MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          May 31 2016, 8:31 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Attorneys General of Indiana
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        May 31, 2016
Child Relationship of:                                   Court of Appeals Case No.
B.B. (Minor Child)                                       49A02-1508-JT-1076
   and                                                   Appeal from the Marion Superior
P.G. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Marilyn Moores,
                                                         Judge
        v.                                               The Honorable Larry Bradley,
                                                         Senior Magistrate
The Indiana Department of                                Trial Court Cause No.
Child Services,                                          49D09-1411-JT-473
Appellee-Petitioner.




Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016     Page 1 of 10
                                   Case Summary and Issue
[1]   P.G. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to her son, B.B. (born July 29, 2008). Mother raises the sole issue of

      whether the Indiana Department of Child Services (“DCS”) violated her due

      process rights when it declined to refer additional reunification services after the

      juvenile court issued an order changing the permanency plan to adoption with a

      concurrent plan of reunification. Concluding a failure to provide services does

      not constitute a basis for directly attacking a termination order, we affirm.



                              Facts and Procedural History
[2]   B.B. is a special needs child living with hemiplegia. The hemiplegia was caused

      by a brain injury B.B. sustained while in the care of his father; specifically,

      B.B.’s father shook B.B. when he was an infant.1 The hemiplegia affects the left

      side of B.B.’s body, causing decreased strength and motor control and poor

      bilateral hand coordination. Consequently, B.B. has difficulty walking and

      struggles to complete activities of daily living. In February 2010, the juvenile

      court adjudicated B.B. a child in need of services (“CHINS”) “due to his

      extensive and complicated medical needs.” Appellant’s Appendix at 18. The

      juvenile court later removed B.B. from Mother’s care and placed him in foster

      care. In late 2011 or early 2012, while in the care of his foster family, B.B.




      1
       The juvenile court’s order also terminated Father’s parental rights, but Father is not participating in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016                  Page 2 of 10
      started to attend physical therapy sessions. Although B.B. was by that time

      three and a half years old, his physical development was in the twelve- to

      fifteen-month range. Physical therapy, in conjunction with a brace, improved

      B.B.’s strength and ability to walk.


[3]   B.B. was returned to Mother’s care in April 2012, and the CHINS case was

      closed in May of that year. Although Mother did not have to pay for B.B.’s

      physical therapy, B.B. “missed most of his appointments” in the months to

      follow. Transcript at 31. B.B.’s physical therapist explained,

              I called every time, a day or two before the appointment to
              remind [Mother] about the appointment. I don’t do that for
              every family that I work with, but I was doing it in this situation.
              Frequently, she either had a conflict or wasn’t going to be able to
              make it, so I would offer to reschedule for the next week, so . . .
              we tried. I tried hard.


      Id. at 31-32. Eventually, B.B.’s physical therapist confronted Mother about

      their attendance and asked Mother whether she wanted to continue physical

      therapy. Mother stated she did not want to continue. At that point, B.B. was

      almost four years old, but his skills were around an eighteen-month level.


[4]   On December 14, 2012, DCS filed a second CHINS petition. The juvenile

      court held a detention hearing and removed B.B. from Mother’s care. B.B.

      resumed physical therapy, but his condition had “deteriorated considerably.”

      App. at 19. By January 2013, “[B.B.]’s left foot had turned down and in,

      requiring surgery. He could not stand or walk and his developmental age had


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 3 of 10
      regressed to less than twelve months.” Id. The position of his foot indicated

      B.B. had not been wearing his brace.


[5]   The juvenile court adjudicated B.B. a CHINS on April 1, 2013, based on

      Mother’s admission that she “has not provided [B.B.] with appropriate medical

      care.” Exhibit Volume at 66. The juvenile court also entered a dispositional

      decree authorizing B.B.’s continued placement in foster care and approving a

      permanency plan for reunification. Thereafter, the juvenile court entered a

      parental participation order requiring Mother to participate in home-based

      counseling, participate in B.B.’s medical appointments, and meet all of B.B.’s

      medical needs in a timely and complete manner.


[6]   At a review hearing on October 1, 2013—which Mother did not attend—the

      juvenile court found Mother was “minimally participating” in home-based

      counseling, did not allow service providers to enter her home, and failed to

      attend many of B.B.’s medical appointments. Id. at 82. Mother again failed to

      appear for a review hearing held on April 15, 2014, because she was serving a

      sentence in the Marion County Jail. The juvenile court ordered Mother to

      participate in services upon her release and scheduled a review hearing

      following her release date. She failed to appear at that hearing because she was




      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 4 of 10
      serving a different sentence in the Department of Correction for welfare fraud,

      with a release date of January 21, 2015.2


[7]   On October 28, 2014, the juvenile court conducted a permanency hearing and

      found “Mother’s participation prior to her incarceration was lacking and she

      did not show an ability to care for her special needs child.” Id. at 107. DCS

      requested the permanency plan be changed from reunification to adoption. The

      juvenile court approved the change in part, modifying the permanency plan to

      “adoption with a concurrent plan of reunification.” Id. A week later, DCS filed

      a petition to terminate Mother’s parental rights.


[8]   By January 2015, B.B. had made “very good progress” in physical therapy. Tr.

      at 38. He “[w]as walking well, starting to run, making progress in safety on

      stairs, getting in and out of vehicles, [and] playing on playground equipment.”

      Id. B.B.’s physical therapist attributed his progress to his foster mother, who

      consistently attended physical therapy sessions, worked with B.B. on exercises

      at home, and accompanied B.B. during his other medical appointments. His

      physical therapist explained, “It’s a team. [Caregivers] are just as important as

      the therapist. An integral part of therapy is teaching a parent what the needs of

      the child are, what, how they can work on exercises at home, how they can use




      2
       Mother pleaded guilty to welfare fraud, a Class C felony, “for receiving [B.B.]’s Social Security payments
      after he had been removed from the home.” App. at 19; see also Ex. Vol. at 123 (Plea Agreement, providing
      Mother will “make full restitution to the Social Security Administration in the amount of $12,438.00”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016              Page 5 of 10
       any sort of brace or adaptive equipment. . . . [I]f there’s not carryover, progress

       is affected.” Id. at 30.


[9]    At a review hearing on February 10, 2015, Mother appeared and requested

       DCS re-refer services. DCS did not refer additional services—and the juvenile

       court did not order it to do so—because B.B. was transitioning into his pre-

       adoptive placement. The juvenile court set a permanency hearing for March

       31, 2015, but for reasons unclear from the record, Mother failed to appear.

       During this hearing, B.B.’s case manager reported he was “doing very well”

       and “exceeding all expectations due primarily to the hard work of the pre-

       adoptive parents.” Ex. Vol. at 116. DCS and the guardian ad litem

       recommended the permanency plan be adoption with no concurrent plan of

       reunification. The juvenile court agreed reunification was no longer in B.B.’s

       best interests and changed the plan to adoption only, noting “the length of time

       this matter has been open, the lack of progress by [Mother] and how Mother’s

       current whereabouts are unknown[.]” Id.


[10]   The juvenile court held an evidentiary hearing on the petition to terminate

       Mother’s parental rights on July 13, 2015. In its termination order dated July

       21, 2015, the juvenile court concluded,

               33. [B.B.]’s placement is pre-adoptive. He has been observed as
               being bonded with his caregivers who have made major changes
               in their lives to provide the supervision and services [B.B.]’s
               special needs required.
               ***
               40. [B.B.] will soon be seven years of age and has spent fifty-one

       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 6 of 10
               months of his life placed outside the home and under the
               wardship of [DCS].

               41. There is a reasonable probability that the conditions that
               resulted in [B.B.]’s removal and continued placement outside the
               home will not be remedied by his mother. [Mother] received
               services for two and one-half years under the first ChINS case
               regarding [B.B.]’s extensive and complicated medical needs. She
               failed to follow through with services and the current ChINS case
               was filed. [Mother] was inconsistent in attending therapy and
               medical appointments when given the opportunity prior to her
               being incarcerated for one year.
               ***
               48. Continuation of the parent-child relationship poses a threat
               to [B.B.]’s well-being in that it would pose as a barrier to
               obtaining permanency for him, after a considerable time under
               wardship, through adoption. Returning [B.B.] to his mother,
               who has not shown she is able or willing to meet his extensive
               needs, would be detrimental to his future progress and well-
               being.

               49. Termination of the parent-child relationship is in the best
               interests of [B.B.] Termination would allow him to be adopted
               into a safe and stable home that is totally committed to his well-
               being.

               50. There exists a satisfactory plan for the future care and
               treatment of [B.B.], that being adoption.


       App. at 19-20. This appeal followed.



                                  Discussion and Decision
[11]   The Fourteenth Amendment to the United States Constitution protects the right

       of parents to establish a home and raise their children. In re G.Y., 904 N.E.2d
       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 7 of 10
       1257, 1259 (Ind. 2009). “We recognize, however, that parental interests are not

       absolute and must be subordinated to the child’s interests in determining the

       proper disposition of a petition to terminate parental rights.” Id. When a

       parent is unable or unwilling to meet her parental responsibilities, her parental

       rights may be terminated. Id. at 1259-60. “The purpose of terminating parental

       rights is not to punish parents, but to protect the children.” In re I.B., 933

       N.E.2d 1264, 1270 (Ind. 2010) (citation omitted). “A termination hearing

       results only when attempts to rectify the conditions that led to removal from the

       parents have failed over a prolonged period.” Baker v. Marion Cnty. Office of

       Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004).


[12]   A petition to terminate parental rights must allege:

                (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.
               ***
               (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.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 8 of 10
       Ind. Code § 31-35-2-4(b)(2). The State must prove each element by clear and

       convincing evidence. In re G.Y., 904 N.E.2d at 1261. If the juvenile court finds

       the allegations in the petition are true, it must terminate the parent-child

       relationship. Ind. Code § 31-35-2-8(a).


[13]   Mother does not specifically challenge any of the juvenile court’s findings or

       conclusions but argues the order terminating her parental rights should be

       vacated because DCS violated her due process rights by declining to refer

       additional reunification services. Although Indiana Code section 31-34-21-5.5

       requires DCS to “make reasonable efforts to preserve and reunify families”

       during CHINS proceedings, the provision of services “is not a requisite element

       of our parental rights termination statute, and a failure to provide services does

       not serve as a basis on which to directly attack a termination order as contrary

       to law.” In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (citation

       omitted), trans. denied; see also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App.

       2000) (“[E]ven a complete failure to provide services would not serve to negate

       a necessary element of the termination statute and require reversal.”). Because

       a failure to provide services does not constitute a basis for directly attacking a

       termination order, Mother’s argument fails.



                                               Conclusion
[14]   It is well established that a failure to provide services cannot serve as a basis for

       challenging the termination of a parent-child relationship. Since Mother’s only



       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 9 of 10
       argument on appeal rests on DCS’s alleged failure to provide services, we must

       affirm the juvenile court’s order terminating Mother’s parental rights to B.B.


[15]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-JT-1076 | May 31, 2016   Page 10 of 10
