IN RE: The Termination of the Parent-Child Relationship of D.W. (Minor Child); (2024)

MEMORANDUM DECISION

Statement of the Case

[1] D.R. (“Father”) and C.W. (“Mother”) (collectively, (“Parents”) appeal the trial court's order that terminated their parental relationships with their thirteen-year-old daughter D.W. (“D.W.”). The gravamen of their sole argument is that their due process rights were violated because the Department of Child Services (“DCS”) failed to make reasonable efforts to preserve the parent-child relationships. Concluding that DCS made reasonable efforts to preserve the parent-child relationships and that Parents’ due process rights were not violated, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether Parents’ due process rights were violated because DCS failed to make reasonable efforts to preserve the parent-child relationships.

Facts

[3] Mother and Father are the parents of D.W., who was born in July 2010. In January 2022, DCS received a report that D.W. was the victim of neglect. The report specifically alleged that there were concerns about Parents’ substance abuse, the family's living conditions, and D.W.’s unexcused absences from school. DCS assessor Jennifer Rutan (“Assessor Rutan”) went to Parents’ home and observed that the family was living in a shed in a family member's backyard. The shed did not have running water or electricity. Parents had an electric extension cord running from the family member's house to the shed. Father and then eleven-year-old D.W. slept together in a bed while Mother slept on the floor.

[4] Mother told Assessor Rutan that she struggled with mental health issues, including schizophrenia and bi-polar disorder. Father told Assessor Rutan that he purchased “Mini Thins” from the gas station and that the “Mini Thins” helped him with his mental health but caused him to test positive for methamphetamine. (Tr. Vol. 2 at 75). Father further told Assessor Rutan that he needed to get back on his mental health medication but that it had been several years since he had seen a doctor. Both parents refused to submit to drug screens.

[5] Parents initially agreed to participate in an informal adjustment, and D.W. remained in the shed with Parents. In March 2022, after Parents again refused drug screens, DCS filed a petition alleging that D.W. was a child in need of services (“CHINS”). Following a hearing, the trial court adjudicated D.W. to be a CHINS in June 2022. D.W. remained with Parents.

[6] In June 2022, the trial court issued a dispositional order that required Parents to: (1) keep all appointments with service providers; (2) abstain from the use of illegal substances; (3) complete an assessment with a Family Preservation Service Provider and successfully complete all of the assessor's recommendations; (4) complete a parenting assessment and successfully complete all of the assessor's recommendations; (5) complete a substance abuse assessment and complete all of the assessor's recommendations; (6) submit to random drug screens; and (7) complete a psychological evaluation and successfully complete all of the evaluator's recommendations.

[7] DCS immediately referred Parents to Lifeline Youth and Family Services (“Lifeline”) for family preservation services. Lifeline family consultant Brandy Perry (“Consultant Perry”) provided home-based case management services to Parents and attempted to help them find stable housing and access mental health services. Parents were not compliant with the services and made no progress.

[8] Lifeline therapist Jared Comfort (“Therapist Comfort”) “provide[d] motivational interviewing to hopefully increase compliance to the [family preservation] services.” (Tr. Vol. 2 at 80). Father told Therapist Comfort that he experienced auditory and visual hallucinations and that he believed that there were SS agents in the woods around the shed where the family was living. Father also believed that Therapist Comfort was a communist and that he worked with the Bedford Police Department. Parents were not compliant with Therapist Comfort's services and attended only four to six sessions over five to six months. In September 2022, Lifeline discharged Parents from its program because of their lack of compliance and progress with services and because of safety concerns after Father threatened to kill Therapist Comfort and another Lifeline service provider.

[9] In October 2022, DCS removed D.W. from Parents because of their lack of compliance and progress with services and because of Father's threats to service providers. DCS placed D.W. with maternal grandparents.

[10] In February 2023, Mother participated in a DCS-referred psychological evaluation with Dr. Dawn Lindeman (“Dr. Lindeman”). Dr. Lindeman diagnosed Mother with intellectual developmental disorder, schizophrenia spectrum disorder, attenuated psychosis syndrome, and generalized anxiety disorder. Based on these diagnoses, Dr. Lindeman recommended that Mother participate in individual therapy to address her psychotic symptoms and anxiety.

[11] Also, in February 2023, Father participated in an intake appointment for a psychological evaluation but did not attend or reschedule the evaluation. Dr. Lindeman was not able to diagnose Father or make recommendations for him because he had failed to attend the evaluation. However, based on the intake appointment, Dr. Lindeman determined that Father was experiencing “psychosis and delusions[.]” (Tr. Vol. 2 at 43).

[12] In March 2023, DCS moved D.W. from her maternal grandparents’ home to her sister's home. Also, in March 2023, Parents both tested positive for methamphetamine.

[13] Two months later, in May 2023, DCS referred Parents to Ireland Home-Based Services (“Ireland”). Therapist David Schlegel (“Therapist Schlegel”) conducted a parenting assessment with Father, but Mother refused to participate in one. Another Ireland service provider attempted to assist Parents in finding stable housing and accessing mental health treatment. Parents did not make progress in these services, and, in June 2023, DCS suspended the services that it had offered to Parents due to their lack of compliance and progress. In addition, DCS believed that it was unsafe for service providers to meet with Father.

[14] In July 2023, DCS filed a petition to terminate Parents’ parental relationships with D.W. At the October and December 2023 termination hearings, the trial court heard the facts as set forth above. In addition, DCS family case manager Amy Grafton (“FCM Grafton”) testified that “[u]ltimately, the reason for [D.W.’s] removal was [Parents’] untreated mental health and substance use.” (Tr. Vol. 2 at 142). FCM Grafton further testified that DCS had referred Parents to substance abuse assessments. According to FCM Grafton, Parents had completed the assessments but had not followed the assessor's recommendations. FCM Grafton also testified that DCS had referred Parents for drug screens. Parents were required to make daily telephone calls to the drug screen provider to determine if they needed to submit drug screens. Neither parent ever called the drug screen provider. According to FCM Grafton, Parents had occasionally submitted drug screens to a DCS case manager and had often tested positive for methamphetamine.

[15] Also, at the termination hearing, Parents’ counsel asked FCM Grafton if she was familiar with chapter 16, section 3 of the “DCS policy manual.” (Tr. Vol. 2 at 136). When FCM Grafton responded, “Yes[,]” Parents’ counsel asked her if “any of those services [were] offered to this family early on in the case?” (Tr. Vol. 2 at 136). FCM Grafton explained that DCS had “put in services and the providers would work through those steps.” (Tr. Vol. 2 at 136). Parents’ counsel subsequently asked FCM Grafton if she had “work[ed] with this family about or offer[ed] this Section 03 subsidy[,]” and FCM responded, “No.” (Tr. Vol. 2 at 137). Parents’ counsel did not tender the DCS policy manual to the trial court.

[16] In December 2023, the trial court issued a detailed thirteen-page order terminating Parents’ parental relationships with D.W. That order provides, in relevant part, as follows:

83. Mother and Father have not addressed their mental health conditions, delusions and psychos[e]s that inhibit their ability to properly care for [D.W.] While offered the opportunity to engage with service providers[,] [Parents] were inconsistent and made no progress.

* * * * *

86. [Parents] have not engaged in substance use treatment to address illegal substance use. Father has been insistent that he will continue to use THC and he has throughout the CHINS proceeding. Moreover, Father and Mother tested positive for Methamphetamine and Amphetamine as recent as March 2023 even though they have taken very few drug screens (relative to the length of the CHINS proceeding).

87. Based upon the above concerns for untreated mental illness and untreated substance use, there is a reasonable probability the reasons that resulted in removal of [D.W.] from Mother and Father will not be remedied.

(App. Vol. 2 at 24-25).

[17] Parents now appeal the termination of their parental relationships with D.W.

Decision

[18] At the outset, we note that Parents do not challenge the sufficiency of the evidence to support the termination. Rather, their sole argument is that DCS’ “unprofessional mishandling of the CHINS case violated [their] due process rights under the Fourteenth Amendment of the United States Constitution resulting in fundamental error[.]” (Parents’ Br. 21). Parents specifically argue that DCS “fail[ed] to uphold its obligations in identifying and providing resources to the family ․ Such conduct and failure to act under the known circumstances was an unprofessional handling of the proceedings by DCS resulting in a fundamental violation of [Parents]’ constitutionally protected right to raise and parent D.W.” (Parents’ Br. 9).

[19] However, the law is well-established that a party on appeal may waive a constitutional claim. McBride v. Monroe County Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). For example, in In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001), this Court determined that a mother had waived her claim that the trial court had violated her due process rights because she had raised the constitutional claim for the first time on appeal.

[20] Here, Parents did not object to any alleged deficiencies in the CHINS process during the CHINS proceedings, nor did they argue during the termination proceedings that those alleged deficiencies constituted a due process violation. Rather, Parents are raising their due process claim for the first time on appeal. They have therefore waived appellate review of this issue. See id.

[21] In an attempt to avoid waiver, Parents argue that DCS’ failure to make reasonable efforts to preserve the parent-child relationships rises to the level of fundamental error. Fundamental error review “is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Matter of Eq.W., 124 N.E.3d 1201, 1214-15 (Ind. 2019) (internal quotation marks and citation omitted).

[22] When DCS seeks to terminate parental rights, “it must do so in a manner that meets the requirements of due process.” In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (internal quotation marks and citation omitted). Whether due process has been afforded in termination proceedings is determined by balancing the following “three distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (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. A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans. denied.

[23] In S.L. v. Indiana Department of Child Services., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013), this Court further explained the Mathews factors as follows:

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.

(Internal citation omitted).

[24] DCS must “make reasonable efforts to preserve and reunify families[.]” Ind. Code § 31-34-21-5.5(b). In addition, “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) (internal quotation marks 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.

[25] However, the “failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). See also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“[T]he 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.”). Further, a parent may not sit idly by without asserting a need or desire for services and then successfully argue that he or she was denied services to assist him or her with his or her parenting. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).

[26] Here, our review of the record reveals that DCS offered Parents the following services: (1) family preservation services to provide access to mental health services and stable housing; (2) parenting assessments; (3) substance abuse assessments; (4) psychological assessments; and (5) drug screens. Lifeline discharged Parents from the family preservation services because of Parents’ lack of compliance and progress with services and because Father had threatened to kill Lifeline service providers. Father participated in the parenting assessment, but Mother did not. Parents participated in substance abuse assessments but did not follow the assessor's recommendations. Mother participated in the psychological assessment, but Father did not. Parents did not make the required daily contact with the drug screen providers and only occasionally provided drug screens to DCS case managers. Those drug screens were often positive for methamphetamine. Parents now complain that they should have been offered more services. DCS offered Parents sufficient services in its attempt to preserve and reunify Parents’ family.

[27] Based on the foregoing, Parents have neither established a violation of their due process rights nor demonstrated fundamental error. We, therefore, affirm the trial court's termination of their parental relationships with D.W.¹

[28] Affirmed.

FOOTNOTES

1.   Parents also argue that their due process rights were violated because DCS did not provide them with funds authorized by section 16-03 of the Indiana Child Welfare Policy Manual (“the Manual”). Parents did not specifically identify this manual during their cross-examination of FCM Grafton. The Manual appears to be the “DCS policy manual” about which Parents questioned FCM Grafton. (Tr. Vol. 2 at 136). According to Parents, the funds authorized by the Manual “would have addressed the reasons DCS sought removal [of D.W.]: the family's lack of adequate housing, means of transportation ․, bed bugs, cell phone, extra bedding, etc.” (Parents’ Br. 16). Parents have waived appellate review of this issue because they raise it for the first time on appeal. See K.S., 750 N.E.2d at 834 n.1. In addition, Parents did not tender the Manual to the trial court. “The rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider.” GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002).Parents again attempt to avoid waiver by arguing that fundamental error occurred. First, Parents have cited no authority in support of their argument that fundament error occurs when DCS does not provide funds authorized by the Manual. Further, our review of the record reveals that the primary reasons for D.W.’s removal were Parents’ mental health and substance abuse issues. Further, the trial court specifically found that based on “concerns for untreated mental illness and untreated substance abuse, there is a reasonable probability the reasons that resulted in removal of [D.W.] from [Parents] will not be remedied.” (App. Vol. 2 at 25). Based on these facts and circumstances, we conclude that Parents’ due process rights were not violated and fundamental error did not occur where DCS did not provide Parents with funds authorized by the Manual.

Memorandum Decision by Judge Pyle

Judges May and Brown concur. May, J., and Brown, J., concur.