                                                                           FILED
                                                                       Feb 01 2019, 8:43 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                       Curtis T. Hill, Jr.
WIENEKE LAW OFFICE, LLC                                     Attorney General of Indiana
Brooklyn, Indiana                                           Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                            February 1, 2019
Termination of the Parent-Child                             Court of Appeals Case No.
Relationship of D.H., K.H., and                             18A-JT-1861
E.H. (Minor Children)                                       Appeal from the Adams Circuit
      and                                                   Court
                                                            The Honorable Chad E. Kukelhan,
L.H. (Mother),                                              Judge
Appellant-Respondent,                                       Trial Court Cause Nos.
                                                            01C01-1801-JT-6
        v.                                                  01C01-1801-JT-7
                                                            01C01-1801-JT-8
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                           Page 1 of 25
                                               Case Summary
[1]   L.H. (“Mother”) appeals1 the trial court’s order involuntarily terminating her

      parental rights to D.H., born October 16, 2006, K.H., born August 24, 2010,

      and E.H., born May 22, 2014 (collectively, “Children”). The only issue Mother

      raises on appeal is whether the mishandling of her case by the Indiana

      Department of Child Services (“DCS”) denied her due process.


[2]   We reverse and remand with instructions.



                               Facts and Procedural History                                    2




[3]   Mother and Father (collectively, “Parents”) had a fourteen-year-long

      relationship during which Father repeatedly physically abused Mother, often in

      the presence of their three children. During the relationship, Mother left Father

      several times, obtained protective orders against Father, and divorced and

      remarried Father.


[4]   In 2012, DCS filed a Child in Need of Services (“CHINS”) case because Father

      was manufacturing methamphetamine in the home, and Mother had tested

      positive for marijuana and amphetamine. Father was convicted of, and




      1
          Father voluntarily relinquished his parental rights to Children and does not join in this appeal.
      2
        We note that Mother failed to provide a sufficient “Statement of Case” as required under Indiana
      Appellate Rule 46(A)(5). That rule requires, among other things, a brief statement of the course of the
      relevant proceedings with citations to the record in accordance with Appellate Rule 22(C). Mother’s
      “Statement of the Case” is one brief sentence with no record citations. Appellant’s Br. at 6.

      Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                                    Page 2 of 25
      incarcerated for, manufacturing methamphetamine. Mother successfully

      reunited with D.H. and K.H.3 and the CHINS case was closed. However,

      when Father was released from prison in August of 2013, he moved back in

      with Mother, and the domestic violence continued—often in Children’s

      presence.


[5]   In June of 2016, police called DCS to Parents’ home due to concerns about the

      condition of the house. Parents agreed to submit to drug screens and they each

      tested positive for illegal substances. DCS removed Children from the home

      and filed a CHINS action. Parents subsequently admitted Children were

      CHINS, and, in a dispositional decree dated August 2, 2016, the court ordered

      that they engage in services, including visiting Children, maintaining safe

      housing, ceasing drug and alcohol use and domestic violence, and engaging in

      home-based case management, substance abuse assessments and treatment,

      random drug screens, and counseling through the Center for Non-Violence.

      Ex. at 83-87.


[6]   DCS Family Case Manager (“FCM”) Laurie Hoffacker (“FCM Hoffacker”)

      was the FCM from June until the beginning of August of 2016. From

      approximately August 2016 through June 2017, FCM Mark Buchanan (“FCM

      Buchanan”) was assigned to the CHINS case.4 Id. at 106-07. In September of




      3
          E.H. was not yet born.
      4
          FCM Buchanan did not testify at the termination of parental rights hearing.


      Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019              Page 3 of 25
      2016, after Father again physically abused Mother, DCS referred Mother for

      individual counseling with Megan Ayers [“Ayers”], a therapist at Lifeline.

      Ayres began supervising visits with Children in September 2016 and began

      individual therapy, including addressing domestic violence, with Mother in

      December 2016. At some point between October 2016 and January 2017,

      Mother and Father ceased living together. 5


[7]   In a court order on the October 11, 2016, periodic case review, the court noted

      that DCS recommended that Parents have “therapeutic supervised visitation

      due to allegations of domestic violence,” and “continue to pursue individual

      therapy, marriage counseling[,] and substance abuse services.” Ex. at 32. In a

      court order on the January 11, 2017, periodic case review, the court found that

      Mother had obtained employment and was participating in addictions services,

      homebased casework, and “finding better housing,” but noted that Mother had

      “failed 4 of 11 [drug] screens from October 31, 2016 through December 27,

      2016.” Id. at 29. The court also found that DCS had recommended that Father

      complete “batterers’ intervention.” Id.


[8]   In January 2017, Father entered Shepard’s House, a residential drug treatment

      facility. In a court order on the April 12, 2017, periodic case review, the court

      found that both Parents were complying with the case plans but had not yet




      5
        Mother testified that the parties ceased living together in approximately October 2016. Tr. at 15-16. The
      order on the January 11, 2017, periodic case review found that the parties were living separately at that time.
      Ex. at 29.

      Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                               Page 4 of 25
      “enhanced [their] ability to fulfill [their] parental obligations.” Id. at 39.

      However, the court found that Mother was “cooperating with DCS[,]…ha[d]

      acquired full-time employment and maintained housing that can accommodate

      her and her child(ren)[, and] … ha[d] participated in addictions services and

      home based casework.” Id. DCS recommended that Father participate in

      additional services, including “batterer’s intervention,” and that Mother

      “continue in individual therapy and marriage counseling after completing

      substance abuse services and follow all recommendations.” Id.


[9]   In a June 22, 2017, “Order on Permanency Plan and Order Approving Trial

      Home Visit to Begin on July 10, 2017 with Father,”6 the trial court found that

      Mother had “participated in addiction services and home based casework[, and]

      … acquired full-time employment and maintained housing that can

      accommodate her and her children.” Id. at 35. The court also found that

      Father had obtained employment and housing and had completed the addiction

      program at Shepard’s House, but—on advice of counsel—had refused to engage

      in the DCS-recommended “Batterer’s Intervention Program” on the grounds

      that it “may incriminate him.” Id. The trial court ordered a permanency plan

      of reunification and ordered an unsupervised trial home visit with Children at




      6
        DCS’s progress report and recommendations regarding permanency (Ex. at 6, CCS) were not filed as part
      of the record on appeal; therefore, it is unclear whether it was DCS’s or Father’s request for a trial home visit
      that was “approved” by the court. However, we note that the CCS does not indicate that Father filed a
      request for a trial home visit.

      Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                                 Page 5 of 25
       Father’s home and ordered that “[v]isitation with the children and their mother

       is to be worked out between the parties.” Id. at 37.


[10]   From approximately July 2017 through September 2017, FCM David Meyers

       (“FCM Meyers”) was the FCM assigned to the CHINS case. 7 Tr. at 106-07. In

       approximately August of 2017, during Mother’s visitation with Children during

       the time of the unsupervised trial home visit at Father’s house, Father again

       physically abused Mother in Children’s presence.


[11]   On approximately September 26, 2017, K.H. informed Mother that Father had

       sexually abused K.H. “a couple of days before.” 8 Id. at 20. On September 27,

       DCS interviewed K.H. regarding sexual abuse allegations, but K.H. did not

       disclose any such allegations. In the order on the September 29 periodic case

       review, the trial court found that Father’s trial home visit with Children “failed

       due to allegations of sexual abuse.” Ex. at 42. The court found that Mother

       was “complying with the child[ren]’s case plan[s]” but Father was not. Id. The

       court further found that Mother was cooperating with DCS, participating in

       “home based casework” and addiction services, “passed all of her drug

       screens,” and assisted in correcting safety hazards in her home. Id. The trial

       court noted that Mother was participating in supervised visitation with Children

       but Father had had no visitation with Children since the trial home visit ended.




       7
           FCM Meyers did not testify at the termination of parental rights hearing.
       8
         DCS Exhibit 11 indicates that DCS interviewed K.H. about sexual abuse on September 27, 2017. Ex. at
       45. Mother testified that K.H. told her about the sexual abuse “the night before it was reported.” Tr. at 20.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                              Page 6 of 25
       The trial court found that “[a]dditional services are not recommended for the

       child[ren] or the child[ren]’s parents at this time,” but ordered that previously

       ordered services pursuant to the dispositional decree remained in effect. Id. at

       42, 43.


[12]   In October of 2017, FCM Naika Esperance (“FCM Esperance”) was assigned

       to the CHINS case.9 At the end of October, FCM Shonna Leas (“FCM Leas”)

       was assigned to the CHINS case. The only prior family case manager with

       whom FCM Leas “brief[ly]” spoke about the case was FCM Esperance. Tr. at

       107. FCM Leas reviewed “most” of the CHINS file upon taking over

       responsibility for the case. Id. FCM Leas was unaware of what services

       Mother had completed and what services Mother was still required to complete.

       Id. at 107-110.


[13]   In November of 2017, DCS again interviewed K.H. regarding the allegations of

       sexual abuse. At that time, K.H. stated that Father had sexually abused her.

       DCS referred K.H. to Lifeline for trauma-focused therapy.


[14]   In December of 2017, Mother allowed Father to stay in Mother’s house for four

       days because Father had lost his housing. Father again physically abused

       Mother, causing her to be hospitalized. Father was arrested, charged with

       aggravated battery, and incarcerated on December 16.10 Ex. at 54. An order



       9
            FCM Esperance did not testify at the termination hearing.
       10
         We take judicial notice of the fact that Father was convicted of aggravated battery, as a Level 3 felony,
       and sentenced to nine years in prison and that his projected release date is December 12, 2024.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                              Page 7 of 25
       was issued prohibiting Father from contacting Mother.11 Soon thereafter,

       Mother reported the domestic violence incident to FCM Leas and gave FCM

       Leas “some background on her past abuse history with [Father].” Tr. at 109.

       FCM Leas and Mother also discussed K.H.’s allegations that Father sexually

       abused K.H., and Mother stated to FCM Leas that she “can’t believe that it

       happened.” Id.


[15]   On January 16, 2018, DCS filed its petition for involuntary termination of the

       parent-children relationships. The reasons DCS sought termination of Parents’

       rights were: (1) Mother did not believe Father had sexually abused K.H.; (2)

       there had been continued domestic violence throughout the course of Parents’

       relationship; (3) Father was unavailable due to incarceration; and (4) substance

       abuse issues still existed with both parents. Ex. at 58. At the March 15, 2018

       permanency hearing, Father was still incarcerated for aggravated battery against

       Mother, and he was also under investigation on allegations of sexually abusing

       K.H. Mother was not present at the hearing—although her counsel was

       present—because she thought the hearing was on a different date. FCM Leas

       testified12 that “the issues that were present at the time of removal in 2016 are

       still present today and have not been remedied.” Id. at 59. The Guardian ad




       https://www.in.gov/apps/indcorrection/ofs/ofs?offnum=238733&search2.x=32&search2.y=18 (last visited
       January 10, 2019). Ind. Evidence Rule 201(a), (c).
       11
            It is not clear from the record who requested the no-contact order.
       12
            The transcript of the March 15, 2018, hearing is not contained in the record.


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                    Page 8 of 25
       Litem (“GAL”) concurred with DCS that the permanency plan should be

       termination of parental rights.


[16]   In a permanency order dated April 9, 2018, the trial court found, based on the

       testimony of one of K.H.’s therapists, that “it would be a setback in [K.H.’s]

       therapy if [she] were to see either parent.” Id. at 57. The court found that K.H.

       associates both Parents with trauma relating to domestic violence, and “she

       would regress in therapy if there were any type of contact.” Id. The court

       found that FCM Leas “has also discussed the current case with [Mother].

       [Mother] does not believe [the] sexual abuse allegations that [K.H.] has made

       against her father.” Id. at 58. The court found that there is “an allegation that

       [K.H.] told [Mother] about the sexual abuse before this and [Mother] did

       nothing about it.” Id. at 59. The court ordered no visitation for either Parent

       and approved a permanency plan of termination of parental rights and

       adoption.


[17]   At the May 19, 2018, hearing on the termination petition, the trial court noted

       that Father had voluntarily relinquished his parental rights to Children in an

       earlier proceeding. Tr. at 4. Mother testified that she had housing that could

       accommodate Children. Regarding K.H.’s allegations of sexual abuse, Mother

       testified that she “never would have thought [Father] would have ever done

       anything like that[,]” but “after reading [K.H.’s] reports, I don’t have any

       doubt.” Id. at 21.




       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019     Page 9 of 25
[18]   Regarding Mother’s cooperation and compliance with the case plan, Ayres

       testified that Mother began participating in individual therapy with her in

       December of 2016, to address domestic violence. Mother did well and

       progressed in therapy until she began missing appointments in March or April

       of 2017, after Father left Shepard’s House. Id. at 53-54, 59. At that time, Ayres

       discontinued Mother’s therapy due to the missed appointments. Id. at 55.

       Ayres testified that Mother needed to engage in a trauma narrative, but they did

       not have time to do so before services were cancelled. Id. at 53, 56. Ayres did

       not consider Mother to have successfully completed therapy, although she

       testified that, when Father was released from Shepard House, “there were no

       other services to provide [Mother] besides what were in place to help her break

       away from [Father].” Id. at 56, 68.


[19]   FCM Leas testified that Mother had five different FCMs during the pendency

       of the CHINS and termination proceedings. When she took over the case at the

       beginning of November of 2017, FCM Leas reviewed “most” of the case file. Id

       at 107. FCM Lease did not speak to any other FCM about the case other than

       a brief conversation with FCM Esperance, who had only been assigned to the

       case for the previous month. Id. FCM Leas believed Mother had services in

       place at the time she took over the case, but she was not sure. FCM Leas was

       “not sure” whether Mother participated in programming at the Center for

       Nonviolence. Id. at 108. FCM Leas asked someone in her office to follow up

       with Park Center regarding Mother’s drug abuse treatment, but she “never

       heard anything back from Park Center.” Id. FCM Leas thought Mother was


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019   Page 10 of 25
       getting drug screens through Park Center, but she did not remember whether

       she had seen the results of those drug screens. Id. The last two times FCM

       Leas spoke with Mother she asked Mother to come in for drug screening, and,

       each time, Mother did so, and her drug screens were negative. Id. at 115. FCM

       Leas did not ask Mother to do any other drug screens and did not recall the

       date Mother had last failed a drug screen.13 Id. at 115, 118.


[20]   Although Mother asked FCM Leas in December of 2017 “what she needed to

       do to get the kids, to get supervised or at least supervised visitation,” 14 FCM

       Leas did not refer Mother to any services, nor did she encourage Mother to seek

       any services. Id. at 109, 117. Mother and FCM Leas “talked about getting

       together with the [Guardian ad Litem] and all the attorneys to try and figure out

       what needed to be done[, b]ut that meeting didn’t ever happen … due to

       people’s schedules and stuff.” Id. at 109-110. A meeting that was scheduled for

       April 2018 did not happen because Mother reported that she was unable to get

       there due to car trouble. Id. at 123. That meeting was not rescheduled. Id.


[21]   Mother and FCM Leas spoke several more times and each time Mother sought

       information about what she needed to do to get supervised visitation and/or

       reunification with Children. Mother stated that she had already completed the




       13
          The most recent evidence in the record of Mother’s drug screens—aside from Mother’s and FCM Leas’s
       testimony—is DCS’s Exhibit 48 which shows that Mother had a positive drug screen in February of 2017.
       Ex. at 180.
       14
         Neither the trial court termination order nor the parties indicate when Mother’s supervised visitation with
       Children was discontinued prior to December 2017, nor are we able to locate that information in the record.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                            Page 11 of 25
       services to which she had been referred, and FCM Leas instructed Mother to

       bring her documentation that services had been completed so that they “could

       figure out some other services that would be beneficial for her.” Id. at 110. In

       March or the beginning of April 2018, FCM Leas and Mother “were trying to

       set up a date … for [Mother] to come in” to “figure out what services” Mother

       needed, “[be]cause [FMC Leas] was [not] going to make [Mother] do the exact

       same services if she’d had [sic] already completed them.” Id. at 110, 120. FCM

       Leas testified that Mother “said that she would do services and [FCM Leas]

       told her we just needed to figure out what would work.” Id. at 123. FCM Leas

       had never been to Mother’s house.


[22]   FCM Leas testified that, in March 2018, Mother informed her that Father was

       incarcerated, Mother was going to divorce Father, and Father was “out of the

       picture.” Id. at 111. However, FCM Leas testified that Mother’s relationship

       with Children would “probably pose a threat because of the pattern of domestic

       violence” and because she “would just be fearful that, you know, that [Mother]

       would find other men who would be as violent as well.” Id. at 116. FCM was

       not aware of Mother ever being abused by anyone other than Father. Id. at

       119. FCM Leas did not believe that the termination of Father’s parental rights

       or his incarceration would stop future domestic violence because she “just [had]

       a feeling” that Mother would reunite with Father whenever he was released

       from incarceration. Id. at 116. She testified DCS makes the decision to move

       for termination of parental rights when the child is out of the home “fifteen out

       of twenty-two months” and “based on whether or not they have been compliant


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019    Page 12 of 25
       with services.” Id. at 119. FCM Leas testified that the decision to move for

       termination in Mother’s case “was basically based on the fact [of] the

       continuing domestic violence and … the sexual abuse.” Id.


[23]   In mid-June 2018, Father was charged with three counts of Level 1 felony child

       molesting and one count of Level 4 felony child molesting related to the

       allegations of sexual abuse of K.H., and Father was incarcerated pending jury

       trial, which is scheduled for April 9, 2019. Case No. 02D05-1806-F1-8.15


[24]   In an order dated June 26, 2018, the trial court concluded that there was a

       reasonable probability that the Mother-Children relationship posed a threat to

       Children’s well-being and that termination of that relationship was in

       Children’s best interest. Appealed Order at 4-5. It therefore granted the

       termination petition. Mother now appeals.



                                   Discussion and Decision
[25]   Mother maintains that the trial court’s order terminating her parental rights

       violated her due process rights.16 The State contends, as a threshold issue, that

       Mother has waived her due process argument by failing to raise it in the trial

       court. Generally, a party waives on appeal an issue that was not raised before



       15
          We take judicial notice of this case, which we accessed through Odyssey, our electronic case management
       system. Evid. R. 201.
       16
          Mother does not state whether her due process claim is pursuant to the federal or state constitutions—or
       both. Regardless, the due process analysis under each constitution is the same. E.g., Cooper v. State, 760
       N.E.2d 660, 666 (Ind. Ct. App. 2001), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                            Page 13 of 25
       the trial court. See, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.

       2013). However, we have discretion to address such claims, especially when

       they involve constitutional rights, the violation of which would be fundamental

       error. Id. at 53-54; see also, e.g., S.B. v. Morgan Cty. Dep’t of Public Welfare (In re

       L.B.), 616 N.E.2d 406, 407 (Ind. Ct. App. 1993) (citations omitted) (“The

       constitutionally protected right of parents to establish a home and raise their

       children … mandates that the failure of a trial court to require compliance with

       any condition precedent to the termination of this right constitutes fundamental

       error which this court must address sua sponte.”), trans. denied. Here, Mother’s

       substantive due process right to raise her children and her procedural due

       process right to fair proceedings are at issue; therefore, we exercise our

       discretion to review Mother’s due process claim even though it was not raised

       below. Plank, 981 N.E.2d at 53-54; see also Pierce v. State, 29 N.E.3d 1258, 1267

       (Ind. 2015) (quotation and citation omitted) (“[W]henever possible, we prefer to

       resolve cases on the merits. ...”).17


[26]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things: (A) that the child has been

       removed from the parent for at least fifteen of the most recent twenty-two

       months; (B) that there is a reasonable probability that the conditions resulting in

       the child’s removal will not be remedied or the continuation of the parent-child




       17
          The State also contends that Mother waived her arguments by failing to cite authority or provide cogent
       argument, in violation of Indiana Appellate Rule 46. We find Mother’s briefs sufficient under that rule.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                           Page 14 of 25
       relationship poses a threat to the child’s well-being; and (C) termination is in

       the best interests of the child. Ind. Code § 31-35-2-4(b)(2).


[27]   Although Indiana law requires DCS to file a termination petition when the

       child has been removed from the parent’s home for fifteen of the most recent

       twenty-two months, DCS is also required to state in the petition whether at

       least one factor would apply as the basis for filing a motion to dismiss the

       termination petition. I.C. § 31-35-2-4.5(d); Phelps v. Sybinsky, 736 N.E.2d 809,

       814 (Ind. Ct. App. 2000), trans. denied. Such a statement in the termination

       petition is required if “any of the following circumstances apply:


               (1) That the current case plan … has documented a compelling
               reason, based on facts and circumstances stated in the petition or
               motion, for concluding that filing, or proceeding to a final
               determination of, a petition to terminate the parent-child
               relationship is not in the best interests of the child. …


               (2) That:


                        ***


                        (B) the department … has not provided family services to
                        the child, parent, or family of the child in accordance with
                        a currently effective case plan … or a permanency plan or
                        dispositional decree …, for the purpose of permitting and
                        facilitating safe return of the child to the child’s home; and


                        (C) the period for completion of the program of family
                        services, as specified in the current case plan, permanency
                        plan, or decree, has not expired.


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019         Page 15 of 25
               (3) That:


                        ***


                        (B) the department has not provided family services to the
                        child, parent, or family of the child, in accordance with
                        applicable provisions of a currently effective case plan …,
                        or a permanency plan or dispositional decree …; and


                        (C) the services that the department has not provided are
                        substantial and material in relation to implementation of a
                        plan to permit safe return of the child to the child’s home.


               The motion to dismiss shall specify which of the allegations
               described in subdivisions (1) through (3) apply to the motion. If
               the court finds that any of the allegations described in
               subdivisions (1) through (3) are true, as established by a
               preponderance of the evidence, the court shall dismiss the
               petition to terminate the parent-child relationship.


       I.C. § 31-35-2-4.5(d); Phelps, 736 N.E.2d at 814. Furthermore, if any ground for

       dismissal applies, the “statute requires that the petition to terminate must

       indicate that a motion to dismiss is forthcoming.” P.E. v. Johnson Cty. Dep’t of

       Child Serv. (In re Kay.L.), 867 N.E.2d 236, 240 n.3 (Ind. Ct. App. 2007) (citing

       Phelps, 736 N.E.2d at 814).


[28]   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].” Troxel v.

       Granville, 530 U.S. 57, 65 (2000) (plurality op.). And the “involuntary

       termination of parental rights is an extreme measure that is designed to be used

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019        Page 16 of 25
       as a last resort when all other reasonable efforts have failed.” Z.G. v. Marion Cty.

       Dep’t of Child Serv. (In re C.G.), 954 N.E.2d 910, 916 (Ind. 2011). Therefore,

       “the certainty of a trial court’s decision to terminate a parent’s parental rights to

       his or her child is paramount.” A.A. v. Ind. Dep’t of Child Serv. (In re V.A.), 51

       N.E.3d 1140, 1144 (Ind. 2016). And we review such a decision under a

       “heightened standard” requiring clear and convincing evidence that termination

       is appropriate. Id. However, we will not reweigh the evidence or judge the

       credibility of the witnesses. Peterson v. Marion Cty. Office of Family & Children (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 that are most favorable to

       the judgment. Id.


[29]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. Usually, when a trial court’s

       judgment contains special findings and conclusions, we apply a two-tiered

       standard of review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

       143, 147 (Ind. 2005).18 However, in this case, Mother does not challenge either

       the findings or specific conclusions; rather, she contends that the termination

       order must be reversed because DCS mishandled her case to such an extent that

       it denied her due process of law.




       18
          First, we determine whether the evidence supports the findings and, second, we determine whether the
       findings support the judgment. Id.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                         Page 17 of 25
[30]   When the State seeks to terminate parental rights, “it must do so it in a manner

       that meets the requirements of due process.” M.K. v. Marion Cty. Dep’t of Child

       Serv. (In re J.K.), 30 N.E.3d 695, 699 (Ind. 2015) (quotations and citations

       omitted). The nature of the process due in proceedings to terminate parental

       rights is governed by a balancing of the “three distinct factors” specified in

       Mathews v. Eldridge, 424 U.S. 319, 335 (1976): the private interests affected by

       the proceeding; the risk of error created by the State’s chosen procedure; and

       the countervailing governmental interest supporting use of the challenged

       procedure. Phelps v. Porter Cty. Off. of Family & Children (In re A.P.), 734 N.E.2d

       1107, 1112 (Ind. Ct. App. 2000), trans. denied.


               The private interest affected by the proceeding is substantial—a
               parent’s interest in the care, custody, and control of his or her
               child. And the State’s interest in protecting the welfare of a child
               is also substantial. Because the State and the parent have
               substantial interests affected by the proceeding, we focus on the
               risk of error created by DCS’s actions and the trial court’s
               actions.


       K.M. v. Ind. Dep’t of Child Serv. (In re S.L.), 997 N.E.2d 1114, 1120 (Ind. Ct. App.

       2013) (citing In re C.G., 954 N.E.2d at 917).


[31]   In looking at the risk of error created by DCS’s actions, we keep in mind that

       “due process protections at all stages of CHINS proceedings are vital because

       every CHINS proceeding has the potential to interfere with the rights of parents

       in the upbringing of their children.” J.A. v. Ind. Dep’t of Child Serv. (In re G.P.), 4

       N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations omitted). “[T]hese two


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019         Page 18 of 25
       proceedings—CHINS and TPR—are deeply and obviously intertwined to the

       extent that an error in the former may flow into and infect the latter.” Id. And

       “[a]ny procedural irregularities in a CHINS proceeding may be of such

       significance that they deprive a parent of procedural due process with respect to

       the termination of his or her parental rights.” In re S.L., 997 N.E.2d at 1120; see

       also A.S. v. Ind. Dep’t of Child Serv. (Matter of C.M.S.T.), 111 N.E.3d 207, 213

       (Ind. Ct. App. 2018) (holding that “the chaotic and unprofessional handling” of

       a CHINS case violated the parents’ due process rights, requiring reversal of the

       termination order).


[32]   For example, in Matter of C.M.S.T., we held that procedural irregularities in the

       CHINS case—such as multiple FCMs, inappropriate behavior by FCMs, and

       apparent bias of FCMs—contributed to the parents’ non-compliance such that

       termination of their parental rights amounted to a denial of their due process

       rights. 111 N.E.3d at 213, 14. See also, In re A.P., at 1117 (finding parents’ due

       process rights were violated in a termination action where DCS made multiple

       procedural errors, such as failing to provide parents with copies of case plans

       and filing CHINS and termination petitions that did not meet statutory

       requirements); cf. N.P. v. Ind. Dep’t of Child Serv. (In re R.P.), 949 N.E.2d 395, 403

       (Ind. Ct. App. 2011) (citing J.I. v. Vanderburgh Cty. Off. of Family & Children (In re

       A.I.), 825 N.E.2d 798, 816 (Ind. Ct. App. 2005) (noting that one procedural

       deficiency alone may not result in a due process violation), trans. denied).


[33]   We must also consider the general proposition that, “if the State imparts a due

       process right, then it must give that right.” In re C.G., 954 N.E.2d at 918 (citing

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019       Page 19 of 25
In re A.P., 734 N.E.2d at 1112). Indiana Code Sections 31-35-2-4.5(d)(2) and

(3) require that DCS file a motion to dismiss an otherwise-required termination

petition when DCS has failed to provide family services and either the period

for completion of the services has not expired or the services are substantial and

material in facilitating return of the child to the home. Phelps, 736 N.E.2d at

814. And DCS’s own policy manual, of which we take judicial notice, see Evid.

R. 201(a), provides unequivocal directions to DCS regarding the provision of

services. First, it states that DCS “will provide family services to all children

and families with an open case.” Indiana Dep’t of Child Serv. Child Welfare

Policy Manual (“the Manual”), Ch. 5, Sec. 10,

www.in.gov/dcs/files/5.10%20Family%20Services.pdf (last visited January 10,

2019). Next, Chapter 5, Section 10 of the Manual states:


        DCS will … develop a Family Service Plan … [and] will make
        appropriate service referrals on behalf of the … family … DCS will
        regularly communicate with all service providers throughout the life of the
        case to discuss the family’s progress and any concerns.


        DCS will reassess the strengths and needs of the child and family
        throughout the life of the case and will adjust services, if necessary, to
        meet identified needs. DCS will continue to offer services to the
        … family regardless of participation.


        ***


        The FCM will: … (3) Collaborate with the family and the CFT
        [Child and Family Team] to identify needed services … (5) Monitor
        the family’s progress by: (a) maintaining contact with services
        providers to assess the family’s level of participation in services. …(8)

Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019             Page 20 of 25
               Discuss the family’s participation and progress regarding case
               goals and results of any new assessments … and adjust services
               and/or service levels as necessary … (9) Document in Management
               Gateway for Indiana Kids (MaGIK) the family’s progress,
               reasons for service type or intensity changes, and if applicable,
               reasons why services were not offered or were stopped. …


               The FCM will: … (3) Follow up with service providers to evaluate
               the family’s response to the change and/or removal of services.
               …


       Id. (emphasis added).


[34]   FCM Leas’s own testimony shows that she did none of the above when she

       took over the CHINS case at the beginning of November of 2017 (i.e., before

       the termination petition was filed in mid-January 2018), despite Mother’s

       request for, and willingness to participate in, any necessary services. FCM Leas

       admitted that, before DCS filed for termination in this case, she: did not

       reassess Mother’s needs and adjust and refer services for Mother, regardless of

       Mother’s participation; did not know what services Mother had already

       completed or what services she still needed;19 and did not maintain contact with

       Mother’s service providers to assess Mother’s level of participation in services

       and/or evaluate Mother’s response to the change and/or removal of services.

       Essentially, FCM Leas knew little-to-nothing about Mother’s service needs and




       19
         Assuming FCM Leas’s predecessor FCMs followed DCS policy, Mother’s past participation in services
       would have been documented in DCS’s “MaGIK” system and, therefore, would have been accessible to
       FCM Leas. Id.

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                     Page 21 of 25
       compliance or non-compliance with services; yet DCS moved for termination

       of Mother’s rights anyway. And it did so without noting, as required by law,

       that there were grounds to move to dismiss20 the termination petition because of

       DCS’s failure to identify and/or provide necessary family services while the

       CHINS case was open.21 I.C. § 31-35-2-4.5(d)(2) and (3). That failure created

       the risk of a premature, erroneous termination of Mother’s rights on the

       grounds that she was not complying with services.


[35]   DCS also failed to note in its termination petition that it had failed to provide a

       visitation plan in compliance with its own policy regarding the provision of a

       visitation plan for families in which domestic violence has been identified.

       Chapter 8, Section 12 of the Manual provides that DCS “will develop a

       Visitation Plan.”

       www.in.gov/dcs/files/8.12%20Developing%20the%20Visitation%20Plan.pdf

       (last visited January 11, 2019). And, “where domestic violence has been

       identified,” the “FCM will: … (2) Offer separate visitation time for the non-

       offending parent and the alleged domestic violence offender; … and (5) Ensure




       20
         Rather, the termination petitions stated that “Subsection 4.5 Dismissal Factors Do Not Apply.”
       Appendix at 13.
       21
          It is true, as the State points out, that DCS’s failure to provide services, cannot “serve as a basis on which
       to directly attack a termination order as contrary to law.” A.Z. v. Ind. Dep’t of Child Serv. (In re H.L.), 915
       N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009); see also B.M. v. Marion Cty. Off. of Family & Children (In re E.E.), 736
       N.E.2d 791, 796 (Ind. Ct. App. 2000) (citation omitted) (noting, in termination proceedings, DCS is not
       required to plead and prove it offered services). However, DCS’s failure to comply with state law requiring
       that it move to dismiss a termination petition when it failed to provide necessary services may form the basis
       for a procedural due process claim. In re C.G., 954 N.E.2d at 918; Phelps, 736 N.E.2d at 814. Furthermore,
       we note that a parent’s rights cannot be terminated for her failure to engage in services that she “was never
       asked to do.” In re V.A., 51 N.E.3d at 1151 (quoting Bester, 839 N.E.2d at 149).

       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019                                 Page 22 of 25
       there is no overlap of parental visitation time” between the non-offender and

       the alleged offender. Id. The Manual further notes that “[a]mple time should

       be included for the non-offending parent to pick up or drop off the child or to

       arrive and leave the premises without being forced to interact with the alleged

       domestic violence offender.” Id.


[36]   Yet, here, although Mother was not living with Father at the time of the June

       22, 2017, order on the permanency plan, see Ex. at 35, and DCS had already

       identified domestic violence in the family, the trial court ordered—and DCS did

       not object—that Father would have an unsupervised trial home visit with

       Children, and Mother would “work[ ] out” visitation with Father, id. As a

       result, contrary to DCS’s written visitation procedures, Mother did not have a

       visitation plan that would allow her to visit with Children “without being forced

       to interact with” Father.

       www.in.gov/dcs/files/8.12%20Developing%20the%20Visitation%20Plan.pdf

       (last visited January 11, 2019). Therefore, Mother visited Children at Father’s

       home without third party supervision and, predictably, during one such

       visitation Father physically abused Mother in Children’s presence. Thus, the

       procedural failure on the part of DCS to provide a visitation plan pursuant to its

       own written visitation procedures contributed to the Children witnessing Father

       commit domestic violence against Mother. This procedural error was then

       compounded by DCS’s subsequent petition to terminate Mother’s parental

       rights on the grounds that she had not protected Children from witnessing

       domestic violence, without also noting that DCS had failed to provide services


       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019    Page 23 of 25
       that were “substantial and material” in relation to the reunification goal of

       protecting Children from witnessing domestic violence. I.C. § 31-35-2-

       4.5(d)(3).


[37]   The significant procedural irregularities in the CHINS case created a risk of the

       erroneous filing of a petition to terminate Mother’s parental rights to Children,

       in violation of Mother’s due process rights. Thus, under the Mathews analysis,

       the termination of Mother’s parental rights violated the requirements of due

       process. See In re G.P., 4 N.E.3d at 1166. Moreover, the termination order

       must be reversed due to the State’s failure to give Mother the due process

       imparted to her by Indiana Code Section 31-35-2-4.5(d)—i.e., the right to have

       DCS move to dismiss a termination petition when it has not provided her with

       services that were substantial and material in relation to the reunification plan.

       See In re G.P., 4 N.E.3d at 1166; Phelps, 736 N.E.2d at 814.



                                                 Conclusion
[38]   In light of DCS’s significant and admitted procedural failings in this case, we

       reverse the termination of Mother’s parental rights to Children. We remand to

       the trial court for reinstatement of the CHINS cases, a re-examination of the

       requirements for Mother’s reunification with Children, and a revised

       dispositional order outlining the services Mother must complete in order to

       reunify with Children.




       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019     Page 24 of 25
[39]   Reversed and remanded.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JT-1861 | February 1, 2019   Page 25 of 25
