MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                      May 14 2020, 9:21 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
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 14, 2020
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         19A-JT-2738
K.E. (Minor Child)                                       Appeal from the
                                                         Henry Circuit Court
    and
                                                         The Honorable Bob A. Witham,
J.E. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         33C01-1903-JT-32
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                            Page 1 of 22
      Altice, Judge.


                                               Case Summary
[1]   J.E. (Father) appeals from the involuntary termination of his parental rights to

      his minor child, K.E. (Child), claiming that his due process rights were violated

      during the CHINS and termination proceedings.


[2]   We affirm.


                                    Facts & Procedural History
[3]   Father and A.C. (Mother) 1 are the biological parents of Child, born in February

      2013, and Mother was the custodial parent. At the time of Child’s birth, Father

      was on probation for a November 2012 conviction for Class D felony

      possession of a controlled substance. Thereafter, Father was convicted,

      following guilty pleas, of Level 6 felony possession of methamphetamine in

      March 2016, Level 6 felony forgery in May 2016, and Class B misdemeanor

      visiting a common nuisance in November 2016. 2 In July 2017, Father was

      charged with Level 6 felony theft and Class A misdemeanor theft.




      1
       Mother’s parental rights were also terminated but she does not participate in this appeal. Accordingly, we
      will focus on the facts related to Father.
      2
       For the possession of methamphetamine conviction, Father was sentenced to two years and 180 days at the
      Indiana Department of Correction (DOC), with two years suspended and the 180 days to be served as a
      direct commitment to the Henry County Jail. For the forgery conviction, Father was sentenced to 730 days
      at the Henry County Jail, with 692 suspended, to be served concurrently with the possession of
      methamphetamine conviction. For the visiting a common nuisance conviction, Father was sentenced to 120
      days at the Henry County Jail.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                    Page 2 of 22
[4]   In November 2017, Indiana Department of Child Services (DCS) received a

      report that Child was staying with maternal grandparents and that Mother and

      a relative, Stacy, had been in and out of the home and were using illegal

      substances and alcohol. At the time, there was a safety plan in place under

      which Mother’s mother (Grandmother) was not to allow Stacy into the home

      or be around Child if Grandmother observed Stacy to be under the influence.

      On November 7, 2017, DCS assessment case manager Kimyi Taylor (FCM

      Taylor), accompanied by a law enforcement officer, went to the home and

      spoke to Grandmother. Child was present in the home as well.


[5]   FCM Taylor observed that Grandmother’s hand was bandaged, which

      Grandmother reported was the result of an injury she sustained during a

      physical altercation with Mother that occurred earlier in the week and in the

      presence of Child. FCM Taylor smelled burnt marijuana in the home, and

      Grandmother admitted she had smoked marijuana within the last hour.

      Grandmother was at that time the only caretaker in the home for Child.

      Neither Grandmother nor DCS was able to make contact with Mother.


[6]   From Grandmother’s home, FCM Taylor called Father on his cell phone at

      approximately 7:00 p.m. and reached him at work in Connersville, which was

      approximately 45 minutes away. According to FCM Taylor, “upon hearing

      about what was going on with [Child,] [Father] said that he would leave

      Connersville and come directly to the DCS office” to take custody of Child.

      Transcript at 43. FCM Taylor stayed at the office with Child until

      approximately 11:00 p.m. but Father never arrived or called. At some point

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 3 of 22
      that evening, Mother came to the DCS office and was angry and aggressive.

      FCM Taylor suspected that Mother was “under the influence,” but Mother

      refused to submit to a drug screen. Appellee’s Appendix at 3. Child was placed

      that night with Father’s aunt (Aunt). Father was also living at Aunt’s residence

      at that time.


[7]   On November 8, 2017, DCS filed a child in need of services (CHINS) petition.

      Father did not appear at a number of initial hearings that were called and reset

      a number of times between November 2017 and February 2018. Father

      appeared at a hearing on February 13, 2018 but failed to appear at others in the

      following weeks. On March 13, 2018, the trial court received correspondence

      from Father requesting appointment of counsel, and on March 15, counsel filed

      an appearance on Father’s behalf and represented Father throughout the

      remainder of the CHINS and termination proceedings. On June 4, 2018,

      Father pled guilty to the pending counts of theft and was sentenced to two years

      at the DOC, with one year suspended and one year to be served as a direct

      commitment to the Henry County Community Corrections program.


[8]   On June 5, 2018, the court held a fact-finding hearing, where Father appeared

      with counsel, and the court adjudicated Child a CHINS. On June 21, 2018, the

      court held a dispositional hearing, at which Father appeared with counsel. The

      trial court adopted in open court recommendations of DCS, and both parents

      were ordered to comply with DCS services, including: remain in contact with

      the FCM, notify DCS of any arrest or criminal charges, not use or sell any

      illegal controlled substances, obey the law, submit to drug screens, participate in

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 4 of 22
       a parenting assessment and a substance abuse assessment, maintain safe and

       reliable housing, and secure and maintain stable income. On July 11, 2018, the

       trial court issued a written dispositional order consistent with the orders it had

       issued at the June 21 hearing.


[9]    Meanwhile, on July 8, Father cut off his home detention ankle bracelet, and, on

       July 11, 2018, Father was charged with Level 6 felony escape. Also on July 11,

       Father was charged under another cause number with three Level 6 felonies –

       possession of methamphetamine, unlawful possession of syringe, and

       maintaining a common nuisance-controlled substance – for acts committed on

       June 26, 2018, which was five days after the dispositional hearing. On July 12,

       2018, Father was arrested and has been continuously incarcerated since that

       time.


[10]   Father was scheduled for drug screens with Redwood Toxicology on June 29,

       2018, July 2, 2018, and July 13, 2018. After Father failed to submit to screens

       on those dates, Redwood canceled Father’s participation for non-compliance.

       On August 31, 2018, Father pled guilty to the possession of methamphetamine

       and the escape charges. The pleas were accepted by the court in September

       2018, and he was sentenced to 548 days at the DOC for each of the two

       convictions, to be served consecutive to each other. The escape sentence was

       also ordered to be served consecutive to the felony theft sentence. Father’s

       projected release date is in June 2020.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 5 of 22
[11]   In October 2018, placement of Child was changed from Aunt to Mother’s niece

       (Niece), where Child has remained. A permanency hearing was held on

       January 23, 2019, at which Father appeared by phone and by counsel. 3 On

       January 31, 2019, the court issued a permanency order with a concurrent plan

       of reunification and adoption. The order memorialized that, at the hearing,

       Father told the court that he had been incarcerated since the day after the

       dispositional order was written and that he had not had an opportunity to

       participate in the services recommended by DCS, but had participated in other

       programming while incarcerated. Father told the court that he planned to

       participate in substance abuse programming and would try to participate in

       parenting classes as well.


[12]   On March 25, 2019, DCS filed a petition to terminate Father’s parental rights. 4

       Thereafter, on April 22, 2019, FCM Kimberly Thornberg filed a progress report

       in the CHINS case indicating that she had visited Child once per month from

       January through April 2019, Child was living with a relative and had no

       contact with Mother, and Father was incarcerated. The report also indicated

       that Child was in kindergarten, was intelligent and happy, was in good health,

       and participated in softball and other activities. The report indicated that there




       3
           Mother consented at the hearing to the termination of her parental rights to Child.
       4
        We note that, although Father was represented by counsel, the record reflects that he filed several pro se
       pleadings in April 2019, including a pro se appearance and a pro se Response/Objection to the termination of
       his parental rights.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                   Page 6 of 22
       “were no further services recommended” for Mother or Father at that time.

       Exhibit Vol. at 136 (Exhibit 14).


[13]   In August 2019, the trial court, on Father’s request, ordered Heritage Trail

       Correctional Facility (HTCF), where Father was incarcerated, to submit a

       progress report to the court, which HTCF did on August 23, 2019. The HTCF

       progress report reflected that Father had completed the Thinking for a Change

       program and had been referred to other programs including Business

       Technology. The report also showed that Father had been found guilty of

       conduct violations including engaging in unauthorized financial transactions,

       fighting, and unauthorized possession or destruction of state property, all

       occurring in March 2019, and impairment of surveillance, occurring in June

       2019.


[14]   The termination hearing was held on September 17, 2019. FCM Taylor

       testified that she was involved only in the assessment aspect of the case, which

       lasted about two weeks. She testified that she never received a call from Father

       during her time on the case, but noted that Father had her phone number

       because she had used her cell phone to call Father on the night Child was

       removed. She stated that during the assessment period, she met with Aunt and

       Child at Aunt’s home on two or three occasions but Father was not present.


[15]   Aunt testified that around the time of Child’s removal in November 2017,

       Father was living with her, and he had lived with her on other occasions as

       well. He sometimes helped with utilities but did not pay rent. Aunt described


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 7 of 22
       that Father had a “typical” and “good” relationship with Child. Transcript at

       57. She said that, during his incarceration, he regularly called her and would

       ask about Child. Aunt testified that, at Father’s request, she had not told Child

       that Father was incarcerated and would instead tell Child that Father was “at

       work.” Id. at 62. She stated that for about twenty years, Father had struggled

       with drugs and alcohol at different periods of his life.


[16]   Niece testified that Child had been living with her for almost a year and that,

       during that time, Father never contacted her to reach Child and that Child

       never asked about Father. She testified that she was willing to adopt Child and

       believed it was in Child’s best interest to be with her.


[17]   The director of the Henry County CASA office, Susan Stamper, testified that

       she believed it was best for Child to remain where she was currently placed,

       noting that “for the first time” Child had stability and continuity, which she did

       not have when placed with Mother. Id. at 68. Stamper acknowledged that she

       had not met or talked to Father but observed that Father had “not provided that

       stability” since she became involved in the case. 5 Id. at 69. When asked on

       cross-examination whether Father was aware that she was involved in the case,

       she replied, “He should have been” because her reports “usually go to counsel.”

       Id. at 70.




       5
        The record reflects that the court appointed a CASA in November 2017 shortly after Child was removed,
       but Stamper did not specifically testify as to when she became involved in the case.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                 Page 8 of 22
[18]   FCM Thornberg testified that she had been working on the case for eight

       months, after receiving it from a prior FCM who moved. Father was already

       incarcerated when she began on the case. FCM Thornberg stated that she did

       not receive any calls or letters from Father and that any such communication he

       might have sent to the prior FCM would have been directed to her. FCM

       Thornberg acknowledged that she did not notify Father when she took over the

       case or contact him at HTCF, nor did she contact the facility about setting up

       visits for Father. FCM Thornberg recommended termination of Father’s

       parental rights and adoption.


[19]   Father, who was incarcerated at the time of the hearing, also testified. He

       stated that he had been part of Child’s life “off and on” for three and one-half to

       four years of her six years, and he asked the court not to terminate his parental

       rights and keep Child with Niece to allow him to participate in services and

       “make things right with [his] daughter.” Transcript at 91, 96. Father stated that

       his plan for employment was to get his union job back or find other union

       work, although he conceded that he had not maintained active status. He

       acknowledged that during the CHINS case he was convicted of three felonies

       (theft, escape, and possession of methamphetamine) and that he had attempted

       no contact with Child since his incarceration in July 2018. Father testified that

       he did not want Child to know he was incarcerated and that, at his request,

       family members including Grandmother and Aunt had been telling Child that

       he was at work. Father stated that every Sunday he telephones Grandmother

       and Aunt and inquires about Child and her activities.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 9 of 22
[20]   Father stated that when he received a call from FCM Taylor on the night Child

       was removed, he told her that he did not have a driver’s license and would

       attempt to find someone to drive him to the DCS office, but he was unable to

       secure a ride and returned to Aunt’s the next day. He acknowledged that he did

       not call or contact FCM Taylor that night or at any time during her two weeks

       on the case. Father testified that DCS had not contacted him during his

       incarceration to discuss the case or arrange visitation but that he had received

       five or six DCS progress reports while incarcerated. Father acknowledged that

       he did not notify DCS of his arrest or incarceration and that he had not

       attempted to contact DCS.


[21]   Regarding drugs and alcohol, Father testified that he currently did not have a

       problem with substances, but he did in the past. Father admitted that he

       attended AA and NA in 2009, but that he again used drugs and alcohol. Father

       stated that in 2015, as part of probation, he received treatment but

       acknowledged he consumed again, stating, “I have used but I didn’t relapse.”

       Transcript at 38. When asked about dates of his consumption of illegal

       substances, Father stated that the only time he consumed illegal substances

       were the dates that resulted in criminal charges. Later in his testimony, Father

       assured the court that he is “absolutely” willing to participate in therapy and

       submit to drug screens as set forth in the dispositional order. Id at 94.


[22]   On October 22, 2019, the trial court issued an order terminating Father’s

       parental rights. The court’s findings and conclusions included the following:



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 10 of 22
        8. [Father] failed, without explanation or further contact with
        FCM Taylor, to come to or contact the DCS office after having
        indicated he was on his way from an adjoining county to collect
        her on the evening of detention.


                                                ***


        12. Father had the knowledge of both the CHINS case’s
        existence and of how to involve himself in it but chose to not do
        so for several months after [Child] was detained.


                                                ***


        17. [Father] has violated the terms of the dispositional order in
        several ways, including but not limited to: failure to contact the
        Family Case Manager each week in person, by letter, email or
        telephone; failure to notify the Family Case Manager of any
        arrest or criminal charges; failure to complete the substance
        abuse assessment within 30 days; failure to maintain suitable safe
        and stable housing for the child; failure to maintain a stable and
        legal source of income adequate to support the child; not use,
        consume... trade... or sell any illegal controlled substances; obey
        the law; ensure that the child be engaged in home-based
        counseling; submit to random drug screens; and comply with
        substance abuse evaluation and screens through his criminal case
        sentencing order.


                                                ***


        21. [Father] has an extensive history of criminal convictions that
        occurred both before and after [Child]’s birth.


                                                ***


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 11 of 22
        29. [Father] has a long-established history of substance abuse
        including convictions in cases from 2008, 2012, 2016, and 2018
        on substance-related charges.


        30. [Father] has been ordered to participate in substance abuse
        treatment by the criminal courts.


        3l. Nevertheless, [Father] testified at hearing that he is not an
        addict and does not have an addictive personality.


        32. Father also testified that since February 5, 2013, he had
        consumed an illegal substance only on the individual days about
        which he was criminally charged and convicted.


        33. The Court finds it not credible that [Father] used substances
        illegally only on the specific individual dates for which he was
        subsequently charged and convicted.


        34. [Father]’s inability or unwillingness to candidly disclose the
        full extent of his substance abuse disorder reflects that he, while
        possibly not using controlled substance at this time, is unlikely to
        maintain long-term sobriety upon his release from imprisonment.


                                                ***


        40. Father paid no rent at [Aunt’s] property, although on 2 or 3
        occasions over his seven months’ stay he gave her money toward
        utilities.


        41. [Father] has never during the pendency of the CHINS case
        provided housing for [Child]; instead, [Aunt] allowed him to stay
        at her residence and accepted placement of [Child] after she was
        detained from her mother.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 12 of 22
                                                ***


        44. Father has not maintained consistent, reliable employment
        either before the case arose or after its filing.


                                                ***


        46. [Father] was ordered to comply with substance abuse through
        Redwood Toxicology. After his failure to submit a sample on
        June 29, 2018, July 2, 2018, and July l3, 2018, Redwood
        Toxicology canceled his screening visits due to his
        noncompliance.


        47. Father has made no attempt at communication with DCS
        family case managers, and [Child]’s case file contains no letters
        or telephone messages from him seeking services while he is
        incarcerated.


        48. [Father] has received copies of progress reports on his CHINS
        case and has attended case hearings by telephone since his
        current incarceration.


                                                ***


        54. [Father] has not spoken with his daughter in the over 15
        months that he has most recently been incarcerated.


        55. Father prevailed upon his family and friends . . . to lie to
        [Child] by telling her that Father has been away for work, rather
        than telling her truthfully that he is and has been for the period
        incarcerated.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 13 of 22
               56. [Father] had funding and ability to contact relatives by
               telephone from prison but has chosen to not speak with [Child]
               during this current incarceration.


                                                       ***


               62. Father not only did not request visitation to maintain his
               relationship with [Child] during his incarceration, he actively
               avoided any direct contact to reinforce his ruse that he is at
               liberty.


               63. The Court, while acknowledging the statutory amendment
               enacted on July l, 2019 regarding incarcerated parents, finds it of
               minimal relevance to this matter in that it was enacted almost
               two years after [Child] was detained and several months after the
               Termination action was filed.


               64. The Court finds that the law controlling to this case is that
               which was in place at the time of its filing.


               65. While [Father] raises concerns about not having be[en]
               provided Child and Family Team Meetings, the Court finds that
               any deficit in service offerings is directly tied to his own failure to
               participate[.]


       Appellant’s Appendix Vol. 2 at 111-16.


[23]   The court determined that there is a reasonable probability that the conditions

       that resulted in Child’s removal or the reasons for the placement outside the

       parent’s home will not be remedied, that it is in Child’s best interests to

       terminate Father’s parental rights, and that there is a satisfactory plan for her

       care, namely adoption by Niece. Father now appeals.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 14 of 22
                                        Discussion & Decision
[24]   When reviewing the termination of parental rights, we consider the evidence in

       the light most favorable to the prevailing party, and we will not reweigh the

       evidence or judge the credibility of the witnesses. Matter of M.I., 127 N.E.3d

       1168, 1170 (Ind. 2019). To prevail, the challenging party must show that the

       court’s decision is contrary to law, meaning that the probative evidence and

       reasonable inferences point unerringly to the opposite conclusion. Id.


[25]   It is well recognized that a parent’s interest in the care, custody, and control of

       his or her children is perhaps the oldest of the fundamental liberty interests. In

       re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Although parental rights are of

       constitutional dimension, the law provides for the termination of these rights

       when parents are unable or unwilling to meet their parental responsibilities. In

       re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). In addition, a court must

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

       circumstances surrounding the termination. In re K.S., 750 N.E.2d 832, 836

       (Ind. Ct. App. 2001). The purpose of terminating parental rights is not to

       punish the parents, but to protect their children. Id.


[26]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things: (A) that the child has been

       removed from the parent for at least fifteen of the most recent twenty-two

       months; (B) that there is a reasonable probability that the conditions resulting in

       the child’s removal will not be remedied or the continuation of the parent-child


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 15 of 22
       relationship poses a threat to the child’s well-being; and (C) termination is in

       the best interests of the child. Ind. Code § 31-35-2-4(b)(2). “As a matter of

       statutory elements, it has been established that DCS is not required to provide

       parents with services prior to seeking termination of the parent-child

       relationship.” In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019), trans.

       denied.


[27]   When 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. In re

       H.L., 915 N.E.2d 145, 147 (Ind. Ct. App. 2009). “Due Process has never been

       defined, but the phrase embodies a requirement of ‘fundamental fairness.’” In

       re C.G., 954 N.E.2d 910, 917 (Ind. 2011). 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. The private interest affected by the proceeding is substantial – a

       parent’s interest in the care, custody, and control of his or her child – and the

       State’s interest in protecting the welfare of a child is also substantial. S.L. v.

       Indiana Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013).

       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. Id. This court has observed,


                 For a parent’s due process rights to be protected in the context of
                 termination proceedings, DCS must have made reasonable

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 16 of 22
                efforts to preserve and/or reunify the family unit in the CHINS
                case (unless the no reasonable efforts exception applies). What
                constitutes “reasonable efforts” will vary by case, and . . . it does
                not necessarily always mean that services must be provided to the
                parents.


       In re T.W., 135 N.E.3d at 615.


[28]   Here, Father does not challenge the sufficiency of the trial court’s findings or its

       conclusions. 6 Rather, Father argues that he “has been deprived of his due

       process rights” due to “significant procedural irregularities in the CHINS

       proceedings which created a risk of the erroneous filing of a petition to

       terminate Father’s parental rights.” Appellant’s Brief at 19. He also asserts that

       his “substantive and procedural due process rights were violated where [DCS]

       denied [him] the opportunity to maintain contact throughout the case during

       his incarceration and provide reasonable services to reunify the family.” 7 Id. at

       5. He asks that we reverse the termination of parental rights order, that the

       CHINS proceeding resume in a manner consistent with due process, and that




       6
         Father has thus waived any claim that the termination was not supported by sufficient evidence. See A.D.S.
       v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (noting that where parent fails
       to raise specific, cogent argument challenging trial court’s termination conclusions, those challenges are
       waived on appeal), trans. denied.
       7
         Father indicates that his due process claim is pursuant to both the federal and state constitutions. Our
       courts have recognized that in the termination context the due process analysis under each constitution is the
       same. Matter of D.H., 119 N.E.3d 578, 586 n.16 (Ind. Ct. App. 2019), modified on reh’g 122 N.E.3d 832, trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                      Page 17 of 22
       he be given an opportunity to engage in appropriate services to assist in

       reunification with Child. Id. at 8.


[29]   We begin by examining the time period that preceded his July 2018

       incarceration. There is no dispute that Father was aware of Child’s removal in

       November 2017 and of the ensuing the CHINS proceedings. He did not come

       to the DCS office to pick up Child on the night of her removal or call FCM

       Taylor to explain any circumstances preventing it. Nor did he contact FCM

       Taylor in the two weeks that followed. He did not appear for initial hearings in

       November 2017 through January 2018, eventually appearing in court for a

       hearing on February 13, 2018. He was in attendance at the June 21, 2018

       dispositional hearing where the trial court adopted DCS recommendations and

       ordered parents to follow the same. Less than two weeks later, on or around

       July 8, Father cut off his home detention ankle bracelet and left without

       permission. On July 11, he was charged with felony escape, and, among other

       things, possession of methamphetamine which stemmed from acts committed

       on June 26, days after the dispositional hearing. Father was arrested and

       incarcerated on July 12 and has remained so since that time. Father

       acknowledged that he did not contact DCS or attempt to participate in any

       DCS services before he was arrested.


[30]   Turning to the period after his incarceration, we reject Father’s claim that he

       was denied “the opportunity” to maintain contact with Child and was thus

       denied due process. Appellant’s Brief at 5, 18. Rather, we agree with DCS that

       Father “chose to avoid Child instead of maintaining a bond with her.”

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 18 of 22
       Appellee’s Brief at 27. That is, Father did not desire to exercise parenting time

       with Child while he was in prison because he did not want Child to know he

       was incarcerated out of concern that “that’s going to change up how she views

       me.” Transcript at 91. To perpetuate the falsehood that he was not in prison,

       Father persuaded family and friends to tell Child that he was at work. Father

       agreed that he did not contact Niece, with whom Child had been living for

       almost a year, or otherwise send any mail, cards, or communication to Child.

       These facts do not support his claim that he was denied the opportunity to have

       contact with Child.


[31]   Father also asserts that, during his period of incarceration, DCS failed to

       provide reasonable services to him to reunify him with Child. While DCS is

       generally required to make reasonable efforts to preserve and reunify families

       during CHINS proceedings, Ind. Code § 31-34-21-5.5, “the CHINS provision 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 H.L., 915 N.E.2d at 148 n.3 (citing

       In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)). Furthermore, we have

       found that a failure to provide services to a parent while incarcerated does not

       necessarily result in deprivation of due process. See In re H.L., 915 N.E.2d at

       148 (finding no due process violation where “the absence of services was due to

       Father’s incarceration” and he “[did] not point to any evidence that he

       specifically requested visitation or other services”).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 19 of 22
[32]   In addition to a lack of offered services, Father asserts that DCS failed to

       maintain meaningful contact with him during the period of his incarceration,

       arguing, “No FCM . . . encouraged [Father’s] involvement, nor communicated

       and engaged in planning with [him]” such that he was not “afforded an

       opportunity to be involved in all aspects of the planning and decision-making

       progress.” Appellant’s Brief at 17. He maintains that, due to such procedural

       failings, his case is similar to In re D.H., where this court accepted a mother’s

       argument that DCS mishandled her case to such an extent that it denied her

       due process of law and reversed the trial court’s termination of the mother’s

       parental rights “[i]n light of DCS’s significant and admitted procedural failings

       in this case[.]” 119 N.E.3d at 591. We find D.H. distinguishable. First, the

       mother in that case was not incarcerated, as is Father. Second, and in contrast

       to the present case, the mother repeatedly requested and expressed willingness

       to participate in services. Here, Father did not ever contact DCS, purposely did

       not maintain contact with Child, and received a number of conduct violations

       while incarcerated.


[33]   To the extent that Father suggests he did not know how to reach DCS or his

       FCM, we disagree. Father acknowledged that, while incarcerated, (1) he

       received five or six DCS progress reports, (2) he read them thoroughly, and (3)

       each report identified the FCM. As this court has observed, “[T]he

       responsibility to make positive changes will stay where it must, on the

       parent[,]” and “[i]f the parent feels the services ordered by the court are

       inadequate to facilitate the changes required for reunification, then the onus is


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 20 of 22
       on the parent to request additional assistance from the court or DCS.” Prince v.

       Indiana Dep’t of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007).


[34]   While we recognize that procedural irregularities in a CHINS proceeding may

       be of such significance that they deprive a parent of procedural due process with

       respect to the termination of his or her parental rights, we do not find that any

       procedural irregularities in this case rose to the level of a deprivation of Father’s

       due process rights. See C.A. v. Indiana Dep’t of Child Servs., 15 N.E.3d 85, 93

       (Ind. Ct. App. 2014) (no due process violation where the only procedural

       irregularity argued by Mother was that she did not receive or sign a case plan 8

       and “[t]he record indicates that it was not Mother’s lack of knowledge or

       direction as to what she needed to do to get her children back, but rather her

       lack of participation”); Castro v. State Office of Family & Children, 842 N.E.2d 367,

       376-77 (Ind. Ct. App. 2006) (“[A]ny procedural irregularities that occurred in

       this case are largely attributable to the fact that Castro has been incarcerated

       throughout the proceedings. And we cannot say that those flaws that are not

       attributable to Castro’s incarceration rise to the level of a deprivation of

       Castro’s due process rights.”), trans. denied; compare Matter of C.M.S.T., 111

       N.E.3d 207, 213-14 (Ind. Ct. App. 2018) (procedural irregularities in the




       8
         In his case, Father likewise argues that he did not receive a case plan. However, DCS documents in the
       record refer to a “case plan”, indicating that one existed, and FCM Thornberg testified that, at some point,
       she had prepared one, although could not testify to specifics. See Exhibits Vol. at 136 (April 22, 2019 Progress
       Report) and 146 (Nov. 26, 2018 Order Approving Permanency Plan); Transcript at 75. Like our colleagues in
       C.A., we “caution the DCS to be more cognizant of the statutory framework by which it is to abide, which
       includes providing a case plan to each parent,” but we do not conclude that, in this case, any failure resulted
       in a procedural irregularity so egregious that Father was denied due process of law.” 15 N.E.3d at 93.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020                      Page 21 of 22
       CHINS case—including multiple FCMs, inappropriate behavior by FCMs, and

       apparent bias of FCMs—contributed to parents’ non-compliance such that

       termination of their parental rights amounted to a denial of their due process

       rights).


[35]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2738 | May 14, 2020   Page 22 of 22
