Term. of Parent-Child Rel. of A.F.-M (Minor Child) A.M. (Mother) and B.S.M. (Father) v. The Indiana Dept. of Child Services

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 27 2012, 8:53 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
tax court

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

AMY KAROZOS ROBERT J. HENKE
Greenwood, Indiana DCS Central Administration
Indianapolis, Indiana
MARK SMALL
Indianapolis, Indiana ELLEN N. MARTIN
DCS, Greene County Office
Bloomfield, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE THE TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF: )
)
A.F-M. (Minor Child), )
)
AND )
)
A.M. (Mother), )
)
AND )
)
B.S.M. (Father) )
)
Appellants-Respondents, )
)
vs. ) No. 28A05-1109-JT-497
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES (DCS), )
)
Appellee-Petitioner. )
 APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Viola Taliaferro, Senior Judge
Cause No. 28C01-1106-JT-1 & 28C01-1106-JT-2

March 27, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE

Appellants-Respondents, A.M. (Mother) and B.S.M. (Father), appeal the trial

court‟s termination of their parental rights to their minor child, A.F-M.

We affirm.

ISSUES

Mother and Father raise two issues on appeal, which we restate as:

(1) Whether the State presented sufficient evidence that there is a reasonable

probability that the reasons for A.F-M‟s removal from the home would not be

remedied; and

(2) Whether the State proved by clear and convincing evidence that there is a

reasonable probability that continuation of the parents‟ relationship with A.F-

M. poses a threat to his well-being.

Mother separately raises an additional issue, which we restate as: Whether the

State violated Mother‟s due process rights.

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 FACTS AND PROCEDURAL HISTORY

Mother and Father are the parents of A.F-M., born on July 15, 2010. On

September 1, 2010, both parents were arrested and incarcerated for selling prescription

medication. Marijuana was found in their residence and prescription pills and bottles

were found scattered on the floor of their residence along with used syringes “which were

in areas accessible to the child.” (DCS Exh. 7, p. 1). A.F-M. and his older half-brother

were subsequently removed by the Greene County Department of Children Services

(DCS). On September 7, 2010, the trial court ordered A.F-M.‟s continued removal and

placement into foster care. A.F-M. was fifty-three days old at the time.

Prior to the removal of A.F-M. and his older half-brother, two of Mother‟s other

children had been found to be children in need of services (CHINS). In May 2005,

Mother threatened suicide and police located paraphernalia and marijuana in her

residence. Mother was arrested and tested positive for methamphetamines, cocaine, and

opiates. She admitted both children were CHINS and the children were placed in foster

care. Mother was ordered to participate in drug treatment, visitations, and other services.

Mother reunited with the children in 2006, but the children were removed again two

months later in connection with Mother‟s driving while intoxicated with children in the

car. Mother was also found to have violated probation and entered in-patient treatment

for drug abuse. She did not complete the program and eventually one child was placed

with his maternal grandparents and one child was placed with his biological father.

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 On October 12, 2010, DCS filed a petition alleging that both A.F-M. and his older

half-brother were CHINS, and the trial court conducted a fact-finding hearing on the

petition the same day. On October 13, 2010, the trial court found both children to be

CHINS. On November 15, 2010, the trial court held a dispositional hearing and entered a

Parental Participation Order. Mother and Father were ordered to undertake a variety of

obligations to address their substance abuse issues including attending self-help groups;

participating and completing substance abuse programs; participating in individual

counseling sessions regarding substance abuse and other issues; refraining from all illegal

drug use and taking all prescribed drugs in accordance with the prescriptions; and

undergoing random drug screens. The parents were also ordered to attend supervised

visits with A.F-M., receive parenting education, and obtain legal and stable income.

Mother was further ordered to obtain a G.E.D.

Following CHINS adjudication, Father and Mother received substance abuse

counseling and treatment at Hamilton Center, which involved working with counselors

there in both group and individual settings. Father and Mother were each diagnosed as

dependent on multiple substances. Although they attended several group and individual

sessions, they did not complete the entire program prior to their incarceration. Father was

also accused of dealing drugs while in counseling. Father and Mother were subject to a

number of drug screens and until December 2010 Mother continued to test positive for

drugs other than those prescribed. Father‟s tests were negative for drugs other than those

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he was prescribed, but his levels for such medications were in excess of the amounts

prescribed.

Beginning in October 2010, Carol Lasiter (Lasiter) of Ireland Home-Based

Services provided parent education and assistance as well as supervision of Mother and

Father‟s visits with A.F-M. Eighty supervised visits with A.F-M. were scheduled from

October 2010 to January 2011. Mother and Father attended sixty-six sessions, cancelled

eight visits, and failed to show for six visits. They attributed their cancellations and no

shows to weather conditions, lack of reliable transportation, and the remote location of

their residence. Visitations were later moved to the family‟s residence, which alleviated

the no shows. Lasiter also attempted to assist Father with obtaining public housing and

employment. Father‟s attempts at both were unsuccessful, with the employment attempts

hampered to some degree by his lack of follow up.

On January 12, 2011, Mother was convicted of a Class C felony for dealing in a

controlled substance in connection with her September 1, 2010 arrest. Mother received a

sentence of seven years executed at the Department of Correction (DOC), with two years

suspended. At sentencing, the trial court found Mother‟s prior convictions, her continued

drug use following arrest, and that a baby and a child were present at the time of the

offense to be aggravating factors. Mother‟s prior convictions included a probation

violation, disorderly conduct, possession of cocaine, operating a motor vehicle while

under the influence in a manner that endangered a person, and driving while suspended.

In noting the likelihood that Mother would commit additional crimes, the trial court

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mentioned Mother‟s numerous prior arrests, which included a number of drug-related

offenses as well as domestic battery, disorderly conduct, and maintaining a common

nuisance. Mother‟s earliest possible release date from the DOC was January 8, 2013.

On February 23, 2011, Father was convicted of a Class C felony in connection

with his September 1, 2010 arrest for dealing in a controlled substance. Father received

an executed sentence of six years at the DOC, with two years suspended. The trial court

found Father‟s prior criminal history, history of probation violations, and that a child was

present during the offense to be aggravating factors. Father‟s criminal history consisted

of several out of state convictions, including a conviction in Kansas for felony possession

of methamphetamine with intent to distribute, a conviction in Illinois for unlawful

delivery of alcohol to a minor, a conviction in Illinois for unlawful use of weapons, and a

conviction in Florida for possession of cocaine and paraphernalia. The trial court noted

that two warrants were currently outstanding for Father‟s arrest, one from Illinois for

failure to appear and one from Florida for a probation violation.

While incarcerated, Mother earned her G.E.D. and received a sentence reduction

of 183 days. Mother participated in work crews and learned to operate machinery as

well. Mother joined substance abuse programs and sought to join an intensive counseling

program, which upon completion would have resulted in a further six month reduction

from her sentence. During his incarceration, Father “tested out” of an intensive

counseling program and was wait-listed for participation in a re-entry initiative.

(Transcript p. 220).

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 On March 14, 2011, the trial court held a review hearing. The trial court found

that both Father and Mother had not complied with A.F-M.‟s case plan and had not

cooperated with DCS. The trial court also found that the reasons for A.F-M.‟s removal

had not yet been alleviated and that DCS had made reasonable efforts to reunite the

family. In continuing obligations imposed upon Father and Mother, the trial court

accounted for their incarceration by ordering them to continue participation with the

services while incarcerated as well as to address “the underlying needs that lead to [their]

long history of substance abuse.” (DCS Exhibit 7).

On May 16, 2011, the trial court held both a second review hearing and a

permanency hearing. On May 25, 2011, the trial court issued its order approving the

permanency plan. The trial court found both parents not in compliance with the case plan

because both were incarcerated and were “unable to participate in DCS services.” (DCS

Exhibit 7). The trial court reviewed permanency planning options and found that

proceedings to terminate parental rights to be in A.F-M.‟s best interest.

On June 8, 2011, DCS filed its petition to terminate Mother and Father‟s parental

rights to A.F-M. On June 15, 2011, the trial court issued its order on periodic review,

finding both parents in non-compliance with A.F-M.‟s case plan, yet finding that both

parents had cooperated with DCS. They were ordered to continue participation with

services during incarceration. An amended order approving the permanency plan and an

order for DCS to discontinue services to Mother and Father were issued the same day.

On August 23, 2011, the trial court held a hearing on the petition. On September 8, 2011,

7
the trial court issued separate orders terminating each parent‟s parental rights, containing

separate findings of fact and conclusions of law as to each parent. In each order, the

court found that DCS had proven by clear and convincing evidence that A.F-M. had been

removed for a period of more than six months pursuant to a dispositional decree, that

there is a reasonable probability that the conditions that resulted in A.F-M.‟s removal

would not be remedied, that continuation of the parent-child relationship of either parent

poses a threat to A.F-M.‟s well-being, that termination of the parent-child relationship is

in A.F-M.‟s best interests, and that DCS had a satisfactory plan for A.F-M.‟s care, that of

adoption. Findings of fact in support consisted of the parents‟ criminal records, including

the maximum, minimum, and probable duration of incarceration for each parent.

Although noting the extent of each parent‟s participation in services provided by DCS,

the trial court found that each parent would likely adhere to past behaviors and that

waiting an indefinite period of time to determine if either parent‟s behavior would change

would not be in A.F-M.‟s best interests.

Mother and Father filed separate appeals of the trial court‟s termination orders.

On January 19, 2012, pursuant to Ind. Appellate Rule 38, we ordered each appeal

consolidated under a single cause number.

Mother and Father now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

We do not reweigh the evidence nor assess the credibility of the witnesses when

reviewing termination proceedings on appeal. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct.

8
App. 2009), trans. denied. Instead, we consider only the evidence supporting the trial

court's decision and reasonable inferences drawn therefrom. Id.

The trial court here entered separate findings of fact and conclusions of law in

terminating both Father and Mother‟s parental rights to A.F-M. Our standard of review is

therefore two-tiered. Id. We first determine whether the evidence supports the findings,

and second, whether the findings support the trial court‟s legal conclusions. Id. In

deference to the trial court‟s unique position to assess the evidence, we set aside the trial

court's findings and judgment terminating a parent-child relationship only if they are

clearly erroneous. Id. A finding of fact is clearly erroneous when there are no facts or

inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if the

trial court‟s legal conclusions are not supported by its findings of fact or do not support

the judgment. Id.

On appeal, Mother and Father contest the trial court‟s findings that clear and

convincing evidence established a reasonable probability that (1) the reasons for A.F-

M.‟s removal will not be remedied, and (2) continuation of Father and Mother‟s

relationship with A.F-M. poses a threat to his well-being. Mother further alleges that

DCS violated her procedural due process rights by failing to fulfill its statutory mandate

to provide reasonable efforts at reunification as well as to provide her notice of what she

needed to do to avoid termination of her parental rights.

I. Termination of Parental Rights

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 In order to terminate parental rights, DCS must file a petition alleging each of the

four elements specified in Ind. Code § 31–35–2–4(b)(2)(A)-(D) and must prove each by

clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1262 (Ind. 2009). Clear

and convincing requires that a fact‟s existence be “highly probable.” Hardy v. Hardy,

910 N.E.2d 851, 859 (Ind. Ct. App. 2009). If the trial court finds that the allegations

contained in the petition are true, it “shall terminate the parent-child relationship.” I.C. §

31-35-2-8(a); In re C.M., 960 N.E.2d 169, 1975 (Ind. Ct. App. 2011), aff’d on reh’g, No.

15A01-1104-JT-204, 2012 WL 453958 *1 (Ind. Ct. App. Feb. 14, 2012).

Mother and Father do not challenge the trial court‟s determinations under I.C. §

31-35-2-4(2)(A) (removal of the child), (C) (best interests of the child), or (D)

(satisfactory plan). Instead, Mother and Father dispute the trial court‟s determinations

under I.C. § 31–35–2–4(b)(2)(B), which requires proof by clear and convincing evidence

that one of the following be 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
[CHINS].

As I.C. § 31–35–2–4(b)(2)(B) is written in the disjunctive, proof of any one sub-element

is sufficient. In re J.T., 742 N.E.2d at 512.

A. Remedy of Conditions

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 In determining whether a reasonable probability exists that the conditions resulting

in the child‟s removal will not be remedied, the “trial court must judge [the parents‟]

fitness to care for his or her child at the time of the termination hearing, taking into

consideration evidence of changed conditions.” Id. “There may well be no evidence of

„changed conditions,‟ but there must be evidence of „current‟ conditions.” In re C.M.,

2012 WL 453958 *1. The trial court must also consider the parents‟ “habitual patterns of

conduct to determine the probability of future neglect or deprivation of the child.” Id.

“A court may properly consider evidence of a parent‟s prior criminal history, drug and

alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing

and employment.” McBride v. Monroe County Office of Family and Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court can consider the services offered

and the parents‟ response as well. In re C.M., 2012 WL 453958 *1. The trial court‟s

findings cannot solely focus on “historical conduct, absent findings of fact as to [the

parents‟] current circumstances or evidence of changed conditions.” In re C.M., 960

N.E.2d at 175. DCS “is not required to rule out all possibilities of change; rather, it need

only establish that there is a reasonable probability that the parent‟s behavior will not

change.” C.T. v. Marion Cnty. Dept. of Child Services, 896 N.E.2d 571, 578 (Ind. Ct.

App. 2008), trans. denied (quotation omitted).

In maintaining that DCS did not meet its burden, Mother argues that the trial court

failed to take into account “her progress in meeting the reunification goals” following

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incarceration. (Mother‟s Br. p. 14).1 Mother points to evidence that at the time of the

termination hearing she was drug-free, had participated in drug treatment and other

programs, and had received her G.E.D. Mother also indicated her willingness to continue

drug and other rehabilitation programs following her release from the DOC, which with

possible time reductions, would be January 8, 2013, or possibly earlier. Finally, Mother

argues that the trial court improperly focused on Mother‟s prior CHINS proceedings,

criminal convictions, and arrests, and improperly concluded that her lack of prior

participation is indicative of her future participation.

Based on our review of the record, we cannot agree with Mother that there was

insufficient evidence of a reasonable probability that the conditions leading to A.F-M.‟s

removal would not be remedied. Although the trial court‟s findings must contain

evidence of Mother‟s current circumstances and changed conditions, the trial court has

discretion to weigh such evidence against “evidence of a parent‟s prior criminal history,

drug and alcohol abuse, history of neglect, failure to provide support, and lack of

adequate housing and employment.” McBride, 798 N.E.2d at 199. Here, the trial court

weighed Mother‟s accomplishments while incarcerated against her substantial prior

criminal history, substance abuse history, prior CHINS proceedings, her current executed

sentence, as well as the degree of her participation in the services offered by the DCS

prior to incarceration. “[N]either trial courts nor we are required to ignore „the parent‟s

1
Father and Mother separately appealed the trial court‟s decision. We designate Father and Mother‟s
appellant brief herein by name.

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habitual patterns of conduct [when determining] the probability of further neglect or

deprivation of the child.‟” Prince v. Dept. of Child Services, 861 N.E.2d 1223, 1231

(Ind. Ct. App. 2007) (quotation omitted). In essence, Mother‟s argument is simply an

invitation to reweigh the evidence, which we may not do. C.T., 896 N.E.2d at 583.

To the extent that Mother argues that she did not have ample time to demonstrate

her fitness as a parent, we note that the trial court in a termination hearing may properly

consider the services provided to the parent as well as the parent‟s response. In re C.M.,

2012 WL 453958 *1. Here, it is clear that Mother received substance abuse, grief, and

parenting skills counseling well before the filing of the termination petition and the trial

court considered her historical responses to such services. Prior to and following the

CHINS proceeding, Mother again received substance abuse counseling, yet admittedly

did not abstain from drugs until her incarceration beginning in January 2011. Although

the outcome of Mother‟s progress with services undertaken while incarcerated is

unknown, we note that the responsibility for a parent “to rehabilitate themselves is during

the CHINS process, prior to the filing of the petition for termination.” Prince, 861

N.E.2d at 1230. Here, Mother had ample opportunities to do so prior to incarceration,

and we cannot say that Mother‟s current sobriety would be otherwise without

incarceration. See id. Based on this evidence, we find that the trial court properly

determined that DCS had shown by clear and convincing evidence that there is a

reasonable probability that the reasons for A.F-M.‟s removal would not be remedied.

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 Father also maintains that DCS did not meet its burden to establish that there is a

reasonable probability that the reasons for removal will not be remedied and in support

cites to In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011), trans. denied. The father in

M.W. was incarcerated three times during CHINS and termination proceedings, with the

final period of incarceration ending shortly after the trial court‟s termination order. Id. at

855. The M.W. court pointed out that the trial court focused on the father‟s incarceration,

visitation compliance, and lack of employment and residence. Id. However, noting the

father‟s “many strides” in completing the reunification plan and his impending release

following the termination hearing, the court found that the father‟s “ability to establish a

stable and appropriate life upon release can be observed and determined within a

relatively quick period of time.” Id. (quoting In re J.M., 908 N.E.2d 191, 196 (Ind.

2009)).

Relying on the M.W. court‟s observation on what factors the trial court in that case

focused upon, Father argues that evidence of his drug use, lack of employment and

residence were insufficient to establish by clear and convincing evidence that there is a

reasonable probability that the conditions for A.F-M.‟s removal would not be remedied.

Father takes issue with the trial court‟s finding that his drug screens were positive and

that he was never sober during periods of substance abuse treatment. Father points to his

clean drug test results following A.F-M.‟s removal, and although these drug screens

showed an excessive use of prescribed medicine, Father explains that this was an

“anomaly” resulting from his contraction of hepatitis. Father also points to undisputed

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testimony that “he does not have a drug problem because the [DOC] had made that

determination and he had been through so many drug programs previously.” (Father‟s

Br. p. 12). Thus, Father argues the reason for A.F-M.‟s removal, Father‟s drug use, is no

longer a factor. Father also contends that the evidence shows his progress in certain

substance abuse programs prior to and during incarceration.

Father‟s argument fails because this is a request for us to reweigh such evidence

against other evidence establishing Father‟s drug abuse, which we may not do. The trial

court received contradictory evidence of Father‟s sobriety, including testimony from

Mother that Father still had a drug problem, the opinion of one of his counselor‟s that

Father was still abusing drugs, and Father‟s prior drug offense convictions. We also note

that the trial court considered Father‟s earliest release date from incarceration, yet also

found that Father “at the time of [A.F-M.‟s] removal was wanted on warrant and is still

wanted on warrant in the States of Florida and Illinois.” (Father‟s App. p. 38). Based on

this evidence, we cannot say that the trial court committed clear error by determining that

DCS had shown by clear and convincing evidence that there was a reasonable probability

that the reasons for A.F-M.‟s removal would not be remedied.

B. Threat to Well-Being

Next, Mother and Father each argue that DCS did not establish that continuation

of their relationship with A.F-M. poses a threat to his well-being. Since I.C. § 31-35-2-

4(b)(2)(B) is written in the disjunctive, the trial court need only find that one of three sub-

elements are met. In re Involuntary Termination of Parental Rights of S.P.H., 806

15
N.E.2d 874, 882 (Ind. Ct. App. 2004), trans. denied. Here, the trial court concluded that

that there is a reasonable probability that the reasons for removal would not be remedied.

It is therefore not necessary for us to address Mother and Father‟s arguments on whether

continuation of their relationship would harm A.F-M.‟s well-being. Id. However, since

the trial court entered findings of fact and addressing this sub-element for each parent, we

will examine Mother and Father‟s arguments.

Mother characterizes the trial court‟s conclusion that continuation of Mother and

A.F-M.‟s relationship poses a threat to A.F-M. as a conclusion premised upon A.F-M.‟s

need for permanency. Mother argues that permanency was insufficient “to prove that

[A.F-M.] would be harmed by remaining with his foster parent without termination and

adoption while [Mother] completed her sentence and services.” (Mother‟s Br. p. 17).

Mother also points to her voluntary participation in substance abuse treatment prior to the

CHINS adjudication and that each visitation with the child went fine, with both parents

interacting well with the child. Although Mother missed several visitations, her absences

can be ascribed to the remote location of her residence, her lack of transportation, and

weather conditions. In sum, Mother argues that evidence of her positive efforts along

with an insufficient showing of how allowing Mother additional time to complete the

services would be a threat to A.F-M., given his age, does not support the trial court‟s

determination that continuation of the parent-child relationship poses a threat to A.F-M.‟s

well-being.

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 Father argues that since his drug use was the primary reason for A.F-M.‟s removal

and since the evidence established that he was no longer a drug addict, the threat to A.F-

M.‟s well-being no longer exists. Further, Father‟s visitations with the child went well

and any missed visitations resulted from the same reasons cited by Mother: location of

their residence, lack of reliable transportation, and weather conditions. Finally, despite

Lasiter‟s concerns over Father‟s ability to secure stable income and provide housing for

A.F-M., Father asserts that there was evidence that he sought employment and that he is

appealing a denial of public housing benefits.

Both Father and Mother cite to H.G. v. Indiana Department of Child Services, 959

N.E.2d 272 (Ind. Ct. App. 2011), reh’g denied, to support their arguments. H.G.

concerned parent-child termination proceedings involving three children from two

separate fathers and a common mother. Id. at 272. At the time of termination

proceedings, one father was incarcerated while the other father, the mother‟s current

husband, had recurring substance abuse episodes and difficulties procuring suitable

employment and housing. Id. at 282-84. Taking into account several factors including

one child‟s reluctance to be adopted, each parent‟s significant participation with services

provided by DCS, as well as DCS‟s failure to identify an adoptive family, the court found

that DCS had not presented clear and convincing evidence that termination was in the

children‟s best interests despite the mother and one father‟s incarceration, the other

father‟s drug use, and DCS‟s proffered justification of the children‟s need for stability

17
and permanency. Id. at 291-94. Accordingly, the court found “there appears to be little

harm in allowing the parents to continue working toward reunification.” Id. at 293.

H.G. involved the court‟s review of the sufficiency of evidence regarding I.C. §

31-35-2-4(b)(2)(C), whether termination is in the child‟s best interest, rather than the

reasonable probability that continuation of the parent-child relationship poses a threat to

the child‟s well-being. Id. at 289. Also, the H.G. court‟s reasoning for reversing the trial

court‟s termination of parental rights rested in no small part upon each parent‟s

“significant efforts at self-improvement,” specific examples of the strong bond the

children had with their fathers and the mother, and the inability of DCS to identify an

adoptive home for the children. Id. at 293.

Here, while there is evidence of the parents‟ positive interactions with A.F-M.

during visitations, the child was removed when he was approximately six weeks old and

has not returned to his parents‟ care since then. Although the parents point to their efforts

to address their substance abuse and parenting issues, their substance abuse counselors,

Lasiter, as well as their family case manager all testified to the inability of the parents to

complete their counseling programs and failure to make overall progress, as well as their

concerns over the abilities of Father and Mother to take care of A.F-M. Finally, the lack

of an adoptive home for A.F-M. was not raised by the parties here as an issue.

Accordingly, we do not find Mother and Father‟s citation to H.G. persuasive to support

their contentions.

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 “[A] trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that [the child‟s] physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship.” In re E.S., 762 N.E.2d 1287,

1290 (Ind. Ct. App. 2002), trans. denied. Here, despite its acknowledgement of the

parents‟ bond with A.F-M. and their albeit minimal efforts at self improvement, the trial

court weighed the evidence and found that the parents‟ prior conduct constituted clear

and convincing evidence of a reasonable possibility that continuation of their relationship

with A.F-M. poses a threat to his well being. The evidence in the record supports the trial

court‟s findings cited above and the findings support the trial court‟s conclusion. See In

re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d at 882-83.

Accordingly, the parents have not made a showing of clear error entitling them to a

reversal of the trial court‟s termination of their parental rights.

II. Procedural Due Process

Mother asserts that she was denied due process of law by DCS. Specifically,

Mother contends that DCS did not follow “its statutory mandate to make reasonable

efforts to reunify the family” or provide “[Mother] with notice of what conduct could

lead to termination of parental rights.” (Mother‟s Reply Br. p. 4).

We note that a party may not raise a constitutional claim for the first time on

appeal. See In re S.P.H., 806 N.E.2d at 877. The record reveals no instance where

Mother raised her due process argument during the termination proceeding. Mother‟s

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alleged due process violation argument is therefore waived on appeal. Id. at 877–78.

Waiver notwithstanding, we address Mother‟s contentions on their merits.

We have described the impact of due process in light of a failure to comply with

statutory provisions as follows:

When the State seeks to terminate the parent-child relationship, it must do
so in a manner that meets the requirements of the due process clause. Our
legislature has enacted an interlocking statutory scheme governing CHINS
proceedings and the involuntary termination of parental rights proceedings.
This statutory scheme is designed to protect the rights of parents in raising
their children while allowing the State to effect its legitimate interest in
protecting children from harm. The CHINS and involuntary termination
statutes are not independent of each other. [I.C. §] 31-35-2-2 clearly states
that although termination proceedings are different from CHINS
proceedings, an involuntary proceeding is “governed by the procedures
prescribed by” the CHINS statutes contained in [I.C.] Article 31-34.

In re S.P.H., 806 N.E.2d at 878 (citations omitted).

Mother alleges that the DCS did not make reasonable efforts to reunify the family

by not allowing her additional time to complete the case plan during her incarceration.

Further, Mother alleges she “did what she believed was expected of her once she was

incarcerated” and “was not given notice that she was required to do more […] or to do

anything differently in order to avoid the termination of her rights to her son.” (Mother‟s

Br. p. 21). Mother points to her progress towards sobriety and efforts to better herself

while incarcerated along with her requests for visitation with A.F-M., despite DCS‟s

inability in allowing visitations occur during her incarceration. In sum, Mother argues

that

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 DCS continued to allow [Mother] to believe if she participated in services
specified in the [Parental Participation Order] while she was incarcerated,
that she could be reunited with her child, and then though nothing had
changed, once the six month minimum period had passed, requested to
change the permanency plan to termination of parental rights and adoption,
and then filed to involuntarily terminate [Mother‟s] parental rights to her
son.

(Mother‟s Reply Br. p. 6).

Mother‟s assertion is not persuasive. As has been stated many times, “the

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 statute and require reversal.” In re E.E., 736 N.E.2d

791, 796 (Ind. Ct. App. 2000). The Parental Participation Order informed Mother that

failure to comply with its terms could result in termination of her parental rights. Here,

Mother had been provided with services since October 2010 and had ample opportunity

to take full advantage of such services and to fully comply with her obligations under the

Parental Participation Order prior to her incarceration in January 2011. Mother failed to

do so by failing drug screens, missing visitations, and parenting classes. Further, Mother

has not pointed to any evidence suggesting that DCS led her on or made any agreement

with Mother such that it would wait to file a termination petition. See In re E.E.S., 874

N.E.2d 376, 381 (Ind. Ct. App. 2007), trans. denied (reversing a termination case that

would have been ordinarily affirmed but for DCS‟s breach of an agreement to allow

parent time to complete services following release from incarceration). Accordingly, we

find no due process violation here.

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 CONCLUSION

Based on the foregoing, we conclude that (1) the DCS provided sufficient

evidence that the conditions that led to A.F-M‟s removal from the home would not be

remedied and that the continued relationship with Father and Mother poses a threat to the

child‟s well-being, and (2) that Mother was not denied procedural due process.

Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur

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