MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Apr 09 2020, 9:37 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan D. Bower                                             Curtis T. Hill, Jr.
Bower Law Office, LLC                                     Attorney General of Indiana
New Albany, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 9, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of T.B. (Child) and S.M.                                  19A-JT-1242
(Father);                                                 Appeal from the Orange Circuit
S.M (Father),                                             Court
                                                          The Honorable Steven L. Owen,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          59C01-1804-JT-83
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020                     Page 1 of 12
[1]   S.M. (“Father”) appeals the involuntary termination of his parental rights to

      T.B. (“Child”). Father presents two issues for our review, which we restate as:


              1. Whether the trial court erred when it adjudicated Child a
                 Child in Need of Services (“CHINS”) absent Father’s
                 admission Child was a CHINS; and


              2. Whether the trial court erred when it terminated Father’s
                 parental rights to Child because the Department of Child
                 Services (“DCS”) allegedly did not offer Father services for
                 reunification.


      We affirm.



                             Facts and Procedural History
[2]   S.M. is the biological father of T.B., who was born to K.B. 1 (“Mother”) on

      April 6, 2007. Since birth, Child has been in Mother’s custody and Father has

      exercised sporadic parenting time. On July 9, 2015, DCS removed Child and

      his two younger siblings, E.B. and S.O.C., from Mother’s home due to

      concerns about Mother’s substance abuse and domestic violence between

      Mother and S.O.C.’s father (“Stepfather”). DCS placed Child in relative care

      with Maternal Grandparents, where he has remained for the entirety of these

      proceedings.




      1
       Mother consented to Child’s adoption by Maternal Grandfather (Maternal Grandmother passed away
      during the proceedings) and does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020            Page 2 of 12
[3]   On July 13, 2015, DCS filed a petition alleging Child, E.B., and S.O.C. were

      CHINS based on Mother’s substance abuse and the domestic violence in

      Mother’s home. The trial court held a hearing on the CHINS petition for all

      children and noted Mother, Father, Stepfather, and E.B.’s father were present.

      The trial court adjudicated Child, E.B., and S.O.C. as CHINS and in its order

      stated, “Parents agree that the children are children in need of services.” (Ex.

      Vol. I at 38.)


[4]   The trial court held a dispositional hearing on November 9, 2015. Father did

      not appear at the hearing. The trial court’s dispositional order identified Father

      as Child’s Father but did not order Father to complete services related to Child.

      On May 11, 2016, Father wrote a letter to the trial court requesting that Child

      be placed with him. On May 16, 2016, the trial court responded to Father via

      letter and advised him that he was entitled to the appointment of an attorney in

      the CHINS case and that DCS would be able to explain the process to place

      Child with Father. On March 6, 2017, the trial court appointed counsel for

      Father.


[5]   In its report to the trial court on December 20, 2017, DCS reported, regarding

      Father:


              [Father] was not involved in the reasons for removal, and has not
              been asked to participate in any services other than those
              pertaining to visitation.


                                                    *****


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 3 of 12
              [Father] is [sic] offered supervised visitation with [Child] but has
              not been consistent. The visits are supervised by Ireland Home
              Based Services. In August, [Father] only had one visit out of
              four. In November, [Father] did not have any visits. [Father] is
              on a 24 hour and 2 hour visit confirmation. He is not
              consistently participating.


      (Ex. Vol. I at 140-1.) In its order on the March 14, 2018, review hearing, the

      trial court found, “[Father] has not visited [Child].” (Id. at 158.)


[6]   On June 1, 2018, DCS filed its petition to terminate Father’s parental rights to

      Child. At the initial hearing on the termination petition on July 18, 2018,

      Father argued that communication between Father and DCS had been difficult

      and the Family Case Manager confirmed that there may have been confusion

      between the visitation coordinator and Father. The Family Case Manager also

      testified about why Father was required to confirm visitation with Child:


              It is my understanding that in the past we have been picking up
              [Child], arranging the transportation to set up the visitation,
              taking [Child] to that location, and [Father] either would – didn’t
              show up or something had happened. I don’t know the fine
              details, but it wasn’t happening as planned, so we were
              essentially picking up [Child] for no reason. So in order to
              prevent that, it was, you know, we need these confirmations to
              make sure we weren’t picking up [Child] for no reason
              essentially.


      (Tr. Vol. II at 19.)


[7]   Based thereon, DCS requested that Father’s services be stopped. The trial court

      denied that request, stating:

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 4 of 12
              I want services to still be rendered. We will readdress that issue
              in the October meeting. And this is probably addressed more to
              you, [Father], than anybody else, but it’s real important that we
              take advantage of this because if I come back in October and
              we’re not doing anything, then I’ll grant the request, okay? It’s
              real important that we start – I’m giving you that opportunity
              because I do agree maybe – and they’ve had some turnover and I
              understand that, but it’s real important in these next three
              months that we start making some progress. If not, if you’re not
              going to take advantage of it, then just let – that’s okay. But, I
              mean, we’ll have to proceed a different way, okay?


      (Id. at 21-2.) Father did not appear at the October 3, 2018, or January 2, 2019,

      review hearings. DCS’s report to the trial court as part of the January 2, 2019,

      hearing indicated:


              From December 2017 to August 2018, [Father] did not have any
              visits with [Child]. In September 2018, [Father] completed three
              visits with [Child]. Two visits were canceled by [Father] in
              September. In October 2018, [Father] completed three visits. In
              November 2018, [Father] completed one visit. In December
              2018, [Father] did not have any visits with [Child].


      (Ex. Vol. I at 184.) The report also noted that Child “expresses fear and anxiety

      related to living with [Father].” (Id. at 183.)


[8]   On April 5, 2019, the trial court held a hearing on DCS’s petition to terminate

      Father’s parental rights to Child. On June 21, 2019, the trial court entered its

      order terminating Father’s parental rights to Child, finding, in part:


              7. Father did nothing illegal to cause removal of [Child];
              [Child’s] removal was not a result of any action by Father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 5 of 12
        8. Father allowed [Maternal Grandparents] to raise [Child],
        allowing [Child] to become dependent on [Maternal
        Grandparents].


        9. Father failed to be a part of [Child’s] life, even before DCS
        became involved with [Child], based on the following:


                 a. Father had some visits prior to removal, but the Court
                 does not believe that Father engaged in regular visits.


                 b. Father’s visits were sporadic up to time of DCS
                 involvement.


                 c. In 2014, Father filed a Petition to Establish Parenting
                 Time . . . .


                 d. The Court issued an order awarding Father parenting
                 time pursuant to the Indiana Parenting Time Guidelines.


                 e. Father did not take advantage of the parenting time
                 allotted to him since September 2014.


                 f. Father claimed that he pursued establishing paternity of
                 [Child], but the Court finds Father’s assertion not credible.


                 g. The Court filings establish that Mother through the IV-
                 D Prosecuting Attorney filed the Petition to Establish
                 Paternity for the purposes of obtaining a child support
                 obligation for Father.


        10. Father failed to exercise consistent visitation with [Child]
        after DCS became involved in July 2015.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 6 of 12
        11. The credible evidence was that Father only exercised around
        three (3) overnight visits with [Child] in the past 3-4 years.


        12. On November 4, 2016, Father sought to enforce parenting
        time through the JP/PL Cause.


        13. On November 4, 2016, the permanency plan for [Child] in
        the CHINS case had already been changed to Adoption.


        14. The Court informed Father at the JP/PL hearing in July
        2017:


                 a. Father needed to start establishing a relationship with
                 [Child].


                 b. It is very important for Father to participate in the
                 supervised visits.


                 c. The Court thought it would be great if Father would
                 step up and regularly see [Child].


        15. The Court finds that since 2017 the credible evidence is that
        Father had three (3) visits totaling eight (8) hours of time with
        [Child] until September 2018. Father did not step up. Father did
        not make [Child] a priority.


        16. Father alleged that he visited consistently with [Child] since
        September 2018.


        17. The Court disagrees with Father, as the undisputed evidence
        was that Father made 7 of 12 available visits with [Child] since
        September 2018. The Court finds that Father remained
        inconsistent with visits since September 2018.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 7 of 12
              18. [Child] is now almost 12 years old, and Father made a poor
              effort to establish a relationship with [Child].


              19. Father sent text messages to [Child] in November/December
              2018; these were isolated efforts by Father.


              20. Court records/hearing orders indicated that Father was
              absent for several Court hearings concerning [Child], even after
              Father knew that the permanency plan for [Child] had been
              changed to adoption.


              21. The Court finds that services for visits with [Child] were
              afforded to Father. The visits just didn’t happen.


              22. Father requested family services from DCS to foster the
              relationship with [Child]; however, Father first asked for family
              services at the Fact Finding Hearing on 4/5/2019.


      (App. Vol. II at 229-30.)



                                 Discussion and Decision
                      1. Father’s Challenge to CHINS Adjudication
[9]   Father argues that since he did not admit Child was a CHINS, that the trial

      court erred when it adjudicated Child as a CHINS. Father was present at the

      initial hearing and, sporadically, at subsequent review and permanency

      hearings over the following three years. At no time during the proceedings did

      Father object to Child’s adjudication as a CHINS. “At a minimum, a party

      must show that it gave the trial court a bona fide opportunity to pass upon the


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 8 of 12
       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 this argument

       for the first time on appeal, it is waived. In re S.P.H., 806 N.E.2d 874, 877-78

       (Ind. Ct. App. 2004). 2


[10]   Waiver notwithstanding, Father’s alleged issues are unavailable for appeal. It is

       well-established a “CHINS adjudication focuses on the conditions of the child

       [and] the acts or omissions of one parent can cause a condition that creates the

       need for court intervention.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The

       trial court adjudicated Child as a CHINS based on Mother’s admitted drug use

       and the domestic violence in Mother’s home in 2015. As Mother admitted

       Child was a CHINS, the trial court properly adjudicated Child as such. 3 See id.

       at 106 (After mother’s admission that child was a CHINS based on domestic

       violence in mother’s home, “it was not necessary for the CHINS petition to

       make any allegations with respect to Father. We conclude the trial court

       properly adjudicated N.E. a CHINS.”).




       2
         Father also argues, in passing, that he was denied due process because the trial court did not appoint him
       counsel in the CHINS matter until after Child was adjudicated a CHINS. However, Father did not present
       this argument before the trial court, and on appeal he does not make a cogent argument, cite case law, or
       point to statutory language supporting his argument. Therefore, the argument is waived. See In re S.P.H., 806
       N.E.2d at 877-78 (party waives argument raised for the first time on appeal); and see In re A.D.S., 987 N.E.2d
       1150, 1156 n.4 (Ind. Ct. App. 2013) (failure to make a cogent argument waives issue on appeal), trans. denied.
       3
         As noted in the facts, the trial court, in its order adjudicating Child a CHINS, stated, “Parents agree that the
       children are children in need of services.” (Ex. Vol. I at 38.) Father argues the trial court’s statement did not
       include him because the parties referenced in the order were Mother and stepfather. If Father disagreed with
       this statement, the time to appeal it has long since passed. However, we need not decide that issue because
       Mother’s admission was sufficient to adjudicate Child a CHINS.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020                        Page 9 of 12
                  2. Termination of Father’s Parental Rights to Child
[11]   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).


[12]   “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

       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.


[13]   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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 10 of 12
                        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). 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.


[14]   Father does not challenge any of the trial court’s findings or conclusions.

       Instead, he argues the trial court erred when it involuntarily terminated his

       parental rights to Child because DCS “offered only remarkably inconvenient,

       third-party provider supervised visitations as the sole services to Father.” (Br.

       of Appellant at 12) (emphasis omitted). In his brief, Father complains that

       visits “occurred more than an hour and fifteen minutes (one-way) from Father’s

       home and work,” and claims “much of the visitation was logistically near




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 11 of 12
       impossible without [Father] losing his job or other significant hardship.” (Id. at

       12-13.)


[15]   However, “failure to provide services does not serve as a basis on which to

       directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

       145, 148 n.3 (Ind. Ct. App. 2009). Further, “a parent may not sit idly 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). Based thereon, we conclude the trial court did not err

       when it terminated Father’s parental rights to Child despite any alleged

       deficiencies in the services DCS offered to Father.



                                                Conclusion
[16]   The trial court did not err when it adjudicated Child a CHINS based on

       Parents’ admissions. Further, Father has not demonstrated the trial court erred

       when it terminated Father’s parental rights to Child. Accordingly, we affirm.


[17]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1242 | April 9, 2020   Page 12 of 12
