MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              May 06 2019, 10:47 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
J. Clayton Miller                                        Curtis T. Hill, Jr.
Jordan Law, LLC                                          Attorney General of Indiana
Richmond, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 6, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of L.C. (Minor Child)                                    18A-JT-2905
                                                         Appeal from the Union Circuit
and                                                      Court
                                                         The Honorable Matthew R. Cox,
C.D.C., Jr. (Father),                                    Judge
Appellant-Respondent,
                                                         Trial Court Cause No.
        v.                                               81C01-1802-JT-14

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019                     Page 1 of 6
      Bradford, Judge.



                                               Case Summary
[1]   The Department of Child Services (“DCS”) became involved with L.C.

      (“Child”) after receiving reports of neglect by C.D.C., Jr. (“Father”) and K.M.

      (“Mother”) (collectively, “Parents”). Although Child was initially left in

      Father’s care, he was subsequently placed with paternal grandparents after

      Father tested positive for drugs. Less than two months later, Child was

      removed from paternal grandparents’ care after their home was deemed

      unsuitable and was placed in nonrelative care. Child was determined to be a

      child in need of services (“CHINS”) and Father was ordered to complete

      certain services.1 Father, however, failed to successfully complete the ordered

      services and DCS petitioned to terminate Father’s parental rights to Child. In

      challenging the termination of his parental rights to Child, Father argues that

      DCS violated his constitutional due process rights by failing to consider relative

      placement before placing Child in nonrelative placement. We affirm.



                                Facts and Procedural History
[2]   Child was born on November 29, 2011. In June of 2016, Child was found to be

      a CHINS due to neglect and drug use by Parents. While Child was initially




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019   Page 2 of 6
      placed in an informal adjustment and left in Father’s care, Child was removed

      from Father’s care on August 2, 2016, after DCS received reports of continued

      drug use by Father. Upon removal, Child was placed with his paternal

      grandparents. On September 16, 2016, Child was removed from paternal

      grandparents’ home after DCS deemed that the home was not suitable. Child

      was then placed in nonrelative foster care.


[3]   Father initially participated in services offered by DCS. However, over time,

      Father’s participation diminished to unsatisfactory levels. DCS filed a petition

      seeking to terminate Father’s parental rights to Child in February of 2018.

      Following a multi-day evidentiary hearing, on November 2, 2018, the juvenile

      court granted DCS’s petition and issued an order terminating Father’s parental

      rights to Child.



                                 Discussion and Decision
[4]   At the outset, we note that in challenging the termination of his parental rights,

      Father does not challenge the juvenile court’s findings or conclusions thereon.

      Father’s sole contention is that DCS violated his constitutional due process

      rights by failing to consider a relative placement for Child before placing him in

      nonrelative foster care.


              Due process protections bar state action that deprives a person of
              life, liberty, or property without a fair proceeding. It is
              unequivocal that the termination of a parent-child relationship by
              the State constitutes the deprivation of an important interest
              warranting deference and protection, and therefore when the

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019   Page 3 of 6
              State seeks to terminate the parent-child relationship, it must do
              so in a manner that meets the requirements of due process.


      In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (internal quotations omitted).


              Substantive due process ensures that state action is not arbitrary
              or capricious regardless of the procedures used. To set forth a
              claim for violation of substantive due process, a party must show
              (1) that the law infringes upon a fundamental right or liberties
              deeply rooted in our nation’s history; or (2) that the law does not
              bear a substantial relation to permissible state objectives. To
              succeed, the party must demonstrate that the State’s conduct is
              arbitrary and capricious. The State will prevail if any rational
              basis for its action can be hypothesized.


      Honeycutt v. Ong, 806 N.E.2d 52, 58 (Ind. Ct. App. 2004) (internal quotation

      and citations omitted).


[5]   Indiana Code section 31-34-4-2(a) provides that when DCS takes a child alleged

      to be in need of services into custody, it must consider placing the child with a

      suitable and willing relative before considering any other out-of-home

      placement. Father does not challenge the validity of the statute on appeal. He

      merely argues that DCS acted in a manner that violated his due process rights

      when it placed Child in nonrelative care.


[6]   The record reveals that DCS not only considered relative placement but initially

      placed Child in a relative placement, i.e., with paternal grandparents. However,

      less than two months later, Child was removed from paternal grandparents’

      home after DCS determined that this placement was no longer suitable. DCS’s

      decision was based on reports of potential substance abuse occurring in the
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019   Page 4 of 6
      home, Parents, who have a proven history of drug abuse, “spending too much

      time in the home” with Child despite only having been awarded supervised

      visitation with Child, tr. vol. III p. 111, the poor condition of at least part of the

      home, and paternal grandmother’s disability which left her unable to provide

      adequate care for Child. Only after being removed from paternal grandparents’

      home was Child placed in the nonrelative, pre-adoptive placement where he has

      lived for more than two years and is thriving.


[7]   Father seems to suggest that DCS should have again considered paternal

      grandparents’ home as a placement for Child when the underlying CHINS

      proceedings transitioned into termination proceedings. Father, however, points

      to no relevant authority indicating that DCS had any obligation to do so. In

      addition, the record is devoid of any evidence beyond Father’s and paternal

      grandfather’s self-serving testimony that the conditions of the home and

      paternal grandmother’s health had improved. The juvenile court, acting as the

      trier-of-fact, was able to judge the credibility of Father and paternal

      grandfather’s testimony and was not required to believe or assess the same

      weight to the testimony as Father. See generally Marshall v. State, 621 N.E.2d

      308, 320 (Ind. 1993) (providing that it is for the trier-of-fact to determine which

      witnesses to believe or disbelieve).


[8]   The record clearly demonstrates that DCS considered relative placement before

      placing Child in nonrelative placement. In fact, Child was only placed with

      nonrelatives after relative placement was deemed unsuitable. DCS satisfied its

      statutory obligation to consider relative placement before placing Child with

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019   Page 5 of 6
      nonrelatives. As such, we are unconvinced that DCS violated Father’s

      constitutional due process rights.


[9]   The judgment of the juvenile court is affirmed.


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2905 | May 6, 2019   Page 6 of 6
