MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                    Aug 27 2020, 9:17 am
court except for the purpose of establishing
                                                                                     CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
estoppel, or the law of the case.                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ronald K. Smith                                           Curtis T. Hill, Jr.
Public Defender                                           Attorney General of Indiana
Muncie, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 27, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.R. (Minor Child);                                    20A-JT-510
M.R. (Father),                                            Appeal from the Delaware Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kimberly S.
        v.                                                Dowling, Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 18C02-1905-JT-114
Child Services,
Appellee-Petitioner.




Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020                           Page 1 of 14
                                        Statement of the Case
[1]   M.R. (“Father”) appeals the termination of the parent-child relationship with

      his daughter, M.R (“M.R.”). Father argues that his due process rights were

      violated because the Department of Child Services (“DCS”) failed to make

      reasonable efforts to preserve the parent-child relationship and that there is

      insufficient evidence to support the termination. Concluding that DCS did not

      violate Father’s due process rights and that there is sufficient evidence to

      support the termination, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                     Issues
              1.       Whether Father’s due process rights were violated because
                       DCS failed to make reasonable efforts to preserve the
                       parent-child relationship.

              2.       Whether there is sufficient evidence to support the
                       termination of the parent-child relationship.

                                                      Facts
[3]   The facts most favorable to the termination reveal that Father is the parent of

      M.R., who was born in February 2016. Following M.R.’s birth, Father,

      Mother, Mother’s two daughters from previous relationships, and M.R. lived




      1
       We affirmed the termination of M.R.’s mother’s (“Mother”) parental rights in a companion case handed
      down contemporaneously with this case. See Matter of the Involuntary Termination of the Parent-Child
      Relationship of L.C., F.T., and M.R., Appellate Cause Number 20A-JT-533.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020              Page 2 of 14
      with Mother’s mother (“Maternal Grandmother”) in Maternal Grandmother’s

      house.


[4]   DCS removed M.R. and Mother’s other children from their parents in October

      2016 because of the parents’ drug use. Father was using suboxone without a

      prescription, and Mother admitted that she had been using morphine, heroin,

      pain medication, and THC. M.R. and her older sisters were placed together in

      foster care. Father admitted that M.R. was a Child in Need of Services

      (“CHINS”) in late October 2016.


[5]   In January 2017, Father was arrested for a domestic violence incident involving

      Mother. He was incarcerated until March 2017. Also in March 2017, the trial

      court issued a CHINS dispositional order. The trial court’s order required

      Father to: (1) participate in all DCS-referred programs; (2) attend visitation

      with M.R.; (3) abstain from the use of illegal substances; (4) submit to random

      drug screens; (5) maintain suitable, safe, and stable housing; and (6) secure and

      maintain a legal and stable source of income. DCS later referred Father to a

      homebased case management program. DCS also referred Father to a

      homemaker parent-aide who could assist the then fifty-six-year-old first-time

      Father with parenting skills during visitation. The plan for Father and M.R.

      was reunification.


[6]   Father had sporadic visits with M.R. from March 2017 through May 2018.

      During this time, Father was incarcerated for five months because he had




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 3 of 14
       violated his probation. Also during this time, Father told the DCS case worker

       that his home was not an appropriate location for visitation with M.R.


[7]    In May 2018, Father moved into appropriate housing, and, in June 2018,

       Father’s visits with M.R. increased to three times per week. In October 2018,

       Father began to have unsupervised and overnight visitation with M.R.


[8]    In November 2018, Father tested positive for methamphetamine. A DCS case

       worker went to Father’s home to discuss the positive results with him and to

       check on M.R., who was at Father’s home for an unsupervised visit. When the

       case worker arrived at Father’s home, she discovered that Mother was also at

       the home. Both parents had been told at a previous hearing that Mother was

       not allowed to be in Father’s home while M.R. was visiting. The case worker

       asked Mother to leave and told Father that if the case worker discovered

       Mother in the home during another unsupervised visit, DCS would end

       Father’s unsupervised visitation.


[9]    Four days later, the case worker returned to Father’s home and found Mother

       hiding in a closet. There was another young woman lying on M.R.’s bed. The

       case worker ended the visit and returned M.R. to her foster family. Shortly

       thereafter, the trial court granted DCS’ motion to return Father to supervised

       visitation with M.R.


[10]   During the course of Father’s subsequent supervised visits with M.R., one

       visitation facilitator became concerned that Father did not realize that parenting

       is “a full[-]time job.” (Tr. Vol. 2 at 210). For example, when M.R. became ill

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 4 of 14
       during a supervised visit, Father asked the visitation facilitator to return her to

       her foster parents. Another visitation facilitator noticed that Father had

       allowed M.R. to spend “eighty-five-percent (85%) of the visit” on her iPad. (Tr.

       Vol. 2 at 20).


[11]   Father tested positive for methamphetamine in January and April 2019. In

       May 2019, DCS filed a petition to terminate the parental relationship between

       Father and M.R. In July 2019, M.R. became upset when Father failed to

       attend a scheduled visit. Father failed to attend additional scheduled visits in

       July 2019 and subsequently tested positive for methamphetamine again that

       month. Father also failed to attend all of his scheduled visits in August 2019.


[12]   The trial court held a two-day termination factfinding hearing in August and

       November 2019. Testimony at the hearing detailed Father’s history of

       substance abuse, including his positive screens for methamphetamine in

       January, April, and July 2019. Testimony at the termination hearing also

       revealed that, in September 2019, DCS had reduced Father’s visits with M.R.

       from three times a week to two times a week. A visitation facilitator explained

       that DCS had reduced Father’s visits because M.R. “was having a hard time

       transitioning when visits would not occur.” (Tr. Vol. 2 at 204). M.R.’s difficult

       transition was apparently due to Father’s failure to attend multiple visits with

       M.R. in July and August 2019.


[13]   In addition, the testimony at the termination hearing revealed that throughout

       the course of the CHINS proceeding, Father had expressed concerns about his


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 5 of 14
       ability to care for M.R. on a permanent, full-time basis and had told visitation

       facilitators and the DCS case manager that he wanted M.R. to stay with her

       foster parents. Father “thought [the foster parents] did a very good job raising

       the [three girls] and he was thankful [the sisters] could stay together.” (Tr. Vol.

       2 at 202). However, Father wanted to be able to continue weekly visits with

       M.R.


[14]   At the termination hearing, when asked what he “want[ed] as far as [his] future

       with [M.R.],” Father asked the trial court to allow Mother another six months

       to a year “to prove herself.” (Tr. Vol. 2 at 202). Father further explained as

       follows:


               Well I hate to say this wrong because you got on my butt a while
               back. But I tried to do a post agreement with the foster parents.
               And they, they only wanted to give me two (2) times a year with
               my daughter . . . at an hour at a time at their discretion. And it
               was like a smack in the face because [foster father] told me that
               he would never deny me of seeing my daughter. And when I put
               this post agreement in, it was like a smack in the face, like I’ve
               been lied to. And I hate to say it like this but now I want to
               watch my daughter grow up. I want to watch her grow up. . . . I
               love my daughter and it’s the only one I’ve got. And please let
               me have more visits with her.


       (Tr. Vol. 2 at 221-22).


[15]   In February 2020, the trial court issued a detailed order terminating Father’s

       parental relationship with M.R. Father now appeals.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 6 of 14
                                                    Decision
[16]   Father argues that his due process rights were violated because DCS failed to

       make reasonable efforts to preserve the parent-child relationship and that there

       is insufficient evidence to support the termination. We address each of his

       contentions in turn.


       1. Reasonable Efforts and Due Process


[17]   Father argues that DCS failed to make reasonable efforts to preserve the parent-

       child relationship, resulting in a violation of his due process rights. When DCS

       seeks to terminate parental rights, “it must do so in a manner that meets the

       prerequisites of due process.” In re J.K., 30 N.E.3d 695, 699 (Ind. 2015)

       (quotations and citations omitted). Whether due process has been afforded in

       termination proceedings is determined by balancing the following “three

       distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1)

       the private interests affected by the proceeding; (2) the risk of error created by

       the State’s chosen procedure; and (3) the countervailing governmental interest

       supporting use of the challenged procedure. A.P. v. Porter Cnty. Office of Family

       and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans. denied.


[18]   In S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)

       (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)), this Court further explained

       the Mathews factors as follows:


               The private interest affected by the proceeding is substantial – a
               parent’s interest in the care, custody, and control of his or her

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 7 of 14
               child. And the State’s interest in protecting the welfare of a child
               is also substantial. Because the State and the parent have
               substantial interests affected by the proceeding, we focus on the
               risk of error created by DCS’s actions and the trial court’s
               actions.


[19]   DCS must “make reasonable efforts to preserve and reunify families.” IND.

       CODE § 31-34-21-5.5(b). In addition, “due process protections at all stages of

       CHINS proceedings are vital because every CHINS proceeding has the

       potential to interfere with the rights of parents in the upbringing of their

       children.” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations

       omitted). “[T]hese two proceedings - CHINS and TPR - are deeply and

       obviously intertwined to the extent that an error in the former may flow into

       and infect the latter[.]” Id.


[20]   However, the “failure to provide services does not serve as a basis on which to

       directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d

       145, 148 n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind.

       Ct. App. 2000) (“[T]he provision of family services is not a requisite element of

       our parental rights termination statute, and thus, even a complete failure to

       provide services would not serve to negate a necessary element of the

       termination statue and require reversal.”). Further, a parent may not sit idly by

       without asserting a need or desire for services and then successfully argue that

       he or she was denied services to assist him or her with his or her parenting. In

       re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 8 of 14
[21]   Here, Father appears to argue that DCS failed to make reasonable efforts to

       preserve the parent-child relationship because, in September 2019, it reduced his

       visitation with M.S. from three times a week to twice a week. As a preliminary

       matter, we note that the law is well established that a party on appeal may

       waive a constitutional claim. McBride v. Monroe Cnty. Office of Family and

       Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). For example, in In re K.S.,

       750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001), this Court determined that a

       mother had waived her claim that the trial court had violated her due process

       rights because she raised the constitutional claim for the first time on appeal.


[22]   Father in this case did not object to any alleged deficiencies in the CHINS

       process during the CHINS proceedings, nor did he argue during the termination

       proceedings that those alleged deficiencies constituted a due process violation.

       Rather, Father has raised his due process claim for the first time on appeal. He

       has therefore waived appellate review of this issue. See id.


[23]   Waiver notwithstanding, our review of the record reveals that DCS offered

       Father the following services when the trial court issued the CHINS

       dispositional order in M.R.’s case: (1) drug screens; and (2) both supervised

       and unsupervised visits with M.R. DCS later referred Father to a homebased

       case management program. DCS also referred Father to a homemaker parent-

       aide who could assist the then fifty-six-year-old first-time Father with parenting

       skills during visitation. DCS provided these services to Father in an attempt to

       reunify him with M.R.



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 9 of 14
[24]   Father failed to attend several visits with M.R. in July and August 2019.

       Thereafter, in September 2019, DCS reduced Father’s visits with M.R. from

       three times a week to twice a week because M.R. “was having a hard time

       transitioning when visits would not occur.” (Tr. Vol. 2 at 204). Based on the

       foregoing, Father has not established that his due process rights were violated.2


       2. Sufficiency of the Evidence


[25]   Father also argues that there is insufficient evidence to support the termination

       of his parental relationship with M.R. The traditional right of parents to

       establish a home and raise their children is protected by the Fourteenth

       Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185,

       1187-88 (Ind. Ct. App. 2015), trans. denied. However, a trial court must

       subordinate the interests of the parents to those of the child when evaluating the

       circumstances surrounding a termination. Id. at 1188. Termination of the

       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




       2
         We further note that Father has not established that DCS engaged in conduct that adversely affected his ability to
       participate in and complete services aimed at reunifying him with M.R. Cf. In re T.W., 135 N.E.3d 607, 618 (Ind.
       Ct. App. 2019) (concluding that the “insufficient process employed in the CHINS case created a risk of the
       erroneous filing of a petition to terminate Father’s parental rights to [his child], in violation of Father’s due process
       rights.”) trans. denied; Matter of C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (concluding that “the chaotic
       and unprofessional handling” of a CHINS case violated the parents’ due process rights, requiring reversal of the
       termination order); A.P., 734 N.E.2d at 1117 (finding parents’ due process rights were violated in a termination
       proceeding where DCS made multiple procedural errors, such as failing to provide parents with copies of case plans
       and filing CHINS and termination petitions that did not meet statutory requirements).




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020                            Page 10 of 14
       child, parental rights may be terminated when a parent is unable or unwilling to

       meet his or her parental responsibilities. Id.


[26]   Before an involuntary termination of parental rights may occur, DCS 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.

                        (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 prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[27]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 11 of 14
       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[28]   We further note that, in determining whether to terminate a parent-child

       relationship, trial courts have discretion to weigh a parent’s prior history more

       heavily than efforts made only shortly before termination and may find that a

       parent’s past behavior is the best predictor of future behavior. D.B.M. v. Ind.

       Dep’t of Child Services, 20 N.E.3d 174, 181-82 (Ind. Ct. App. 2014), trans. denied.

       We have also stated that the time for a parent to rehabilitate himself or herself is

       during the CHINS process, before DCS files a termination petition. Prince v.

       Dep’t of Child Services, 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007).


[29]   In addition, as a general rule, appellate courts grant latitude and deference to

       trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct.

       App. 2017). “This deference recognizes a trial court’s unique ability to see the

       witnesses, observe their demeanor, and scrutinize their testimony, as opposed

       to this court[] only being able to review a cold transcript of the record.” Id.


[30]   Here, Father appears to argue that: (1) there is a reasonable probability that the

       conditions that resulted in M.R.’s removal or the reasons for her placement

       outside the home will not be remedied; and (2) a continuation of the parent-

       child relationship poses a threat to M.R.’s well-being.


[31]   However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 12 of 14
       N.E.3d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss

       only whether there is a reasonable probability that the conditions that resulted

       in M.R.’s removal or the reasons for her placement outside the home will not be

       remedied.


[32]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires a trial court to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       a parent’s prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id. Requiring a trial court to give due regard to

       changed conditions does not preclude them from finding that a parent’s past

       behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 13 of 14
[33]   Here, our review of the evidence reveals that M.R. was removed from Father

       because of his drug use. During the course of the CHINS proceedings, Father

       tested positive for methamphetamine multiple times, including one time after

       the termination petition had been filed. We further note that throughout the

       CHINS proceedings, Father often told service providers that he was concerned

       about his ability to care for M.R. on a permanent, full-time basis and that he

       wanted M.R. to stay with her foster family because they did “a very good job

       raising [M.R. and her sisters].” (Tr. Vol. 2 at 202). Father had apparently even

       been willing to allow foster parents to adopt M.R. until he learned that he

       would not be able to continue his weekly visits with her. This evidence

       supports the trial court’s conclusion that there is a reasonable probability that

       the conditions that resulted in M.R.’s removal or the reasons for placement

       outside her home will not be remedied.


[34]   We 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.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[35]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-510 | August 27, 2020   Page 14 of 14
