J.B. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] J.B. (“Father”) appeals the involuntary termination of his parental rights to his minor children, A.B. and B.B. (the “Children”). We affirm.

Facts and Procedural History

[2] Father and A.T. (“Mother”) are the parents of two daughters: B.B., who was born in 2011, and A.B., who was born in 2013. In December 2022, the State charged Father with two counts of child molesting as level 4 felonies and alleged B.B. was the victim. In June 2023, Father pled guilty to one count of child molesting as a level 4 felony. On June 27, 2023, the court sentenced Father to six years in the Department of Correction (“DOC”) and ordered that he have no contact with B.B.

[3] On June 13, 2024, Mother died in an automobile accident. On June 17, 2024, the Department of Child Services (“DCS”) filed a verified petition under cause number 19C01-2406-JC-145 (“Cause No. 145”) alleging A.B. to be a child in need of services (“CHINS”) and a verified petition alleging B.B. to be a CHINS under cause number 19C01-2406-JC-146 (“Cause No. 146”). DCS alleged Father was incarcerated and Mother had died, and placed the Children with P.E., a family friend.

[4] On June 17, 2024, the trial court held an initial hearing under Cause Nos. 145 and 146 at which Father appeared. The court reviewed the petitions, and Father indicated that he understood the allegations. The court informed Father of his rights including the right to an attorney, and Father indicated that he understood them. Father asked for an attorney, and the court appointed counsel. Father asked if his Children could be placed with his brother. DCS's counsel stated, “In terms of family, we've got referrals. We're investigating potential family. We've not been able to investigate [Father's] brother. But at this point in time, no appropriate family can be identified.” Transcript Volume II at 8. Father did not know his brother's address but provided a phone number for him, and the court indicated that “DCS can certainly look into that relative placement.” Id.

[5] On July 23, 2024, the court held a hearing at which Father appeared remotely with counsel and admitted to the allegations. On July 24, 2024, the court entered orders adjudicating the Children to be CHINS.

[6] On August 2, 2024, DCS filed a Predispositional Report which contained recommended options for the “plan of care, treatment, rehabilitation, or placement of the Children.” Exhibits Volume I at 80, 175 (capitalization omitted). The report also noted that Father was incarcerated and there was a criminal no contact order between Father and B.B.

[7] On August 13, 2024, the court held a dispositional hearing at which Father appeared remotely with counsel. The court referenced the “report filed on August the 2nd” and asked Father's counsel if there were any additions or corrections. Transcript Volume II at 17. Father's counsel answered, “No, Judge. I have reviewed it․ I guess, the recommendation appears to be what [Father] can comply with during, I guess, incarceration at DOC. No additions or corrections.” Id. The court approved the Predispositional Report and scheduled a review hearing for November 12th. On August 14, 2024, the court entered Dispositional Orders which found that Father “shall participate in a treatment program or pay for services” and ordered Father to enroll in programs recommended by the family case manager or other service provider. Exhibits Volume I at 66, 192.

[8] On November 12, 2024, the court held a review hearing at which Father was represented by counsel. At the beginning of the hearing, the court stated, “I know [Father] was – is in the DOC, was sent a zoom link. There is nobody in the waiting room at this point. We need to keep moving. Father is in prison for some time yet, is he not?” Transcript Volume II at 21. Father's counsel answered, “He is, Judge.” Id. DCS's counsel stated that Ind. Code § 31-34-21-5.6 “allows a court at any phase of a [CHINS] proceeding to make a finding of no reasonable efforts for the department and the basis for that is subsection B of that statute,” Father is “in prison for several more years,” and “there's nothing for [DCS] to do as far as permanency as far as reunifying the children with a parent.” Id. at 22. Father's counsel agreed that the “statute is accurate,” noted that Father was not present, and stated that, “if the court were to make that finding, [he] would just show an objection.” Id. The court observed that Father was convicted of molesting one of the Children and there was a no contact order until 2029 and granted DCS's request. On November 13, 2024, the court entered orders which stated that, “[p]ursuant to I.C. 31-34-21-5.6, the Court now finds that reasonable efforts to reunify this child with the child's parent, guardian or custodian or to preserve this child's family are not required.” Exhibits Volume I at 49, 184.

[9] On December 10, 2024, the court held a permanency hearing at which Father appeared telephonically with counsel. DCS's counsel asked the court to “adopt the plan of adoption termination of parental rights as the sole plan,” and the Court Appointed Special Advocate agreed with that recommendation. Transcript Volume II at 27.

[10] On December 13, 2024, the court entered an Order Approving Permanency Plan under Cause Nos. 145 and 146. The court found that “[a] case conference and/or family team meeting was not held because [Father] is incarcerated at the [DOC] due to [a] child molesting conviction in which his child, [B.B.], was [the] victim.” Exhibits Volume I at 35, 151. It concluded that “DCS has made reasonable efforts to finalize a permanency plan, which include: no services were offered due to [Father's] incarceration at [the DOC] for Child Molest conviction on [B.B.].” Id. at 35, 151.

[11] On December 27, 2024, DCS filed a verified petition under cause number 19C01-2412-JT-296 for the involuntary termination of the parent-child relationship between Father and A.B. and a verified petition under cause number 19C01-2412-JT-297 for the involuntary termination of the parent-child relationship between Father and B.B.

[12] On January 14, 2025, the court held an initial hearing at which Father appeared telephonically. DCS's counsel stated, “We attempted to have [Father served] with the petition by process server. That was not successful with prison, so we – I don't believe he's actually seen the petition.” Transcript Volume II at 32. The court asked DCS's counsel to send Father the petitions after the hearing via first class mail, and DCS's counsel responded affirmatively. The court read the petitions to Father. After some discussion between the court and Father, the court stated that it would reschedule the initial hearing, appointed counsel for Father, and scheduled a hearing for 1:30 p.m. on February 11, 2025.

[13] On February 11, 2025, the court held a hearing at which Father was represented by counsel. The court called the proceedings to order at 2:24 p.m. and stated that “we were in the middle of a guardianship, [the DOC] said they weren't waiting any longer and that [Father] was no longer gonna be available.” Id. at 39. The court entered a denial and scheduled a factfinding hearing.

[14] On March 24, 2025, the court held a hearing at which Father appeared telephonically with counsel. Father acknowledged that he was incarcerated, had been convicted of child molesting, B.B. was the victim, and a no contact order was in place between him and B.B. He indicated that his earliest possible release date was July 28, 2026, and he would have to register as a sex offender. On cross-examination by his own counsel, Father stated that he participated in “anger management,” “grief,” and “groups” while incarcerated. Id. at 48. When asked if he had taken classes to address the child molesting charge, Father answered, “Not yet” but he was “supposed to be taking SAM classes.” Id. at 49.

[15] When asked about the Children's wishes for permanency, Family Case Manager Jennifer Donahue (“FCM Donahue”) answered, “They, from day one, they have said they wanted to stay with [P.E.].” Id. at 68. She testified that she supported the termination of Father's parental rights and adoption. When asked what would be in the Children's best interest, she answered, “To stay with [P.E.]. To be placed with [P.E.] and, you know, establish their family and their new routine permanently.” Id.

[16] On April 7, 2025, the court entered orders terminating the parent-child relationships between Father and the Children. The court found that there was a reasonable probability that the conditions that resulted in the Children's removal or continued placement outside the home would not be remedied; the continuation of the parent-child relationship posed a threat to the well-being of the Children; termination of parental rights was in the Children's best interests; and there was a satisfactory plan for the care and treatment of the Children. On May 6, 2025, Father filed a motion to correct error requesting that the trial court correct its determination that DCS had met its burden of proof. On May 21, 2025, the court denied the motion.

Discussion

[17] Father asserts that his due process rights were violated because of multiple procedural irregularities in the CHINS and termination proceedings. Father does not assert that he raised his claims before the trial court. It is well settled that an argument cannot be presented for the first time on appeal. A.S. v. Ind. Dep't of Child Servs., 175 N.E.3d 318, 322 (Ind. Ct. App. 2021). Because Father did not present his due process argument to the trial court, this argument is waived. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (“[A] party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal.”); McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194-195 (Ind. Ct. App. 2003) (holding that mother waived her constitutional challenge where she did not object to any of the alleged deficiencies in the CHINS process during the CHINS proceedings, argue during the termination proceedings that those alleged deficiencies constituted a due process violation, and she raised her procedural due process claim for the first time on appeal); In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (noting that mother's issue concerning an alleged violation of her due process rights because of the trial court's non-compliance with statutory requirements governing pre-termination proceedings including a permanency hearing, case plan, and dispositional order were waived).

[18] “[A]ppellate courts may analyze an issue under the fundamental error doctrine to examine an otherwise procedurally defaulted claim.” Matter of Eq.W., 124 N.E.3d 1201, 1214 (Ind. 2019). “To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible and must constitute a blatant violation of basic principles.” D.T. v. Ind. Dep't of Child Servs., 981 N.E.2d 1221, 1225 (Ind. Ct. App. 2013). “The harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.” Id. See also Matter of D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019) (holding that we have discretion to address claims not raised before a trial court, especially when they involve constitutional rights, the violation of which would be fundamental error), opinion adhered to as modified on reh'g, 122 N.E.3d 832 (Ind. Ct. App. 2019), trans. denied.

[19] As a matter of statutory elements, DCS is not required to provide parents with services prior to seeking termination of the parent-child relationship. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019), trans. denied. However, parents facing termination proceedings are afforded due process protections. Id. We have discretion to address such due process claims even where the issue is not raised below. Id. CHINS and termination of parental rights proceedings are deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter, and procedural irregularities in a CHINS proceeding may deprive a parent of due process with respect to the termination of his or her parental rights. Id.

[20] “Due process requires ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976)). “[T]he process due in a termination of parental rights action turns on balancing three Mathews 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 governmental interest supporting use of the challenged procedure.” Id. (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). “In balancing the three-prong Mathews test, we first note that the private interest affected by the proceeding is substantial – a parent's interest in the care, custody, and control of her child.” In re C.G., 954 N.E.2d at 917. “We also note the countervailing Mathews factor, that the State's parens patriae interest in protecting the welfare of a child is also substantial.” Id.

[21] The record reveals that, during the CHINS case, Father appeared at the initial hearing on June 17, 2024, at which the court reviewed the CHINS petitions with him and appointed counsel. Father appeared with counsel at the July 23, 2024 hearing at which he admitted to the allegations in the petitions. Father again appeared with counsel during the August 13, 2024 dispositional hearing. While Father did not appear at the November 12, 2024 hearing, he was represented by counsel. During that hearing, the court granted DCS's request that it not be required to make reasonable efforts to reunify pursuant to Ind. Code § 31-34-21-5.6, which provides that “[r]easonable efforts to reunify a child with the child's parent, guardian, or custodian or preserve a child's family as described in section 5.5 of this chapter are not required if the court finds ․ [a] parent ․ of the child has been convicted of ․ an offense described in ․IC 31-35-3-4(1)(D) through IC 31-35-3-4(1)(J) against a victim who is ․ a child described in IC 31-35-3-4(2)(B) ․”¹ Father does not argue that the trial court improperly granted DCS's request or that the statute did not apply to him. Father appeared and was represented by counsel at the December 10, 2024 permanency hearing.

[22] As for the termination proceedings, Father appeared at the January 14, 2025 initial hearing, and with respect to the issue of whether Father had received the petitions to terminate his parental rights, the court asked DCS's counsel to send Father the petitions after the hearing via first class mail, and it read the petitions to Father, rescheduled the initial hearing, and appointed counsel for Father. At the February 11, 2025 hearing, Father was represented by counsel, and the court entered a denial and scheduled a factfinding hearing. Father appeared with counsel and testified at the March 24, 2025 hearing. Thus, the record indicates the court read Father the petitions to terminate his parental rights, rescheduled the initial hearing, and directed DCS to mail him a copy of the petitions. Further, Father had notice of and appeared at numerous hearings with counsel and had the opportunity to be heard.

[23] With respect to Father's assertion that the trial court cited a “a previous version of Indiana Code section 31-35-2, et seq.,” Appellant's Brief at 21, Father does not point to a specific portion of Ind. Code Chapter 31-35-2. At the time that the petitions for the termination of the parent-child relationships were filed on December 27, 2024, and the time of the trial court's April 7, 2025 orders, Ind. Code § 31-35-2-4 provided:

(c) A petition filed under subsection (a) must allege:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:

(1) That 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.

* * * * *

(3) That 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.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

* * * * *

(8) That the parent is incarcerated and one (1) or more of the following is true:

(A) The parent is expected to remain incarcerated for a significant portion of the remaining time during which the child is less than eighteen (18) years of age.

(Subsequently amended by Pub. L. No. 179-2025, § 25 (eff. July 1, 2025)).

[24] Pursuant to the statute, DCS made the required allegations in its petitions.² In its April 7, 2025 orders terminating the parent-child relationships, the court found that there was a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the home would not be remedied; there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the Children; termination of parental rights was in the Children's best interests; and there was a satisfactory plan for the care and treatment of the Children. We cannot say that the trial court failed to make the required findings under the relevant statute.

[25] To the extent Father argues that DCS failed to have a case plan, Ind. Code § 31-34-15-1 provides that, “[i]n accordance with federal law, a case plan is required for each child in need of services who is under the supervision of the county as a result of: (1) out-of-home placement; or (2) issuance of a dispositional decree under IC 31-34-20.” Progress Reports filed on November 4, 2024, November 27, 2024, and February 2, 2025, as well as the Predispositional Report filed on August 2, 2024, referenced a “Case Plan.” See Exhibits Volume I at 24, 44, 58, 83. However, DCS does not direct us to the record to indicate that a case plan was filed. Nonetheless, under the circumstances, we cannot say Father's due process rights were violated on this basis. See C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 93 (Ind. Ct. App. 2014) (“While we caution the DCS to be more cognizant of the statutory framework by which it is to abide, which includes providing a case plan to each parent, we cannot conclude that its failure to provide one to [mother] resulted in a procedural irregularity so egregious that she was denied due process of law.”); Castro v. State Off. of Family & Child., 842 N.E.2d 367, 376 (Ind. Ct. App. 2006) (concluding that, while technically in violation of the statute, the State's failure to timely file the case plan did not deprive the parent of due process), trans. denied.³

[26] In light of the record, we cannot say that Father is entitled to reversal on due process grounds. We note that Father does not specifically challenge the trial court's findings or conclusions resulting in the termination of the parent-child relationships.

[27] For the foregoing reasons, we affirm the trial court's termination order.

[28] Affirmed.

FOOTNOTES

1.   Ind. Code § 31-35-3-4 provides:If: (1) an individual is convicted of the offense of ․ (G) child molesting (IC 35-42-4-3) ․ and (2) the victim of the offense: (A) was less than sixteen (16) years of age at the time of the offense; and (B) is: (i) the individual's biological or adoptive child; or (ii) the child of a spouse of the individual who has committed the offense; the attorney for the department, the child's guardian ad litem, or the court appointed special advocate may file a petition with the juvenile or probate court to terminate the parent-child relationship of the individual who has committed the offense with the victim of the offense, the victim's siblings, or any biological or adoptive child of that individual.

2.   Specifically, DCS alleged that: there was a satisfactory plan for the care and treatment of the Children; the termination of the parent-child relationship was in the Children's best interest; the court had entered a finding under Ind. Code § 31-34-21-5.6 that reasonable efforts for family preservation or reunification were not required; there was a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the home would not be remedied; there was a reasonable probability that the continuation of the parent-child relationship posed a threat to the well-being, safety, physical health or life of the Children; and Father was incarcerated and expected to remain incarcerated for a significant portion of the remaining time during which the Children are less than eighteen years of age.

3.   To the extent Father relies on A.P. v. Porter Cnty. Off. of Fam. & Child., 734 N.E.2d 1107 (Ind. Ct. App. 2000), reh'g denied, that case involved numerous errors. See A.P., 734 N.E.2d at 1117. We also stated that “although we are not convinced that any one of the above irregularities by itself substantially increased the risk of error in the termination proceeding to the extent that appellants were deprived of due process, there is such an inherent increased risk of error because of the multiplicity of procedural irregularities.” Id. at 1118.

Brown, Judge.

Felix, J., and Scheele, J., concur.