In the Matter of J.G., A Child in Need of Services, J.B., Father v. Indiana Department of Child Services (mem. dec.)

I
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                       Dec 21 2020, 10:57 am
court except for the purpose of establishing
                                                                                        CLERK
the defense of res judicata, collateral                                             Indiana Supreme Court
                                                                                       Court of Appeals
estoppel, or the law of the case.                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa Diane Manning                                       Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.G., A Child in                        December 21, 2020
Need of Services,                                        Court of Appeals Case No.
                                                         20A-JC-1319
J.B., Father,
                                                         Appeal from the
Appellant-Respondent,                                    Jefferson Circuit Court
        v.                                               The Honorable
                                                         Donald J. Mote, Judge
Indiana Department of Child                              Trial Court Cause No.
Services,                                                39C01-1611-JC-123

Appellee-Petitioner.



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020                 Page 1 of 30
[1]   J.B. (Father) appeals from the juvenile court’s order adjudicating J.G. (“Child”)

      to be a child in need of services (“CHINS”). Father raises two issues for our

      review, which we restate as:

              I.      Whether the juvenile court abused its discretion in denying
                      Father’s motion to dismiss because he asserts that his due
                      process rights were violated when the fact-finding hearing
                      was not held until several years after the petition was filed;
                      and


              II.     Whether the juvenile court’s conclusion that Child should
                      remain a CHINS as originally adjudicated because
                      Father’s actions and inactions had seriously endangered
                      Child, Child’s needs were unmet, and Child’s needs were
                      unlikely to be met without State coercion was clearly
                      erroneous.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and Mother met in Indiana at some point between 2013 and 2014. Tr.

      Vol. III at 74. At that time, they lived together for a few months, and Mother

      was “in and out” of the home.

Id. at 75.

Father moved to Massachusetts in

      2014, and Mother remained in Indiana.

Id. Sometime in 2014,

Father gave

      Mother a plane ticket, and she flew to Massachusetts to visit Father, at which

      time they conceived Child.

Id. at 75-76.

Mother returned to Indiana, and the

      relationship between Mother and Father ended.

Id. at 77.

Father later learned

      Mother was pregnant with Child, and he believed Child was his.

Id. at 76, 78.

      However, Father chose to remain in Massachusetts because he saw “no
      Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 2 of 30
      significant reason to leave.”

Id. at 78.

He was not involved with Mother’s

      pregnancy with Child and was aware that Mother was “very unstable” due to

      her drug use, but he took no steps to address her drug use.

Id. at 76-78. [4]

  Child was born on November 16, 2014.

Id. at 63.

Although Father was aware

      of Child’s birth, he was not present for it, did not sign a paternity affidavit, and

      did not file to establish legal paternity.

Id. at 79, 81.

On the day Child was

      born, Father posted on social media that “his son” was born, and included

      Child’s height and weight, and some pictures of Child.

Id. at 133-34.

Father

      claimed he sent money orders to Mother but that he later stopped because he

      thought he was “being taken advantage of.”

Id. at 82. [5]

  On November 10, 2016, two years after Child’s birth, the Indiana Department

      of Child Services (“DCS”) removed Child from Mother’s care and, on

      November 15, 2016, filed a CHINS petition. Appellant’s App. Vol. 2 at 34, 45-47.

      In the CHINS petition, DCS alleged Child was a CHINS because of Mother’s

      substance use and because Father, who was only alleged to be Child’s father at

      that time, lived out of state and neither supported nor visited Child.

Id. at 45- 46.

On November 15, 2016, the juvenile court held an initial hearing, where

      DCS again alleged that Father was uninvolved and had never visited or

      supported Child. Tr. Vol. II at 5, 9. At the conclusion of the hearing, the

      juvenile court found that due to the emergency nature of the situation, no

      reasonable efforts could be made to prevent removal and that it was in the best

      interest of Child to be removed from the home environment and that remaining

      in the home would be contrary to the health and welfare of Child.

Id. at 11.

      Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 3 of 30
[6]   DCS did not serve Father with a copy of the CHINS petition or notice of the

      hearing dates because his whereabouts were unknown, and there is no

      indication in the record that Father was served by publication. Appellant’s App.

      Vol. 2 at 45, 48, 49, 108, 174. When the CHINS case began, Father’s last

      known address was in North Vernon, Indiana, but he no longer lived there.

Id. at 134-35, 184.

DCS later learned from Mother that Father had moved to

      Maine.

Id. at 54.

DCS made a “PPS Investigation referral” in order to try to

      locate Father.

Id. at 35. [7]

  On November 21, 2016, Father spoke with family case manager (“FCM”)

      Sawyer Beach (“FCM Beach”), and Father stated that he was interested in

      Child being placed with him; FCM Beach informed Father about the need for

      Father to establish paternity. Tr. Vol. II at 15; Appellant’s App. Vol. 2 at 76, 216.

      On November 29, 2016, FCM Ashley Shelton (“FCM Shelton”) called Father

      back and again advised him of Child’s detention and foster care placement and

      of the pending CHINS petition and discussed the importance of establishing

      paternity. Tr. Vol. III at 191-92.


[8]   On January 10, 2017, the juvenile court held the CHINS fact-finding hearing, at

      which Mother, but not Father, was present. Tr. Vol. II at 13-18. The juvenile

      court adjudicated Child a CHINS finding:


              1. [Mother] is the biological mother of [Child].


              2. [Father] is the alleged biological father of [Child].



      Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 4 of 30
               3. Alleged father lives in Maine, has not established paternity,
                  and neither supports nor visits the child.


               4. Mother admits that she has substance abuse issues, which
                  prevent her from providing the necessities for Child, which
                  endangers Child’s mental and physical welfare.


       Appellant’s App. Vol. 2 at 54. At the fact-finding hearing, the family case

       manager (“FCM”) reported that Father had not been in touch with DCS since

       November 2016. Tr. Vol. II at 16.


[9]    On January 11, 2017, FCM Shelton again spoke to Father on the telephone,

       and they discussed his taking a paternity test. Tr. Vol. III at 192-93. Father

       stated that there was a fifty-dollar charge for a paternity test and wanted to

       know if DCS would pay for it.

Id. at 192-94;

Appellant’s App. Vol. 2 at 216.

       Because DCS was not paying for paternity tests at that time, FCM Shelton told

       Father that she would have to ask her supervisor to see if an exception could be

       made. Tr. Vol III at 194. When FCM Shelton attempted to reach Father again

       on January 18, 2017, his phone number was no longer in service. Id.;

       Appellant’s App. Vol. II at 216-17.


[10]   On February 10, 2017, the juvenile court held the dispositional hearing, which

       Father did not attend.

Id. at 19-24.

At the hearing, DCS stated that Father was

       a presumed father because he had not established paternity.

Id. at 21.

DCS

       told the juvenile court that Father had been contacted but that he indicated that

       he “has no interest” in participating in services.

Id. The juvenile court

ordered



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 5 of 30
       Mother into services but also included Father as being required to participate in

       services. Appellant’s App. Vol. 2 at 92-95.


[11]   In April and May of 2017, FCM Shelton sent letters to Father to establish

       contact with him and received no response from him.

Id. at 217;

Tr. Vol. III at

       194. In a letter sent on May 10, 2017, FCM Shelton told Father of an

       upcoming change in the FCM, but the letter was returned as undeliverable.

       Appellant’s App. Vol. 2 at 217; Tr. Vol. III at 194-95. From May 2017 through

       December 2017, the new FCM, Lisa Kiser (“FCM Kiser”), continued to send

       letters to Father, which were returned as undeliverable. Tr. Vol. III at 229.

       Because of this, on March 9, 2018, FCM Kiser submitted a new investigative

       referral to find Father but was never able to make contact with Father.

Id. [12]

  Another FCM took the case over in December 2017, FCM Lydia Stepp (“FCM

       Stepp”), and performed another investigative referral.

Id. On March 13,

2018,

       FCM Stepp sent “letters to addresses listed for Father and called multiple

       family members to locate Father.” Appellant’s App. Vol. 2 at 217. On March 14,

       2018, over a year after DCS lost contact with Father, he responded to FCM

       Stepp and advised that he had not yet had DNA testing to establish paternity

       but told her he would like to do so.

Id. A DNA screen

was scheduled for May

       3, 2018.

Id. at 217, 222. [13]

  On May 3, 2018, after a review hearing, the juvenile court found that between

       January 11, 2017 and March 2018 Father failed to maintain contact with DCS

       and did not attempt to be part of the case.

Id. at 222.

On June 26, 2018, Father


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 6 of 30
       appeared telephonically for a termination hearing that had been filed against

       him and Mother, but that was later dismissed and did not proceed further, and

       the juvenile court appointed Father legal counsel. Tr. Vol. III at 89-90. Since

       that time, Father appeared regularly by telephone or in person at hearings in the

       CHINS case.

Id. at 90-91. [14]

  Father missed the scheduled DNA screen on May 3, 2018, but he later

       completed it on June 4, 2018. Appellant’s App. Vol. 2 at 245. The DNA screen

       confirmed he was Child’s father, and paternity was established in June 2018.

Id. After contact with

Father was re-established, DCS took steps for Father to

       have parenting time with Child. Tr. Vol. III at 236-37. In August 2018, Father

       began having supervised telephone calls with Child. Id.; Appellant’s App. Vol. 3

       at 13. While DCS had difficulty reaching Father by telephone after the first

       visit, weekly phone visits resumed with Father but were sporadic. Tr. Vol. II at

       116.

[15]   On August 20, 2018, Father appeared by counsel in the CHINS case and

       moved for discovery, requesting the names of witnesses DCS intended to call

       “in the above cause including those witnesses [DCS] intends to call at the

       hearing of the above cause, and including all known or anticipated rebuttal

       witnesses.” Appellant’s App. Vol 2 at 248-49. The motion also moved for the

       discovery order to, “continue to and include the fact-finding hearing in this

       cause and continue until the completion of the case.”

Id. at 249.

The juvenile

       court granted the motion. Appellant’s App. Vol. 3 at 2.



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 7 of 30
[16]   A review hearing was held on November 1, 2018, at which the DCS progress

       report was entered into evidence.

Id. at 17.

The report stated, “[Father] has

       been given the opportunity to complete supervised telephone calls with Child . .

       . [and] had the opportunity to complete face-to-face parenting time with Child.”

Id. at 13.

It further stated, “[t]he visit supervisor has not had contact with

       Father since the face-to-face visit on 09/23/2018. The visit supervisor has

       continued to attempt contact each week to facilitate the phone calls.”

Id. The report also

advised that “FCM has not been able to contact [Father] by phone

       since 09/24/2018, [and] FCM has continued to attempt contact with [Father]

       with no success. FCM sent a letter to Father on 10/16/2018 to establish

       contact.”

Id. [17]

  On February 14, 2019, a permanency hearing was held, and the juvenile court

       found that Father had not complied with Child’s case plan.

Id. at 44-45.

Father

       had missed several of his weekly supervised telephone visits with Child.

Id. at 45.

DCS had been trying to arrange a second face-to-face visit with Father and

       Child since September 24, 2018.

Id. FCM Stepp attempted

to contact Father

       on October 11 and October 16, 2018, by phone and letter, and heard back from

       him on October 19, 2018.

Id. FCM Stepp also

attempted to contact Father on

       November 16, November 19, and November 26, 2018.

Id. DCS was trying

to

       arrange to fly Father to Indiana to have another face-to-face visit, but Father

       needed a “valid ID in order to board the plane,” which he did not have.

Id. The juvenile court

found that “[r]eunification of the child is being unnecessarily

       delayed due to Father’s failure to comply with DCS’s request.”

Id. At the Court

of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 8 of 30
       May 16, 2019 review hearing, questions remained as to whether Father had

       valid identification, and he had still not had another face-to-face visit with Child

       since September 2018.

Id. at 69.

The report stated that Father “would really

       like to travel to Indiana to see [Child] but he still is waiting for information

       about outstanding warrants here in Indiana.”

Id. Father was still

having

       supervised video calls with Child, and thus had partially complied with Child’s

       case plan.

Id. at 70. [18]

  On June 20, 2019, Father filed a motion for a trial home visit and for Child’s

       placement with him.

Id. at 77-79.

He stated that he “currently has seven (7)

       other children living in his care in Maine.”

Id. at 78.

Father acknowledged in

       the motion that he “has now been a part of the CHINS case since August 2018”

       but stated that he had not yet had a CHINS fact-finding hearing.

Id. The juvenile court

set Father’s motion for hearing on July 18, 2019, but it was

       continued to August 15, 2019 on Father’s motion.

Id. at 80-82. [19]

  After the August 15, 2019 hearing, the juvenile court found, among other

       findings, that Father “hasn’t taken up the offer to either let DCS bring [Child]

       to him or DCS pay for him to visit [Child] here. It has been one year since

       [Child] and [F]ather had met.”

Id. at 97.

The juvenile court further found that

       Father “does partially participate with supervised video phone calls twice per

       week. But [the] visit supervisor maintains that it is very hard to get ahold [sic]

       of him and really some weeks he is unable to reach [Father.]”

Id. A permanency plan

was adopted for Child to be reunified with Father or Mother,

       and a fact-finding hearing was set for August 23, 2019.

Id. at 97-98.

DCS filed

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 9 of 30
       a motion to continue the fact-finding hearing and stated that the parties were in

       agreement as to the continuance, and the juvenile court granted the motion,

       resetting the hearing to September 27, 2019.

Id. at 99, 101.

On September 17,

       2019, DCS filed another motion to continue the fact-finding hearing, and the

       juvenile court reset the hearing for December 13, 2019.

Id. at 106. [20]

  On August 26, 2019, the juvenile court ordered DCS to make a referral for

       Child to have a diagnostic evaluation with Stacey Cornett (“Cornett”) at

       Community Mental Health Center, to help the court make “its determination of

       Father’s motion for a trial home visit, which is currently set for hearing

       September 27, 2019.”

Id. at 102.

On October 7, 2019, Cornett completed the

       clinical assessment of Child. Tr. Vol. III at 205. Completion of the assessment

       was delayed because Cornett had to reach out to Father several times before he

       replied; he contacted her on October 7, the date she completed the assessment.

Id. at 205, 211-12.

In her assessment, Cornett noted that it was conducted in

       order to “determine if there were any clinical conditions relevant to [Child]’s

       functioning, to assess the relationship status between himself and his foster

       mother, in particular, and to then assess the relationship status between he and

       [Father].”

Id. at 207.

Cornett concluded that Child had a strong attachment

       with his foster family.

Id. at 208.

In her initial assessment, Cornett was not

       able to observe interaction between Father and Child and spoke with Father via

       telephone, noting that he “showed a desire to be connected to . . . Child and

       good intentions towards him.”

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 10 of 30
[21]   On December 13, 2019, Father’s attorney requested a continuance of the fact-

       finding hearing, in part to review the assessment. Tr. Vol. III at 45, 46. DCS

       agreed to the continuance, and the juvenile court set the CHINS fact-finding for

       February 3, 2020.

Id. at 48.

Father’s attorney agreed to the hearing date.

Id. at 49.

On February 1, 2020, Father filed a motion to dismiss, arguing that the

       CHINS fact-finding hearing was not timely under Indiana Code section 31-34-

       11-1 and that he was never properly served with notice of the proceedings.

       Appellant’s App. Vol. 4 at 55-56.


[22]   On February 3, 2020, the juvenile court held the combined CHINS fact-finding

       hearing and hearing on Father’s motion for Child’s placement and motion to

       dismiss. Appellant’s App. Vol. 2 at 27. At the hearing, Father testified that he

       lived in Maine with his girlfriend and their combined six children. Tr. Vol. III at

       63-64. He stated he had lived in the same house for about two-and-a-half years.

Id. at 63.

Father stated that he worked approximately fifty hours a week but

       had previously collected workers’ compensation when he could not work due to

       an injury.

Id. at 67-68.

Evidence was also presented of Father’s criminal

       history, which included a 2005 conviction for robbery as a Class C Felony, in

       which he twice violated the terms of his probation.

Id. at 70-72.

On August 6,

       2010, a petition for a protection order was filed against and granted against

       Father, due to domestic or family violence and stalking. Ex. Vol. 26-31, 35-38.

       Father also had numerous traffic charges and convictions for driving while

       suspended and other infractions.

Id. at 8-25.

At the time of the CHINS fact-

       finding hearing, Father had an active warrant for failing to appear for trial in

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 11 of 30
       another case. Tr. Vol. III at 102. Father testified he knew about the warrant,

       but did not worry about being arrested, and did not consider the warrant a

       barrier to his relationship with Child.

Id. at 102-03. [23]

  Father testified that, although he knew about Mother’s pregnancy and that

       there was a possibility that he was the father, he did not take steps to establish

       paternity until he was contacted by DCS in November 2016 when Child was

       two years old.

Id. at 78, 81.

Father also testified that he never believed that the

       CHINS proceedings as they pertained to him were necessary and that there was

       no need for services for him.

Id. at 93.

He further stated that, although he held

       those beliefs, he never objected to the prior CHINS adjudication, nor did he

       ever previously request a fact-finding hearing be held.

Id. at 93-94.

At time of

       the CHINS fact-finding hearing, Father had only three face-to-face visits with

       Child since his birth in 2014.

Id. at 98.

The first took place in September 2018

       when Father drove to Indiana.

Id. The second occurred

when DCS paid for

       Father’s airfare and hotel accommodations in October 2019.

Id. at 98-99.

This

       visit was delayed for four months because Father was unable or unwilling to get

       a valid identification to board the plane.

Id. at 100-01.

The third occurred in

       November 2019.

Id. at 98-99.

The record showed that on November 11, 2019,

       Father appeared in person at a review hearing, and the juvenile court instructed

       Father to submit to a drug screen immediately following the hearing.

Id. at 39- 40, 104.

However, Father left the courthouse and never submitted to the

       ordered drug screen.

Id. at 238-40.



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 12 of 30
[24]   FCM Stepp testified that, when she first had contact with Father in March

       2018, fourteen months had passed since DCS had last had contact with Father

       and that delay had a profound effect on the CHINS case and where it stood at

       the time of the fact-finding hearing because often CHINS case are closed in that

       amount of time.

Id. at 230-32.

She also testified that it took three months from

       the date she was able to establish contact with Father to have the DNA test

       completed, and the delay was in part due to Father’s lack of communication

       with DCS.

Id. at 233-34.

FCM Stepp stated that communication issues

       continued after paternity was proven due to Father’s phone running out of

       minutes or the lack of service at his home.

Id. at 235-36.

She further stated

       that, in order for Father to be able to have placement of Child with him, Father

       would need to understand the long-term effects that Child would have from

       being in foster care and how to deal with Child’s separation and trauma of

       detention.

Id. at 241-42. [25]

  Cornett testified about what Father would have to do in terms of services and

       the likelihood that Child would have difficulties in facilitating a bond between

       Father and Child.

Id. at 214-15.

Cornett also testified that it was her belief that

       a parent’s absence from a child’s life in the first years of the child’s life would

       play a role in the lack of a bond between them because that is how the

       attachment relationship develops.

Id. at 215.

She stated further that when a

       child has lived with someone for an extended period of time and has a secure

       attachment with them, as Child does, the child will experience trauma and grief

       when separation occurs and in Child’s case, there are other considerations


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 13 of 30
       including, foster sibling relationships, extended family, and community ties.

Id. at 217.

Cornett opined that Child was “behind the eight ball in the fact that he

       would be grieving and has [a] well-established understanding of his relationship

       with his foster parent” and that “because of his cognitive ability, moving into

       preschool and school age years, he understands things at a much more

       complicated level . . . what families are, what loss is, where people are across

       time and space, . . .so it’s more complicated for an older child to manage all of

       that.”

Id. at 224.

[26] 
  In addition, Father was underestimating Child’s weaknesses of entering into a

       caregiver relationship with Father, and Cornett agreed that Father did not

       realize that it would “be very challenging and potentially detrimental to Child.”


       Id. Cornett testified that 
Child would need a “plethora” of services to address

       detaching him from the foster home and attaching him to Father.
 Id. at 220,

       221. 
Due to the length of time from Child’s removal and placement in foster

       care and moving towards reunification, it made it “absolutely” a more

       complicated issue to address Child’s needs.
 Id. at 223-24. 
Based on this, she

       recommended a process of reunification that would slowly orientate Child to

       placement with Father and that it be done in a controlled manner with services

       available.
 

Id. at 227.

[27] 
  Child’s court appointed special advocate Harriet Hoffman (“CASA Hoffman”)

       agreed and testified that Father’s consistent pattern throughout the case was to

       be difficult to contact and to keep involved in the case. Tr. Vol. IV at 27. She

       stated that Father’s lack of engagement with her was frustrating because it was

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 14 of 30
       her job to gather information in the case, and she was forced to seek out that

       information from other sources.
 Id. at 20. 
CASA Hoffman also testified that

       she believed that Child would suffer trauma from being separated from foster

       placement and also from Mother if Child were to be placed with Father in

       Maine.
 Id. at 23.


[28] 
  On April 8, 2020, the juvenile court issued an order determining that Child

       would remain a CHINS as originally adjudicated and denying both Father’s

       motion to dismiss and for Child’s placement. Appellant’s App. Vol. 4 at 132-50.

       The juvenile court found that, since Child’s removal in 2016, he has been

       placed in a foster home, and has developed a strong attachment with his foster

       family.
 Id. at 139. 
The trial court further found that because of this, if that

       relationship were to suddenly terminate, Child would experience “significant

       trauma and grief for the loss of his foster parents and of his mother who

       continues her relationship with Child.”
 Id. at 140. 
The trial court also found

       that Child needed ongoing services and meetings with Father to reduce the

       trauma Child will suffer when moving from the care of the foster family to

       Father.
 Id.


[29] 
  The juvenile court found that the


               significance of Father’s criminal history to the Court’s ruling here
               is that he is not unfamiliar with court proceedings in Indiana and
               the importance of communication. A phone call from a
               caseworker with [DCS] that you may be the father of a child who
               is in foster care because the mother is battling drug addiction is
               not something to put on the back burner. A “wait and see”

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 15 of 30
               approach can have significant, and life-changing consequences.
               It certainly has in this case.



       Id. at 139. 
Based on Cornett’s testimony and report, the juvenile court found

       that, “The only way Child can safely be transitioned from foster placement to

       Father’s care is in a controlled scenario with significant therapeutic services in

       place to address Child’s grief of detachment and stress of a new parent.”
 Id. at

       141.

[30] 
  On June 11, 2020, the juvenile court held the dispositional hearing. Tr. Vol. IV

       at 44-67. On July 6, 2020, the juvenile court issued its written decree, which

       required among other things, that Father establish paternity, provide Child a

       stable and safe environment, and attend “individual counseling services to

       prepare for Child to be placed with him and to gain an understanding of

       childhood trauma.” Appellant’s App. Vol. 4 at 195-98. Father now appeals.


                                      Discussion and Decision

                                              I.      Due Process
[31]   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 (1976)). Indiana courts have previously

       stated that the 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

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 16 of 30
       procedure.
 Id. (citing In re 
C.G., 
954 N.E.2d 910
, 917 (2011)). Our Supreme

       Court has held that these same factors apply to a due process analysis of a

       CHINS adjudication.
 Id. Ultimately, the resulting 
balance of those factors

       must provide “the opportunity to be heard at a meaningful time and in a

       meaningful manner.” In re L.C., 
23 N.E.3d 37
, 40 (Ind. Ct. App. 2015), trans.

       denied.


[32]   Father argues that he was denied his right to due process because the juvenile

       court failed to conduct a fact-finding hearing until 1,174 days after the filing of a

       CHINS petition and 692 days after Father voluntarily engaged in services. He

       contends that he was never served with a copy of the CHINS petition, filed on

       November 15, 2016, nor given an opportunity to appear for the initial hearing

       held the same day. Father further asserts that even if his absence from the case

       for the first year justified the court proceeding to a fact-finding hearing as to

       allegations against Mother in his absence, the juvenile court erred when it did

       not conduct a timely fact-finding hearing after Father reengaged in the case.

       When DCS was able to locate him in March 2018, Father maintains that he

       immediately began to engage in services to reunify with Child, but that he was

       denied an opportunity for a fact-finding hearing for another 692 days, which

       was a violation of his right to due process.


[33]   Indiana Code section 31-32-2-3 applies to CHINS proceedings and provides, in

       pertinent part, that during:

               (1) Proceedings to determine whether a child is a child in need of
               services [or]
       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 17 of 30
               (2) Proceedings to determine whether the parent, guardian, or
               custodian of a child should participate in a program of care,
               treatment, or rehabilitation for the child


               ....


               (b) A parent, guardian, or custodian is entitled:


               (1) to cross-examine witnesses;


               (2) to obtain witnesses or tangible evidence by compulsory
               process; and


               (3) to introduce evidence on behalf of the parent, guardian, or
               custodian.


[34]   Father initially contends that his right to due process was violated because he

       was not served with a copy of the CHINS petition and because he was not

       given an opportunity to appear for the initial hearing. However, the evidence

       showed that, at the time of the CHINS petition, Father was only alleged to be

       the father of Child as he had yet to take a DNA test, he lived out of state, and

       he had neither supported nor visited Child. Appellant’s App. Vol. 2 at 45-46.

       DCS did not serve Father with a copy of the CHINS petition or notice of the

       hearing dates because his whereabouts were unknown, and he no longer lived

       at his last known address.
 Id. at 45, 48, 49, 108, 134-35, 174, 184. 
On the same

       date that the CHINS petition was filed, the juvenile court held an initial

       hearing, where DCS again alleged that Father was uninvolved in Child’s life

       and had never visited or supported Child. Tr. Vol. II at 5, 9. DCS was initially

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 18 of 30
       able to make contact with Father on November 21, 2016 after locating him in

       Maine and advised him of Child’s detention and foster care placement, of the

       pending CHINS petition, and about the need for him to establish paternity; on

       November 29, 2016, he was again advised of the importance of establishing

       paternity. Tr. Vol. II at 15, 191-92; Appellant’s App. Vol. 2 at 76, 216. Thereafter,

       Father failed to maintain contact with DCS and to establish paternity, and

       when DCS attempted to contact him, his phone number was no longer in

       service and letters were returned as undeliverable. Tr. Vol III at 194-95, 229;

       Appellant’s App. Vol. II at 216-17. We conclude that there was no due process

       violation in not serving Father with the CHINS petition and in not allowing

       him an opportunity to appear for the initial hearing because, at that time, he

       was only alleged to be the father of Child and his whereabouts were unknown.

[35]   Father next argues that it was a violation of his due process rights to not

       conduct his fact-finding hearing until February 3, 2020. Father relies on In re

       S.A., 
15 N.E.3d 602 
(Ind. Ct. App. 2014), clarified on reh’g, 
27 N.E.3d 287 
(Ind.

       Ct. App. 2015), trans. denied, in his contention that his right to due process was

       violated because of the delay in conducting his fact-finding hearing. In S.A., the

       trial court had already determined the Child’s CHINS status based solely on

       Mother’s admission of the allegations -- notwithstanding the fact that Father

       was involved in the case and had denied the allegations contained in the

       CHINS petition -- and later held a fact-finding hearing as to Father.
 Id. at 606-

       07. 
This court held that by adjudicating the Child as a CHINS prior to Father’s

       fact-finding hearing, the trial court deprived Father of a meaningful opportunity

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 19 of 30
       to be heard.
 Id. at 609. 
However, on rehearing this court clarified that the

       opinion stands for the proposition that “[w]hen the [CHINS] adjudication can

       involve both parents at the same time, it should involve both parents at the same

       time so there is one adjudication as to all facts pertaining to the entire 
matter.”

       27 N.E.3d at 292 
(emphasis in original). If multiple hearings are unavoidable,

       then the trial court should, if at all possible, refrain from adjudicating the child a

       CHINS until evidence has been heard from both parents.
 Id. at 292-93. 
And if

       an adjudication is unavoidable before evidence has been heard from the second

       parent, then the trial court must give meaningful consideration to the evidence

       provided by the second parent in determining whether the child remains a

       CHINS.
 Id. at 293.


[36] 
  However, Father’s reliance on S.A. is misplaced. Here, the juvenile court

       followed the procedure set out in the S.A. opinion on rehearing. Multiple

       hearings were unavoidable in the present case because of the emergency nature

       of the situation of Mother’s drug use and lack of other caregivers for Child and

       because Father had not yet established paternity and his whereabouts were

       unknown. Further, the initial CHINS adjudication was also unavoidable

       because Mother wished to admit the allegations, and at that time, paternity had

       still not been proven, and DCS was unable to make contact with Father.

       According to S.A., Father was later given the opportunity for a fact-finding

       hearing, and the juvenile court gave meaningful consideration to the evidence

       provided by Father in its determination as to whether Child remained a

       CHINS.

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 20 of 30
[37]   Moreover, after DCS was able to re-establish contact with Father in March

       2018, he was appointed counsel, who zealously represented his interest, and he

       became involved in the CHINS case. Indeed, on August 20, 2018, his counsel

       moved for discovery in an anticipated CHINS fact-finding hearing, but it was

       not until about a year later, on June 20, 2019, that Father filed a motion stating,

       among other things, that he had not yet had a CHINS fact-finding hearing.

       Appellant’s App. Vol. 2 at 244-50; Appellant’s App. Vol. 3 at 78. Soon after, the

       juvenile court set the fact-finding hearing for August 23, 2019. Appellant’s App.

       Vol. 3 at 98. However, after several continuances agreed on or otherwise not

       objected to by the parties, including Father, the fact-finding hearing was held on

       February 3, 2020.
 Id. at 99, 101, 106, 107, 137; 
Tr. Vol. III at 45-49.


[38]   By seeking continuances or otherwise not objecting to any of the continuances,

       Father invited any alleged error in any further delays in the fact-finding, and

       relief is not available to Father. The invited-error doctrine is based on the

       doctrine of estoppel and forbids a party from taking advantage of an error that

       she commits, invites, or which is the natural consequence of her own neglect or

       misconduct. In re J.C., 
142 N.E.3d 427
, 432 (Ind. 2020) (citing Durden v. State,

       
99 N.E.3d 645
, 651 (Ind. 2018)). Where a party invites the error, he cannot

       take advantage of that error.
 Id. (citing Witte v. 
Mundy ex rel. Mundy, 
820

       N.E.2d 128
, 134 (Ind. 2005)). In short, invited error is not reversible error.
 Id.

       (citing Booher v. 
State, 
773 N.E.2d 814
, 822 (Ind. 2002); C.T. v. Marion Cnty.

       Dep’t of Child Servs., 
896 N.E.2d 571
, 588 (Ind. Ct. App. 2008), trans. denied).




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 21 of 30
[39]   Even under the Mathews analysis, Father’s due process rights were not violated.

       The risk of error created by the juvenile court not conducting a fact-finding

       hearing soon after he became involved in the case was minimal given that he

       was provided numerous opportunities to continue to move forward toward

       reunification with Child throughout the case and was not denied any

       opportunity to be heard at a reasonable time or place. Further, it is undisputed

       that Father was provided with a fact-finding hearing and the opportunity to

       present evidence and challenge that Child was a CHINS. The record shows

       that Father received all rights contemplated under Indiana Code section 31-32-

       2-3. Due process embodies a requirement of “fundamental fairness.” In re D.P.,

       
27 N.E.3d 1162
, 1166 (Ind. Ct. App. 2015). We, therefore, conclude that there

       is nothing in the record to suggest that Father was not provided the process due

       him and deprived of fundamental fairness before the juvenile court determined

       that Child should remain a CHINS as previously adjudicated and issued its

       dispositional order. Father has failed to carry his burden of showing that his

       due process rights were violated.


                                       II.     CHINS Adjudication
[40]   CHINS proceedings are civil actions, and therefore, it must be proven by a

       preponderance of the evidence that a child is a CHINS as defined by statute. In

       re L.C., 
23 N.E.3d 37
, 39 (Ind. Ct. App. 2015) (citing In re N.E., 
919 N.E.2d

       102
, 105 (Ind. 2010)), trans. denied. When we review a CHINS determination,

       we neither reweigh the evidence nor judge the credibility of the witnesses.
 Id.

       We consider only 
the evidence that supports the juvenile court’s decision and

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 22 of 30
       the reasonable inferences drawn therefrom.
 Id. at 39-40. 
Where the trial court

       issues findings of fact and conclusions thereon, we apply a two-tiered standard

       of review. In re R.P., 
949 N.E.2d 395
, 400 (Ind. Ct. App. 2011). We consider

       first whether the evidence supports the findings and then whether the findings

       support the judgment.
 Id. We will set 
aside the trial court’s findings and

       conclusions only if they are clearly erroneous and a review of the record leaves

       us firmly convinced that a mistake has been made.
 Id. “Findings are clearly

       erroneous only when the record contains no evidence to support them either

       directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 
24 N.E.3d 997
, 1001-

       02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is clearly erroneous if

       it relies on an incorrect legal standard.”
 Id. at 1002.


[41] 
  Father argues that the juvenile court erred when it found that Child was a

       CHINS. He claims that the CHINS adjudication was not based on his actions

       or inactions but instead upon the harm that removal from foster care would

       cause Child and on Father’s unwillingness to move with Mother to Indiana

       during her pregnancy. Father contends that these reasons do not support a

       CHINS adjudication, and DCS failed to present any evidence that Child’s

       needs are unmet and unlikely to be met without the coercive intervention of the

       court. Father asserts that he completed all services requested by DCS at the

       time of the fact-finding hearing and had visited with Child several times over

       nearly two years before the CHINS adjudication. He further maintains that the

       harm caused by DCS’s unwillingness to remove Child from foster care and

       place Child with Father should not provide the basis for a CHINS


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 23 of 30
       determination. He argues that DCS’s continued requirements and delayed due

       process for Father resulted in Child remaining in foster placement for over three

       years before he had an opportunity to be heard on the CHINS allegations and

       the potential trauma caused by removing Child from foster placement was

       caused by this delay.

[42]   DCS had the burden of proving by a preponderance of the evidence that Child

       was a CHINS. Ind. Code § 31-34-12-3. Indiana Code sections 31-34-1-1

       through 11 specify the elements of the CHINS definition that the State must

       prove:

                (1) the child is under the age of 18;


                (2) one or more particular set or sets of circumstances set forth in
                the statute exists; and


                (3) the care, treatment, or rehabilitation needed to address those
                circumstances is unlikely to be provided or accepted without the
                coercive intervention of the court.


       In re 
N.E., 919 N.E.2d at 105
. Here, the juvenile court adjudicated Child to be a

       CHINS pursuant to Indiana Code section 31-34-1-1,1 which provides:




       1
         Indiana Code section 31-34-1-1 was amended in 2019, to include the following under subdivision (1): “(A)
       when the parent, guardian, or custodian is financially able to do so; or (B) due to the failure, refusal, or
       inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so . . . .”
       This amendment does not have any effect on the outcome of this appeal.

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020               Page 24 of 30
               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:


               (1) the child’s physical or mental condition is seriously impaired
               or seriously endangered as a result of the inability, refusal, or
               neglect of the child’s parent, guardian, or custodian to supply the
               child with necessary food, clothing, shelter, medical care,
               education, or supervision; and


               (2) the child needs care, treatment, or rehabilitation that:


               (A) the child is not receiving; and


               (B) is unlikely to be provided or accepted without the coercive
               intervention of the court.


[43]   Therefore, this statute requires “three basic elements: that the parent’s actions

       or inactions have seriously endangered the child, that the child’s needs are

       unmet, and . . . that those needs are unlikely to be met without State coercion.”

       In re S.D., 
2 N.E.3d 1283
, 1287 (Ind. 2014).


[44]   Father does not challenge the sufficiency of the evidence to support any of the

       other findings by the juvenile court. As Father does not challenge any of the

       remaining findings of facts by the juvenile court, these unchallenged facts stand

       as proven. See In re B.R., 
875 N.E.2d 369
, 373 (Ind. Ct. App. 2007) (failure to

       challenge findings by the trial court resulted in waiver of the argument that the

       findings were clearly erroneous), trans. denied; McMaster v. McMaster, 
681 N.E.2d

       744
, 747 (Ind. Ct. App. 1997) (when father failed to challenge specific findings,

       court accepted them as true).

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 25 of 30
[45]   “Although the acts or omissions of one or both parents can cause a condition

       that creates the need for court intervention, the CHINS designation focuses on

       the condition of the children rather than on an act or omission of the parent(s).”

       In re K.P.G., 
99 N.E.3d 677
, 682 (Ind. Ct. App. 2018) (citing In re 
N.E., 919

       N.E.2d at 105
), trans. denied. Therefore, “despite a ‘certain implication of

       parental fault in many CHINS adjudications, the truth of the matter is that a

       CHINS adjudication is simply that -- a determination that a child is in need of

       services.’”
 Id. (quoting In re 

N.E., 919 N.E.2d at 105
).


[46]   Here, from the time Child was born in November 2014 and until the time of the

       CHINS factfinding finding hearing in February 2020, Father only had three

       face-to-face visitations with Child, with the first happening in September 2018,

       and the next two occurring in October and November 2019. Tr. Vol. III at 98-

       99. Therefore, Father saw Child face-to-face for the first time just before Child

       turned four years old and the not again until Child was five years old. While

       supervised visitations via video for Father with Child occurred, they did not

       begin until August 2018, and even then, up until around the fall of 2019, Father

       was inconsistent in his participation. Appellant’s App. Vol. 3 at 13, 44-45, 97.

       Father’s failure to fully participate in these visitations shows a lack of

       commitment to do what was required to maintain his relationship with Child.

       See Lang v. Starke Cnty. Office of Family & Children, 
861 N.E.2d 366
, 372 (Ind. Ct.

       App. 2007) (stating that, in the context of termination, the failure to exercise the

       right to visit one’s children demonstrates a lack of commitment to complete the

       actions necessary to preserve the parent-child relationship), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 26 of 30
[47]   Father chose to absent himself from Child’s life, and the juvenile court did not

       find Father’s reasons explaining his lack of involvement credible. Appellant’s

       App. Vol. 4 at 136. The juvenile court found, considering all of Father’s

       involvement in the court system, that receiving a “phone call from a caseworker

       with the Department of Child Services that you may be the father of a child

       who is in foster care because the mother is battling drug addiction is not

       something to put on the back burner” and that delaying action in such a

       situation can have significant, and life-changing consequences, as it has in the

       present case.
 Id. at 139. 
Therefore, Father’s failure to reach out and to stay in

       communication with DCS was unreasonable and proved a great detriment to

       Child.


[48]   The evidence showed that Child was attached to his foster family and that

       removing Child from the foster family abruptly would cause trauma to Child

       and that time and services were needed to facilitate a bond between Father and

       Child. Cornett testified that it was her belief that a parent’s absence from a

       child’s life in the first years of the child’s life would play a role in the lack of a

       bond between them because that is how the attachment relationship develops.

       Tr. Vol. III at 215. She stated further that, because Child had lived with his

       foster family for an extended period of time and had a secure attachment with

       them, Child will experience trauma and grief if separated from the foster family.


       Id. at 217. 
Cornett opined that Child’s separation from foster family would be

       more complicated because of the length of time he had lived with them and his

       older age.
 Id. at 224. 
Additionally, Cornett testified that Father was


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 27 of 30
       underestimating Child’s weaknesses of entering into a caregiver relationship

       with him and that he did not realize that it would “be very challenging and

       potentially detrimental to Child.”
 Id. Cornett testified that 
Child would need a

       “plethora” of services to address detaching him from the foster home and

       attaching him to Father.
 Id. at 220, 221. 
Based on this, she recommended a

       process of reunification that would slowly orientate Child to placement with

       Father and that was done in a controlled manner with services available.
 Id. at

       227. 
However, Father told Cornett that services were not necessary, and he

       indicated that he thought that Child would adjust adequately and disagreed that

       it would likely be very challenging and potentially detrimental.
 Id. at 224.

       Father’s position posed a threat of harm to Child’s well-being.

[49]   A CHINS adjudication is a determination that a child is in need of services. In

       re 
K.P.G., 99 N.E.3d at 682
. Indeed, a child’s safety and well-being are the

       foremost considerations in a CHINS case. In re 
N.E., 919 N.E.2d at 106

       (“[T]he purpose of a CHINS adjudication is to protect children, not punish

       parents”). The evidence, here, shows that removing Child from his foster

       placement abruptly and placing him with Father would result in trauma for

       Child due to the strong attachment he had to the foster family and the length of

       time Child has been placed with the family. The evidence also showed that

       Child would require significant services to lessen this trauma and allow for the

       transition to occur. Further, the evidence demonstrated that Father did not

       appreciate or understand the need for these services or the trauma that could




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 28 of 30
       occur by abruptly removing Child from the foster family and placing him with

       Father, with whom he did not have a strong bond.

[50]   Father relies on In re D.B., 
43 N.E.3d 599 
(Ind. Ct. App. 2015), trans. denied, as

       support for his argument that the juvenile court erred in its CHINS

       adjudication. He contends that D.B. supports his position that he was merely

       an absent parent, which alone does not support the CHINS adjudication.

       However, we find D.B. to be distinguishable from the present case. A panel of

       this court reversed the trial court in D.B. and found insufficient evidence to

       support the CHINS adjudication, holding that while the father was absent from

       the child’s life up until the time the mother was murdered, DCS offered no

       proof that the father was unfit, only that he was absent.
 Id. at 606. 
Unlike

       Father in this case, the father in D.B. was involved in the pregnancy, he was

       there for the child’s birth, executed a paternity affidavit, and participated in

       caring for the child for at least four months until the mother moved to

       Indianapolis.
 Id. at 601-02. 
Although the father was absent from the child’s life

       for almost a year, almost immediately after being contacted by DCS, he became

       involved in the CHINS proceedings.
 Id.


[51] 
  Here, Father knew Mother was pregnant with Child when she returned to

       Indiana or shortly thereafter and chose to remain in Massachusetts because he

       saw “no significant reason to leave.” Tr. Vol. III at 78. Further, despite

       concerns Mother suffered from a serious drug addiction, Father did nothing to

       help Mother or Child before or after Child’s birth. Father also did not seek

       paternity immediately, and when DCS suggested he do so, Father balked at
       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 29 of 30
       paying the fifty dollars to have the DNA test completed. Father then ceased

       communication with DCS, leaving DCS with no phone number or address to

       reach him, for over one full year while Mother continued to abuse

       methamphetamine and Child remained in foster placement. We, therefore,

       find D.B. is distinguishable from this case and not controlling in the outcome

       here.


[52]   The CHINS statutes do not require that a trial court wait until a tragedy occurs

       to a child before intervening. In re C.K., 
70 N.E.3d 359
, 364 (Ind. Ct. App.

       2016), trans. denied. We, therefore, conclude that sufficient evidence was

       presented at the fact-finding hearing to establish that Father was unable or

       refused to supply Child with necessary food, clothing, shelter, medical care,

       education, or supervision, and Child’s physical or mental condition was

       seriously impaired or seriously endangered as a result and that Child needed

       care, treatment, or rehabilitation that he was not receiving and was unlikely to

       be provided without the coercive intervention of the court. See Ind. Code § 31-

       34-1-1. The juvenile court did not err in concluding that Child should remain a

       CHINS as originally adjudicated.

[53]   Affirmed.

       Bradford, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-1319 | December 21, 2020   Page 30 of 30

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