MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Feb 11 2019, 10:15 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
Rebecca Eimerman                                          Curtis T. Hill, Jr.
Zionsville, Indiana                                       Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 11, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
A.J., D.J., and C.J. (Minor                               18A-JT-1815
Children) and                                             Appeal from the Hamilton Circuit
F.J. (Father),                                            Court

Appellant-Respondent,                                     The Honorable Paul A. Felix,
                                                          Judge
        v.                                                The Honorable Todd L. Ruetz,
                                                          Magistrate
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 29C01-1705-JT-654
                                                          29C01-1705-JT-655
Appellee-Petitioner.                                      29C01-1705-JT-656



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019                  Page 1 of 11
[1]   F.J. (“Father”) appeals the Hamilton Circuit Court’s order terminating his

      parental rights to his three minor children. Father argues that he was denied

      due process during the termination proceedings and underlying Child in Need

      of Services (“CHINS”) proceedings. He also claims that the Department of

      Child Services (“DCS”) did not present sufficient evidence to support the

      termination of his parental rights.

[2]   We affirm.


                                  Facts and Procedural History
[3]   H.J (“Mother”) and Father had three children: A.J. born in July 2003, C.J.

      born in August 2004, and D.J. born in June 2005 (collectively “the children”).

      Due to domestic violence in Mother’s home and substance abuse, the children

      were adjudicated CHINS in August 2014.1 Father’s whereabouts were initially

      not known. On some date prior to a dispositional hearing held on July 6, 2015,

      DCS learned that Father was incarcerated in Oklahoma.


[4]   During the CHINS proceedings, Mother moved from Indiana. She eventually

      relinquished her parental rights to the children.


[5]   Father’s initial hearing was held in September 2015, and a CHINS fact-finding

      hearing was held as to Father on January 7, 2016. Due to Father’s incarceration




      1
       Mother has not seen the children since May 2015. She voluntarily consented to the termination of her
      parental rights to all three children on May 14, 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019              Page 2 of 11
      and inability to provide the necessary care and supervision for the children, the

      children remained CHINS.

[6]   Father has not seen the children for at least ten years. Father is serving an eight-

      year prison term in the Oklahoma Department of Corrections, and he remained

      incarcerated throughout these proceedings. Father does not have a relationship

      with or bond with the children. DCS encouraged Father to attempt to establish

      a bond with the children by writing them letters. Father only wrote a few letters,

      and those letters were not given to the children because they contained

      promises to the children that Father might not be able to keep. Tr. p. 30. Aside

      from encouraging communication with the children, DCS could not offer

      services to Father because he was incarcerated out of state. When he is released

      from prison, Father plans to live in a trailer he owns in Oklahoma that is not

      big enough to accommodate the children.

[7]   On May 18, 2017, the DCS filed petitions to terminate Father’s parental rights

      to each child. A fact-finding hearing was held on June 6, 2018. On the date of

      the hearing, two of the three children were in residential treatment because they

      have special needs. The youngest child was placed in a pre-adoptive home.

[8]   At the hearing, Father testified that his earliest possible release date from

      incarceration is in January 2019. Father also testified that during his

      incarceration he completed anger management classes, cognitive behavior

      therapy, and a program titled “Thinking for a Change.” He also obtained his

      GED.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 3 of 11
[9]   On July 9, 2018, the trial court issued orders terminating Father’s parental

      rights to each of the three children after finding that

              There is a reasonable probability that the conditions that resulted
              in the Child’s removal or the reasons for the placement outside
              Father’s home will not be remedied due to Father’s unwillingness
              to take even the most basic and simple steps towards
              reunification such as letter writing.

              There is a reasonable probability that the parent-child
              relationship poses a threat to the Child due to Father’s lack of
              involvement in the Child’s life both during the underlying
              CHINS matter and before.

              By Father’s own testimony, upon his release his plan is to live in
              Oklahoma in a home that he acknowledges is not big enough for
              the Child and the Child’s siblings.

              It is clear to this Court that Father’s intent is not to reunify with
              the Child but instead to have the option to interact with the Child
              from afar which is not in the best interest of the Child and is not
              a reason to keep this Child’s permanency in limbo and is also not
              even something that Father has been doing while he has had the
              chance through something as basic as letter writing.

              Termination is in the best interest of the child so that she may be
              placed for adoption and have permanency in her life. Not only
              permanency, but also the potential for permanency is greater for
              the Child with the termination of parental rights.

              The DCS has a satisfactory place for the care and treatment of
              the Child, which is adoption. The guardian ad litem testified that
              he is in agreement with this plan.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 4 of 11
       Appellant’s App. pp. 35–36.2 Father now appeals.


                                             Standard of Review
[10]   “We have long had a highly deferential standard of review in cases involving

       the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

       85, 92 (Ind. Ct. App. 2014).


                We neither reweigh evidence nor assess witness credibility. We
                consider only the evidence and reasonable inferences favorable to
                the trial court's judgment. Where the trial court enters findings of
                fact and conclusions thereon, we apply a two-tiered standard of
                review: we first determine whether the evidence supports the
                findings and then determine whether the findings support the
                judgment. In deference to the trial court’s unique position to
                assess the evidence, we will set aside a judgment terminating a
                parent-child relationship only if it is clearly erroneous.


       Id. at 92–93 (citations omitted). “A judgment is clearly erroneous if the findings

       do not support the trial court's conclusions or the conclusions do not support

       the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


                                                    Due Process
[11]   Father argues that DCS and the trial court violated his due process rights

       throughout the CHINS and termination proceedings. “When the State seeks to




       2
         The Appellant included the trial court’s order terminating Father’s parental rights to A.J. in his appendix.
       The orders terminating Father’s parental rights to C.J. and D.J. were not included in the appendix but were
       submitted with the record on appeal. We cite to the order contained in the appendix because the findings of
       fact and conclusions of law are the same in all three orders.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019                  Page 5 of 11
       terminate the parent-child relationship, it must do so in a manner that meets the

       requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). “Due

       Process has never been defined, but the phrase embodies a requirement of

       ‘fundamental fairness.’” Id. (citation omitted). “The U.S. Supreme Court has

       written that ‘the fundamental requirement of due process is the opportunity to

       be heard at a meaningful time and in a meaningful manner.’” Id. (quoting

       Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).


[12]   “The process due in a termination of parental rights proceeding turns on the

       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.” Id. Because both a parent’s and the State’s countervailing interests

       are substantial, when faced with a claim of denial of due process in a

       termination of parental rights, we focus on the second factor, the risk of error

       created by the State’s chosen procedure in the case. Id. at 918.


[13]   Father argues that the following procedural irregularities denied him due

       process: 1) DCS’s failure to serve him with the CHINS petition by publication

       pursuant to Trial Rule 4.13 because his whereabouts were initially unknown; 2)

       the trial court held initial hearings and factfinding hearings beyond the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 6 of 11
       deadlines proscribed by statute; and, 3) the trial court’s failure to order DCS to

       provide services to Father.3

[14]   DCS argues that Father failed to raise his due process claims in the trial court,

       and therefore, his claims are waived. We agree. See Hite v. Vanderburgh Cnty.

       Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (“It is well

       established that we may consider a party’s constitutional claim waived when it

       is raised for the first time on appeal.”).


[15]   However, Father attempts to salvage his claims by arguing that “[i]t was

       fundamental error for Father to be deprived of his due process in the underlying

       CHINS and termination cases.” Appellant’s Br. at 25. Father’s only reasoning

       in support of this argument is that “[t]here is no way to tell at this stage what

       impact the multiple and ongoing procedural irregularities had on the parties’

       ability to reunify with the children, to rehabilitate the children with their

       parents, and to prevent termination.” Id. at 25–26.


[16]   The fundamental error doctrine is a narrow exception to the waiver doctrine

       and applies to an “error [that] was so egregious and abhorrent to fundamental

       due process that the trial judge should or should not have acted, irrespective of

       the parties' failure to object or otherwise preserve the error for appeal.” In re

       G.P., 4 N.E.3d 1158, 1167 n. 8 (Ind. 2014). For an appellate court to overturn a




       3
        DCS’s failure to provide services to Father did not violate his due process rights. See In re J.W., Jr., 27
       N.E.3d 1185, 1190 (Ind. Ct. App. 2015), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019                     Page 7 of 11
       trial court ruling based on fundamental error, the error must have been “a

       clearly blatant violation of basic and elementary principles, and the harm or

       potential for harm therefrom must be substantial and appear clearly and

       prospectively.” S.M. v. Elkhart Cnty. Office of Family & Children, 706 N.E.2d 596,

       600 (Ind. Ct. App. 1999) (citation omitted).


[17]   The proceedings in this case were complicated by the fact that Father’s

       whereabouts were initially unknown because he was incarcerated in Oklahoma,

       and Mother left Indiana during the CHINS proceedings. As a result, the

       proceedings were continued on the parties’ motions and the court’s own

       motions, several times. Ultimately, Father was served with the CHINS and

       termination petitions, appeared telephonically at hearings, and had the

       opportunity to be heard. For these reasons, we conclude that Father has not

       established that belated service of process or timeliness of the hearings amounts

       to fundamental error that would allow Father to proceed despite waiver.


                                           Sufficient Evidence
[18]   Father also argues that the evidence is insufficient to support the termination of

       his parental rights. “The purpose of terminating parental rights is not to punish

       the parents but, instead, to protect their children. Thus, although parental rights

       are of a constitutional dimension, the law provides for the termination of these

       rights when the parents are unable or unwilling to meet their parental

       responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

       omitted). “[T]ermination is intended as a last resort, available only when all

       other reasonable efforts have failed.” Id.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 8 of 11
[19]   A petition for the involuntary termination of parental rights must allege in

       pertinent part:

               (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).

[20]   DCS must prove that termination is appropriate by a showing of clear and

       convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). If the trial

       court finds that the allegations in a petition are true, the court shall terminate

       the parent-child relationship. Ind. Code § 31-35-2-8(a). Finally, because Indiana

       Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need

       only find that one of the three requirements of that subsection has been

       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,

       987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 9 of 11
[21]   Father only argues that the DCS presented insufficient evidence to prove that

       there is a reasonable probability that the conditions that resulted in the

       children’s removal will not be remedied. However, with regard to each child,

       the trial court also found that “there is a reasonable probability that the parent-

       child relationship poses a threat to the Child due to Father’s lack of

       involvement in the Child’s life both during the underlying CHINS matter and

       before.” See Appellant’s App. p. 35. Father does not challenge the sufficiency of

       the evidence to support this finding, and therefore, he has waived the issue. See

       Appellate Rule 46(A)(8)(a).

[22]   Waiver notwithstanding, we observe that to evaluate whether continuation of

       the parent-child relationship poses a threat to the child, a trial court “should

       consider a parent’s habitual pattern of conduct to determine whether there is a

       substantial probability of future neglect or deprivation” while also judging a

       parent’s fitness to care for his child as of the time of the termination

       proceedings. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). Moreover, the

       trial court need not wait until a child is irreversibly influenced by a deficient

       lifestyle such that his physical, mental, and social growth is permanently

       impaired before termination of the parent-child relationship. In re E.S., 762

       N.E.2d 1287, 1290 (Ind. Ct. App. 2002).


[23]   It is undisputed that on the date of the termination hearing, Father had not seen

       his children for at least ten years. Father abandoned his children, and then on

       some later date, was incarcerated in Oklahoma. The children are not bonded

       with Father and require stability that Father is unable to provide.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 10 of 11
[24]   Finally, we note that Father also does not challenge the trial court’s finding that

       termination of his parental rights is in the children’s best interests. And there is

       ample evidence in the record establishing that termination of Father’s parental

       rights is in the children’s best interests.


[25]   For all of these reasons, we conclude that the trial court’s orders terminating

       Father’s parental rights to his three minor children are supported by clear and

       convincing evidence.


                                                 Conclusion
[26]   Father waived his due process claims, and none of the alleged due process

       violations rise to the level of fundamental error. In addition, the trial court’s

       orders terminating Father’s parental rights to his three children are supported by

       clear and convincing evidence.


[27]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1815 | February 11, 2019   Page 11 of 11
