IN RE: the Termination of the Parent-Child Relationship of JAS.L. and Jay.L. (Minor Children) and J.L. (Mother) (2024)

MEMORANDUM DECISION

[1] J.L. (“Mother”) appeals the termination of her parental rights to two of her children: Jas.L., born in January 2021, and Jay.L., born in December 2021. The children's father consented to their adoption and does not participate in this appeal.

[2] In April 2022, the children were removed from their parents’ care due to neglect, and the Department of Child Services (DCS) filed a petition alleging the children were in need of services (CHINS). On July 27, upon admissions by both parents, the trial court adjudicated the children to be CHINS. According to the trial court's dispositional order, DCS referred Mother for home-based casework, counseling, a psychological evaluation, and visitation. Mother was assigned a special home-based caseworker who had experience working with parents with developmental disabilities. The caseworker tried to set Mother up with services through the Bureau of Developmental Disabilities Services, but Mother never followed through. Based on Mother's psychological evaluation, the psychologist determined she has an IQ of 60 and diagnosed her with intellectual developmental disorder, post-traumatic stress disorder, major depressive disorder (recurrent, with psychotic features), and generalized anxiety disorder. The evaluation report was shared with all of Mother's service providers. While providers normally have a three-strikes rule before closing a referral for lack of participation, Mother's providers gave her “way more chances than any typical parent would have” because of her disability. Tr. p. 50. Even so, multiple providers eventually closed Mother's referrals for lack of attendance—she was late to some appointments, left others early, and missed some entirely. Mother also had to participate in therapeutic visitation after traditional supervised visitation was canceled due to her attendance issues.

[3] Following months of noncompliance with the case plan, DCS petitioned to terminate Mother's parental rights in August 2023. At the termination hearing in October, Mother argued that DCS violated the Americans with Disabilities Act (ADA) by failing to tailor her services to her needs. Mother's counsel asked Family Case Manager (FCM) Jose Espinoza whether, given Mother's intellectual disability, there were other services DCS could have provided that would've “helped her on [a] more hands on basis.” Id. at 49. FCM Espinoza explained that DCS and the service providers considered Mother's disability and that “there were other services that could have been provid[ed] ․ through the agencies that she had been referred to ․ had [she] consistently shown up for appointments and participated.” Id. at 50. During her testimony, Mother acknowledged that she hadn't asked FCM Espinoza to provide any additional services.

[4] In February 2024, the trial court issued an order terminating Mother's parental rights. Mother's sole argument on appeal is that she was denied due process. Specifically, she claims “[i]t was a denial of due process [for] DCS not to provide ADA compliant services in the CHINS case and then rely on the mother's lack of progress as the basis for terminating her parental rights.” Appellant's Br. pp. 8-9. There are several problems with Mother's argument. First, while she alleged an ADA violation in the termination proceedings, she did not make any due-process argument below. Because Mother raises her due-process challenge for the first time on appeal, she has waived this issue. See In re N.C., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans. denied.

[5] Waiver notwithstanding, while DCS must comply with the ADA when providing services in CHINS proceedings, Mother cannot challenge the termination of her parental rights based on an alleged ADA violation when she didn't make any such allegation until the termination hearing. See In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000); Stone v. Daviess Cnty. Div. of Child. & Fam. Servs., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995) (“[A]ny alleged noncompliance with the ADA by the [Division of Child and Family Services] in the provision of services in the CHINS proceedings would be a matter separate and distinct from the operation of our termination statute.”), trans. denied. If Mother's services weren't accommodating her needs, she should have raised the issue in the CHINS proceedings. But there is no evidence that Mother ever asked DCS or a provider that a service be more tailored to her personal needs. In fact, she admitted at the termination hearing that she hadn't asked FCM Espinoza for any additional services that DCS wasn't providing.

[6] Even if Mother's ADA claim were an appropriate challenge to the trial court's termination order, she has not shown any ADA violation in DCS's provision of services. She doesn't tell us what kind of accommodations she requires for her intellectual disability or how DCS could've tailored services to her needs. Nor does she point to a particular ADA provision that was violated or a specific action or inaction by DCS that constituted a violation. And in any event, the evidence shows that DCS did accommodate her intellectual disability in providing her services. FCM Espinoza asserted that DCS considered Mother's disability when setting up services. DCS offered Mother traditional, enhanced, and therapeutic visitation. Mother's home-based caseworker, who had experience with parents with developmental disabilities, tried to set Mother up with services through the Bureau of Developmental Disabilities Services, but Mother never engaged. After Mother's psychological evaluation, the report was shared with all of her providers. Given Mother's disability, her providers opted not to enforce their three-strikes rules and gave her “way more chances than any typical parent would have” before closing her referrals for noncompliance. As FCM Espinoza explained, Mother could've received more hands-on services through her providers had she been consistent in her attendance and participation. And Mother doesn't argue that her attendance issues were attributable to her disability.

[7] Because Mother has failed to present a basis on which we can reverse the trial court's order terminating her parental rights, we affirm the order.

[8] Affirmed.

Vaidik, Judge.

Altice, C.J., and Crone, J., concur.