MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any
                                                                            Apr 25 2019, 9:28 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
estoppel, or the law of the case.                                                  Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 25, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of B.B. (Minor Child)                        18A-JT-633
      and                                                 Appeal from the Knox Superior
                                                          Court
A.B. (Mother),
                                                          The Honorable Gara U. Lee,
Appellant-Respondent,                                     Judge

        v.                                                Trial Court Cause No.
                                                          42D01-1705-JT-12

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019                           Page 1 of 14
                                               Case Summary
[1]   A.B. (“Mother”) appeals1 the trial court’s order involuntarily terminating her

      parental rights to B.B. (“Child”), born March 3, 2015. She raises one issue on

      appeal which we restate as: whether the Indiana Department of Child Services

      (“DCS”) violated Mother’s due process rights by failing to ensure she had an

      opportunity to address DCS’s concerns about her mental health.


[2]   We affirm.



                                Facts and Procedural History
[3]   On November 17, 2015, DCS filed a petition alleging Child was a Child in

      Need of Services (“CHINS”) because Mother and Father (collectively,

      “Parents”) engaged in domestic violence while Child was in the home; Parents

      used illegal drug substances while Child was present in the home; there was

      little food and no heat in the home; and Parents were arrested and incarcerated

      in relation to domestic violence charges. Mother informed DCS that she was

      depressed and anxious and had “some kind of antisocial disorder.” Ex. at 128.

      Mother admitted Child was a CHINS, and the trial court found Child was a

      CHINS in orders dated November 23, 2015, and December 21, 2015. Child




      1
          N.B. (“Father”) does not actively participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 2 of 14
      was initially placed with her paternal grandmother, then ultimately placed with

      her maternal great-grandmother who is willing to adopt Child.


[4]   In a December 21, 2015, predispositional report, DCS noted, among other

      things, that Parents must address their mental health issues, and Mother “will

      participate in psychiatric and substance abuse services through the Samaritan

      Center and follow any recommendations.” App. at 114. Similarly, the

      December 21 dispositional order ordered Mother to, among other things: enroll

      and actively participate in all programs recommended by DCS; keep all

      appointments with DCS and service providers; refrain from use of alcohol and

      illegal drugs; submit to random drug screens; and “complete a mental health

      evaluation and follow all recommendations for treatment.” Ex. at 103.

      However, during the course of the CHINS proceedings, Mother was

      inconsistent in complying and/or failed to comply with services provided by

      DCS. Mother failed to consistently submit to required drug screens and, when

      she did so, frequently tested positive for THC.


[5]   Mother also frequently failed to avail herself of required mental health services.

      Mother completed a mental health evaluation at Samaritan Center on

      December 23, 2015, and the evaluation recommended that Mother engage in

      individual therapy. In January of 2016, Mother attended one out of three

      therapy sessions, and in February she did not complete any therapy sessions;

      thus, DCS’s March and April 2016 reports to the court noted that Mother’s

      Samaritan Center “[case] is at risk for being closed if she misses one more

      session.” Ex. at 84, 92. Mother was discharged from Samaritan Center on

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 3 of 14
      March 23, 2016, for non-compliance. In May of 2016, DCS provided Mother

      with home-based individual therapy, but Mother missed two out of five of those

      sessions, and the therapy was discontinued due to Mother’s harassment of the

      therapist. DCS then submitted a referral for Mother to once again obtain

      services at Samaritan Center, but Mother failed to attend the evaluation that

      was scheduled for July 20, 2016. On November 29, 2016, DCS followed the

      recommendation of its clinical specialist and submitted a referral for Mother to

      obtain psychiatric testing. Mother scheduled the appointment for that testing

      for a date in January of 2017. However, in December of 2016, Mother

      “changed her mind and stated she did not really want to do the testing.

      [Mother] stated, ‘I will if I have to, but if I am not court ordered, I am not going

      to do it.’” Id. at 54.


[6]   On January 5, 2017, DCS filed a motion for a hearing to change the

      permanency plan from reunification to termination and adoption. In doing so,

      DCS noted that Mother regularly failed drug screens and regularly failed to

      comply with services. DCS also noted that Mother initially agreed to the

      recommended psychological evaluation “but has not yet followed through and

      has indicated she does not intend to.” Id. at 46. However, Mother did obtain a

      psychological evaluation on January 9, 2017, which diagnosed her with post-

      traumatic stress disorder, unspecified bipolar disorder, and paranoid and

      borderline personality traits. The evaluation recommended “more intensive,

      ongoing mental health treatment as a pre-requisite for having increased or

      unsupervised contact with her child.” Id. at 157.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 4 of 14
[7]   Following a February 13, 2017 review hearing, the trial court “adopt[ed] the

      recommendations” in DCS’s February 7 report recommending a permanency

      plan of termination of parental rights. Id. at 8-9; 12-13; 32. In doing so, the

      court noted that: DCS had complied with Child’s case plan but Mother had

      only partially complied; additional services were not required for Parents; the

      cause of the out-of-home placement of Child had not been alleviated; and DCS

      had made reasonable efforts to reunify the family and provided family services.


[8]   On May 5, 2017, DCS filed a petition to terminate Parents’ parental rights.

      However, DCS continued to provide Mother with mental health services; it

      referred her to the Samaritan Center and then Hamilton Center for intensive,

      ongoing mental health services. The trial court held a fact finding hearing on

      October 23 and November 7 of 2017; at that time, Mother had yet to follow

      through with the referral to Hamilton Center for mental health services. The

      Guardian ad Litem (“GAL”) had filed a report dated November 6, 2017, which

      noted, among other things, that Mother had a “lax attitude toward mental

      health treatment” and recommended termination of parental rights. App. at 47.

      DCS also submitted into evidence the psychological evaluation of Mother that

      had been completed on January 9, 2017. Ex. at 147.


[9]   On February 7, 2018, the trial court issued an order terminating Mother’s

      parental rights and stating, in relevant part:


                                                        ***




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 5 of 14
        C. FACTS RELATING TO CHILD’S CONTINUED
        REMOVAL FROM PARENTS’ HOME AND CARE:
        REASONABLE PROBABLITY OF PARENT NOT
        REMEDYING REASONS FOR REMOVAL, THREAT TO
        CHILD’S WELLBEING


        1. From the outset of the underlying CHINS cause, neither
        parent consistently complied with services.


                                                 ***


        6. Mother admitted at trial that she needed additional
        therapeutic services to address her violent relationship and
        mental health diagnoses. Mother claimed that she had been
        unable to schedule an appointment with the service provider to
        attend therapy due to being out of minutes on her telephone.
        Mother consistently had excuses for each missed appointment for
        various service providers, but the Court finds that Mother’s
        proffered excuses fail to account for her failure to consistently
        meet with service providers.


        7. Mother had threatened Nicole Reed, the prior therapist who
        provided her services, so a new referral was made to a different
        service provider. Mother often had angry outbursts which she
        later admits [sic] are inappropriate and unhelpful to her child.
        Mother’s angry outbursts often occurred when she was
        confronted with the reality of her case—that she was consistently
        failing to take advantage of the services offered her. Given the
        results of her psychological evaluation, the Court finds it highly
        unlikely Mother will remedy the cause of her angry and
        threatening outbursts towards various professionals who were
        only attempting to help her.


        8. Due to Mother’s angry and occasionally threatening outbursts
        in person, with service providers, on the telephone, and during

Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 6 of 14
        team meetings, the DCS offered Mother a psychological
        evaluation. Mother successfully complied with the psychological
        evaluation, which recommended Mother attend therapeutic
        visitation with the child due to high stress levels reported
        regarding parenting; intensive on-going therapy for Mother; and
        parenting skills education. Consistent mental health treatment is
        a must for Mother, but Mother has failed to consistently attend
        therapy over the course of two (2) years, and the Court finds it
        highly unlikely that Mother can remedy her historical lack of
        consistency and stability with her mental health treatment.


                                                 ***


        17. Overall, Mother and Father have failed to remedy the
        situation that brought about the removal of the child. At trial,
        Mother admitted that she had no plan regarding where she
        would live following her release from work release; that she can’t
        take care of herself right now; that she was not compliant with
        the CHINS orders; that she might be able to be a good mom in
        one year; and that the child shouldn’t have to wait. Based on the
        pattern of behaviors and continuing pattern of substance abuse,
        mental health needs, residential instability, employment
        instability, and violent relationship between both parents, the
        Court finds that there is not a reasonable probability the situation
        which brought about the removal of the child is likely to be
        remedied.


        18. Further, Mother’s and Father’s behaviors during the
        underlying CHINS cases pose a threat to the well-being of the
        children [sic]. Mother does not have adequate housing with
        adequate bedding, food, and clothing for her child. … The risk of
        Mother and Father continuing to engage in domestic violence is
        very high, and the Court is not willing to place this child back
        into a home where the caregivers are violent towards each other.
        To allow the continuation of the parent child relationship with


Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 7 of 14
        Mother and Father would pose a threat to the well-being of the
        child.


        A. [sic] CHILD’S BEST INTEREST & DCS PLAN FOR
        CARE AND TREATMENT


        1. The child’s relatives provided support, care, guidance, and
        supervision in the absence of parents for the majority of the
        underlying CHINS matter;


        2. The child is strongly bonded with her maternal great-
        grandmother, who has placement of the child;


        3. The child is doing well in her current placement;


        4. DCS’[s] plan for the child is that she be adopted by the
        maternal great-grandmother;


        5. It is in the best interest of the child to be adopted due to the
        inability of the Mother and Father to provide appropriate care
        and supervision for the children [sic], and due to the above
        findings of this Court;


        6. DCS and the Guardian Ad Litem believe that adoption by
        maternal great-grandmother is in the child’s best interest. The
        child deserves a violence free and stable home. The Court finds
        that adoption by the maternal great-grandmother is in the child’s
        best interest;


        7. Mother’s and Father’s pattern of substance abuse, domestic
        violence, and mental instability indicates that maintaining a
        parent-child relationship with Child is not in the best interests of
        Child;


Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 8 of 14
                                                        ***


               13. … [T]here 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, and/or that
               continuation of the parent-child relationship poses a threat to the
               well-being of the Child;


               14. Each paragraph above also demonstrates the Court’s finding
               that termination of the parent-child relationship is in the best
               interests of the Child, and is expressly adopted as the Court’s
               own finding of fact;


       App. at 15-21. Mother now appeals.


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

       violated her due process rights under the United States Constitution. 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

       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).


[11]   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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 9 of 14
       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

       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.


[12]   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).2 However, in this case, Mother does not challenge either

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




       2
          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 | Memorandum Decision 18A-JT-633 | April 25, 2019                 Page 10 of 14
       order must be reversed because DCS mishandled her case to such an extent that

       it denied her due process of law.


[13]   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).


[14]   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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 11 of 14
       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

       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).


[15]   Here, Mother’s only due process claim is that DCS failed to ensure that she had

       an opportunity to address its concerns about her mental health. Specifically,

       she contends that DCS failed to make reasonable efforts toward family

       preservation as required under Indiana Code Section 31-34-21-5.5(b)(2)3

       because it did not provide her with necessary mental health services in a timely

       fashion. However, the record establishes that DCS not only offered, but

       required Mother to attend, mental health services from the beginning of the




       3
         That statute provides that DCS shall make reasonable efforts to preserve and reunify families to make it
       possible for the child to return safely to the home as soon as possible. I.C. § 31-34-21-5.5(b)(2). However,
       “we observe that the CHINS provision is not a requisite element of our parental rights termination statute,
       and a failure to provide services does not serve as a basis on which to directly attack a termination order as
       contrary to law.” A.Z. v. Ind. Dep’t of Child Serv. (In re H.L.), 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009)
       (citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019                      Page 12 of 14
       CHINS case through the date the permanency plan was changed from

       reunification to termination of parental rights and adoption, and it permitted

       her attendance beyond that point.4 The trial court entered a judgment of

       CHINS on December 21, 2015, and Mother was referred to the Samaritan

       Center and completed a mental health evaluation on December 23, 2015. That

       evaluation recommended individual therapy for Mother, which DCS provided.

       However, Samaritan Center discontinued Mother’s therapy in March of 2016

       due to Mother’s poor attendance; Mother only attended one out of three

       scheduled therapy sessions in January and completed no scheduled sessions in

       February.


[16]   In May of 2016, DCS provided Mother with home-based individual therapy.

       Mother missed two out of five therapy sessions in May and had to change to

       office-based therapy due to her harassment of the home-based therapist. DCS

       then submitted a referral for Mother to once again obtain services at Samaritan

       Center, but Mother failed to attend the evaluation that was scheduled for July

       20, 2016. On November 29, 2016, DCS followed the recommendation of its

       clinical specialist and submitted a referral for Mother to obtain psychiatric




       4
         As DCS notes, although it voluntarily provided Mother with additional mental health services, it was not
       required to make efforts toward reunification—including providing services such as mental health services—
       after February 13, 2017, when the trial court changed the permanency plan to termination of parental rights
       and adoption. I.C. § 31-34-21-5.8; see also L.W. v. Dep’t of Child Serv. of Vanderburgh Cty. (In re A.D.W.), 907
       N.E.2d 533, 538 (Ind. Ct. App. 2008) (noting the statute “provides that DCS is not required to provide
       services for reunification if it is contrary to the permanency plan adopted by the trial court,” such as where
       the permanency plan is changed from reunification to termination of parental rights). Thus, to the extent
       Mother challenges the failure to provide mental health services after February of 2017, her arguments are not
       well taken.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019                     Page 13 of 14
       testing. Mother scheduled the appointment for that testing for a date in January

       of 2017. However, in December of 2016, Mother “changed her mind and

       stated she did not really want to do the testing. [Mother] stated, ‘I will if I have

       to, but if I am not court ordered, I am not going to do it.’” Ex. at 54. Mother

       did obtain the psychological evaluation on January 9, 2017, and the evaluation

       recommended “more intensive, ongoing mental health treatment as a pre-

       requisite for having increased or unsupervised contact with her child.” Id. at

       157. However, by that time Child had been in out-of-home placement for close

       to fifteen of the most recent twenty-two months; therefore, on January 5, DCS

       filed a motion recommending modification of the permanency plan to

       termination of parental rights, which the trial court granted on February 13.


[17]   Thus, DCS consistently offered Mother mental health services throughout the

       entire CHINS proceeding; it is Mother who failed to consistently avail herself of

       those services. DCS made reasonable efforts toward family preservation as

       required under Indiana Code Section 31-34-21-5.5, and the termination of

       Mother’s parental rights did not violate her due process rights.


[18]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-633 | April 25, 2019   Page 14 of 14
