause failure to stop after accident causing damage to non-
                 vehicle, operation of vehicle without ever receiving a
                 license, and failure to stop after accident with unattended
                 vehicle; one cause operation without ever receiving
                 license; one cause false informing, and possession of
                 marijuana; one cause domestic battery, and refusal to be
                 photographed when taken into custody; one cause
                 operation without ever receiving a license, operation
                 without proof of financial responsibility, and improper
                 plates; one cause domestic battery in presence of child
                 under 16, felony intimidation, and two counts domestic
                 battery; one cause domestic battery in presence of child
                 under 16, domestic battery, and domestic battery with

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 11 of 13
                        prior conviction; one cause driving while suspended with
                        prior conviction, operation of vehicle without ever
                        receiving license, and speeding; one cause possession of
                        marijuana; and one cause driving while suspended.]


                    5. Despite his lengthy criminal history, with criminal cases
                       pending and the pending petition for involuntary
                       termination of the parent-child relationship, Father was
                       arrested yet again on or about September 21, 2018 and was
                       charged with the following charges, which are pending:


                        Ct. 1: Dealing in meth, more than 10 grams, F2;
                        Ct. 2: Poss of meth, bt 10-28 grams, F4;
                        Ct. 3: Maintaining common nuisance, F4;
                        Ct. 4 Resisting law enf. with vehicle, F6;
                        Ct. 5 Poss meth bt 10-28 grams, F3


                   6. Father’s continuous criminal arrests and incarcerations
                       render him an unsuitable caregiver and unlikely to be
                       consistently available to care for [S.D.].
                                                *****
               f. Termination is in the best interests of the minor child as
               testified to by DCS and CASA. [S.D.] is placed with a sibling
               with whom he has a close and loving relationship. The
               placement seeks to adopt both children.

       (Appellant’s App. Vol. II at 45-48.)


[20]   Father’s criminal history and pending charges make it difficult for us to believe

       Father’s termination of parental rights was not in S.D.’s best interests when the

       trial court evaluated “the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child.” J.C.K. v. Fountain Cty.

       Dep’t of Public Welfare, 470 N.E.2d 88, 92 (Ind. Ct. App. 1984) (citing In re

       Perkins, 352 N.E.2d 502, 519 (Ind. Ct. App. 1976)). In light of Father’s

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 12 of 13
       continuing problems with criminal behavior and substance abuse, along with

       the testimony of the CASA that termination was in S.D.’s best interests, we

       affirm the trial court’s determination. See J.C.K., 470 N.E.2d at 93 (stating

       termination of parental rights was in the best interest of children and not

       erroneous because there was no evidence of a change in parent’s way of life that

       would ensure a solid home and family life for children).



                                                Conclusion
[21]   We conclude the trial court did not violate Father’s due process rights hindering

       Father’s opportunity for reunification. Also, the trial court’s judgment

       terminating Father’s parental rights was not clearly erroneous because DCS

       proved that termination of Father’s parental rights was in S.D.’s best interests.

       Accordingly, we affirm.


[22]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2973 | July 19, 2019   Page 13 of 13
