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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 30 2010, 10:02 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: AMY KAROZOS Greenwood, Indiana

ATTORNEYS FOR APPELLEE: DONNA M. LEWIS Indiana Department of Child Services Indianapolis, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF THE PARENT CHILD RELATIONSHIP OF: S.H., A.M., Jr., AND A.H. (Minor Children) AND A.M., A.M. (Father) Appellant-Respondent, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, AND CHILD ADVOCATES, INC., Co-Appellee (Guardian ad Litem). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 49A02-1005-JT-623

APPEAL FROM THE MARION SUPERIOR COURT - JUVENILE DIVISION The Honorable Marilyn Moores, Judge The Honorable Larry Bradley, Magistrate Cause Nos. 49D09-0911-JT-054230, 49D09-0911-JT-054231 & 49D09-0911-JT-054232

December 30, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge Case Summary A.M. ("Father") appeals the involuntary termination of his parental rights to his children. Concluding that (1) Father was not denied due process of law, (2) the Indiana Department of Child Services, local office in Marion County ("MCDCS"), presented clear and convincing evidence to support the juvenile courts judgment, and (3) the juvenile court did not abuse its discretion in denying Fathers motion for a continuance of the termination hearing, we affirm. Facts and Procedural History Father is the alleged father of S.H., born in December 2004, and A.H., born in June 2007. Father is the legal father of A.M., Jr. ("A.M."), born in May 2006. 1 In October 2008, MCDCS filed petitions under separate cause numbers alleging S.H., A.H., and A.M. were children in need of services ("CHINS") after a MCDCS case manager dropped by the family home to perform an unannounced visit and discovered then threeyear-old S.H. and one-year-old A.H. home alone. At the time, MCDCS was providing
Fathers paternity of A.M. was established at the hospital following the childs birth, and Fathers name appears on A.M.s birth certificate. Fathers paternity of S.H. and A.H. was never formally established, but it is not disputed by Father or the childrens biological mother.
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home-based services to the family pursuant to the terms of an Informal Adjustment2 due to a previous incident involving lack of supervision by the childrens biological mother, M.H. ("Mother"), resulting in injury to one of the children. At the time of the childrens removal, Father was incarcerated for violating his probation on a previous conviction for Class B felony dealing in cocaine and was therefore unavailable to care for the children. During a subsequent hearing on the CHINS petitions, Mother admitted to the material allegations contained therein, and the juvenile court adjudicated all three children CHINS. The juvenile court also appointed Father counsel. Later, during the dispositional hearing in March 2009, the juvenile court noted that Father remained incarcerated with an earliest possible release date in 2012. Consequently, no

dispositional services were ordered for Father. Although Father was not physically present during the dispositional hearing, he was represented by counsel and no objections were made. Mothers participation in court-ordered reunification services proved unsuccessful, and MCDCS eventually filed petitions seeking the involuntary termination of both Mothers and Fathers parental rights in November 2009. A consolidated evidentiary hearing on the termination petitions was held on March 24, 2010. At the commencement of the termination hearing, Father, by counsel, made an oral motion to continue the termination hearing until sometime following his release from incarceration, which was not scheduled to occur for more than two years. In so doing,
A program of Informal Adjustment is a negotiated agreement between a family and a local office of the Indiana Department of Child Services whereby the family agrees to participate in various services provided by the county in an effort to prevent the child/children from being formally deemed CHINS. See Ind. Code ch. 31-34-8 et seq.
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Father informed the juvenile court that he was currently participating in or planned to participate in several programs which, if successfully completed, could result in significant time cuts from his sentence. MCDCS countered by introducing evidence showing that Father had failed to complete several such programs in the past and that he had already received three separate thirty-day extensions of time on his current sentence as punishment for bad behavior. In addition, it was argued that further delay was not in the childrens best interests. The juvenile court denied Fathers request for a continuance and proceeded with the termination hearing. During the hearing, MCDCS presented evidence showing Father had failed to maintain regular contact with MCDCS, to provide emotional or financial support for the children, and/or to improve his ability to parent the children, especially in light of the childrens special needs. In addition, Father admitted that he was not At no time during the CHINS or

scheduled to be released until September 2012.

termination cases did Father ever claim that he had been denied due process of law or that he had not been provided with case plans and/or other CHINS documents concerning what needed to be done in order to achieve reunification with the children upon his release from incarceration. At the conclusion of the termination hearing, the juvenile court took the matter under advisement. On May 19, 2010, the juvenile court issued an order terminating Fathers parental rights to S.H., A.H., and A.M. Father now appeals.

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Discussion and Decision This Court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing the termination of parental rights, we will neither reweigh the evidence nor judge witness credibility. 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 most favorable to the judgment. Id. Moreover, in deference to the juvenile courts unique position to assess the evidence, we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Here, in terminating Fathers parental rights, the juvenile court entered specific findings and conclusions. When a juvenile courts judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we

determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the juvenile courts decision, we must affirm. L.S., 717 N.E.2d at 208. On appeal, Father asserts he was denied due process of law during the underlying proceedings because there was "no effort made on the part of [MCDCS] to preserve the parent-child relationship" due to Fathers incarceration and "projected release date of 5

2012." Appellants Br. p. 7. Father also challenges the sufficiency of the evidence supporting the juvenile courts judgment and argues the juvenile court abused its discretion in denying his motion to continue the termination hearing. I. Due Process We begin our review by considering Fathers assertion that he was denied due process of law because there was "no effort made on the part of [MCDCS] to preserve the parent-child relationship and [Father] was ignored by [MCDCS], the CASA [courtappointed special advocate], and the CHINS and termination court until this case went to trial." Id. at 2. A parents interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Bester, 839 N.E.2d at 147. Hence, "[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A case involving the States authority to permanently sever a parent-child bond therefore demands the close consideration the Supreme Court has long required when a family association so undeniably important is at stake. M.L.B. v. S.L.J., 519 U.S. 102, 103 (1996). The Due Process Clause of the United States Constitution "prohibits state action that deprives a person of life, liberty, or property without a fair proceeding." In re B.J., 879 N.E.2d 7, 16 (Ind. Ct. App. 2008), trans. denied. To be sure, the right to raise ones child is an "essential, basic right that is more precious than property rights." In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied. Thus, when the State seeks to 6

terminate a parent-child relationship, it must do so in a manner that meets the constitutional requirements of the Due Process Clause. Hite v. Vanderburgh County Office of Family & Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006). Although due process has never been precisely defined, the phrase embodies a requirement of "fundamental fairness." In re J.T., 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied. Notwithstanding the significance of the rights involved herein, it is wellestablished that a party on appeal may waive a constitutional claim. McBride v. Monroe County Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). In particular, we have previously held that a parent may waive a due process claim in a CHINS or termination case when it is raised for the first time on appeal. Id. at 194-95; see also In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (concluding mother waived claim that trial court violated her due process rights in failing to follow statutory requirements governing permanency hearings, case plans, and dispositional orders because she raised constitutional claim for first time on appeal); Smith v. Marion County Dep't of Public Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (concluding father waived constitutional right to appointment of counsel in CHINS proceeding because father presented issued for first time on appeal), trans. denied. This is in keeping with the long-standing general rule that an issue cannot be raised for the first time on appeal. McBride, 798 N.E.2d at 194. In asserting he was denied due process of law, Father claims MCDCS failed to comply with statutory requirements to make reasonable efforts to preserve and reunify 7

him with his children during the CHINS proceedings, as is required by Indiana Code section 31-34-21-5.5. Father also complains that he was "ignored" by MCDCS, that there is no evidence MCDCS ever "included [Father] in a case plan" or that the juvenile court ever ordered any services for Father during the CHINS proceedings, and that there were no "expectations on the part of [MCDCS] communicated to [Father] during the CHINS or termination proceedings." Appellants Br. p. 18. The record reveals that Father, who was represented by counsel throughout the entirety of the CHINS and termination proceedings, did not object to any alleged deficiencies regarding MCDCSs case plans,3 lack of services, or lack of communication with Father at any time during the CHINS proceedings, nor did Father argue during the termination proceedings that these alleged deficiencies constituted a due process violation. Rather, Father has raised his procedural due process claim for the first time on appeal. In addition, Father correctly acknowledges that "the provision of family services is not a requisite element of the parental rights termination statute, and that the failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law." Id. at 18. See also Ind. Code

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