MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Apr 26 2018, 8:44 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


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

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 26, 2018
of the Parent- Child Relationship                         Court of Appeals Case No.
of J.B. (Child) and L.G. (Father);                        49A04-1711-JT-2636
                                                          Appeal from the Marion Superior
                                                          Court
L.G. (Father),
                                                          The Honorable Marilyn Moores,
Appellant-Respondent,                                     Judge
                                                          The Honorable Larry Bradley,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 49D09-1609-JT-1064
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018     Page 1 of 8
[1]   L.G. (“Father”) appeals the involuntary termination of his parental rights to

      J.B. (“Child”). Father argues his due process rights were violated when the

      Department of Child Services (“DCS”) did not provide him with services or

      with visitation with Child prior to terminating his parental rights. We affirm.



                                Facts and Procedural History
[2]   Father and A.B. (“Mother”) 1 are the biological parents of Child, born July 7,

      2015. Father and Mother were not married at the time of Child’s birth, but

      Father testified he saw Child “almost every day,” (Tr. Vol. II at 10), for the first

      month of her life. In late July or early August 2015, Mother called Father and

      asked him to come get Child, because she intended to harm herself and Child.

      Father took Child from Mother and placed Child with Father’s sister.


[3]   On August 18, 2015, federal authorities arrested Father in connection with his

      involvement in drug sales on two websites called “Black Bank” and “Silk

      Road.” (Tr. Vol. II at 10-11.) On August 20, 2015, DCS took custody of Child

      because Father was incarcerated and Mother had mental health issues that

      rendered her unable to care for Child. At a hearing on September 5, 2015, DCS

      advised the trial court Father was incarcerated in Henderson, Kentucky, and

      the trial court appointed Father counsel at Father’s request.




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018   Page 2 of 8
[4]   On November 12, 2015, the trial court adjudicated Child as a Child in Need of

      Services (CHINS) based on admissions by Mother and Father. The trial court

      entered its dispositional order the same day. The trial court did not order

      Father’s participation in services. On December 22, 2015, Father pled guilty to

      federal charges of one count each of conspiring to possess with intent to

      distribute heroin, possession with intent to distribute heroin, and eight counts of

      money laundering.


[5]   At an August 25, 2016, permanency hearing, the trial court changed Child’s

      permanency plan from reunification to adoption. The trial court found,

      “[Father] remains incarcerated and unable to parent.” (Ex. Vol. I at 100.) On

      September 19, 2016, DCS filed a petition to terminate Father’s parental rights

      to Child. 2


[6]   On October 4, 2017, a federal court sentenced Father to ten concurrent seventy-

      five-month sentences with three years of supervised release. At the time of his

      sentencing, Father’s attorney told him that he had thirty-nine months to serve

      on his sentence. On October 18, 2017, the trial court held a termination

      hearing as to Father, at which he appeared telephonically. During the

      pendency of the CHINS and termination proceedings, Father was incarcerated

      in Henderson, Kentucky, at a holding facility. At the termination hearing,

      Father testified there were no programs available at the holding facility and




      2
          Mother consented to Child’s adoption at an earlier date.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018   Page 3 of 8
      visitation is limited to fifteen minutes per visit. Father had not seen Child since

      his arrest in August 2015. The trial court terminated Father’s parental rights to

      Child on October 23, 2017.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 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).


[8]   “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, however, 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.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018   Page 4 of 8
[9]    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
                        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.


[10]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018   Page 5 of 8
       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” 3 Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[11]   In a termination of parental rights proceeding, parents have certain due process

       rights:


                 When a State seeks to terminate the parent-child relationship, it
                 must do so in a manner that meets the requirements of the due
                 process clause. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
                 71 L.Ed.2d 599 (1982). Although due process has never been
                 precisely defined, the phrase embodies a requirement of
                 “fundamental fairness.” E.P. v. Marion County Office of Family &
                 Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting
                 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,
                 68 L.Ed.2d 640 (1981)). Citing Mathews v. Eldridge, 424 U.S. 319,
                 96 S. Ct. 893, 47 L.Ed.2d 18 (1976), this court has recently
                 acknowledged that the nature of the process due in parental
                 rights termination proceedings turns on a balancing of three
                 factors: (1) the private interests affected by the proceeding, (2) the
                 risk of error created by the State’s chosen procedure, and (3) the
                 countervailing governmental interest supporting use of the
                 challenged procedure. A.P. v. Porter County Office of Family and
                 Children, 734 N.E.2d 1107 (Ind. Ct. App. 2000)[, reh’g denied].




       3
        Father does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v. Arko,
       592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court, they
       must be accepted as correct.”).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018              Page 6 of 8
       J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.

       App. 2000), reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion

       Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004). In addition,

       “procedural irregularities in a CHINS proceedings [sic] may be of such import

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

       termination of his or her parental rights.” A.P., 734 N.E.2d at 1112-13.


[12]   Father argues his due process rights were violated when DCS did not provide

       services to Father or attempt to reunify him with his Child. DCS does not

       dispute Father was not offered services or visitation as part of the CHINS

       proceedings. Father argues DCS was required to offer reunification services

       pursuant to statute:


                (b) Except as provided in section 5.6 4 of this chapter, the
                department shall make reasonable efforts to preserve and reunify
                families as follows:


                                                       *****


                         (2) If a child has been removed from the child’s home, to
                         make it possible for the child to return safely to the child’s
                         home as soon as possible.




       4
         Indiana Code section 31-34-21-5.6 lists circumstances – including a parent’s conviction of certain crimes,
       prior termination proceedings, and abandonment of an infant – under which DCS is not required to comply
       with Indiana Code section 31-34-21-5.5. Neither party asserts one of those circumstances occurred in the
       instant case.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018             Page 7 of 8
       Ind. Code § 31-34-21-5.5(b) (footnote added).


[13]   As an initial matter, we note Father did not raise this issue before the trial court,

       and thus the issue is waived. See McBride v. Monroe Cty. Office of Family &

       Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003) (parties cannot raise issue

       for the first time before the appellate court, including some constitutional

       issues). Waiver notwithstanding, “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). Additionally, DCS is not

       required to offer reunification services or visitation while a parent is

       incarcerated. See Rowlett v. Vanderburgh County OFC, 841 N.E.2d 615, 622 (Ind.

       Ct. App. 2006) (“[T]he OFC did not, nor was it required to, provide Father

       with services directed at reuniting him with his children.”), trans. denied. Based

       thereon, we conclude Father’s due process rights were not violated by DCS’s

       failure to provide him reunification services.


                                                 Conclusion
[14]   Because DCS was not required to provide Father with reunification services or

       visitation prior to the involuntary termination of his parental rights to Child, his

       due process rights were not violated. Accordingly, we affirm.


[15]   Affirmed.


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



       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JT-2636 | April 26, 2018   Page 8 of 8
