MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Oct 28 2019, 7:43 am
regarded as precedent or cited before any
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
Anna Onaitis Holden                                       Curtis T. Hill, Jr.
Zionsville, Indiana                                       Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 28, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of N.F. (Minor Child);                                    19A-JT-770
S.F. (Father),                                            Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn A.
        v.                                                Moores, Judge
                                                          The Honorable Scott Stowers,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          49D09-1809-JT-1083
Appellee-Petitioner,

and

Child Advocates, Inc.,



Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019                  Page 1 of 7
      Appellee-Guardian Ad Litem.




      Najam, Judge.


                                        Statement of the Case
[1]   S.F. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child N.F. (“Child”). Father presents a single issue for our review,

      namely, whether the Indiana Department of Child Services (“DCS”) deprived

      him of his right to due process when it failed to make reasonable efforts to

      reunify Father with Child. We affirm.


                                  Facts and Procedural History
[2]   On January 23, 2005, Child was born to Father and S.J. (“Mother”). Father

      has a lengthy criminal history, and he has been incarcerated for approximately

      seven of the past ten years. In 2015, a juvenile court found that Child was a

      Child in Need of Services (“CHINS”) after substantiating “allegations of abuse

      and neglect,” and the court granted wardship of Child to DCS. Appellant’s

      App. Vol. 2 at 52. Following convictions for five counts of “Felon in

      Possession of a Firearm” in a federal court, in March 2017, Father was


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019   Page 2 of 7
      sentenced to an aggregate term of eighty months in a Kentucky prison. Id. at

      53. Father’s expected out date is July 24, 2020. Father also has a pending

      “arrest warrant out of Marion County Indiana.” Id.


[3]   In December 2015, the juvenile court changed the permanency plan from

      reunification to adoption, and the court terminated Mother’s parental rights

      over Child. It was not until September 13, 2018, that DCS filed its petition to

      terminate Father’s parental rights over Child. Following a final fact-finding

      hearing, the court granted DCS’ petition. In its findings and conclusions, the

      court stated in part as follows:


              20. [Father] has not seen the child in approximately a year and
              a half.

                                                      ***

              33. [Father] last had telephone contact with [Child] in
              December 2018 or January 2019.

              34. Following that telephone contact with his father, [Child]
              became withdrawn, upset, and depressed.

              35.      [Father] has been incarcerated for the majority of [Child]’s
              life.

              36. [Father] has not had a meaningful role in [Child]’s life and
              is not bonded with the child.


      Id. at 53-54. The court also found that Child is “comfortable” and “feels loved”

      in his pre-adoptive foster home, where he had lived for fourteen months as of

      the final hearing. Id. at 54. This appeal ensued.
      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019   Page 3 of 7
                                         Discussion and Decision
[4]   Father contends that DCS “made no efforts, let alone statutorily-required

      reasonable efforts, to reunify S.F. with his son. [DCS’] failure to follow the

      statutory requirements violated Father’s right to procedural due process.”

      Appellant’s Br. at 14. In particular, Father states that “a parent’s right to DCS’

      reasonable efforts to reunify a family is codified at Indiana Code Section 31-34-

      21-5.5.” 1 Id. at 15. While Father acknowledges the “challenge” to DCS in

      providing services to Father while he is incarcerated, he finds “troubling” DCS’

      failure to “find a way to fulfill its statutory duty to provide reasonable efforts.”

      Id. at 16. Father does not challenge the sufficiency of the evidence to support

      the termination order.


[5]   We begin our review of this issue by acknowledging that “[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.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), 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. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001).




      1
        Indiana Code Section 31-34-21-5.5 provides in relevant part that DCS “shall make reasonable efforts to
      preserve and reunify families as follows: . . . to make it possible for the child to return safely to the child’s
      home as soon as possible.”

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019                          Page 4 of 7
[6]   As this Court has explained,


               [w]hen the State seeks the termination of a parent-child
               relationship, it must do so in a manner that meets the
               requirements of the Due Process Clause. Hite v. Vanderburgh
               County Office of Family and Children, 845 N.E.2d 175, 181 (Ind. Ct.
               App. 2006). The parent must be afforded the opportunity to be
               heard at a meaningful time and in a meaningful manner. Id.
               Due process in parental rights cases involves the balancing of
               three factors: (1) the private interests affected by the proceeding;
               (2) the risk of error created by the State’s chosen procedure; and
               (3) the countervailing government interest supporting the use of
               the challenged procedure. Id.

               A parent’s interest in the care, custody, and control of his or her
               children is a fundamental liberty interest; thus, the private
               interest involved is substantial. Id. The government’s interest is
               also substantial, as the State of Indiana has a compelling interest
               in protecting the welfare of its children. Id.


      A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 147 (Ind. Ct. App.

      2009).


[7]   In In re H.L., we addressed the father’s contention that he had a right “to receive

      services despite his incarceration” and that he was denied due process when

      DCS did not provide services. Id. Father was incarcerated “throughout the

      CHINS proceedings” and, on appeal from the termination of his parental

      rights, he alleged that he “was unable to participate in services,” which were not

      provided at the county jails where he was incarcerated. Id. at 148. We

      reiterated that “DCS is generally required to make reasonable efforts to preserve



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019   Page 5 of 7
      and reunify families during CHINS proceedings” pursuant to Indiana Code

      Section 31-34-21-5.5. Id. But we held as follows:


              Father has not shown that the DCS failed to make reasonable
              efforts toward family preservation. In a strict sense, the record
              supports Father’s assertions that the DCS did not actively
              promote the development of his relationship with H.L., whom
              Father has apparently not met. Nevertheless, the absence of
              services was due to Father’s incarceration and he does not point
              to any evidence that he specifically requested visitation or other
              services.

                                                      ***

              As of the termination hearing, Father had been sentenced to four
              years imprisonment (with one and one-half years suspended) for
              Forgery and Theft committed in Carroll County and two years
              for Residential Entry committed in Cass County. Thus, the DCS
              was unable to offer services to Father or fully evaluate him to
              determine what services might have been needed. The inability to
              provide services in such circumstances does not amount to a denial of due
              process. See Castro v. State Office of Family and Children, 842 N.E.2d
              367, 377 (Ind. Ct. App. 2006), trans. denied.


      Id. (emphasis added).


[8]   Likewise, here, Father blames DCS for its failure to facilitate contact between

      Father and Child in an effort at reunification. But Father does not direct us to

      any evidence that he had made any effort to contact Child after their last phone

      call in December 2018 or January 2019 or after their last visit more than one

      year prior to the final hearing. And Father does not direct us to any evidence

      that he sought help from DCS or other sources in finding appropriate services

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019     Page 6 of 7
      that might have been available to him in prison. Moreover, as DCS points out,

      once the juvenile court changed the permanency plan from reunification to

      adoption in December of 2015, DCS was not thereafter required to provide

      services to Father towards reunification. Wedding v. Dep’t of Child Servs. of

      Vanderburgh Cty. (In re A.D.W.), 907 N.E.2d 533, 538 (Ind. Ct. App. 2008)

      (citing I.C. § 31-34-21-5.8). We hold that Father was not denied his right to due

      process as the result of DCS’ inability to provide Father with services while

      incarcerated. See id.


[9]   Affirmed.


      Bailey, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-770 | October 28, 2019   Page 7 of 7
