MEMORANDUM DECISION
[1] After Mother was arrested for drug-related crimes, her children, C.B. and K.C. (“Children”), were placed in foster care. One week before Children were adjudicated as Children in Need of Services (“CHINS”), the Indiana Department of Child Services (“DCS”) barred Mother from visiting Children because each Child alleged Mother had molested them. About sixteen months later, the juvenile court terminated Mothers parental rights as to Children. On appeal, Mother argues DCS violated her substantive due process right to raise her Children by barring her from visiting them and, in doing so, failed to make reasonable efforts to preserve or reunify her family. We disagree and affirm the juvenile courts decision to terminate Mothers parental rights.
Facts and Procedural History
[2] Mother has two children, C.B. (born December 1, 2015) and K.C. (born October 19, 2018). A.C.
1
is K.C.’s father, and M.B.
2
is C.Bs father. On January 7, 2020, Mother was charged with Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia. The next day, Children were removed and placed in foster care. Ex. Vol. at 18; Appellants App. Vol. 2 at 50. Two days later, DCS filed CHINS petitions, citing Mothers drug-related arrests, a recently closed CHINS case also involving Mothers substance abuse, and the fact that she and Children were sometimes homeless. Ex. Vol. at 17–18.
[3] Mother visited Children ten times—five virtual visits and five in-person visits—between January and early June 2020. DCS stopped the visits in early June when each child alleged that Mother had sexually molested them. Tr. at 51–52, 57. There was an “ongoing” criminal investigation into the allegations, but Mother was never charged. Id. at 17–18, 52.
[4] On June 15, 2020, the juvenile court found Children were CHINS based on these claims and Mothers claim that M.B. had molested C.B. Id. at 33. Five weeks later, on July 27, 2020, the juvenile court issued its dispositional order, which required Mother to: (1) maintain weekly contact with her family case manager (“FCM”) and notify the FCM about changes in her residence, contact information, and new criminal charges; (2) enroll and participate in assessments and programs; (3) attend all appointments with the FCM and service providers; (4) not possess or consume illegal substances; (5) participate in home-based case management to address employment, parenting skills, time management, and maintaining a home; and (6) participate in home-based therapy. Ex. Vol. at 38–40.
[5] Between September 28, 2020, and September 13, 2021, the juvenile court held five hearings to gauge Mothers compliance with the case plan and the progress of Children. The juvenile court found that Mother was not complying with the case plan because she had failed to complete parenting and substance abuse assessments, submit to all random drug tests, notify DCS about changes in address, achieve greater stability in income and housing, pass a drug test, undergo therapy, and attend all visitations with Children and abide by visitation rules. Ex. Vol. at 43–44, 48, 53, 57, 61; Tr. at 46–49, 54–55. At one of the hearings, the juvenile court changed the permanency plan from family reunification to a concurrent plan of family reunification or adoption. And after each of the five hearings, the juvenile court found DCS had made reasonable efforts to reunify or preserve Childrens family by offering family services, drug screens, substance abuse assessments, and home-based case management. Ex. Vol. at 44–45, 49, 53, 57, 61.
[6] In the meantime, Mothers criminal case proceeded. After she was charged in January 2020, she was arrested twice for failing to appear at hearings. Id. at 128, 130. On November 4, 2020, Mother pleaded guilty to Level 6 felony possession of methamphetamine, and about fifteen weeks later, she was arrested for violating the terms of her probation, admitted to the violation, and was later released to home detention. The State later alleged Mother violated the terms of her home detention, the criminal court set the matter for a factfinding hearing, and Mother failed to appear at the hearing and was arrested and reincarcerated. Id. at 135–36.
[7] In late January 2021, the State filed a new charge against Mother—Level 6 felony possession of methamphetamine and a petition to revoke Mothers probation. In March 2021, the criminal court accepted Mothers guilty plea to the new charge and placed her on home detention. In August 2021, the criminal court issued a warrant for Mothers arrest because she violated the terms of her home detention. Id. at 159–60.
[8] On April 29, 2021, DCS filed petitions to terminate Mothers parental rights. Appellants App. Vol. 2 at 9–10; 50–56. In late July 2021, Mother filed a motion for parenting time. Around the same time, she took and passed a polygraph test about the molestation allegations. Mother failed to appear at the August 16, 2021, hearing on her motion for parenting time, so the juvenile court reset the hearing for September 13, 2021, and when Mother failed to appear at that hearing, Mothers attorney withdrew the motion for parenting time. Ex. Vol. at 14–15.
[9] The factfinding hearing was held on October 4, 2021, but Mother failed to appear. Tr. at 32. FCM Brooke Powers testified that Mother had not contacted FCM Powers for sixteen months. FCM Powers also testified that Mother failed to complete parenting assessments, maintain stable housing, and that when Mother still had visitation with Children, Mother was often distracted, fell asleep during one visit, and “never really focused on the kids during the Zoom visits.” Id. at 57–58. Court appointed special advocate Kelly Smith testified that termination of Mothers parental rights was in the best interests of each child. Id. at 65–66.
[10] On October 15, 2021, the juvenile court issued its order terminating Mothers parental rights as to Children. Appellants App. Vol. 2 at 36–41. The juvenile court found that Mother had been convicted of two drug-related crimes, her probation was revoked in one of the cases, and she failed to maintain contact with DCS, cooperate with service providers, comply with random drug screens, home visits, substance abuse assessments, therapy, and home-based case management. Id. at 38–39. The juvenile court noted Mothers whereabouts were unknown. Id. at 38. The juvenile court concluded that DCS met its burden to prove by clear and convincing evidence that under Indiana Code section 31-35-2-4(b)(2), Mothers parental rights should be terminated. Id. at 39–40.
Discussion and Decision
[11] Mother makes only one argument on appeal—that the termination of her parental rights violated her right to substantive due process. She does not challenge any of the juvenile courts findings of facts or conclusions of law, and she does not dispute that DCS met its burden to prove by clear and convincing evidence that the evidence and legal arguments presented to the juvenile court met the statutory requirements under Indiana Code section 31-35-2-4(b)(2) for termination of parental rights.
[12] The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005) (citing Pierce v. Society of Sisters, 268 U.S. 510, 534–535 (1925); Meyer v. Nebraska, 262 U.S. 390, (1923)). A parents interest in the care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty interests.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The parent-child relationship is “one of the most valued relationships in our culture.” Neal v. DeKalb Cnty. Div. of Fam. & Child., 796 N.E.2d 280, 285 (Ind. 2003). But parental interests are not absolute and must be subordinated to the childs interests in determining the proper disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147. Thus, parental rights may be terminated when parents are unable or unwilling to fulfill their parental responsibilities. Id.
[13] Mother admits she has waived her due process argument because she did not raise it in the juvenile court, see, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013), but she urges us to review her claim because DCSs deprivation of her right to raise her Children constitutes fundamental error. Because we agree that Mother has a substantive due process right to raise her children, we exercise our discretion to review her due process claim. See id. at 53–54; In re D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019) (termination of parental rights case) opinion adhered to as modified on rehg sub nom. D.H. v. Ind. Dept of Child Servs., 122 N.E.3d 832 (Ind. Ct. App. 2019), trans. denied; see also In re L.B., 616 N.E.2d 406, 407 (Ind. Ct. App. 1993) (“The constitutionally protected right of parents to establish a home and raise their children ․ mandates that the failure of a trial court to require compliance with any condition precedent to the termination of this right constitutes fundamental error which this court must address sua sponte.”) (citations omitted), trans. denied.
[14] Mother argues DCS violated her substantive due process right to raise Children by preventing her from visiting Children after they claimed she molested them. By barring visitation, she says, DCS “fell short of its duty to make reasonable efforts to reunify her family” and “made it impossible for Mother to reunify with [Children].” Appellants Br. at 7–8, 12. She also contends DCSs decision was unreasonable because the molestation allegations were never substantiated.
[15] To protect a parents due process rights in a termination case, DCS must make reasonable efforts to preserve or reunify the family during the CHINS case. In re T.W., 135 N.E.3d 607, 614–15 (Ind. Ct. App. 2019), trans. denied. “What constitutes ‘reasonable efforts’ will vary by case, and ․ it does not necessarily always mean that services must be provided to the parents ․ [But] it does not ask too much of DCS to behave reasonably under such grave circumstances.” Id. at 615.
[16] Here, DCS made reasonable efforts to preserve or reunify Mothers family. DCS offered many services to Mother: (1) parenting and substance abuse assessments; (2) therapy; (3) weekly meetings with the FCM to keep Mother on track; and (5) home-based management programs. Ex. Vol. at 43–44, 52–53, 57, 61; Tr. at 46, 48–49, 54–55. But Mother undermined DCSs efforts to reunify her family. First, she failed to complete nearly all services DCS offered to her. Second, she undermined her own efforts to restore parenting time. After she moved to restore parenting time, Mother failed to appear at both hearings the trial court had scheduled to consider her motion for parenting time, leaving her attorney no choice but to eventually withdraw the motion.
[17] DCSs decision to stop visitation did not mean DCS was not making reasonable efforts to reunify and preserve Mothers family. In Lang v. Starke Cnty. Off. of Fam. & Child., we held that DCS does not violate a parents right to substantive due process simply by restricting a parents parenting time. 861 N.E.2d 366, 377 (Ind. Ct. App. 2007). Because the father in Lang had a history of unreasonable use of corporal punishment, DCS would grant him parenting time only if he repudiated all forms of corporal punishment. Id. at 372. As to what efforts to reunify or preserve a family are appropriate in such a context, we quoted Indiana Code section 31-34-21-5.5(a): “In determining the extent to which reasonable efforts to reunify or preserve a family are appropriate ․ the childs health and safety are of paramount concern.” Id. at 377. We found DCS reasonably determined that limiting Langs visitation rights was necessary to preserve the health and well-being of his children and thus did not violate Langs substantive right to due process. Id.
[18] The same analysis applies here. Based on allegations from Children that Mother molested them, it was reasonable for DCS to suspend Mothers right to visit Children to preserve their health and well-being. It is of no consequence that Mother was never criminally charged because there was an ongoing criminal investigation during the CHINS case. Tr. at 17–18, 52. The health and safety of Children was DCSs primary concern, so DCSs decision to stop visitation was a reasonable choice while it continued to pursue avenues to eventually reunify the family. See Lang, 861 N.E.2d at 377.
[19] The reason DCS was unable to reunify Mother and Children was Mothers own conduct, not any dereliction of duty by DCS. Thus, we find no violation of Mothers substantive due process right from DCSs decision to bar Mother from visiting Children after they alleged that she had molested them, and we affirm the juvenile courts decision to terminate her parental rights.
[20] Affirmed.
FOOTNOTES
1
. The juvenile court terminated A.C.’s parental rights, but he is not participating in this appeal. Appellants App. Vol. 2 at 36–41.
2
. M.B. voluntarily relinquished his parental rights. Appellants App. Vol. 2 at 20–21; 25–26.
Molter, Judge.
Mathias, J., and Brown, J., concur.