MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 11 2019, 10:15 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
Rebecca Eimerman Curtis T. Hill, Jr.
Zionsville, Indiana Attorney General of Indiana
Katherine A. Cornelius
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the February 11, 2019
Parent-Child Relationship of Court of Appeals Case No.
A.J., D.J., and C.J. (Minor 18A-JT-1815
Children) and Appeal from the Hamilton Circuit
F.J. (Father), Court
Appellant-Respondent, The Honorable Paul A. Felix,
Judge
v. The Honorable Todd L. Ruetz,
Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 29C01-1705-JT-654
29C01-1705-JT-655
Appellee-Petitioner. 29C01-1705-JT-656
Mathias, Judge.
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[1] F.J. (“Father”) appeals the Hamilton Circuit Court’s order terminating his
parental rights to his three minor children. Father argues that he was denied
due process during the termination proceedings and underlying Child in Need
of Services (“CHINS”) proceedings. He also claims that the Department of
Child Services (“DCS”) did not present sufficient evidence to support the
termination of his parental rights.
[2] We affirm.
Facts and Procedural History
[3] H.J (“Mother”) and Father had three children: A.J. born in July 2003, C.J.
born in August 2004, and D.J. born in June 2005 (collectively “the children”).
Due to domestic violence in Mother’s home and substance abuse, the children
were adjudicated CHINS in August 2014.1 Father’s whereabouts were initially
not known. On some date prior to a dispositional hearing held on July 6, 2015,
DCS learned that Father was incarcerated in Oklahoma.
[4] During the CHINS proceedings, Mother moved from Indiana. She eventually
relinquished her parental rights to the children.
[5] Father’s initial hearing was held in September 2015, and a CHINS fact-finding
hearing was held as to Father on January 7, 2016. Due to Father’s incarceration
1
Mother has not seen the children since May 2015. She voluntarily consented to the termination of her
parental rights to all three children on May 14, 2018.
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and inability to provide the necessary care and supervision for the children, the
children remained CHINS.
[6] Father has not seen the children for at least ten years. Father is serving an eight-
year prison term in the Oklahoma Department of Corrections, and he remained
incarcerated throughout these proceedings. Father does not have a relationship
with or bond with the children. DCS encouraged Father to attempt to establish
a bond with the children by writing them letters. Father only wrote a few letters,
and those letters were not given to the children because they contained
promises to the children that Father might not be able to keep. Tr. p. 30. Aside
from encouraging communication with the children, DCS could not offer
services to Father because he was incarcerated out of state. When he is released
from prison, Father plans to live in a trailer he owns in Oklahoma that is not
big enough to accommodate the children.
[7] On May 18, 2017, the DCS filed petitions to terminate Father’s parental rights
to each child. A fact-finding hearing was held on June 6, 2018. On the date of
the hearing, two of the three children were in residential treatment because they
have special needs. The youngest child was placed in a pre-adoptive home.
[8] At the hearing, Father testified that his earliest possible release date from
incarceration is in January 2019. Father also testified that during his
incarceration he completed anger management classes, cognitive behavior
therapy, and a program titled “Thinking for a Change.” He also obtained his
GED.
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[9] On July 9, 2018, the trial court issued orders terminating Father’s parental
rights to each of the three children after finding that
There is a reasonable probability that the conditions that resulted
in the Child’s removal or the reasons for the placement outside
Father’s home will not be remedied due to Father’s unwillingness
to take even the most basic and simple steps towards
reunification such as letter writing.
There is a reasonable probability that the parent-child
relationship poses a threat to the Child due to Father’s lack of
involvement in the Child’s life both during the underlying
CHINS matter and before.
By Father’s own testimony, upon his release his plan is to live in
Oklahoma in a home that he acknowledges is not big enough for
the Child and the Child’s siblings.
It is clear to this Court that Father’s intent is not to reunify with
the Child but instead to have the option to interact with the Child
from afar which is not in the best interest of the Child and is not
a reason to keep this Child’s permanency in limbo and is also not
even something that Father has been doing while he has had the
chance through something as basic as letter writing.
Termination is in the best interest of the child so that she may be
placed for adoption and have permanency in her life. Not only
permanency, but also the potential for permanency is greater for
the Child with the termination of parental rights.
The DCS has a satisfactory place for the care and treatment of
the Child, which is adoption. The guardian ad litem testified that
he is in agreement with this plan.
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Appellant’s App. pp. 35–36.2 Father now appeals.
Standard of Review
[10] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court's judgment. Where the trial court enters findings of
fact and conclusions thereon, we apply a two-tiered standard of
review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92–93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court's conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
Due Process
[11] Father argues that DCS and the trial court violated his due process rights
throughout the CHINS and termination proceedings. “When the State seeks to
2
The Appellant included the trial court’s order terminating Father’s parental rights to A.J. in his appendix.
The orders terminating Father’s parental rights to C.J. and D.J. were not included in the appendix but were
submitted with the record on appeal. We cite to the order contained in the appendix because the findings of
fact and conclusions of law are the same in all three orders.
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terminate the parent-child relationship, it must do so in a manner that meets the
requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). “Due
Process has never been defined, but the phrase embodies a requirement of
‘fundamental fairness.’” Id. (citation omitted). “The U.S. Supreme Court has
written that ‘the fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful manner.’” Id. (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
[12] “The process due in a termination of parental rights proceeding turns on 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 governmental interest supporting use of the challenged
procedure.” Id. Because both a parent’s and the State’s countervailing interests
are substantial, when faced with a claim of denial of due process in a
termination of parental rights, we focus on the second factor, the risk of error
created by the State’s chosen procedure in the case. Id. at 918.
[13] Father argues that the following procedural irregularities denied him due
process: 1) DCS’s failure to serve him with the CHINS petition by publication
pursuant to Trial Rule 4.13 because his whereabouts were initially unknown; 2)
the trial court held initial hearings and factfinding hearings beyond the
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deadlines proscribed by statute; and, 3) the trial court’s failure to order DCS to
provide services to Father.3
[14] DCS argues that Father failed to raise his due process claims in the trial court,
and therefore, his claims are waived. We agree. See Hite v. Vanderburgh Cnty.
Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (“It is well
established that we may consider a party’s constitutional claim waived when it
is raised for the first time on appeal.”).
[15] However, Father attempts to salvage his claims by arguing that “[i]t was
fundamental error for Father to be deprived of his due process in the underlying
CHINS and termination cases.” Appellant’s Br. at 25. Father’s only reasoning
in support of this argument is that “[t]here is no way to tell at this stage what
impact the multiple and ongoing procedural irregularities had on the parties’
ability to reunify with the children, to rehabilitate the children with their
parents, and to prevent termination.” Id. at 25–26.
[16] The fundamental error doctrine is a narrow exception to the waiver doctrine
and applies to an “error [that] was so egregious and abhorrent to fundamental
due process that the trial judge should or should not have acted, irrespective of
the parties' failure to object or otherwise preserve the error for appeal.” In re
G.P., 4 N.E.3d 1158, 1167 n. 8 (Ind. 2014). For an appellate court to overturn a
3
DCS’s failure to provide services to Father did not violate his due process rights. See In re J.W., Jr., 27
N.E.3d 1185, 1190 (Ind. Ct. App. 2015), trans. denied.
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trial court ruling based on fundamental error, the error must have been “a
clearly blatant violation of basic and elementary principles, and the harm or
potential for harm therefrom must be substantial and appear clearly and
prospectively.” S.M. v. Elkhart Cnty. Office of Family & Children, 706 N.E.2d 596,
600 (Ind. Ct. App. 1999) (citation omitted).
[17] The proceedings in this case were complicated by the fact that Father’s
whereabouts were initially unknown because he was incarcerated in Oklahoma,
and Mother left Indiana during the CHINS proceedings. As a result, the
proceedings were continued on the parties’ motions and the court’s own
motions, several times. Ultimately, Father was served with the CHINS and
termination petitions, appeared telephonically at hearings, and had the
opportunity to be heard. For these reasons, we conclude that Father has not
established that belated service of process or timeliness of the hearings amounts
to fundamental error that would allow Father to proceed despite waiver.
Sufficient Evidence
[18] Father also argues that the evidence is insufficient to support the termination of
his parental rights. “The purpose of terminating parental rights is not to punish
the parents but, instead, to protect their children. Thus, although parental rights
are of a constitutional dimension, the law provides for the termination of these
rights when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id.
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[19] A petition for the involuntary termination of parental rights must allege in
pertinent part:
(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).
[20] DCS must prove that termination is appropriate by a showing of clear and
convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). If the trial
court finds that the allegations in a petition are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a). Finally, because Indiana
Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need
only find that one of the three requirements of that subsection has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,
987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
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[21] Father only argues that the DCS presented insufficient evidence to prove that
there is a reasonable probability that the conditions that resulted in the
children’s removal will not be remedied. However, with regard to each child,
the trial court also found that “there is a reasonable probability that the parent-
child relationship poses a threat to the Child due to Father’s lack of
involvement in the Child’s life both during the underlying CHINS matter and
before.” See Appellant’s App. p. 35. Father does not challenge the sufficiency of
the evidence to support this finding, and therefore, he has waived the issue. See
Appellate Rule 46(A)(8)(a).
[22] Waiver notwithstanding, we observe that to evaluate whether continuation of
the parent-child relationship poses a threat to the child, a trial court “should
consider a parent’s habitual pattern of conduct to determine whether there is a
substantial probability of future neglect or deprivation” while also judging a
parent’s fitness to care for his child as of the time of the termination
proceedings. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). Moreover, the
trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his physical, mental, and social growth is permanently
impaired before termination of the parent-child relationship. In re E.S., 762
N.E.2d 1287, 1290 (Ind. Ct. App. 2002).
[23] It is undisputed that on the date of the termination hearing, Father had not seen
his children for at least ten years. Father abandoned his children, and then on
some later date, was incarcerated in Oklahoma. The children are not bonded
with Father and require stability that Father is unable to provide.
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[24] Finally, we note that Father also does not challenge the trial court’s finding that
termination of his parental rights is in the children’s best interests. And there is
ample evidence in the record establishing that termination of Father’s parental
rights is in the children’s best interests.
[25] For all of these reasons, we conclude that the trial court’s orders terminating
Father’s parental rights to his three minor children are supported by clear and
convincing evidence.
Conclusion
[26] Father waived his due process claims, and none of the alleged due process
violations rise to the level of fundamental error. In addition, the trial court’s
orders terminating Father’s parental rights to his three children are supported by
clear and convincing evidence.
[27] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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