In re the Termination of the Parent-Child Relationship of: R.P. Jr. (Minor Child) and R.P. (Father), R.P. (Father) v. 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
Sep 30 2020, 9:57 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General
Greenfield, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the September 30, 2020
Parent-Child Relationship of: Court of Appeals Case No.
R.P. Jr. (Minor Child) and 20A-JT-872
R.P. (Father) Appeal from the
R.P. (Father), Hancock Circuit Court
The Honorable
Appellant-Respondent,
R. Scott Sirk, Judge
v. Trial Court Cause No.
30C01-1909-JT-307
Indiana Department of Child
Services,
Appellee-Petitioner

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-872 | September 30, 2020 Page 1 of 11
 Case Summary
[1] R.P. (“Father”) appeals the termination of his parental rights to R.P. Jr.

(“Child”). We affirm.

Facts and Procedural History
[2] Father and T.P. (“Mother”) are the biological parents of Child, born in 2011.

Mother signed a consent to Child’s adoption and does not participate in this

appeal. Therefore, we limit our narrative to the facts relevant to Father.

[3] Father has an “extensive and consistent” criminal history that has led to his

incarceration for most of Child’s life. Appellant’s App. Vol. II p. 19. In 2013,

when Child was two years old, Father was arrested for robbery as a Class B

felony and sentenced to eight years. In February 2017, while Father was still

incarcerated, the Department of Child Services (DCS) received reports that

Mother was caring for Child and his siblings while under the influence of illegal

substances. Later that month, Mother was arrested. As there were no available

caregivers, DCS removed Child from the home. On February 23, 2017, DCS

filed a petition alleging Child and his siblings were Children in Need of Services

(CHINS). A month later, the trial court held a fact-finding hearing, and Father

appeared in custody. The court informed Father of his rights in the proceeding,

including that he had the right to an attorney, and asked how he wished to

proceed. Father then expressed confusion at his involvement in the proceeding,

given he had been incarcerated for the past four years. The court responded:

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 “As the Father you can proceed by admitting the CHINS which is what Mother

has done. You can proceed by denying the CHINS. You can ask for counsel.”

Id. at 86. Father then admitted Child was a CHINS. The court ordered Father

to participate in reunification services, including making weekly contact with

the family case manager (FCM), participating in FCM-recommended

programs, obeying the law, attending scheduled visits, and providing Child with

a safe and secure environment.

[4] In March 2018—over a year after the fact-finding hearing—Father was released

on parole. While on parole, Father failed to maintain consistent contact with

FCM John West and FCM Connor McCarty—forcing them to communicate

with him via his parole officers and a private investigator. Although he received

notice and reminders from DCS, Father failed to appear at any CHINS review

hearings when not in custody. And despite receiving numerous referrals for

services—for domestic-violence classes, substance-abuse rehabilitation,

fatherhood-engagement classes, and therapeutic supervised visits with Child—

Father either never initiated the service or it was ultimately closed out

unsuccessfully due to his lack of engagement.

[5] While on parole from March 2018 to July 2019, Father never achieved stable

housing or employment, changing residences “three times in nine months” and

holding “two or three jobs in that time.” Id. at 24. Father also failed to make

progress on his substance abuse. In May 2018, he tested positive for

amphetamine and cocaine. Throughout his parole, Father tested positive for

illegal substances four additional times. In October 2018, methamphetamine

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 was discovered at Father’s residence, leading to his arrest and incarceration,

although he was released that same month. In June 2019, Father was

unsuccessfully discharged from his substance-abuse services at Volunteers of

America due to non-compliance. In July 2019, Father’s parole was revoked due

to the repeated positive drug tests, and he was reincarcerated.

[6] Father has not seen Child—now nine years old—since he was eighteen months

old. In February 2019, DCS attempted therapeutic visits—beginning as

supervised phone calls—between Father and Child. However, when these calls

were attempted, Father could not be reached and never provided updated

contact information. DCS later attempted a similar plan with letters, of which

Father wrote only two to the Child.

[7] In September 2019, DCS filed its termination petition. Fact-finding hearings

occurred in November 2019 and March of this year. Father was represented by

counsel during these proceedings. FCM West and FCM McCarty both detailed

Father’s consistent lack of engagement with DCS: his failure to communicate,

non-compliance with services, and ongoing involvement with criminal

activities. Michael Easton, Father’s parole officer, testified that Father was “in

worse shape by the end of his time [on parole] in July 2019 th[a]n even at the

start of his time.” Tr. pp. 87-88. Katherine Merchant, a mental-health counselor

at Volunteers of America who began working with Father in 2018, stated that

his repeated non-compliance in group therapy and the substance-abuse services

led to his discharge from the program, and she felt Father was at a “huge risk of

relapse.” Id. at 115. Phyllis Watkins, Child’s Court Appointed Special

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 Advocate, testified that Child does not remember Father and has no interest in

forming a relationship with him. Finally, Father testified, stating that he had

made “some” effort to get his son back but that his substance-abuse issues and

incarceration “extensively” disrupted the case. Id. at 127, 130-31.

[8] After the hearing, the trial court issued an order terminating Father’s parental

rights.

[9] Father now appeals.

Discussion and Decision
I. Due Process
[10] Father contends his due-process rights were violated by the CHINS court’s

failure to appoint counsel for him before holding the fact-finding hearing and

accepting his admission that Child was a CHINS. Appellant’s Br. pp. 9-13. As

an initial matter, it does not escape us that Father did not raise a due-process

claim before the trial court, and thus we may consider it waived. See Hite v.

Vanderburgh Cty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App.

2006). However, we prefer to resolve due-process claims on the merits.

[11] When the State seeks to terminate the parent-child relationship, it must do so in

a manner that meets the requirements of due process. In re G.P., 4 N.E.3d 1158,

1165 (Ind. 2014). Determining what process is due involves balancing 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
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 interest supporting use of the challenged procedure. Id. at 1165-66. Here, both

the private and government interests are substantial. Therefore, our task is to

determine the risk of error created when Father did not have counsel at the

CHINS fact-finding hearing.

[12] In determining the risk of error created by the State’s chosen procedure, we

keep in mind that due-process protections at all stages of CHINS proceedings

are vital because every CHINS proceeding has the potential to interfere with the

rights of parents in the upbringing of their children. Id. at 1165. “[T]hese two

proceedings—CHINS and TPR—are deeply and obviously intertwined to the

extent that an error in the former may flow into and infect the latter.” Id.

However, where lack of counsel results in a child being adjudicated a CHINS,

there is “less of a collateral impact because the processes are still distinct and an

error may be corrected in a TPR proceeding—before the harm becomes

permanent.” Id. at 1168 (citing In re E.P., 653 N.E.2d 1026, 1032 (Ind. Ct. App.

1995) (“However, unlike a termination proceeding . . . where an erroneous

result obviously would be disastrous, an erroneous CHINS adjudication has a

far less disastrous impact on the parent-child relationship.”)).

[13] Here, Father contends that the trial court deprived him of due process by not

appointing counsel and instead accepting his admission that Child was a

CHINS “despite [his] stated confusion” at the fact-finding hearing. Appellant’s

Br. p. 12. This mischaracterizes the record. At the hearing, Father was informed

by the trial court that he had the right to an attorney if he wanted to request

one. Appellant’s App. Vol. II p. 85. Father then stated that he was confused

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 because he had “no knowledge of [Mother] doing any of this stuff” and he did

not “see how [he] take[s] part in this case considering [he has] been incarcerated

for four years.” Id. at 86. Father’s confusion was not about his right to counsel,

but as to his role in the proceeding. The court then reiterated his options, telling

him he could proceed by admitting, denying, or asking for counsel. Father

opted to admit, never indicating he wanted counsel, despite being told twice by

the court that he could request counsel. As such, Father was not denied

counsel, and there is no due-process violation.

[14] Furthermore, Father does not say how not having counsel during the CHINS

fact-finding hearing prejudiced him in the termination proceeding. He does not

tell us what would have been different had he had counsel at the hearing. As

Mother had admitted Child was a CHINS and Father was incarcerated, it is

hard to see how the outcome of the hearing would have been different. Thus,

the risk of error in Father’s lack of counsel at the CHINS fact-finding hearing is

minimal.

[15] For these reasons, Father has failed to show that not having counsel during the

CHINS fact-finding hearing created such a risk of error that the termination

order requires reversal.

II. Sufficiency
[16] Father also argues that DCS did not prove the statutory requirements for

termination by clear and convincing evidence. When reviewing the termination

of parental rights, we do not reweigh the evidence or judge witness credibility.

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 In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the

evidence and reasonable inferences that are most favorable to the judgment of

the trial court. Id. To determine whether a judgment terminating parental rights

is clearly erroneous, we review whether the evidence supports the trial court’s

findings and whether the findings support the judgment. In re V.A., 51 N.E.3d

1140, 1143 (Ind. 2016).

[17] A petition to terminate parental rights must allege, among other things:

(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 prove the alleged circumstances by clear

and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court finds

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 that the allegations in a petition are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

[18] Father challenges the trial court’s conclusion that there is a reasonable

probability that the conditions resulting in Child’s removal will not be

remedied. In determining whether the conditions that resulted in a child’s

removal will not be remedied, the trial court engages in a two-step analysis.

First, the trial court must ascertain what conditions led to the child’s placement

and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

court determines whether there is a reasonable probability that those conditions

will not be remedied. Id. “The trial court must consider a parent’s habitual

pattern of conduct to determine whether there is a substantial probability of

future neglect or deprivation.” Id.

[19] Here, Child was initially removed from the home due to Mother’s substance

abuse and Father’s incarceration and inability to provide care or supervision for

Child. Father contends his continuing periods of incarceration prevented him

from participating in DCS services and that this failure to participate actually

“precluded the court from being able to determine whether there was a

reasonable probability that Father’s prior substance abuse issues could not be

resolved.” Appellant’s Br. p. 16. We disagree. At no point in the almost three-

year CHINS case did Father show significant progress on his substance-abuse

issue. While on parole in 2018, Father tested positive for illegal substances

within a few months of his release. He subsequently tested positive another four

times within his sixteen-month parole, leading to his reincarceration. Father has

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 failed to complete any substance-abuse treatment referred to him by DCS or his

parole officer. Finally, his mental-health counselor believes Father is at a “huge

risk of relapse.” Tr. p. 115.

[20] Furthermore, Father’s substance abuse is far from the only conduct that

prevents him from providing a safe and stable home. Father has an “extensive

and consistent” criminal history, leading to his incarceration for most of Child’s

life. Appellant’s App. Vol. II p. 19. Since Child was two years old, Father has

only been free from incarceration for any substantial period while on parole

from March 2018 to July 2019, during which he was once briefly incarcerated.

This parole was eventually revoked due to numerous violations. Father’s

incarceration was the reason Child was initially removed from his care, and

Father’s behavior has shown this is unlikely to change. Additionally, during his

brief period of non-incarceration during the CHINS proceedings, Father lacked

stable housing and employment. DCS provided Father with services to address

his history of substance abuse and domestic violence and to aid in establishing a

bond with his son. Repeatedly, Father failed to participate in, or even initiate,

these services. Father did not remain in contact with DCS despite its efforts.

Father fails to demonstrate that he was any closer to providing Child a safe,

stable home than he was at the beginning of the CHINS case. As such, the trial

court did not err when it concluded that there is a reasonable probability that

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 the conditions resulting in Child’s removal and continued placement outside

Father’s home will not be remedied.1

[21] Affirmed.

Bailey, J., and Weissmann, J., concur.

1
Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions
resulting in Child’s removal will not be remedied, we need not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires trial courts to find only one of the two requirements of subsection (b)
has been established by clear and convincing evidence), trans. denied.

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