MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 27 2019, 8:57 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE:
Clifford M. Robinson                                     INDIANA DEPARTMENT OF
Rensselaer, Indiana                                      CHILD SERVICES
                                                         Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         November 27, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         19A-JT-1396
D.A. (Minor Child),                                      Appeal from the Jasper Circuit
and                                                      Court
                                                         The Honorable John Potter, Judge
S.A. (Father),                                           Trial Court Cause No.
Appellant-Respondent,                                    37C01-1811-JT-260

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019                  Page 1 of 8
      Tavitas, Judge.


                                             Case Summary
[1]   S.A. (“Father”) appeals the termination of his parental rights to D.A. (the

      “Child”). We affirm.


                                                     Issue
[2]   Father raises one issue, which we restate as whether Father’s due process rights

      were violated by the failure to provide services to him during his incarceration.


                                                     Facts
[3]   The Child was born in May 2016 to Father and J.B. (“Mother”). On May 26,

      2016, the State charged Father in Boone County with unlawful possession of a

      firearm by a serious violent felon, a Level 4 felony, and carrying a handgun

      without a license, a Level 5 felony, in Cause No. 06D02-1605-F4-456 (“Cause

      456”). On August 13, 2016, the State arrested Father and charged him in

      Jasper County with unlawful possession of a firearm by a serious violent felon,

      a Level 4 felony; disarming a law enforcement officer, a Level 5 felony; battery

      with bodily injury to a public safety officer, a Level 5 felony; and resisting law

      enforcement, a Level 6 felony, in Cause No. 37C01-1608-F4-661 (“Cause

      661”).


[4]   On November 28, 2016, Father pleaded guilty in Cause 661 to unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony, and battery

      resulting in bodily injury to a public safety officer, a Level 5 felony. The trial

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019   Page 2 of 8
      court sentenced Father to eleven years in the Department of Correction

      (“DOC”). On May 14, 2018, Father pleaded guilty in Cause 456 to unlawful

      possession of a firearm by a serious violent felony, a Level 4 felony, and he was

      sentenced to eight years in the DOC with two years suspended. The trial court

      ordered his sentence to be served consecutively to his sentence in Cause 661.

      Father’s current release date is in 2028.


[5]   On December 14, 2017, the Jasper County Department of Child Services

      (“DCS”) removed the Child from Mother’s care after it received a report that an

      overdose occurred at Mother’s residence and that Mother abused drugs.

      Mother tested positive for methamphetamine at that time. Mother had been

      involved in three prior CHINS cases involving substance abuse.


[6]   On February 9, 2018, the trial court found that the Child was a CHINS. A

      March 2018 dispositional decree ordered Mother to participate in services and

      ordered Father to sign releases. Mother, however, was not compliant with

      services and continued to test positive for methamphetamine.


[7]   On November 27, 2018, DCS filed a petition to terminate Mother’s and

      Father’s parental rights to the Child. A hearing was held on the petition on

      May 20, 2019. The trial court entered findings of fact and conclusions of law




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019   Page 3 of 8
terminating Mother’s and Father’s parental rights to the Child. 1 With respect to

Father, the trial court found:


         [Father] has been incarcerated at the Indiana DOC for nearly the
         entire life of the CHINS case. His earliest possible release date is
         in 2028 at which time the child will be at least 12 years old.


                                                 *****


         Father was incarcerated at the time of removal and has remained
         incarcerated for all but 3 months of the child’s life. No services
         or visitations have been offered to him. Further, Father has
         provided no proof to DCS that he participated in any services
         while in the DOC.


         Father cannot take care of the child while incarcerated and is not
         scheduled to be released until 2028.


         Therefore, Father is not a viable option for placement due to his
         lengthy incarceration[.] Father is currently incarcerated for two
         separate felony cases. He is incarcerated for possession of a
         handgun by a violent felon and battery with bodily injury to a
         public safety officer.


         Father has had no relationship or bond with the child. Father
         was only with the child for a short time when he was a baby and
         Father was on the run from criminal charges.




1
 Mother did not appear for the termination of parental rights hearing, and she does not participate in this
appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019                  Page 4 of 8
               Father has been able to reduce the time he is required to serve by
               obtaining his GED and participating in a problem solving course.
               He is currently on a waiting list for other courses and college
               classes.


               Father understands the situation he has placed himself in with
               regards to the child.


                                                        *****


               Father cannot care for the child due to his incarceration.


      Appellant’s App. Vol. II pp. 24-25. Father now appeals.


                                                       Analysis
[8]   Father does not challenge the trial court’s findings in support of termination of

      his parental rights under Indiana Code Section 31-35-2-4. 2 Rather, Father




      2
        Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the allegations in a petition
      described in [Indiana Code Section 31-35-2-4] are true, the court shall terminate the parent-child
      relationship.” Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate a parent-child
      relationship involving a child in need of services must allege, in part:
            (A)         That one (1) of the following is true:
                        (i)      The child has been removed from the parent for at least six (6) months
                                 under a dispositional decree.
                        (ii)     The court has entered a finding under IC 31-34-21-5.6 that reasonable
                                 efforts for family preservation or reunification are not required, including a
                                 description of the court’s finding, the date of the finding, and the manner in
                                 which the finding was made.
                        (iii)    The child has been removed from the parent and has been under the
                                 supervision of a local office or probation department for at least fifteen (15)
                                 months of the most recent twenty-two (22) months, beginning with the date
                                 the child is removed from the home as a result of the child being alleged to
                                 be a child in need of services or a delinquent child.
            (B)         that one (1) of the following is true:

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019                    Page 5 of 8
       argues that his due process rights were violated by DCS’s failure to provide him

       with services during his incarceration.


[9]    DCS contends that Father waived any argument that he was deprived of due

       process rights by the failure to provide him with services. A parent may waive a

       due process claim in a CHINS or termination proceeding by raising that claim

       for the first time on appeal. S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d

       1114, 1120 (Ind. Ct. App. 2013) (citing McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003)). Father never raised a

       due process claim at the trial level; therefore, he has waived his constitutional

       challenge with respect to the termination proceedings.


[10]   Waiver notwithstanding, Father’s argument fails. 3 The Fourteenth

       Amendment to the United States Constitution provides that “no person shall be

       deprived of life, liberty, or property without due process of law.” U.S. Const.




                        (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.
       DCS must establish these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
       (Ind. 2016).
       3
         Father cites the Indiana Administrative Orders and Procedures Act and applies the arbitrary and capricious
       standard of review. The State properly points out that Father is appealing from a final judgment, not an
       agency decision, and this standard of review is inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019                  Page 6 of 8
       amend. XIV. “We have repeatedly noted that the right to raise one’s children is

       more basic, essential, and precious than property rights and is protected by the

       Due Process Clause.” Hite v. Vanderburgh Cty. Office of Family & Children, 845

       N.E.2d 175, 181 (Ind. Ct. App. 2006). “When the State seeks to terminate the

       parent-child relationship, it must do so in a manner that meets the requirements

       of the due process clause.” Id.


[11]   We have long recognized, however, that the inability to provide services to an

       incarcerated parent does not amount to a denial of due process. See In re H.L.,

       915 N.E.2d 145, 148 (Ind. Ct. App. 2009) (holding that DCS’s failure to

       provide parental visitation and classes during the father’s incarceration was not

       a denial of due process); Castro v. State Office of Family & Children, 842 N.E.2d

       367, 377 (Ind. Ct. App. 2006) (“Because of Castro’s incarceration, not only was

       the MCOFC unable to offer services to him, but it was unable to even fully

       evaluate him to determine what services are necessary. MCOFC’s failure to

       offer services to Castro does not constitute a deprivation of his due process

       rights.”), trans. denied; In re S.K., 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019)

       (finding no denial of due process where the father was incarcerated for killing

       the children’s mother and “DCS was unable to offer services to Father or to

       evaluate him to determine what services might benefit him”), trans. denied.

       Here, DCS was unable to provide services to Father due to his incarceration.

       The inability to provide such services did not result in a denial of Father’s due

       process rights.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019   Page 7 of 8
                                                 Conclusion
[12]   Father waived his due process argument. Waiver notwithstanding, DCS’s

       inability to provide services to Father during his incarceration did not result in a

       denial of Father’s due process rights. We affirm.


[13]   Affirmed.

       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1396 | November 27, 2019   Page 8 of 8
