Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEES:

AMY KAROZOS                                    PATRICK M. RHODES
Greenwood, Indiana                             Marion County Department of Child Services
                                               Indianapolis, Indiana

                                               ROBERT J. HENKE
                                               DCS Central Administration
                                               Indianapolis, Indiana

                                                                               FILED
                                                                            May 14 2012, 9:33 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




IN THE MATTER OF THE TERMINATION )
OF THE PARNET-CHILD RELATIONSHIP )
OF: F.R. and Z.R. (Minor Children), )
                                    )
       And                          )
                                    )
P.R. (Father),                      )
                                    )
       Appellant-Respondent,        )
                                    )
               vs.                  )               No. 49A02-1110-JT-1007
                                    )
THE INDIANA DEPARTMENT OF CHILD )
SERVICES                            )
                                    )
       Appellee-Petitioner,         )
                                    )
       And                          )
                                    )
CHILD ADVOCATES, INC.               )
                                    )
       Guardian Ad Litem.           )
                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Gary Chavers, Judge Pro Tem
                         The Honorable Larry Bradley, Magistrate
                           Cause Nos. 49D09-1104-JT-14848
                                      49D09-1104-JT-14849




                                        May 14, 2012



                MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge

                                  Case Summary and Issues

       P.R. (“Father”) appeals the involuntary termination of his parental rights to his

children, F.R. and Z.R., alleging there is insufficient evidence supporting the juvenile court’s

judgment. Father also claims he was denied due process of law during the underlying child

in need of services (“CHINS”) proceedings and that the juvenile court committed reversible

error by admitting improper hearsay evidence over Father’s timely objection. Concluding

that (1) clear and convincing evidence supports the juvenile court’s judgment; (2) Father was

not denied due process of law; and (3) the challenged hearsay testimony was cumulative of

Father’s own, properly admitted testimony and therefore harmless, we affirm.




                                               2
                                     Facts and Procedural History1

            Father is the legal father of F.R., born in August 2005, and Z.R., born in July 2007.2

The facts most favorable to the juvenile court’s judgment reveal that in March 2010 both

children were removed from their mother’s care and placed in the care of their maternal aunt

due to the mother’s failure to successfully complete an ongoing Informal Adjustment3

(“I.A.”) with the local Marion County office of the Indiana Department of Child Services

(“MCDCS”), coupled with the mother’s lack of stable housing.4 At the time, Father was no

longer living in Indiana. At the time the children were removed, MCDCS family case

manager Amanda Klene obtained Father’s telephone number and called him in Chattanooga,

Tennessee. Klene informed Father that the children had been detained and that MCDCS

planned to file petitions with the juvenile court alleging both F.R. and Z.R. were CHINS.

When Father told Klene he intended to return to Indiana the following weekend and take the

children back to Tennessee with him, Klene advised Father that the children could not be



        1
          Father has filed a Motion for Leave to Amend Reply Brief of Respondent/Appellant by Retrieving
Brief and Substituting Pages, pointing out an error in the caption on the cover page and a typographic error in
the body of the brief. The motion is granted and the errors are considered corrected without the necessity for
physically amending the brief.
        2
          Although paternity testing was never performed and the parents were never married, Father was in a
relationship with the mother at the time of the children’s births and signed both children’s birth certificates.
        3
          A program of Informal Adjustment is a negotiated agreement between a family and a local office of
the Indiana Department of Child Services whereby the family agrees to participate in various services provided
by the county in an effort to prevent the child/children from being formally deemed CHINS. See Ind. Code §
31-34-8 et seq.
        4
          The parental rights of the children’s biological mother, M.F., were also involuntarily terminated by
the juvenile court’s October 2011 termination order. Although M.F. initially participated in reunification
services following the children’s removal, she soon disengaged from services and eventually ceased all
communications with MCDCS case managers. In addition, M.F. failed to appear for the termination hearing
and does not participate in this appeal. Consequently, we limit our recitation of the facts to those pertinent

                                                       3
removed from the State of Indiana while there was an open case with MCDCS. Klene

further explained that Father needed to return to Marion County to attend any court hearings

and that upon returning to Indiana he could contact MCDCS to request visitation privileges

and/or reunification services if needed. Klene then provided Father with all of her contact

information. When Klene, in turn, asked for Father’s current mailing address, he refused to

provide it.

        On March 10, 2010, CHINS petitions were filed as to both children. Both children

were so adjudicated later the same month. Although Klene and Father had exchanged

multiple voicemail messages following their initial conversation, she was never able to have

another live telephone conversation with Father, nor obtain his address. Klene did, however,

speak with Father’s girlfriend in Tennessee, as well as Father’s mother (“Grandmother”),

who continued to reside in Indiana and exercise visitation with the children.

        A dispositional hearing was held in April 2010. Father failed to appear. Following

the hearing, the juvenile court entered an order formally removing the children from their

mother’s custody and adjudicating them wards of MCDCS. As for Father, the juvenile court

ordered the dispositional hearing continued and scheduled a default hearing for July 2010.

MCDCS thereafter attempted service on Father by publication on April 16, April 23, and

April 30, 2010.

        The default hearing was held on July 15, 2010. Father failed to appear, and the

juvenile court entered a default judgment against Father. Father subsequently failed to


solely to Father’s appeal.


                                             4
appear for the continued dispositional hearing held on September 2, 2010, and the juvenile

court entered an order formally removing both children from Father’s custody. The court’s

dispositional order further directed that no services were to be provided to Father “until he

appears” in court. Ex. at 29.

       Throughout the remainder of the CHINS case, Father failed to initiate any contact

with MCDCS and declined to request visitation with the children. In addition, the children’s

mother continued to struggle with her addiction to cocaine and eventually ceased all contact

with MCDCS and service providers. Consequently, MCDCS requested that the juvenile

court change the children’s permanency plan from reunification to termination of parental

rights. The court granted MCDCS’s request on April 14, 2011, and MCDCS filed a petition

seeking the involuntary termination of Father’s parental rights to F.R. and Z.R. the same day.

       Meanwhile, Father returned to Indiana sometime in March 2011. Although Father

was living with Grandmother, he made no attempt to contact MCDCS until after the filing of

the involuntary termination petition. In May 2011, Father appeared in court for the first time

during a pre-trial conference. Father was appointed counsel at that time. Immediately

following the hearing, MCDCS family case manager Elizabeth Waskom-Sisco asked Father

if he would submit to a drug screen. Father agreed to be tested the next day. He informed

Waskom-Sisco, however, that the test would be positive for marijuana. Test results later

confirmed Father tested positive for Tetrahydrocannabinol (“THC”), the active

hallucinogenic chemical found in marijuana.




                                              5
      During a termination pre-trial hearing in July 2011, Father requested reunification

services. Father’s request for services was denied by the juvenile court. Father was

informed, however, that he could seek services on his own. To that end, case manager

Waskom-Sisco advised Father that he should complete (1) a substance abuse assessment, (2)

a parenting assessment, and (3) home-based counseling services if he wished to work toward

regaining custody of the children. Approximately one week later, Waskom-Sisco reiterated

these recommendations in a letter mailed to Father at the home he shared with Grandmother.

In the letter, Waskom-Sisco also provided Father with her contact information and offered to

meet with Father to help him identify and obtain appropriate service providers should he

decide to seek services on his own. Father never contacted Waskom-Sisco.

      An evidentiary hearing on the termination petition concerning both children was

eventually held in October 2011. At the time of the termination hearing, Father was

unemployed, continued to live with Grandmother in a two-bedroom apartment that did not

have beds for the children, and had failed to participate in any of the recommended

reunification services. During the hearing, MCDCS also presented evidence regarding

Father’s refusal to return to Indiana and/or to maintain contact with MCDCS for

approximately one year despite his actual knowledge that F.R. and Z.R. had been removed

from their mother’s care and that MCDCS planned to initiate CHINS proceedings.

      Additional evidence submitted during the termination hearing established Father had

left the children with their mother in Indiana and moved to Tennessee in 2008

notwithstanding his knowledge that the mother was struggling with significant substance



                                             6
abuse issues. Father also never sought visitation privileges with the children, even after

returning to Indiana, and the children did not possess any significant relationship and/or bond

with Father, who left Indiana when Z.R. was eight-months-old.

       At the conclusion of the hearing, the juvenile court took the matter under advisement.

On October 7, 2011, the court issued an order terminating Father’s parental rights to F.R. and

Z.R. Father now appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental rights. In re

K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing the termination of parental

rights, we will neither reweigh the evidence nor judge witness credibility. In re D.D., 804

N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

and reasonable inferences most favorable to the judgment. Id. Moreover, in deference to the

juvenile 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. In re L.S., 717 N.E.2d

204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).

       Here, in terminating Father’s parental rights, the juvenile court entered specific

findings and conclusions. When a juvenile court’s judgment contains specific findings of

fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether



                                              7
the evidence supports the findings, and second, we determine whether the findings support

the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to

support them either directly or by inference.” 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.

L.S., 717 N.E.2d at 208.

       “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. However, a juvenile court must

subordinate the interests of the parent to those of the child when evaluating the circumstances

surrounding a termination. K.S., 750 N.E.2d at 837. Termination of a parent-child

relationship is proper where a child’s emotional and physical development is threatened. Id.

Although the right to raise one’s own child should not be terminated solely because there is a

better home available for the child, parental rights may be terminated when a parent is unable

or unwilling to meet his or her parental responsibilities. Id. at 836.

       In Indiana, before parental rights may be involuntarily terminated, the State is required

to allege and prove, among other things:

       (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 . . . .


                                               8
Ind. Code § 31-35-2-4(b)(2). “The State’s burden of proof in termination of parental rights

cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.

2009) (quoting Ind. Code § 31-37-14-2). If the court finds the allegations in a petition for

termination are true, the court shall terminate the parent-child relationship. Ind. Code § 31-

35-2-8(a). Father challenges the sufficiency of the evidence supporting the juvenile court’s

findings as to subsection (b)(2)(B) of Indiana’s termination statute quoted above. See Ind.

Code § 31-35-2-4(b)(2)(B). Father also claims he was denied due process of law during the

underlying CHINS proceedings and that the juvenile court committed reversible error in

admitting certain hearsay statements over his timely objection. We shall address each

allegation of error in turn.

                               II. Sufficiency of the Evidence

       We first observe that Indiana Code section 31-35-2-4(b)(2)(B) requires the juvenile

court to find that only one of the requirements of subsection (b)(2)(B) has been established

by clear and convincing evidence before an involuntary termination of parental rights may

occur. Here, the court determined that subsections (b)(2)(B)(i) and (ii) were both proven.

Because we find it to be dispositive under the facts of this case, we consider only whether

MCDCS established, by clear and convincing evidence, subsection (b)(2)(B)(i), namely, that

there is a reasonable probability the conditions resulting in the children’s removal or

continued placement outside Father’s care will not be remedied. See Ind. Code § 31-35-2-

4(b)(2)(B)(i).




                                              9
       In making such a determination, a juvenile court must judge a parent’s fitness to care

for his or her child at the time of the termination hearing, taking into consideration evidence

of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

The juvenile court must also “evaluate the parent’s habitual patterns of conduct to determine

the probability of future neglect or deprivation of the child.” Id. Pursuant to this rule, courts

have properly considered evidence of a parent’s prior criminal history, drug and alcohol

abuse, history of neglect, failure to provide support, and lack of adequate housing and

employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251

(Ind. Ct. App. 2002), trans. denied. Moreover, a county department of child services is not

required to provide evidence ruling out all possibilities of change; rather, it need establish

only that there is a reasonable probability the parent’s behavior will not change. In re Kay L.,

867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

       Here, in terminating Father’s parental rights, the juvenile court made detailed findings

regarding Father’s historical lack of involvement in the children’s lives and ongoing inability

to meet the children’s basic needs. In so doing, the juvenile court found Father had

“abandoned his children to their substance[-]abusing mother with whom [Father] did not feel

safe,” in April of 2008 to reside in Tennessee, that he did not return to Indiana until

approximately March 2011, and that he had “paid no support during this time.” Appellant’s

Appendix at 20-21. The juvenile court further described Father’s employment as not being

“stable” or “adequate to meet the children’s needs,” noting that Father characterized his

employment as “seasonal,” and did not present any evidence during the termination hearing



                                               10
of trying to obtain other employment, either as a supplement or replacement. Id. at 20. In

addition, the court specifically found that, notwithstanding his testimony to the contrary,

Father had actual knowledge of the CHINS matter and hearings. The court further found

Father had “ignored the CHINS proceedings until returning to Indiana, and since his return

has taken no steps to participate in services designed to ensure that he could provide a safe

environment free from substance abuse, adequate housing[,] and an ability to meet the

children’s needs.” Id. at 21.

       A thorough review of the record makes clear that F.R. and Z.R. were removed from

their mother’s care due to her housing instability and failed I.A. Although Father no longer

lived in Indiana, he was immediately contacted by MCDCS case manager Klene who

informed Father of the children’s removal. Klene testified during the termination hearing

that she personally telephoned Father in March 2010 and explained to him that the open I.A.

with MCDCS was being “switched over to a CHINS [case]” and that Father “needed to come

to [c]ourt in order to see his children and be offered any services,” but that Father failed to do

so. Transcript at 30. Klene also confirmed that apart from an initial game of “phone tag”

during which she and Father exchanged several voicemail messages in April and May of

2010, Father never again contacted Klene, never appeared in court, and never showed “any

indication that he was ready, willing, and able to parent his children.” Id. at 21, 23.

       Similarly, current MCDCS family case manager Waskom-Sisco informed the juvenile

court that Father made no attempts to contact MCDCS prior to the permanency hearing in

April 2011. Waskom-Sisco also testified that although she “offered to meet with [Father]”



                                               11
and “locate providers” if he was willing to pursue reunification services on his own during

the termination case, Father never contacted her and never participated in any services on his

own. Id. at 53. In addition, Waskom-Sisco stated Father never asked for visitation

privileges, failed to obtain stable employment once returning to Indiana, and continued to

live with Grandmother in a two-bedroom home where he slept on an air mattress and did not

have beds for the children.

       Father’s own testimony lends further support to the juvenile court’s findings. During

the termination hearing, Father admitted that he spoke with case manager Klene at the time

the children were removed from the family home in March 2010. He also confirmed that

MCDCS did not have “an address to call [sic]” during the CHINS case. Id. at 82. In

addition, Father acknowledged that he failed to initiate any contact with MCDCS upon

returning to Indiana in March 2011 and never accepted Waskom-Sisco’s offer of assistance

in locating providers for the recommended reunification services. Finally, when asked

whether she believed Father should be provided more time to demonstrate his ability to

parent the children, Guardian ad Litem Alane Singleton answered, “No, I believe [MCDCS]

gave [Father] sufficient time to get involved with the case and to step up and be a parent to

his children . . . .” Id. at 73.

       As noted earlier, a juvenile court must judge a parent’s fitness to care for his or her

child at the time of the termination hearing, taking into consideration the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation of the child.

D.D., 804 N.E.2d at 266. Moreover, where a parent’s “pattern of conduct shows no overall



                                              12
progress, the court might reasonably find that under the circumstances, the problematic

situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). Father’s

arguments to the contrary amount to an impermissible invitation to reweigh the evidence,

which we decline to accept. See D.D., 804 N.E.2d at 267. Our review of the record leaves

us satisfied that MCDCS presented clear and convincing evidence to support the juvenile

court’s findings cited above.

                                      III. Due Process

       Next, we consider Father’s contention that he was denied due process of law during

the underlying CHINS proceedings. A parent’s interest in the care, custody, and control of

his or her children is arguably one of the oldest of our fundamental liberty interests. Bester,

839 N.E.2d at 147. Hence, “[t]he traditional right of parents to establish a home and raise

their children is protected by the Fourteenth Amendment of the United States Constitution.”

M.B., 666 N.E.2d at 76. The Due Process Clause of the United States Constitution likewise

“prohibits state action that deprives a person of life, liberty, or property without a fair

proceeding.” In re B.J., 879 N.E.2d 7, 16 (Ind. Ct. App. 2008) (citations omitted), trans.

denied. To be sure, the right to raise one’s child is an “essential, basic right that is more

precious than property rights.” In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans.

denied. Thus, when the State seeks to terminate a parent-child relationship, it must do so in a

manner that meets the constitutional requirements of the Due Process Clause. Hite v.

Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006).




                                              13
Although due process has never been precisely defined, the phrase embodies a requirement

of “fundamental fairness.” Id. (citation omitted).

       Notwithstanding the significance of the rights involved herein, it is well-established,

however, that a party on appeal may waive a constitutional claim. McBride v. Monroe Cnty.

Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). In particular, we

have previously held that a parent may waive a due process claim in a CHINS or involuntary

termination case when it is raised for the first time on appeal. Id. at 194-95; see also K.S.,

750 N.E.2d at 834 n.1 (concluding mother waived claim that trial court violated her due

process rights in failing to follow statutory requirements governing permanency hearings,

case plans, and dispositional orders because she raised constitutional claim for first time on

appeal). This is consistent with the long-standing general rule that an issue cannot be raised

for the first time on appeal. McBride, 798 N.E.2d at 194.

       Here, Father asserts for the first time on appeal that MCDCS failed to “follow

statutory requirements to provide notice to [Father].” Brief of Appellant at 18. Father also

complains that he never received a case plan and that these procedural irregularities

combined to deprive him of procedural due process in the termination case. Although Father

acknowledges that the termination statute does not require MCDCS to provide reunification

services, he nevertheless asserts the juvenile court erred in denying his request for services

during a pre-trial conference in July 2011.

       A review of the record makes clear that Father did not object to any of these alleged

deficiencies during the CHINS case. Moreover, although Father was appointed counsel



                                              14
during the termination proceedings and attended the evidentiary hearing, he never argued

during the termination proceedings that the alleged deficiencies during the CHINS case

constituted a due process violation in the termination case. Rather, Father has raised his

procedural due process claim for the first time on appeal. We therefore conclude that Father

has waived his constitutional challenge.

       Waiver notwithstanding, we pause to note that by refusing to provide MCDCS with

his address and failing to maintain contact with case manager Klene for over one year despite

his knowledge in March 2010 that the children had been removed from their mother and that

CHINS petitions were being filed, Father has invited, at least in part, the alleged error of

which he now complains. Error invited by the complaining party is not reversible error. See,

e.g., Breining v. Harkness, 872 N.E.2d 155, 159 (Ind. Ct. App. 2007) (stating that the

doctrine of invited error, grounded in estoppel, provides that a party may not take advantage

of an error that he commits, invites, or which is the natural consequence of his own neglect

or misconduct), trans. denied.

       Nor can we agree with Father’s assertion that the alleged procedural irregularities

which occurred in the CHINS proceedings operated to deprive Father of procedural due

process in the termination case. In the present case, Father was represented by counsel

throughout the termination proceedings, attended the termination evidentiary hearing in

person, and was provided with an opportunity to be heard and to cross-examine witnesses.

Moreover, during the termination hearing Father confirmed that he attended virtually all of

the pre-trial hearings in the termination case, was informed of the reunification services



                                             15
recommended by MCDCS, and was offered assistance in locating service providers. For all

these reasons, we cannot conclude Father’s rights were fatally compromised. See, e.g., Hite,

845 N.E.2d at 184 (concluding that failure to provide father with notice during initial stages

of the CHINS action and copies of case plans did not substantially increase risk of error in

termination proceedings).

                                 IV. Admission of Evidence

       Finally, we consider Father’s assertion that the juvenile court abused its discretion by

admitting hearsay testimony alleging Father never paid any child support to the children’s

mother. Specifically, Father contends that because the juvenile court relied on this improper

hearsay evidence in its findings to support termination of Father’s parental rights, he is

entitled to reversal. We disagree.

       The admission of evidence is entrusted to the sound discretion of the juvenile court.

In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans. denied. We will find an abuse of

discretion only where the juvenile court’s decision is against the logic and effect of the facts

and circumstances before the court. Id. If a juvenile court abuses its discretion by admitting

the challenged evidence, we will only reverse for that error if the error is inconsistent with

substantial justice or if a substantial right of the party is affected. In re S.W., 920 N.E.2d

783, 788 (Ind. Ct. App. 2010). Moreover, any error caused by the admission of evidence is

harmless error, for which we will not reverse, if the erroneously admitted evidence was

cumulative of other evidence properly admitted. Id.




                                              16
       During the termination hearing, when asked, “[A]fter you moved to Tennessee, uh,

did you send child support payments to [Mother],” Father answered, “No, sir.” Tr. at 86.

Thus, even assuming without deciding that the challenged testimony was improperly

admitted into evidence, such evidence was merely cumulative of Father’s own, properly

admitted testimony. We therefore find no error.

                                         Conclusion

       This court will reverse a termination of parental rights “only upon a showing of ‘clear

error’– that which leaves us with a definite and firm conviction that a mistake has been

made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v. Blackford

Cnty. Dep’t of Public Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error

occurred in this case. The judgment of the juvenile court terminating Father’s parental rights

to both F.R. and Z.R. is therefore affirmed.

       Affirmed.

BAILEY, J., and MATHIAS, J., concur.




                                               17
