                                                                    FILED
                                                               Jun 21 2016, 6:41 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Steven J. Halbert                                           Gregory F. Zoeller
      Carmel, Indiana                                             Attorney General
                                                                  Robert J. Henke
                                                                  James D. Boyer
                                                                  Deputy Attorneys General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Termination of the                                   June 21, 2016
      Parent-Child Relationship of                                Court of Appeals Case No.
      N.C. (Minor Child) and A.C.                                 49A02-1510-JT-1711
      (Father),                                                   Appeal from the Marion Superior
      Appellant-Respondent,                                       Court
                                                                  The Honorable Marilyn A.
              v.                                                  Moores, Judge
                                                                  The Honorable Larry E. Bradley,
      The Indiana Department of                                   Magistrate.
      Child Services,                                             Trial Court Cause No.
      Appellee-Petitioner                                         49D09-1405-JT-216




      Mathias, Judge.


[1]   A.C. (“Father”) appeals the involuntary termination of his parental rights to his

      minor son N.C. (“Child”). Father presents one issue, which we restate as


      Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016                Page 1 of 12
      whether the American with Disabilities Act (“ADA”) applies in termination

      proceedings.

[2]   We affirm.

                                          Facts and Procedural History


[3]   Child was born on February 17, 1999 to Mother1 and Father. On January 29,

      2007, the Indiana Department of Child Services (“DCS”) filed a petition

      alleging Child to be a child in need of services (“CHINS”) after the health

      department condemned Mother’s apartment. The petition alleged, “[t]he

      condition of the home was such that there was no eatable food in the residence,

      trash was overflowing, fecal matter was piled in the bathroom and the kitchen

      floor, the bath tub would not properly drain so no one in the household could

      use it, and the child’s clothing and body were unclean.” Ex. Vol., State’s Ex. 2.

      Child was removed from the home and placed in foster care after Mother was

      admitted in a psychiatric facility for suicidal thoughts and Father could not be

      located.2


[4]   A continued initial hearing was held on March 6, 2007, where Father admitted

      to the allegations in the CHINS petition and agreed to participate in a parenting

      assessment, a psychological evaluation, and a drug and alcohol assessment. On

      June 5, 2007, a CHINS review hearing was held and the court found that



      1
          Mother signed a general consent for Child’s adoption in 2008 and does not participate in this appeal.
      2
          Father was incarcerated around the time of the dispositional hearing, but was released on June 3, 2007.

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      Father was not participating in services, so his visitation rights were suspended.

      Between June and September 2007, DCS family case manager Yoranda Caudill

      (“Caudill”) worked with Father to explain the purpose of the assessments that

      the court ordered and to coordinate with Deaf Community Services to provide

      accommodations for him.3 Father was also homeless at this time.


[5]   On September 11, 2007, Father completed a psychological evaluation and was

      diagnosed with Depressive Disorder Not Otherwise Specified (“NOS”),

      Cognitive Disorder NOS, and Intermittent Explosive Disorder. Based on these

      diagnoses, DCS recommended supervised visitation, evaluation by a

      psychiatrist for psychotropic medication, individual counseling, and for Father

      to continue to follow the recommendations of the court. However, Father did

      not participate in counseling or any of the recommended services and did not

      complete the court-ordered parenting assessment4 or drug and alcohol

      assessment. After the evaluation, DCS also noted concern with Father’s

      cognitive ability, parenting capabilities, and mental heath.

[6]   The trial court ordered the permanency plan to be changed to adoption on June

      4, 2008. In September 2008, Father signed a specific consent for Child to be

      adopted by his foster parents.




      3
          Father is deaf, and English is not his first language.
      4
        The trial court’s order indicates that Father partially completed the parenting assessment but did not have
      the communication and cognitive skills to fully complete it.

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[7]   After the foster parents reported some behavioral issues, Child was enrolled at

      Damar Services in a residential program in June 2010.5 Child is diagnosed with

      autism spectrum, attention deficit and hyperactivity disorders and depression.

      While Child was enrolled at Damar, the foster parents decided that they no

      longer wanted to adopt him.


[8]   Around the same time Child moved to Damar, Father contacted DCS and

      requested visitation with Child. The court granted supervised visitation based

      on the recommendation of the Child’s therapist. On May 13, 2011, Father had

      a supervised visit with Child at Damar, but Father argued with staff and

      expressed concern that he was not able to visit Child alone. After that, Father

      participated in monthly supervised visits with Child that generally went well.

      However, Father still failed to participate in services and he did not attend any

      review hearings in the CHINS case between December 2008 and May 2015.

[9]   Child transitioned from Damar into a new foster home in July 2012. Around

      the same time, the visits began confusing Child because Father made unrealistic

      promises, like taking Child on a trip to Washington D.C. DCS attempted to

      discuss Father’s conduct and DCS’s visitation expectations, but Father could

      not be reached at the time. Because of the new foster home placement, DCS

      notified and reminded Father that his visitation scheduled would change.




      5
        Damar provides a variety of services to children and adults with developmental, behavioral challenges, and
      autism. Children come to Damar requiring different levels of care and safety, from high levels of supervision
      to less intensive support. Damar provides a full spectrum of innovative and individualized residential
      services. See http://www.damar.org/children-youth/residential-campus-services.

      Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016                         Page 4 of 12
       However, Father failed to attend the next visit with Child and another visit to

       celebrate Child’s birthday on February 11, 2013. The visitation provider

       cancelled all future visitation due to Father’s missed visits. DCS then referred

       Father to another visitation provider to reestablish supervised visitation.

[10]   At a visit on July 1, 2013, Father promised Child that he would live with him.

       The visit facilitator reminded Father not to make statements like that, and

       Father became “very hostile and angry.” Ex. Vol., p. 244. During that same

       visit, Father expressed anger toward Child’s foster mother and threatened that

       he was “coming to get her.” Id. After this encounter, Child indicated that he no

       longer wanted to visit with Father because of Father’s behavior and false

       promises. Father did not schedule any more visits with Child and had not seen

       Child for two years prior to the termination hearing.


[11]   DCS filed a petition to terminate Father’s parental rights on May 19, 2014.

       After DCS filed the termination petition, the trial court ordered Father to

       participate in a mental status examination at the request of DCS. Although

       Father made several appointments for the exam, he never showed up, and as a

       result, the examiner would not make any future appointments. The trial court

       then held an evidentiary hearing on the termination petition on September 23,

       2015. Child indicated that he is doing well in his current foster home, loves his

       foster mother, and wants her to adopt him.6 Based on Child’s diagnoses, Child’s




       6
           Child was sixteen years old at the time of the termination hearing.

       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016   Page 5 of 12
       therapist Henry Smith (“Smith”) reported that he has special needs but also

       requires structure and stability. Over the past two years that Child has spent in

       his current placement, his behavior has stabilized and remained constant. Smith

       is concerned that if Child transitions into an unstable environment that the

       progress that Child has made will be disrupted. Child also has expressed a

       desire to go to college and Smith believes that if his environment changes that

       he might “give up on that.” Tr. p. 111.


[12]   Child’s guardian ad litem Carolyn Thurston (“Thurston”) agreed that he needs

       stability and adoption is in Child’s best interests. Thurston further explained

       that Father has not completed services to effectively meet the needs of Child

       and Child’s foster mother makes an active effort to meet Child’s educational

       and emotional needs. Tr. p. 134


[13]   On September 29, 2015, the trial court entered an order terminating Father’s

       parental rights. Father now appeals.

                                           Discussion and Decision


[14]   Father argues that because he is deaf and has cognitive and mental health

       problems that DCS was required to provide him accommodations under the

       ADA. He specifically contends that DCS’s failure to accommodate his

       disability is a defense in this termination proceeding.


[15]   Although Father makes this argument on appeal, after review of the record, we

       cannot agree that he raised this issue before the trial court. Father concedes that


       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016   Page 6 of 12
       he did not specifically mention the ADA issue during the termination hearing,

       but rather argues that Father’s counsel repeatedly raised the failure of DCS to

       accommodate his disability.


[16]   However, the record is devoid of such statements that Father alleges in his

       brief.7 See Appellant’s Br. at 16. Indiana Appellate Rule 46(A)(8)(a) provides:


                The argument must contain the contentions of the appellant on
                the issues present, supported by cogent reasoning. Each
                contention must be supported by citations to the authorities,
                statutes, and the Appendix or parts of the Record on Appeal
                relied on.


       A party waives an issue where the party fails to develop a cogent

       argument or provide adequate citation to authority and portions of the

       record. York v. Frederic, 947 N.E.2d 969, 979 (Ind. Ct. App. 2011), trans.

       denied. Further, a party may not raise an issue for the first time on appeal.

       See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001). Therefore,

       the issue is waived for failure to develop an argument supported by

       cogent reasoning and because it was raised for the first time on appeal.




       7
         We recognize that during the termination hearing, Father complained of not being satisfied with the
       interpreters he was provided. See Tr. p. 74. When Father’s counsel asked him if he had ever told anyone in
       juvenile court that he was having problems understanding because of the interpreter, Father responded, “The
       interpreter was, wasn’t good, and then the next interpreter wasn’t good. I don’t know. The interpreter wasn’t
       good so I, I got put in jail.” Counsel repeated the question and Father again responded, “I, I, there were
       signing and I tried but no, I didn’t, I just got put in jail and I was like okay, fine, I got put in jail.” Based on
       Father’s responses, it appears that he was dissatisfied with the interpreters provided during the course of his
       criminal proceeding, not the CHINS or termination proceeding.

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[17]   Father additionally argues that even if he waived DCS’s alleged violation of the

       ADA on appeal, it constitutes fundamental error that deprived him of his

       constitutional right to parent under the Fourteenth Amendment of the United

       States Constitution. The fundamental error doctrine is a narrow exception to

       the waiver doctrine and applies to an “error that was so egregious and

       abhorrent to fundamental due process that the trial judge should or should not

       have acted, irrespective of the parties’ failure to object or otherwise preserve the

       error for appeal.” In re G.P., 4 N.E.3d 1158, 1167 n. 8 (Ind. 2014). For our court

       to overturn a trial court ruling based on fundamental error, the error must have

       been “a clearly blatant violation of basic and elementary principles, and the

       harm or potential for harm therefrom must be substantial and appear clearly

       and prospectively. S.M. v. Elkhart Cnty. Office of Family and Children, 706 N.E.2d

       596, 600 (Ind. Ct. App. 1999) (emphasis added).

[18]   Here, Father misapplies the fundamental error doctrine by arguing that the

       error occurred when DCS failed to accommodate his disability under the

       ADA.8 Moreover, it is well settled under Stone that the ADA does not apply in

       termination proceedings and Father was not denied services that

       accommodated his disability. See Infra at p. 9. DCS coordinated with Deaf

       Community Services to provide interpreters and family case manager Caudill

       set up a meeting to explain to Father the importance of completing the court




       8
        Although Father argues fundamental error, his argument is more akin to a due process violation. See In re
       G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016                        Page 8 of 12
       ordered services to meet Child’s needs. Father still chose not to participate in

       the court-ordered and recommended services.

[19]   Waiver notwithstanding, we address Father’s argument that he should be

       entitled to use DCS’s alleged failure to comply with the ADA as a defense to

       the termination of his parental rights. Congress enacted the ADA to eliminate

       discrimination and create causes of action for qualified people who have faced

       discrimination. See 42 U.S.C. § 12101(b). The ADA provides in relevant part:


               [N]o qualified individual with a disability shall, by reason of such
               disability, be excluded from participation in or be denied the
               benefits of the services, programs, or activities of a public entity,
               or be subjected to discrimination by any such entity.


       42 U.S.C. § 12132. The ADA requires that the public entity make

       “reasonable accommodation” to allow the disabled person to receive the

       services or to participate in the public entity’s programs. 28 C.F.R. §

       35.130(b)(7).


[20]   Our court was presented with whether the ADA applies in proceedings for the

       termination of parental rights in Stone v. Daviess Cnty. Div. of Children and Family

       Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995). In Stone, we held:


               the services the DCFS provided to Father and Mother were
               provided in connection with the CHINS proceedings and not in
               connection with or as a prerequisite to the termination
               proceedings. We emphasize that the remedy Father and Mother
               seek for the DCFS’s alleged failure in its provision of services is
               reversal of the trial court’s termination of their parental rights. If

       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016         Page 9 of 12
                our termination statute required that services be provided to all
                parents prior to the termination of parental rights, under the
                doctrine of preemption an ADA violation by the DCFS in
                fulfilling that statutory duty would provide grounds for attacking
                a termination pursuant to the statute. Such services, however, are
                not required in Indiana. Therefore, we hold that Father and
                Mother’s discrimination claim cannot serve as a basis to attack
                the termination order itself.


       Id. at 830.


[21]   The intent of the ADA is to ensure disabled individuals are not denied the

       benefits provided by a public entity. See 42 U.S.C. § 12101(b). If the ADA

       applied to termination of parental rights proceedings, DCS would be required to

       reasonably accommodate Father’s disability.

[22]   Here, Father was provided an interpreter by DCS through Deaf Community

       Services. He expressed no issues with understanding any of the provided

       interpreters. Family case manager Caudill also explained to Father why he was

       required to complete the court-ordered services. Visitation with Child was

       contingent on Father participating in these services, which is a common and

       productive condition in CHINS proceedings.9




       9
         Although Father argues that he was denied visitation with Child, the record reflects that supervised
       visitation with Child was reinstated after a recommendation from Child’s therapist in 2010. Father did not
       complete the court-ordered services to which he consented in the agreed entry but was still able to visit Child
       on a monthly basis.

       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016                          Page 10 of 12
[23]   Further, based on Father’s psychiatric evaluation, DCS recommended

       counseling and that he see a psychiatrist to obtain medication. Like other court-

       ordered and DCS-recommended services, Father failed to comply. He also

       denied during the termination proceeding that he had any cognitive or thinking

       issues that limit his ability to understand what was occurring. Based on the

       record, we hold that DCS reasonably accommodated Father’s disability, and

       we cannot say that DCS discriminated against Father in violation of the ADA.


[24]   Father cites to a recent United States Department of Justice, Civil Rights

       Division and United States Department of Health and Human Services, Civil

       Rights Division joint decision which he claims rejected the argument that the

       ADA could not be raised as a defense in a termination hearing. See DJ No. 204-

       36-216, HHS No. 14-182176.10 However, Father fails to explain how a federal

       investigation of the Massachusetts Department of Children and Family is

       binding precedent under Indiana law. Father also cites to a recent Utah

       Supreme Court case, State In Interest of K.C., 362 P.3d 1248 (Utah 2015) to

       support his position. In K.C., the court held that the ADA applies in

       termination proceedings, but found that under the circumstances that DCFS

       provided reasonable accommodations to mother and affirmed the termination

       of her parental rights. Id. at 1249.




       10
            Available at http://www.ada.gov/ma_docf_lof.doc

       Court of Appeals of Indiana | Opinion 49A02-1510-JT-1711 | June 21, 2016   Page 11 of 12
[25]   K.C. is distinguishable because the mother in K.C. raised her ADA claim during

       the termination hearing, which Father failed to do in the case before us. Rather,

       he raises this issue for the first time on appeal. Similarly, we have concluded in

       this case that DCS provided reasonable accommodations to Father. Finally, the

       cases to which Father cites are at most persuasive and not binding in our

       jurisdiction. Therefore, we decline to abandon our prior holding in Stone

       regarding the ADA’s application in termination of parental rights proceedings.


[26]   For all of these reasons, we conclude that Father waived the issue of whether

       the ADA applies in a termination of parental rights proceeding. Waiver

       notwithstanding, Father’s discrimination claim cannot serve as a basis to attack

       the trial court’s termination order.

[27]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




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