MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Jun 18 2020, 6:10 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:
(FATHER)                                                 INDIANA DEPARTMENT OF
Cara Schaefer Wieneke                                    CHILD SERVICES
Brooklyn, Indiana                                        Curtis T. Hill, Jr.
ATTORNEY FOR APPELLANT                                   Attorney General of Indiana
(MOTHER)                                                 Robert J. Henke
                                                         Deputy Attorney General
Mark Small
                                                         Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020                      Page 1 of 12
      In the Matter of the Involuntary                         June 18, 2020
      Termination of the Parent-Child                          Court of Appeals Case No.
      Relationship of: Mi.T. and                               20A-JT-181
      Ma.T. (Minor Children),                                  Appeal from the Greene Circuit
      and                                                      Court
                                                               The Honorable Erik C. Allen,
      G.T. (Mother) and S.T. (Father),                         Judge
      Appellants-Respondents,                                  Trial Court Cause No.
                                                               28C01-1904-JT-12
              v.                                               28C01-1904-JT-13

      The Indiana Department of
      Child Services,
      Appellee-Petitioner.



      Tavitas, Judge.


                                             Case Summary
[1]   G.T. (“Mother”) and S.T. (“Father”) appeal from the termination of their

      parental rights to Ma.T. and Mi.T. (“the Children”). We affirm.


                                                     Issues
[2]   Mother and Father separately allege denials of due process.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020          Page 2 of 12
                                                          Facts
[3]   Mother and Father are the biological parents of twins, Ma.T. and Mi.T., who

      were born in November 2015. 1 On July 21, 2017, and July 22, 2017, the

      Greene County Office of the Department of Child Services (“DCS”) received

      allegations of: (1) domestic violence; (2) Mother’s abuse of methamphetamine;

      (3) Father’s abuse of Xanax, marijuana, and prescription pain medication; (4)

      Mother’s mental health issues, including a July 2017 suicide attempt when the

      Children were present in the home; and (5) neglect. Father subsequently

      admitted that he was also abusing methamphetamine.


[4]   DCS instituted an informal adjustment, during which the Children remained in

      the care of Mother and Father. In August 2017, DCS deemed the informal

      adjustment to be a failure. Mother was “screening negative in the beginning”;

      however, Father continued to test positive for methamphetamine. Tr. Vol. I-II

      p. 147. After Mother relapsed during the informal adjustment period, DCS

      removed the Children from the home, and the Children have not since returned

      to Mother’s or Father’s care.


[5]   DCS filed petitions alleging that the Children were children in need of services

      (“CHINS”) on November 13, 2017. On March 5, 2018, the trial court

      conducted a fact-finding hearing and adjudicated the Children as CHINS based




      1
          Mother and Father are divorced and were not in a relationship at the time of the termination hearing.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020                        Page 3 of 12
      on Mother’s and Father’s ongoing substance abuse, failed drug tests, and failure

      to maintain sobriety.


[6]   Pursuant to the trial court’s dispositional order of April 5, 2018, Mother and

      Father were each required to: (1) abstain from consuming alcohol or ingesting

      controlled substances; (2) undergo a parenting assessment and comply with

      ensuing recommendations; (3) complete substance abuse assessments; (4)

      submit to random drug tests; (5) maintain stable and secure home environments

      free of abuse or neglect; and (6) provide effective caregiving. It is undisputed

      that Mother and Father abused controlled substances and/or prescription pain

      medication throughout the majority of this matter.


[7]   During the pendency of this action, DCS briefly referred Mother to individual

      therapy for her chronic “mild to severe” depression. Id. at 102. Due to a

      change in service provider contracts, DCS did not refer Mother to therapy to

      address her mental health for a one-year period during the pendency; during

      that period, DCS referred Mother to therapy for substance abuse alone.

      Following Mother’s suicide attempt, Mother “did therapy and worked through”

      her suicidal ideations. Id. With respect to Mother’s mental health, Mother is

      also under a doctor’s care; takes prescription medication; “attend[s] therapy

      monthly”; and undergoes monthly mental health examinations. Id.


[8]   Also during the pendency of this matter, Mother and Father resisted DCS’s

      referrals for certain services. Mother: (1) refused at least one drug screen; (2)

      cancelled multiple Child and Family Team (“CFT”) meetings; (3) missed at


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 4 of 12
       least one supervised visit because she was sick due to substance abuse; and (4)

       opposed DCS’s referral to the Hamilton Center for a psychological evaluation.

       Mother rejected DCS’s repeated efforts to enroll her in intensive outpatient

       (“IOP”) drug rehabilitation programming. See id. at 131-32 (testimony that

       Mother insisted she could fight her methamphetamine addiction on her own).


[9]    On one such occasion, in 2019, family case manager (“FCM”) Carrie Goodwin

       took Mother to an immediately-available drug rehabilitation facility, with the

       costs to be borne by DCS; Mother refused to attend. At the time, Mother was

       residing in a house that lacked “power or [running] water”; however, Mother

       rejected the drug rehabilitation facility because it was, in her view, “very dirty,

       unsanitary”; “looked like a penitentiary”; and was “more of a rehabilitation

       [facility] for [ ] criminal charges rather than [for] rehabilitation for substance

       abuse[.]” Id. at 100-01, 122, 133, 151. Mother insisted on attending a drug

       rehabilitation facility of her own choosing, despite being told that enrollment in

       the other facilities was subject to placement on waiting lists. After Mother

       rejected DCS’s drug rehabilitation referral, DCS declined to make further drug

       rehabilitation referrals for Mother.


[10]   Likewise, Father has also rejected certain DCS-referred services. Id. at 170. At

       one stage of the CHINS period, DCS referred Father to IOP drug rehabilitation

       services, which Father rejected because he “didn’t need it.” Id. at 58. Also,

       Father was admitted to Tara Treatment Center, a substance abuse facility,

       where Father completed the treatment program for methamphetamine addicts



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 5 of 12
       without disclosing during intake that Father also abused prescription

       medication.


[11]   Further, Mother and Father have jointly rejected services. Mother and Father

       “declined” the first four weeks of supervised visitation because the Children’s

       initial kinship placement appears to have allowed Mother and Father to visit

       with the Children and to skirt DCS’s visitation parameters. Id. at 170.


[12]   On April 16, 2019, DCS filed a petition to terminate Mother’s and Father’s

       parental rights. The trial court conducted an evidentiary hearing on August 22,

       2019, and September 12, 2019. DCS presented evidence that Mother and

       Father have continued to use illegal controlled substances and/or abused

       prescription medication throughout this action. FCM Goodwin testified that:

       (1) DCS was involved in the matter due to Mother’s and Father’s substance

       abuse; (2) DCS referred Mother and Father to drug rehabilitation services; and

       (3) Mother and Father “are still impaired by drugs or overly prescribed pain

       medication.” Id. at 233. FCM Goodwin also testified that Father’s

       unwillingness to be “honest” with service providers about his addictions

       significantly reduced the likelihood that referred services could be effective. See

       Tr. Vol. III-IV p. 2. On January 14, 2020, the trial court entered findings of fact

       and conclusions thereon terminating Mother’s and Father’s parental rights.

       Mother and Father now appeal separately. 2




       2
           On March 20, 2020, we granted DCS’s motion to file a consolidated brief as to Mother and Father.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020                     Page 6 of 12
                                                    Analysis
[13]   Mother and Father appeal from the termination of their parental rights. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional rights of parents to establish a home and raise their children. In re

       K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

       1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is

       ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

       [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

       (2000)). We recognize, of course, that parental interests are not absolute and

       must be subordinated to the child’s best interests when determining the proper

       disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental

       rights may be terminated when the parents are unable or unwilling to meet their

       parental responsibilities by failing to provide for the child’s immediate and long-

       term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d

       258, 265 (Ind. Ct. App. 2004), trans. denied).


[14]   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.

       Ct. App. 2010). We consider only the evidence and reasonable inferences that

       are 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 Ind. Trial Rule 52(A)).




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 7 of 12
[15]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b).” Here, the trial court entered findings of fact and conclusions

       thereon in granting DCS’s petition to terminate Mother’s and Father’s parental

       rights. When reviewing findings of fact and conclusions thereon entered in a

       case involving a termination of parental rights, we apply a two-tiered standard

       of review. 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. Id. A

       judgment is clearly erroneous if the findings do not support the trial court’s

       conclusions or the conclusions do not support the judgment. Id.


[16]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


               (A) 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.
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020     Page 8 of 12
                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;


               (B) that termination is in the best interests of the child; and


               (C) that there is a satisfactory plan for the care and treatment of
               the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


                                                   I.      Findings

[17]   We initially note that neither Mother nor Father challenges the trial court’s

       findings as being clearly erroneous. Any challenge to the trial court’s findings is

       waived. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (holding,

       where the mother failed to challenge the trial court’s findings, that “[t]o the

       extent that [the m]other argues that the trial court’s findings or conclusions are

       clearly erroneous, [the m]other has waived this issue by failing to make a cogent

       argument.”); see Ind. Appellate Rule 46(A)(8)(a).


                                                 II.     Due Process

[18]   Mother and Father each argue that they were denied due process because DCS

       failed to make reasonable efforts to provide services to assist in reunifying them

       with the Children. Mother argues that the trial court erred in terminating her

       parental rights because her underlying mental health condition never was

       addressed in the DCS-referred services. Father argues that DCS failed to “refer


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 9 of 12
       Father to an outpatient treatment program” and failed to “provide him with

       other assistance to treat his opioid addiction.” Father’s Br. pp. 14-15.


[19]   Neither Mother nor Father asserted due process arguments below. Arguments

       may not be presented for the first time on appeal. See In re K.S., 750 N.E.2d

       832, 834 n.1 (Ind. Ct. App. 2001) (holding that the mother waived the issue

       concerning the alleged due process violation because the issue was raised for the

       first time on appeal); see also Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d

       306, 311 (Ind. Ct. App. 2015). Thus, these arguments are also waived.


[20]   Mother and Father ask us to consider their due process arguments pursuant to

       the fundamental error doctrine. “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 N.C., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans.

       denied. For this Court to overturn a trial court ruling as fundamental error, the

       error “must be 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.” Id.


[21]   “The Indiana Supreme Court has long recognized that, in ‘seeking termination

       of parental rights,’ the DCS has no obligation ‘to plead and prove that services

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




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 10 of 12
       J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (quoting S.E.S. v. Grant

       Cnty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992)).


               . . . [A]lthough “[t]he 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.” [S]ee also Elkins v. Marion Cnty. 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 Cnty. 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.”) . . . .


       Id. (citations omitted); see In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)

       (“. . .[E]ven a complete failure to provide services would not . . . negate a

       necessary element of the termination statute and require reversal.”).


[22]   To the extent that Mother’s and Father’s due process claims hinge upon DCS’s

       alleged failure to provide certain services, such is not a proper basis on which to

       attack the trial court’s termination of their respective parental rights. See id.

       Absent a proper basis upon which to challenge the judgment, Mother and

       Father cannot demonstrate that the trial court’s order of termination implicated

       “a clearly blatant violation of basic and elementary principles” from which

       Mother and Father suffered substantial harm or potential for harm. See N.C., 56

       N.E.3d at 69. Mother and Father, therefore, have not carried their burden to

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 11 of 12
       establish fundamental error. Moreover, it appears from the record that DCS’s

       unwillingness to provide certain services stems from Mother’s and Father’s

       record of rejecting proffered services at will.


                                                 Conclusion
[23]   Neither Mother nor Father was denied due process of law. The trial court did

       not commit fundamental error. We affirm.


[24]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-181| June 18, 2020   Page 12 of 12
