Court of Appeals of Indiana | Memorandum Decision 18A-JT-1900 | February 19, 2019 Page 1 of 9

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Anna Onaitis Holden

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker 

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary 

Termination of the Parent-Child 

Relationship of: L.F. (Minor 

Child), 

and

A.M.-J. (Mother),

Appellant-Respondent,

v. 

February 19, 2019

Court of Appeals Case No.

18A-JT-1900 

Appeal from the Marion Superior 

Court

The Honorable Larry Bradley, 

Magistrate

Trial Court Cause No.

49D09-1709-JT-748 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1900 | February 19, 2019 Page 2 of 9

The Indiana Department of 

Child Services,

Appellee-Plaintiff, 

and

Child Advocates, Inc., 

Guardian ad Litem. 

Tavitas, Judge. 

Case Summary

[1] A.M.-J. (“Mother”) appeals the termination of her parental rights to her child, 

L.F. (the “Child”). We affirm.

Issue

[2] Mother raises one issue, which we restate as whether Mother’s due process 

rights were violated by the failure of the Marion County Department of Child 

Services (“DCS”) to offer her services while she was incarcerated.

Facts

[3] The Child was born in June 2013 to Mother and M.F. (“Father”). At some 

point, Father was awarded custody of the Child, and Mother was granted

supervised visitation. Mother, however, has not seen the Child since the Child 

was approximately eighteen months old. In February 2016, Mother was 

charged with arson, a Level 4 felony, in Grant County. 
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[4] On March 8, 2016, DCS filed a petition alleging that the Child was a child in 

need of services (“CHINS”) because the Child had several unexplained bruises

and Father refused to meet with the family case manager. Father entered an 

admission to the petition, and Mother waived a fact-finding hearing. At that 

time, both Mother and Father were incarcerated. The trial court found that the 

Child was a CHINS, and the Child was placed with relatives. In the 

dispositional order, the trial court ordered both Mother and Father to contact 

DCS after being released from incarceration.

[5] In March 2017, Mother pleaded guilty to arson, a Level 4 felony, and she was 

sentenced to six years in the Department of Correction. In September 2017, 

DCS filed a petition to terminate Mother’s and Father’s parental rights. Father 

signed a consent to the Child’s adoption, and Mother proceeded to an 

evidentiary hearing.1

 At the time of the hearing in June 2018, Mother testified 

that she was scheduled to be released from prison in January 2021. Mother 

testified that she was “working on getting into the purposeful program”2 and

getting years of time cut from her sentence. Tr. Vol. II p. 25. Although there 

were other programs in the prison that could shorten Mother’s sentence, she 

was not eligible for the programs at that time due to her multiple behavioral 

 

1 This appeal concerns only Mother’s parental rights to the Child.

2 We presume Mother is referring to the Purposeful Incarceration program, which allows a trial court to 

consider a sentence modification if the offender successfully completes certain substance abuse treatment 

programs. See https://www.in.gov/idoc/2798.htm (last visited February 8, 2019). According to Mother, the 

program is “more therapeutic and religious based” and takes six to twelve months to complete. Tr. Vol. II p. 

28.
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incidents. DCS family case manager, Alice Wyatt, testified that termination of 

Mother’s parental rights was in the Child’s best interest because there was no 

guarantee when Mother would be released from prison and the Child needed 

permanency and stability. The trial court entered findings of fact and 

conclusions of law terminating Mother’s parental rights. Mother now appeals.

Analysis

[6] Mother challenges the termination of her parental relationship with the Child. 

The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. In re 

K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225, 

1230 (Ind. 2013). “[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].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 

(2000)). We recognize, of course, that parental interests are not absolute and 

must be subordinated to the child’s interests when determining the proper 

disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental 

rights may be terminated when the parents are unable or unwilling to meet their 

parental responsibilities by failing to provide for the child’s immediate and longterm needs.’” K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 

265 (Ind. Ct. App. 2004), trans. denied). 

[7] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the 

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, 
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the court shall terminate the parent-child relationship.” DCS must establish 

these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 

1144 (Ind. 2016). Mother, however, does not challenge the trial court’s findings 

on any of the required factors in the termination of her parental rights. Rather, 

Mother’s only argument is that her due process rights were violated because 

DCS did not provide services to her during the CHINS proceeding while she 

was incarcerated.

[8] “[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.” In re 

N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). DCS is generally required to make 

reasonable efforts to preserve and reunify families during CHINS proceedings. 

In re H.L., 915 N.E.2d 145, 148 (Ind. Ct. App. 2009); Ind. Code § 31-34-21-5.5. 

We also note that Indiana Code Section 31-35-2-4.5 allows the filing of a 

motion to dismiss a petition for termination of parental rights under certain 

circumstances if DCS has failed to provide appropriate family services. There is

no indication in the record that Mother challenged the lack of services during 

the CHINS proceedings, filed a motion to dismiss the termination proceedings, 

or made a due process argument to the trial court. Mother’s argument is, thus, 

waived.

[9] Waiver notwithstanding, we will address her claim. “Due process protections 

bar ‘state action that deprives a person of life, liberty, or property without a fair 

proceeding.’” In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quoting In re C.G., 

Z.G. v. Marion Cnty. Dep’t of Child Servs., 954 N.E.2d 910, 916 (Ind. 2011)). “It is 
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unequivocal that the termination of a parent-child relationship by the State 

constitutes the deprivation of ‘an important interest warranting deference and 

protection,’ and therefore ‘[w]hen the State seeks to terminate the parent-child 

relationship, it must do so in a manner that meets the requirements of due 

process.’” Id. (quoting C.G., 954 N.E.2d at 916-17). 

[10] The question here is whether DCS’s failure to provide Mother with services 

during her incarceration was a violation of due process. Our court has 

repeatedly rejected similar arguments. We have held that “the CHINS 

provision is not a requisite element of our parental rights termination statute, 

and a failure to provide services does not serve as a basis on which to directly 

attack a termination order as contrary to law.” H.L., 915 N.E.2d at 148 n.3; 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.”). 

[11] The absence of services here was due to Mother’s incarceration. Mother was 

incarcerated for the duration of the CHINS and termination proceedings, and 

she did not expect to be released until 2021. Mother testified that, although the 

prison had relevant programs for her, she was not eligible for the programs at 

that time due to her multiple behavioral incidents. Alice Wyatt, DCS family 

case manager, sent letters to Mother in jail, but Wyatt did not receive any 

response or request for services. At one point, Mother discussed with the 

family case manager a program that allowed Mother to read a book to the Child 
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and send the recording to the Child; Mother, however, did not follow through. 

Another DCS family case manager, Divina Castanda Thrasher, testified that 

she had also sent a letter to Mother. Mother did not request services from 

Thrasher and did not request parenting time. 

[12] Mother had no contact with the Child during the CHINS or termination 

proceedings. The absence of services was directly due to Mother’s 

incarceration, and Mother’s due process rights were not violated. See, e.g., H.L., 

915 N.E.2d at 148 (holding that the absence of services was due to Father’s 

incarceration and Father did not point to any evidence that he specifically 

requested visitation or other services); E.E., 736 N.E.2d at 796 (holding that the 

parent could “not directly attack the termination order on the grounds that she 

was denied appropriate family services because of her mental disability”).

[13] Despite our holdings in H.L. and E.E., Mother argues that we should address 

the issue under the three-factor analysis used in G.P., 4 N.E.3d at 1165, and In 

re I.P., 5 N.E.3d 750, 751-52 (Ind. 2014). Even if we apply that analysis, 

Mother’s argument fails. The process due in a termination case turns on the 

balancing of three 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. I.P., 5 N.E.3d at 751-52; G.P., 4 N.E.3d at 1165. “In termination 

cases, both the private interests of the parents and the countervailing 

governmental interests that are affected by the proceeding are substantial.” C.T. 

v. Marion Cty. Dep’t of Child Servs., 896 N.E.2d 571, 587 (Ind. Ct. App. 2008), 
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trans. denied. Thus, we consider the risk of error created by DCS’ failure to 

provide services to Mother.

[14] Mother argues there is a “tremendous risk of error when DCS fails to make 

reasonable efforts to reunify families.” Appellant’s Br. p. 15. DCS argues that

the risk of error was minimal given: (1) Mother’s incarceration; (2) Mother’s

failure to have a relationship with the Child even before the CHINS 

proceedings; (3) Mother’s failure to request parenting time or services; (4) 

Mother’s failure to complete any programs while incarcerated; and (5) Mother’s 

failure to assert what services should have been provided or how the lack of 

services impacted her ability to remedy the situation. 

[15] We agree with DCS. Even before the CHINS proceeding was initiated, Mother 

had not seen the Child for over one year. Mother’s incarceration began even 

before the CHINS proceeding, and she was incarcerated during the entire 

CHINS and termination proceedings. It is unclear what services could have 

been offered to Mother by DCS during her incarceration. While incarcerated, 

she was unable to participate in programs offered by the prison due to her 

repeated behavioral issues. Under these circumstances, the risk of error was 

minimal. Weighing the factors, we find no due process violation. 

Conclusion

[16] Mother failed to demonstrate that her due process rights were violated. The 

trial court’s termination of Mother’s parental rights to the Child is not clearly 

erroneous. We affirm.
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[17] Affirmed.

Baker, J., and May, J., concur.