MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jun 15 2020, 9:00 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Halbert                                         Frances Barrow
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 15, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.N.S. (Father) and C.S. and                           19A-JT-2880
A.J.S. (Minor Children);                                  Appeal from the Marion Superior
                                                          Court
                                                          The Honorable Ryan K. Gardner,
A.S. (Father),                                            Judge Pro-Tempore
Appellant-Respondent,                                     The Honorable Peter Haughan,
                                                          Magistrate
        v.
                                                          Juvenile Court Cause No.
                                                          49D15-1901-JT-152
The Indiana Department of                                 49D15-1901-JT-153
Child Services,
Appellee-Petitioner

and
Child Advocates, Inc.
Appellee-Guardian Ad Litem


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020                   Page 1 of 18
      May, Judge.

[1]   A.N.S. (“Father”) appeals the involuntary termination of his parental rights to

      C.S. and A.J.S. (collectively, “Children”). Father argues the Department of

      Child Services (“DCS”) violated his rights under the Americans with

      Disabilities Act (“ADA”) and the Fourteenth Amendment to the United States

      Constitution when DCS did not accommodate “his numerous physical and

      mental disabilities[.]” (Br. of Appellant at 4.) We affirm.



                                Facts and Procedural History
[2]   K.J. (“Mother”) 1 (collectively with Father, “Parents”) gave birth to C.S. on

      November 11, 2013, and A.J.S. on April 19, 2015. On June 10, 2016, DCS

      removed Children from Parents’ care on an emergency basis because Parents

      were under the influence of heroin while Children were in their care and

      because the front yard of Parents’ residence contained “the family’s belongings

      as if they were evicted . . . [including] trash, clothing, electronics, and children’s




      1
          Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020                        Page 2 of 18
      toys[.]” (App. Vol. II at 55.) Children were placed with their Paternal

      Grandmother, where they remained throughout the proceedings.


[3]   On June 14, 2016, DCS filed petitions alleging Children were Children in Need

      of Services (“CHINS”) based on Parents’ drug use and the condition of the

      family residence. On September 2, 2016, the juvenile court held a fact-finding

      hearing on DCS’s CHINS petitions. Mother appeared at the hearing and

      admitted Children were CHINS. Father was incarcerated 2 at the time of the

      hearing, and his counsel waived his right to a fact-finding hearing as to the

      CHINS allegation. Based on Mother’s admission, the juvenile court

      adjudicated Children as CHINS and immediately held a dispositional hearing.

      On September 2, 2016, the juvenile court entered a dispositional order that

      required Father to enroll in, participate in, and successfully complete the Father

      Engagement Program; and also to contact the Family Case Manager (“FCM”)

      within seventy-two hours of his release from incarceration.


[4]   On October 25, 2016, Father pled guilty to Level 5 felony carrying a handgun

      without a license,3 Level 6 felony operating a motor vehicle while intoxicated, 4

      and Level 6 felony possession of a narcotic drug. 5 He also admitted he violated

      his probation for an earlier conviction of Class A misdemeanor carrying a




      2
          Based on the record, it seems Father was incarcerated at the time because of a probation violation.
      3
          Ind. Code § 35-47-2-1(e).
      4
          Ind. Code § 9-30-5-3(a).
      5
          Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020                       Page 3 of 18
      handgun without a license.6 The criminal court sentenced Father to an

      aggregate sentence of six years, with three years executed in Community

      Corrections Home Detention and three years on probation, with mental health

      supervision and substance abuse treatment to be provided while on both

      Community Corrections and probation.


[5]   On December 2, 2016, Father and his counsel attended a periodic review

      hearing for the CHINS case during which the juvenile court noted Father was

      participating in services offered through his probation. Father requested

      parenting time with Children, and the juvenile court granted him supervised

      parenting time with Children.


[6]   On June 23, 2017, the juvenile court held a permanency hearing during which

      the Guardian ad litem (“GAL”) requested that Children’s permanency plan

      change from reunification to adoption based on Mother’s continued drug use

      and failure to successfully complete substance abuse treatment and Father’s

      lack of ability to care for Children at the time. Based thereon, the juvenile court

      changed Children’s permanency plan to adoption.


[7]   In July 2017, DCS filed a petition to terminate Parents’ parental rights to

      Children. On September 29, 2017, the juvenile court held another permanency

      hearing. DCS reported Children were in Paternal Grandmother’s care and

      were doing well. Father requested Children be placed with him. The FCM




      6
          Ind. Code § 35-47-2-1(e).


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 4 of 18
      reported Father had agreed to participate in home-based therapy, random drug

      screens, and a psychological evaluation. In its order from that hearing, the trial

      court noted:


              Father states that he is not “crazy” and is taking medication to
              address his mental health. Father states that he started suboxone
              two (2) weeks ago. Father states that he has stable housing and
              employment. Father states that he detoxed from methadone.
              Father states that he needs to obtain a bed for [Children]. Father
              states that he was released from house arrest in April. Father
              states that he does not want to see [Children] adopted out of his
              care.


      (Ex. Vol. I at 87.) The juvenile court denied Father’s request that Children be

      placed with him, and the court retained adoption as the permanency plan for

      Children.


[8]   On October 3, 2017, Community Corrections indicated Father violated its

      terms; the matter was resolved shortly thereafter when Father wrote an apology

      letter. On January 19, 2018, the juvenile court held a permanency hearing.

      The trial court found in its termination order that Father appeared at this

      hearing, and DCS reported “that Father is engaged in Fathers [sic] Engagement

      and parenting, and that a mental health assessment was completed and it

      recommended a number of services.” (Id. at 27.) A representative from Father’

      Engagement, a service in which the trial court ordered Father to participate,

      also reported that “he does not believe that Father has the right medication for

      himself and that Father is not following recommendations.” (Id.) Based



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 5 of 18
       thereon, the juvenile court ordered DCS to refer Father to the services

       recommended by the mental health assessment.


[9]    On April 11, 2018, Community Corrections filed another notice of violation

       against Father. Subsequently,


               Father was taken into custody on April 16, 2018. On April 19,
               2018, a probation violation relating to the Community
               Corrections violation was filed against Father. On April 23,
               2018, Father admitted to being arrested and charged with the
               offense of Disorderly Conduct (Class B misdemeanor) in Boone
               County, Indiana. The criminal court ordered the revocation of
               his Community Corrections Home Detention and ordered his
               [sic] to serve executed time in the Department of Corrections
               [sic] (“DOC”). The court continued Father on probation on
               terms of strict compliance.


       (Id.)


[10]   On May 14, 2018, the juvenile court denied DCS’s petition to involuntarily

       terminate Father’s parental rights to Children and found:


               6. [Father] has resided in the same residence for approximately
               two years. He received seven hundred and fifty dollars in social
               security benefits, as well as food stamps, and has given thought
               to working part-time.


               7. [Father] received a traumatic brain injury earlier in life which
               has created a barrier to completing services.


               8. Due to substantial pain from his injury, [Father] was
               prescribed pain pills for fifteen years. This was medically


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 6 of 18
        stopped and [Father] sought out illegal drugs to deal with his
        pain.


        9. [Father] detoxed from methadone. He has not ingested illegal
        drugs for six months.


        10. [Father] is currently on a waiting list for pain management
        services.


        11. Home based therapy was never successfully completed.
        [Father] has now found someone he feels he works well with at
        American Behavioral Counseling.


        12. [Father] followed up mental health referrals but kept
        changing providers for one reason or another.


        13. On April 10, 2018, [Father] was incarcerated and was
        planning on being released the day after trial in this matter. Prior
        to his incarceration, he was taking Luvox for his mental health
        issues. He is happy with his current medication and believed
        prior prescriptions were too strong.


        14. A major concern about [Father] is his explosive anger that
        results from his being frustrated. Although [Father] had a great
        amount of service referrals in the CHINS case, there was no
        evidence that anger management was one.


        15. [Children] and [Father] share a strong bond. From January
        of 2017 until April 10, 2018, he only missed about three
        parenting time sessions.


        16. [Father] has been observed as having good parenting skills,
        and as being attentive and caring.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 7 of 18
               17. [Father] raised another child until age eleven.


               18. [Father] feels he has a good support system in his aunt.


               19. The Court wholly understands the efforts and referrals given
               by the IDCS. However, [Father] is participating at his level, and
               given the extra barrier of having a traumatic brain injury,
               additional time to reunify is not unreasonable.


               20. [Father] will have to add services to what he is presently
               doing, such as a complete neurological make up. If he fails to
               cooperate, a new termination action can be filed.


       (Ex. Vol. I at 129-30.)


[11]   From May to mid-October 2018, Father participated in services such as

       substance abuse treatment, anger management, and medication management.

       The juvenile court ordered him to submit to random drug screens and to

       complete substance abuse and mental health assessments and follow all

       recommendations therefrom. On October 26, 2018, Father violated his

       Community Corrections placement by tampering with the strap of his electronic

       monitoring device. On November 11, 2018, he admitted violating his probation

       by doing so and the criminal court continued Father on probation.


[12]   On December 21, 2018, the juvenile court held a periodic review hearing for

       which Father did not appear. The juvenile court acknowledged that Mother

       had recently consented to Children’s adoption by Paternal Grandmother and




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 8 of 18
       that Father had been recently released from incarceration 7 and was homeless.

       At the hearing, the visitation facilitator reported: “(1) Father sleeps in his car;

       (2) Father has requested Father Engagement; (3) parenting time goes well

       between Children and Father; and (4) he believes Father needs therapy.” (App.

       Vol. II at 28.) Based thereon, the juvenile court ordered a neurological

       evaluation for Father and ordered him to participate in Father’s Engagement.

       On January 31, 2019, DCS filed a second petition to involuntarily terminate

       Father’s parental rights to Children.


[13]   On February 14, 2019, Father admitted in criminal court that he violated his

       probation by testing positive for marijuana and failing to report to the Probation

       Department. The criminal court revoked Father’s probation and ordered

       Father to serve ninety days in the Marion County Jail with a credit of twenty-

       two days. On February 20, 2019, the juvenile court issued an additional

       participation order for Father, ordering him to complete a substance abuse

       assessment and successfully complete all treatments, submit to random drug

       and alcohol screenings with the understanding that “any request for drug screen

       that is not completed in a timely manner will result in positive result

       indication[,]” (id. at 29), and participate in a mental health assessment and

       follow all recommendations.




       7
           It is unclear from the record why Father was incarcerated.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 9 of 18
[14]   On March 18, 2019, the Probation Department filed a notice of probation

       violation against Father because Father tested positive for marijuana, cocaine,

       and opiates. On March 22, 2019, the juvenile court held a permanency hearing

       that Father did not attend. Father’s counsel requested that Father’s mental

       health treatment be scheduled through Midtown. 8 The trial court also noted in

       its order from that hearing, “DCS reports [F]ather has been incarcerated twice

       since November 2018.” (Ex. Vol. I at 125.) On April 11, 2019, Father

       appeared before the criminal court. The court took the decision regarding

       Father’s probation violation under advisement because Father enrolled in

       Midtown for mental health treatment and agreed to a drug screen, even though

       he indicated to the criminal court that the screen would be positive.


[15]   On June 17, 2019, the juvenile court held the first of three fact finding hearings

       regarding DCS’s petition to involuntarily terminate Father’s parental rights to

       Children. On August 9, 2019, the Probation Department filed another notice of

       probation violation against Father because Father missed two drug screens and

       did not pay his court-ordered fees. On September 9 and 12 the juvenile court

       held the last two fact finding hearings in the termination matter. The juvenile

       court issued its order involuntarily terminating Father’s parental rights to




       8
        “Midtown” refers to the Midtown Community Mental Health Center, which has been renamed the Sandra
       Eskenazi Mental Health Center at Eskenazi Health. “Sandra Eskenazi Mental Health Center”
       https://perma.cc/NE4W-4XL2

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020         Page 10 of 18
       Children on November 8, 2019, based on Father’s non-compliance with

       services, drug use, and ongoing criminal activity.



                                  Discussion and Decision
[16]   We review termination of parental rights with great deference. In re K.S., 750

       N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

       the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. Instead, we consider only the evidence and reasonable

       inferences most favorable to the judgment. Id. 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).


[17]   “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. A juvenile court

       must subordinate the interests of the parents to those of the child, however,

       when evaluating the circumstances surrounding a termination. In re K.S., 750

       N.E.2d at 837. The right to raise one’s own child should not be terminated

       solely because there is a better home available for the child, id., but parental

       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 11 of 18
[18]   To terminate a parent-child relationship in Indiana, DCS must allege and

       prove:


                (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)   A 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 county office of
                               family and children 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:
                        (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). DCS must provide clear and convincing proof of

       these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.

       “[I]f the State fails to prove any one of these statutory elements, then it is not

       entitled to a judgment terminating parental rights.” Id. at 1261. Because
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 12 of 18
       parents have a constitutionally protected right to establish a home and raise

       their children, the State “must strictly comply with the statute terminating

       parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18

       (Ind. Ct. App. 1994).


[19]   Father does not challenge the juvenile court’s findings, and thus they stand

       proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because

       Madlem does not challenge the findings of the trial court, they must be accepted

       as correct.”). Father also does not challenge the trial court’s conclusions.

       Instead, Father argues his parental rights were improperly terminated “after

       DCS failed to make any accommodation to his numerous physical and mental

       disabilities as required by the Americans with Disabilities Act and the

       Fourteenth Amendment.” (Br. of Appellant at 8.)


[20]   However, Father did not present this issue before the juvenile court, which

       would have allowed the juvenile court to determine if the services offered by

       DCS included appropriate accommodations. Thus, Father has waived this

       issue from our review. See McBride v. Monroe Cty. Office of Family & Children, 798

       N.E.2d 185, 194 (Ind. Ct. App. 2003) (issue waived because it was not first

       presented before the juvenile court). Waiver notwithstanding, we note that the

       failure to provide services as part of a CHINS proceeding cannot be used to

       attack an order of termination. In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct.

       App. 2009) (“failure to provide services does not serve as a basis on which to

       directly attack a termination order as contrary to law”).



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 13 of 18
[21]   In addition, the juvenile court made numerous findings in its termination order

       outlining the services offered to Father and his participation and progress, or

       lack thereof, in those services:


               41. DCS made multiple referrals for all court-ordered services
               during the pendency of the Children’s CHINS cases[.]


               42. Although Father participated in Father Engagement
               program, he does not feel he has benefited from it.


               43. Despite receiving Father Engagement services from May
               2017 to January 2018, Father made little progress toward the
               goals laid out by his provider, Simon Gelaye of Family and
               Community Partners, which included budgeting, engaging in
               services, accessing community resources, and finding the right
               treatment to address his emotional stability.


               44. Father indicated that he no longer wished to participate in
               this service, and it was therefore subsequently closed
               unsuccessfully.


               45. In July 2017, Father received a comprehensive mental health
               assessment through Dockside Services, administered by therapist
               Stephen Houston.


               46. Through that assessment Father was diagnosed with a heroin
               addiction and severe depression.


               47. The comprehensive mental health assessment recommended
               crisis intervention and therapy to address any underlying issues
               contributing to Father’s substance abuse and depression.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 14 of 18
        48. Father has had numerous therapists during the life of the
        CHINS cases who have attempted to help him address mental
        health and substance abuse issues. Each of these therapists have
        unsuccessfully discharged him from their services with little to no
        progress having been made.


        49. Father does not believe that therapy will help address his
        issues. He does not believe he needs therapy.


        50. At trial, Father could not recall anything that he had learned
        from his multiple therapists.


        51. Father often presented as agitated, impulsive, and erratic
        during his therapy sessions with Laurence Grant, who provided
        therapy services to Father from September 2018 to December
        2018 through Phoenix Family & Community Partners.


        52. Father was unable to address issues related to mood
        regulation, substance abuse, and mental health due to his
        behavior and lack of communication[.]


        53. Father has completed multiple psychological evaluations.


        54. The most recent psychological evaluation was conducted on
        July 2, 2019 following a clinical interview and assessment, which
        also occurred on July 2, 2019. Both evaluations were conducted
        by Elizabeth Kirsch, a psychometrist who is an expert in the field
        of counseling and psychology.


        55. Father’s clinical interview and assessment resulted in
        diagnostic impressions of severe opioid use disorder and anxiety
        disorder being given in accordance with the DSM-5.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 15 of 18
        56. Father was using heroin daily leading up to the clinical
        interview and assessment, and he used heroin the day before the
        assessment.


        57. The clinical interview and assessment also gave rule out [sic]
        impressions of bipolar disorder, posttraumatic stress disorder,
        and personality disorders.


        58. At the conclusion of his psychological evaluation, Father
        was given DSM-5 diagnostic impressions of severe opioid use
        disorder, generalized anxiety disorder, posttraumatic stress
        disorder, paranoid personality traits, and avoidant personality
        traits.


        59. The psychological evaluation made a number of
        recommendations for Father, including participation in a detox
        program, a psychiatric evaluation, and individual mental health
        counseling.


        60. Despite Father’s beliefs about therapy, mental health
        counseling is effective in treating anxiety and substance abuse
        issues.


        61. Based on the results of his most recent psychological
        evaluation, Father possesses no significant limitations to his
        neuropsychological functioning, and his IQ falls within the low-
        average range.


        62. Even though he suffers from traumatic brain injuries, Father
        is capable of learning and retaining information, as well as
        meaningfully participating in services meant to address issues
        related to substance abuse and mental health.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 16 of 18
               63. Although he has that ability, the Court finds that Father has
               not meaningfully participated in services provided to him to
               address his substance abuse, mental health, and pain issues.


                                                     *****


               74. Father does not believe that additional services or medical
               treatment will address his issues, and he testified that he does not
               want to receive additional services from DCS. Father believes
               that all of the services provided to him have only made him
               worse.


       (App. Vol. II at 29-30.) As indicated in the juvenile court’s findings, Father was

       given the opportunity to engage in a variety of services over the three years of

       the CHINS proceedings. He cannot now complain that the services provided

       were insufficient, when in fact he did not avail himself of the opportunities

       provided to him during these proceedings. See In re S.E., 15 N.E.3d 37, 48 (Ind.

       Ct. App. 2014) (affirming termination of mother’s parental rights based on her

       non-compliance with multiple service referrals to address her mental health

       issues), trans. denied.



                                               Conclusion
[22]   Father waived his Due Process argument by failing to raise it before the trial

       court. Waiver notwithstanding, the trial court’s unchallenged findings

       demonstrate that DCS did attempt to address all of Father’s issues, even with

       multiple referrals to some services, and that Father had the ability but not desire

       to benefit from those referrals. Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 17 of 18
[23]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020   Page 18 of 18
