In the Matter of the Involuntary Termination of the Parent-Child Relationship of L.B. (Minor Children) and L.P. (Mother) 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 Oct 21 2020, 7:54 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
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary October 21, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of L.B., et al. 20A-JT-1040
(Minor Children) Appeal from the Knox Superior
and Court
The Honorable Gara U. Lee,
L.P. (Mother), Judge
Appellant-Respondent, Trial Court Cause Nos.
42D01-1909-JT-37
v. 42D01-1909-JT-38
42D01-1909-JT-39
The Indiana Department of
Child Services,
Appellee-Petitioner.

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1040 | October 21, 2020 Page 1 of 12
 Case Summary
[1] L.B. (“Mother”) appeals the trial court judgment terminating her parental rights

as to her children, C.B., L.B., and P.B. (collectively, “Children”).1 She raises

two issues on appeal, but we address only the following dispositive, restated

issue: whether the termination of her parental rights violated her due process

rights because the Indiana Department of Child Services (“DCS”) failed to

provide her with needed services during the Child in Need of Services

(“CHINS”) proceedings.

[2] We affirm.

Facts and Procedural History
[3] Mother and Father have three children, C.B. (born May 1, 2007), and twins

L.B. and P.B. (born November 20, 2009). In May of 2018, DCS received a

report that Mother was using drugs. DCS visited the home and removed

Children when a urine screen indicated Mother’s use of methamphetamine.

Initially, Mother denied drug use, but she eventually admitted that “she was

overwhelmed just taking care of the kids and the bills, and she slipped up and

had used meth and took a pain pill for her back.” Tr. at 40. On May 17,

Children were placed with Father. However, one month later, Father “dropped

[Children] off” at the home of Mother’s brother and never returned to pick

1
The parental rights of J.B. (“Father”) were also terminated but he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1040 | October 21, 2020 Page 2 of 12
 them up. Id. at 88-89. Children have never been returned to the care of Father

or Mother.

[4] On August 21, 2018, Mother entered into a “Stipulation for CHINS

Adjudication,” in which she stipulated that Children were CHINS because

“mother requires assistance with substance abuse and obtaining and

maintaining mental health services for the family, as well as assistance

maintaining the children’s school schedule and the home.” Ex. Vol. I at 112.2

Mother also stipulated that the following services were “necessary to remedy

the reasons for DCS involvement: Drug screens and treatment as

recommended; continuing mental health treatment as recommended; and

ensuring the provision of a safe, stable environment free of abuse or neglect.”

Id. The court found that Children were CHINS.

[5] In a September 17, 2018, dispositional decree, the trial court ordered that

Mother cooperate with DCS and participate in services, including: allowing

DCS and service providers to visit Mother’s home; enrolling in recommended

programs; keeping appointments with DCS, service providers, and Children’s

Court Appointed Special Advocate (“CASA”); maintaining suitable, safe, and

stable housing; maintaining stable income; not using illegal controlled

2
All citations are to the CHINS and termination of parental rights documents for L.B., unless specifically
noted otherwise, because the exhibits are substantially the same for all three of the children.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1040 | October 21, 2020 Page 3 of 12
 substances or alcohol; submitting to random drug screens; completing a

substance abuse assessment and all recommendations; and attending visitations.

[6] Following a November 5, 2018, CHINS review hearing, the trial court found

that DCS had offered and provided Mother with “family services,” including

“supervised visitation, therapeutic services, home based case management

services, home-based therapy services, random drug screens, and participation

in CFTMs [i.e., Child and Family Team Meetings].” Id. at 155. However, it

found that Mother had “completely stopped participating in all services, except

supervised visitation, and continue[d] to struggle with substance abuse.” Id. at

154. The trial court noted that Mother had “failed to attend therapy with CFS

[i.e., Children and Family Services, the agency assigned to provide Mother with

substance abuse treatment] during the month of October.” Id. The court

further noted that Mother “had one visit with her home-based case manager

from Raintree Consulting and that was only after the Raintree case manager did

a drop-in visit to [Mother].” Id. The court found that Mother’s “visitations

[with Children] had been reduced to one two-hour visit per week, due to her

cancelling at the last minute or failing to show up.” Id. at 155. The court found

that Mother had not cooperated with DCS and had not participated in any

services other than some of the supervised visitations.

[7] Following the April 22, 2019, permanency CHINS hearing, the trial court

found that DCS continued to offer services to Mother, but Mother had not

remained in contact with DCS and had failed to consistently participate in

services offered. Following a September 16, 2019, review hearing, the trial

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 court found that Mother had not cooperated with DCS and was not “in

compliance with [Children’s] case plan[s] as evidenced by [her] complete failure

to take advantage of services, including visitation.” Id. at 229.

[8] On September 16, 2019, DCS filed its petitions to terminate the parental rights

(“TPR”) as to Children. The trial court conducted a fact-finding hearing in the

TPR cases on December 10, 2019, and February 6, 2020. Mother admitted at

the hearing that Children need a stable home and a sober caregiver, and that

she had not provided that home or been that caregiver. She agreed that she

could not provide for Children’s “safety, their wellbeing” as of the time of the

termination hearing. Tr. at 140. Mother “[s]omewhat” agreed that DCS had

provided services that would have allowed her to once again have custody of

Children, but she agreed that she “didn’t comply fully with those services.” Id.

at 30.

[9] In an order dated April 17, 2020, the trial court granted the TPR petition as to

all three children. That order stated, in relevant part:

FINDINGS OF FACT

***

21. The mother was offered random drug screens, parent aide
services, home based casework, visitation, in-home
therapy, and substance abuse treatment through Samaritan
Center.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1040 | October 21, 2020 Page 5 of 12
 22. The mother failed to comply with providing random drug
screens so that DCS could monitor compliance or lack
thereof.

23. The mother cancelled or no-showed for home based
caseworker services provided by the Department and was
unable to complete any items on the referral due to
noncompliance.

24. The mother’s in-home therapy services through Children
and Family Services were cancelled due to missed sessions
prior to completion of services.

25. The mother missed many scheduled visits with the
children to the extent that her visits were reduced to one
time per month. The children were negatively affected
when the mother missed visits.

26. According to Nicki Epperson who provided individual
therapy to the girls and who facilitated therapeutic visits
with the mother, the children wrote trauma narratives for
the mother to read and the mother had not responded by
letter to those narrative[s] as requested by the therapist.
Ms. Epperson indicated that the kids are resentful
regarding their parents and that [C.B.] has been refusing to
attend visits with the mother.

27. It would be harmful for the children to be placed with
either parent because therapeutically there is a concern
that the parents would create more trauma.

28. The mother admitted that she was aware of the
requirements outlined in the dispositional order and that
she had failed to comply with many of them. Specifically,

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 she admitted to failing to keep in contact with DCS, failing
to keep DCS apprised of changes to residence and
employment, failing to maintain suitable housing, failing
to complete referred programs, failing to keep
appointments with providers, failing to submit to drug
screens regularly, failing to refrain from drug use, and
failing to attend visits consistently with her children.

29. Mother did indicate that she was “trying now” and had
made recent positive changes in that she was currently
working and attending a drug treatment program not
referred by DCS. She claimed to be recently sober for one
month. She admitted that she has not shown that she can
support her kids and that she realized she was not what
was best for them at the time of hearing but wanted an
opportunity to change.

30. DCS’s plan is for the children to be adopted by separate
families, one a relative placement and the other a foster
placement.

31. The CASA volunteer for the children, Cheryl Hugunin,
was appointed in June of 2018. Cheryl believes it to be in
the best interest of the children for the parent child
relationships between the children and the mother and
father to be terminated. She holds said position even in
light of the fact that the children are not placed together.
The children do attend the same school and have frequent
contact. Due to the mother cancelling visits, Cheryl last
saw the mother interact with the children in the Spring of
2019. Cheryl was never able to observe the children with
their father. Cheryl informed the Court that the children
were safe and stable in their current placements and that
they would find permanency in those placements.

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 Appealed Order at 3-5.

[10] The trial court held that Mother’s parental rights as to Children were

terminated because there is a reasonable probability that the conditions which

resulted in Children’s removal will not be remedied, continuation of the parent-

child relationships poses a threat to Children’s well-being, and termination of

parental rights is in Children’s best interests. This appeal ensued.

Discussion and Decision
[11] Mother maintains that the trial court’s order terminating her parental rights

violated her constitutional due process rights. Although Mother did not raise a

due process argument in the trial court, we exercise our discretion to review

that issue on appeal. See In re D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019)

(noting “we have discretion to address such [due process] claims, especially

when they involve constitutional rights, the violation of which would be

fundamental error”), aff’d in relevant part on reh’g, 122 N.E.3d 832 (Ind. Ct. App.

2019), trans. denied.

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

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

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

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

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

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 relationship poses a threat to the child’s well-being; and (C) termination is in

the best interests of the child.3 Ind. Code § 31-35-2-4(b)(2).

[13] A parent’s interest in the upbringing of his or her child is “perhaps the oldest of

the fundamental liberty interests recognized by th[e] [c]ourt[s].” Troxel v.

Granville, 530 U.S. 57, 65 (2000) (plurality op.). And the “involuntary

termination of parental rights is an extreme measure that is designed to be used

as a last resort when all other reasonable efforts have failed.” In re C.G., 954

N.E.2d 910, 916 (Ind. 2011). Therefore, “the certainty of a trial court’s decision

to terminate a parent’s parental rights to his or her child is paramount.” In re

V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). And we review such a decision under

a “heightened standard” requiring clear and convincing evidence that

termination is appropriate. Id. However, we will not reweigh the evidence or

judge the credibility of the 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 that are most favorable to the judgment. Id.

[14] Here, in terminating Mother’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. Usually, when a trial court’s

judgment contains special findings and conclusions, we apply a two-tiered

standard of review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

3
We note that Mother does not challenge the sufficiency of the evidence supporting the decision to
terminate her parent rights, and we discern no deficiency.

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 143, 147 (Ind. 2005).4 However, in this case, Mother does not challenge either

the findings or specific conclusions; rather, she contends that the termination

order must be reversed because DCS failed to provide her with necessary

services and that failure denied her due process of law.

[15] When the State seeks to terminate parental rights, “it must do so it in a manner

that meets the requirements of due process.” In re J.K., 30 N.E.3d 695, 699

(Ind. 2015) (quotations and citations omitted). The nature of the process due in

proceedings to terminate parental rights is governed by a balancing of the “three

distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): the

private interests affected by the proceeding; the risk of error created by the

State’s chosen procedure; and the countervailing governmental interest

supporting use of the challenged procedure. In re A.P., 734 N.E.2d 1107, 1112

(Ind. Ct. App. 2000), trans. denied.

The private interest affected by the proceeding is substantial—a
parent’s interest in the care, custody, and control of his or her
child. And the State’s interest in protecting the welfare of a child
is also substantial. Because the State and the parent have
substantial interests affected by the proceeding, we focus on the
risk of error created by DCS’s actions and the trial court’s
actions.

4
First, we determine whether the evidence supports the findings and, second, we determine whether the
findings support the judgment. Id.

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 In re S.L., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013) (citing In re C.G., 954

N.E.2d at 917).

[16] In looking at the risk of error created by DCS’s actions, 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.” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014)

(quotations and citations omitted). “[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. And “[a]ny procedural

irregularities in a CHINS proceeding may be of such significance that they

deprive a parent of procedural due process with respect to the termination of his

or her parental rights.” In re S.L., 997 N.E.2d at 1120; see also Matter of

C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (holding that “the chaotic

and unprofessional handling” of a CHINS case violated the parents’ due

process rights, requiring reversal of the termination order). Thus,

for a parent’s due process rights to be protected in the context of
termination proceedings, DCS must have made reasonable
efforts to preserve and/or reunify the family unit in the CHINS
case (unless the no reasonable efforts exception applies). What
constitutes “reasonable efforts” will vary by case, and … it does
not necessarily always mean that services must be provided to the
parents.

In re T.W., 135 N.E.3d 607, 615 (Ind. Ct. App. 2019), trans. denied.

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[17] Here, we have identified no procedural irregularities in either the CHINS or

TPR proceedings. Contrary to Mother’s assertion, DCS did make reasonable

efforts to preserve and/or reunify Mother and Children by offering Mother

various services throughout the CHINS proceedings. DCS offered and/or

provided Mother with drug screens, parent aide services, home based

caseworker services, visitation, in-home therapy, and substance abuse

treatment.5 The record shows that it was Mother who failed to avail herself of

those services. Her contentions to the contrary are merely requests that we

reweigh the evidence and assess witness credibility, which we will not do. See,

e.g., In re D.D., 804 N.E.2d at 265.

[18] The trial court did not enter the termination of parental rights order in violation

of Mother’s due process rights.

[19] Affirmed.

Bradford, C.J., and Vaidik, J., concur.

5
Because the record establishes that DCS did, in fact, provide Mother with services throughout the CHINS
proceedings—i.e., prior to termination of her parental rights—we do not address Mother’s Equal Privileges
and Immunities claim that Indiana Code Section 31-35-4-2(b)(2) “does not comport with Art. [1], § 23 of the
Indiana Constitution” because it fails to require DCS to provide services prior to termination of parental
rights. Appellant Br. at 19.

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