In the Matter of the Termination of the Parent-Child Relationship of A.N.S. (Father) and C.S. and A.J.S. (Minor Children) A.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 15 2020, 9:00 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven J. Halbert Frances Barrow
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 15, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of A.N.S. (Father) and C.S. and 19A-JT-2880
A.J.S. (Minor Children); Appeal from the Marion Superior
Court
The Honorable Ryan K. Gardner,
A.S. (Father), Judge Pro-Tempore
Appellant-Respondent, The Honorable Peter Haughan,
Magistrate
v.
Juvenile Court Cause No.
49D15-1901-JT-152
The Indiana Department of 49D15-1901-JT-153
Child Services,
Appellee-Petitioner

and
Child Advocates, Inc.
Appellee-Guardian Ad Litem

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 1 of 18
 May, Judge.

[1] A.N.S. (“Father”) appeals the involuntary termination of his parental rights to

C.S. and A.J.S. (collectively, “Children”). Father argues the Department of

Child Services (“DCS”) violated his rights under the Americans with

Disabilities Act (“ADA”) and the Fourteenth Amendment to the United States

Constitution when DCS did not accommodate “his numerous physical and

mental disabilities[.]” (Br. of Appellant at 4.) We affirm.

Facts and Procedural History
[2] K.J. (“Mother”) 1 (collectively with Father, “Parents”) gave birth to C.S. on

November 11, 2013, and A.J.S. on April 19, 2015. On June 10, 2016, DCS

removed Children from Parents’ care on an emergency basis because Parents

were under the influence of heroin while Children were in their care and

because the front yard of Parents’ residence contained “the family’s belongings

as if they were evicted . . . [including] trash, clothing, electronics, and children’s

1
Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 2 of 18
 toys[.]” (App. Vol. II at 55.) Children were placed with their Paternal

Grandmother, where they remained throughout the proceedings.

[3] On June 14, 2016, DCS filed petitions alleging Children were Children in Need

of Services (“CHINS”) based on Parents’ drug use and the condition of the

family residence. On September 2, 2016, the juvenile court held a fact-finding

hearing on DCS’s CHINS petitions. Mother appeared at the hearing and

admitted Children were CHINS. Father was incarcerated 2 at the time of the

hearing, and his counsel waived his right to a fact-finding hearing as to the

CHINS allegation. Based on Mother’s admission, the juvenile court

adjudicated Children as CHINS and immediately held a dispositional hearing.

On September 2, 2016, the juvenile court entered a dispositional order that

required Father to enroll in, participate in, and successfully complete the Father

Engagement Program; and also to contact the Family Case Manager (“FCM”)

within seventy-two hours of his release from incarceration.

[4] On October 25, 2016, Father pled guilty to Level 5 felony carrying a handgun

without a license,3 Level 6 felony operating a motor vehicle while intoxicated, 4

and Level 6 felony possession of a narcotic drug. 5 He also admitted he violated

his probation for an earlier conviction of Class A misdemeanor carrying a

2
Based on the record, it seems Father was incarcerated at the time because of a probation violation.
3
Ind. Code § 35-47-2-1(e).
4
Ind. Code § 9-30-5-3(a).
5
Ind. Code § 35-48-4-6(a).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 3 of 18
 handgun without a license.6 The criminal court sentenced Father to an

aggregate sentence of six years, with three years executed in Community

Corrections Home Detention and three years on probation, with mental health

supervision and substance abuse treatment to be provided while on both

Community Corrections and probation.

[5] On December 2, 2016, Father and his counsel attended a periodic review

hearing for the CHINS case during which the juvenile court noted Father was

participating in services offered through his probation. Father requested

parenting time with Children, and the juvenile court granted him supervised

parenting time with Children.

[6] On June 23, 2017, the juvenile court held a permanency hearing during which

the Guardian ad litem (“GAL”) requested that Children’s permanency plan

change from reunification to adoption based on Mother’s continued drug use

and failure to successfully complete substance abuse treatment and Father’s

lack of ability to care for Children at the time. Based thereon, the juvenile court

changed Children’s permanency plan to adoption.

[7] In July 2017, DCS filed a petition to terminate Parents’ parental rights to

Children. On September 29, 2017, the juvenile court held another permanency

hearing. DCS reported Children were in Paternal Grandmother’s care and

were doing well. Father requested Children be placed with him. The FCM

6
Ind. Code § 35-47-2-1(e).

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 reported Father had agreed to participate in home-based therapy, random drug

screens, and a psychological evaluation. In its order from that hearing, the trial

court noted:

Father states that he is not “crazy” and is taking medication to
address his mental health. Father states that he started suboxone
two (2) weeks ago. Father states that he has stable housing and
employment. Father states that he detoxed from methadone.
Father states that he needs to obtain a bed for [Children]. Father
states that he was released from house arrest in April. Father
states that he does not want to see [Children] adopted out of his
care.

(Ex. Vol. I at 87.) The juvenile court denied Father’s request that Children be

placed with him, and the court retained adoption as the permanency plan for

Children.

[8] On October 3, 2017, Community Corrections indicated Father violated its

terms; the matter was resolved shortly thereafter when Father wrote an apology

letter. On January 19, 2018, the juvenile court held a permanency hearing.

The trial court found in its termination order that Father appeared at this

hearing, and DCS reported “that Father is engaged in Fathers [sic] Engagement

and parenting, and that a mental health assessment was completed and it

recommended a number of services.” (Id. at 27.) A representative from Father’

Engagement, a service in which the trial court ordered Father to participate,

also reported that “he does not believe that Father has the right medication for

himself and that Father is not following recommendations.” (Id.) Based

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 thereon, the juvenile court ordered DCS to refer Father to the services

recommended by the mental health assessment.

[9] On April 11, 2018, Community Corrections filed another notice of violation

against Father. Subsequently,

Father was taken into custody on April 16, 2018. On April 19,
2018, a probation violation relating to the Community
Corrections violation was filed against Father. On April 23,
2018, Father admitted to being arrested and charged with the
offense of Disorderly Conduct (Class B misdemeanor) in Boone
County, Indiana. The criminal court ordered the revocation of
his Community Corrections Home Detention and ordered his
[sic] to serve executed time in the Department of Corrections
[sic] (“DOC”). The court continued Father on probation on
terms of strict compliance.

(Id.)

[10] On May 14, 2018, the juvenile court denied DCS’s petition to involuntarily

terminate Father’s parental rights to Children and found:

6. [Father] has resided in the same residence for approximately
two years. He received seven hundred and fifty dollars in social
security benefits, as well as food stamps, and has given thought
to working part-time.

7. [Father] received a traumatic brain injury earlier in life which
has created a barrier to completing services.

8. Due to substantial pain from his injury, [Father] was
prescribed pain pills for fifteen years. This was medically

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 6 of 18
 stopped and [Father] sought out illegal drugs to deal with his
pain.

9. [Father] detoxed from methadone. He has not ingested illegal
drugs for six months.

10. [Father] is currently on a waiting list for pain management
services.

11. Home based therapy was never successfully completed.
[Father] has now found someone he feels he works well with at
American Behavioral Counseling.

12. [Father] followed up mental health referrals but kept
changing providers for one reason or another.

13. On April 10, 2018, [Father] was incarcerated and was
planning on being released the day after trial in this matter. Prior
to his incarceration, he was taking Luvox for his mental health
issues. He is happy with his current medication and believed
prior prescriptions were too strong.

14. A major concern about [Father] is his explosive anger that
results from his being frustrated. Although [Father] had a great
amount of service referrals in the CHINS case, there was no
evidence that anger management was one.

15. [Children] and [Father] share a strong bond. From January
of 2017 until April 10, 2018, he only missed about three
parenting time sessions.

16. [Father] has been observed as having good parenting skills,
and as being attentive and caring.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 7 of 18
 17. [Father] raised another child until age eleven.

18. [Father] feels he has a good support system in his aunt.

19. The Court wholly understands the efforts and referrals given
by the IDCS. However, [Father] is participating at his level, and
given the extra barrier of having a traumatic brain injury,
additional time to reunify is not unreasonable.

20. [Father] will have to add services to what he is presently
doing, such as a complete neurological make up. If he fails to
cooperate, a new termination action can be filed.

(Ex. Vol. I at 129-30.)

[11] From May to mid-October 2018, Father participated in services such as

substance abuse treatment, anger management, and medication management.

The juvenile court ordered him to submit to random drug screens and to

complete substance abuse and mental health assessments and follow all

recommendations therefrom. On October 26, 2018, Father violated his

Community Corrections placement by tampering with the strap of his electronic

monitoring device. On November 11, 2018, he admitted violating his probation

by doing so and the criminal court continued Father on probation.

[12] On December 21, 2018, the juvenile court held a periodic review hearing for

which Father did not appear. The juvenile court acknowledged that Mother

had recently consented to Children’s adoption by Paternal Grandmother and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 8 of 18
 that Father had been recently released from incarceration 7 and was homeless.

At the hearing, the visitation facilitator reported: “(1) Father sleeps in his car;

(2) Father has requested Father Engagement; (3) parenting time goes well

between Children and Father; and (4) he believes Father needs therapy.” (App.

Vol. II at 28.) Based thereon, the juvenile court ordered a neurological

evaluation for Father and ordered him to participate in Father’s Engagement.

On January 31, 2019, DCS filed a second petition to involuntarily terminate

Father’s parental rights to Children.

[13] On February 14, 2019, Father admitted in criminal court that he violated his

probation by testing positive for marijuana and failing to report to the Probation

Department. The criminal court revoked Father’s probation and ordered

Father to serve ninety days in the Marion County Jail with a credit of twenty-

two days. On February 20, 2019, the juvenile court issued an additional

participation order for Father, ordering him to complete a substance abuse

assessment and successfully complete all treatments, submit to random drug

and alcohol screenings with the understanding that “any request for drug screen

that is not completed in a timely manner will result in positive result

indication[,]” (id. at 29), and participate in a mental health assessment and

follow all recommendations.

7
It is unclear from the record why Father was incarcerated.

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[14] On March 18, 2019, the Probation Department filed a notice of probation

violation against Father because Father tested positive for marijuana, cocaine,

and opiates. On March 22, 2019, the juvenile court held a permanency hearing

that Father did not attend. Father’s counsel requested that Father’s mental

health treatment be scheduled through Midtown. 8 The trial court also noted in

its order from that hearing, “DCS reports [F]ather has been incarcerated twice

since November 2018.” (Ex. Vol. I at 125.) On April 11, 2019, Father

appeared before the criminal court. The court took the decision regarding

Father’s probation violation under advisement because Father enrolled in

Midtown for mental health treatment and agreed to a drug screen, even though

he indicated to the criminal court that the screen would be positive.

[15] On June 17, 2019, the juvenile court held the first of three fact finding hearings

regarding DCS’s petition to involuntarily terminate Father’s parental rights to

Children. On August 9, 2019, the Probation Department filed another notice of

probation violation against Father because Father missed two drug screens and

did not pay his court-ordered fees. On September 9 and 12 the juvenile court

held the last two fact finding hearings in the termination matter. The juvenile

court issued its order involuntarily terminating Father’s parental rights to

8
“Midtown” refers to the Midtown Community Mental Health Center, which has been renamed the Sandra
Eskenazi Mental Health Center at Eskenazi Health. “Sandra Eskenazi Mental Health Center”
https://perma.cc/NE4W-4XL2

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 10 of 18
 Children on November 8, 2019, based on Father’s non-compliance with

services, drug use, and ongoing criminal activity.

Discussion and Decision
[16] We review termination of parental rights with great deference. In re K.S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

2004), trans. denied. Instead, we consider only the evidence and reasonable

inferences most favorable to the judgment. Id. In deference to the juvenile

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. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S.

1161 (2002).

[17] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court

must subordinate the interests of the parents to those of the child, however,

when evaluating the circumstances surrounding a termination. In re K.S., 750

N.E.2d at 837. The right to raise one’s own child should not be terminated

solely because there is a better home available for the child, id., but parental

rights may be terminated when a parent is unable or unwilling to meet his or

her parental responsibilities. Id. at 836.

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[18] To terminate a parent-child relationship in Indiana, DCS must allege and

prove:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and
has been under the supervision of a county office of
family and children or probation department for at
least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child
is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons
for placement outside the home of the parents will
not be remedied.
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment
of the child.

Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of

these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.

“[I]f the State fails to prove any one of these statutory elements, then it is not

entitled to a judgment terminating parental rights.” Id. at 1261. Because
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 12 of 18
 parents have a constitutionally protected right to establish a home and raise

their children, the State “must strictly comply with the statute terminating

parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18

(Ind. Ct. App. 1994).

[19] Father does not challenge the juvenile court’s findings, and thus they stand

proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because

Madlem does not challenge the findings of the trial court, they must be accepted

as correct.”). Father also does not challenge the trial court’s conclusions.

Instead, Father argues his parental rights were improperly terminated “after

DCS failed to make any accommodation to his numerous physical and mental

disabilities as required by the Americans with Disabilities Act and the

Fourteenth Amendment.” (Br. of Appellant at 8.)

[20] However, Father did not present this issue before the juvenile court, which

would have allowed the juvenile court to determine if the services offered by

DCS included appropriate accommodations. Thus, Father has waived this

issue from our review. See McBride v. Monroe Cty. Office of Family & Children, 798

N.E.2d 185, 194 (Ind. Ct. App. 2003) (issue waived because it was not first

presented before the juvenile court). Waiver notwithstanding, we note that the

failure to provide services as part of a CHINS proceeding cannot be used to

attack an order of termination. In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct.

App. 2009) (“failure to provide services does not serve as a basis on which to

directly attack a termination order as contrary to law”).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 13 of 18
[21] In addition, the juvenile court made numerous findings in its termination order

outlining the services offered to Father and his participation and progress, or

lack thereof, in those services:

41. DCS made multiple referrals for all court-ordered services
during the pendency of the Children’s CHINS cases[.]

42. Although Father participated in Father Engagement
program, he does not feel he has benefited from it.

43. Despite receiving Father Engagement services from May
2017 to January 2018, Father made little progress toward the
goals laid out by his provider, Simon Gelaye of Family and
Community Partners, which included budgeting, engaging in
services, accessing community resources, and finding the right
treatment to address his emotional stability.

44. Father indicated that he no longer wished to participate in
this service, and it was therefore subsequently closed
unsuccessfully.

45. In July 2017, Father received a comprehensive mental health
assessment through Dockside Services, administered by therapist
Stephen Houston.

46. Through that assessment Father was diagnosed with a heroin
addiction and severe depression.

47. The comprehensive mental health assessment recommended
crisis intervention and therapy to address any underlying issues
contributing to Father’s substance abuse and depression.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2880 | June 15, 2020 Page 14 of 18
 48. Father has had numerous therapists during the life of the
CHINS cases who have attempted to help him address mental
health and substance abuse issues. Each of these therapists have
unsuccessfully discharged him from their services with little to no
progress having been made.

49. Father does not believe that therapy will help address his
issues. He does not believe he needs therapy.

50. At trial, Father could not recall anything that he had learned
from his multiple therapists.

51. Father often presented as agitated, impulsive, and erratic
during his therapy sessions with Laurence Grant, who provided
therapy services to Father from September 2018 to December
2018 through Phoenix Family & Community Partners.

52. Father was unable to address issues related to mood
regulation, substance abuse, and mental health due to his
behavior and lack of communication[.]

53. Father has completed multiple psychological evaluations.

54. The most recent psychological evaluation was conducted on
July 2, 2019 following a clinical interview and assessment, which
also occurred on July 2, 2019. Both evaluations were conducted
by Elizabeth Kirsch, a psychometrist who is an expert in the field
of counseling and psychology.

55. Father’s clinical interview and assessment resulted in
diagnostic impressions of severe opioid use disorder and anxiety
disorder being given in accordance with the DSM-5.

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 56. Father was using heroin daily leading up to the clinical
interview and assessment, and he used heroin the day before the
assessment.

57. The clinical interview and assessment also gave rule out [sic]
impressions of bipolar disorder, posttraumatic stress disorder,
and personality disorders.

58. At the conclusion of his psychological evaluation, Father
was given DSM-5 diagnostic impressions of severe opioid use
disorder, generalized anxiety disorder, posttraumatic stress
disorder, paranoid personality traits, and avoidant personality
traits.

59. The psychological evaluation made a number of
recommendations for Father, including participation in a detox
program, a psychiatric evaluation, and individual mental health
counseling.

60. Despite Father’s beliefs about therapy, mental health
counseling is effective in treating anxiety and substance abuse
issues.

61. Based on the results of his most recent psychological
evaluation, Father possesses no significant limitations to his
neuropsychological functioning, and his IQ falls within the low-
average range.

62. Even though he suffers from traumatic brain injuries, Father
is capable of learning and retaining information, as well as
meaningfully participating in services meant to address issues
related to substance abuse and mental health.

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 63. Although he has that ability, the Court finds that Father has
not meaningfully participated in services provided to him to
address his substance abuse, mental health, and pain issues.

*****

74. Father does not believe that additional services or medical
treatment will address his issues, and he testified that he does not
want to receive additional services from DCS. Father believes
that all of the services provided to him have only made him
worse.

(App. Vol. II at 29-30.) As indicated in the juvenile court’s findings, Father was

given the opportunity to engage in a variety of services over the three years of

the CHINS proceedings. He cannot now complain that the services provided

were insufficient, when in fact he did not avail himself of the opportunities

provided to him during these proceedings. See In re S.E., 15 N.E.3d 37, 48 (Ind.

Ct. App. 2014) (affirming termination of mother’s parental rights based on her

non-compliance with multiple service referrals to address her mental health

issues), trans. denied.

Conclusion
[22] Father waived his Due Process argument by failing to raise it before the trial

court. Waiver notwithstanding, the trial court’s unchallenged findings

demonstrate that DCS did attempt to address all of Father’s issues, even with

multiple referrals to some services, and that Father had the ability but not desire

to benefit from those referrals. Accordingly, we affirm.

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[23] Affirmed.

Robb, J., and Vaidik, J., concur.

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