In Re: The Termination of the Parent-Child Relationship of A.C. Jr. and J.C. (Minor Children) A.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 17, 2020
• Docket: 19A-JT-1576
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 17 2020, 9:46 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nathan D. Hoggatt Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Termination of the March 17, 2020 Parent-Child Relationship of Court of Appeals Case No. A.C. Jr. and J.C. (Minor 19A-JT-1576 Children); Appeal from the Wells Circuit A.C. (Father), Court The Honorable Kenton W. Appellant-Respondent, Kiracofe, Judge v. Trial Court Cause No. 90C01-1809-JT-43 90C01-1809-JT-44 The Indiana Department of Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 1 of 14 [1] A.C. (“Father”) appeals the termination of the parent-child relationship with

his sons A.C., Jr., (“A.C., Jr.”), and J.C. (“J.C.”), collectively (“the children”).1

He contends that: (1) the trial court abused its discretion when it denied his

motion to continue the termination hearing; and (2) there is insufficient

evidence to support the terminations. Finding no abuse of the trial court’s

discretion and sufficient evidence to support the terminations, we affirm the

trial court’s judgment.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion when it denied Father’s motion to continue the termination hearing.

2. Whether there is sufficient evidence to support the termination of the parent-child relationships.

Facts [3] Father is the parent of A.C., Jr., who was born in April 2014, and J.C., who

was born in April 2015. In January 2016, the children were removed from

Mother and placed in foster care because of Mother’s methamphetamine use.

Father was incarcerated at the time. Mother complied with the terms of what

appears to have been an informal disposition, and the children were returned to

1 The children’s mother’s (“Mother”) parental rights were also terminated. However, she is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 2 of 14 her in July 2016. After Mother admitted that Father had treated her violently in

the past and that she was scared of him, a DCS case manager worked with

Mother to put in place a safety plan to protect herself when Father was released

from incarceration. The CHINS case was closed in December 2016.

[4] In August 2017, an intoxicated Father, who was on parole for a felony burglary

conviction, forced his way into Mother’s home and attacked her when she

refused to allow him to see the children. The State charged Father with

strangulation, domestic battery committed in the presence of a child less than

sixteen years old, residential entry, resisting law enforcement, battery, and

public intoxication.

[5] Later that month, DCS again removed the children from Mother because of her

methamphetamine use. Father was incarcerated at the time, and the children

were placed with their previous foster family. Father was released from

incarceration in November 2017, and the children were adjudicated to be

children in need of services (“CHINS”) in December 2017.

[6] In January 2018, the trial court entered a dispositional order, which ordered

Father to: (1) complete a substance abuse assessment and successfully complete

all recommendations; (2) complete a psychological assessment and successfully

complete all recommendations; (3) complete a domestic violence assessment

and successfully complete all recommendations; (4) abstain from the use of

alcohol; (5) follow all terms of parole; (6) maintain a legal and stable source of

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 3 of 14 income; (7) maintain suitable, safe, and stable housing; and (8) submit to

random drug screens.

[7] One month later, in February 2018, police officers were dispatched to

investigate a report of vandalism and an argument between two men. When

the officers arrived at the scene, they discovered Father outside of Mother’s

home. At the time, there was an order prohibiting Father from contacting

Mother. Father was belligerent and had a knife and a bag of needles in his

possession. His blood alcohol level was .17. The State charged Father with

Class B misdemeanor public intoxication and Class A misdemeanor invasion of

privacy, and he was re-incarcerated.

[8] Seven months later, in September 2018, DCS filed a petition to terminate

Father’s parental rights. In February 2019, the trial court granted Father’s

appointed counsel (“appointed counsel”) a two-month continuance of the

termination hearing because of “some emergency situations.” (Tr. Vol. 2 at

29). The day before the rescheduled hearing, Father’s appointed counsel filed

another motion to continue the termination hearing. She specifically explained

in the motion that she could not be present at the hearing “for unavoidable

health reasons[.]” (App. Vol. 2 at 35).

[9] At the hearing the following day, attorney Scott Harter (“Attorney Harter”)

explained that appointed counsel was very ill. Attorney Harter explained that

he had been assisting appointed counsel on Father’s case for the previous two

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 4 of 14 months. When asked if he was prepared for the hearing, Attorney Harter

responded as follows:

You bet I’m prepared; I don’t go into hearings not being prepared. [Father] deserves adequate assistance, effective assistan[ce] of counsel, and I’m here to provide that. Would I have preferred that [appointed counsel] handle this case? Yes, certainly[.] But I just want, for the record, to be understood that I am not the primary attorney on this case. . . . I will do my very best job. I do feel I’m prepared.

(Tr. Vol. 2 at 115, 116).

[10] Counsel for DCS objected to the continuance because “the[] children need[ed]

permanency, and a continuance was already given . . . several months ago . . .

and . . . we would like to move forward today.” (Tr. Vol. 2 at 117). Guardian

Ad Litem Beth Webber (“GAL Webber”) agreed with DCS and pointed out

that this was the second time that the children had been involved with DCS and

that they had spent more time in placement than in the home of either parent.

The trial court denied Father’s motion to continue the termination hearing.

[11] Testimony at the April 2019 hearing revealed that Father was incarcerated for a

parole violation at the time of the hearing. He had not seen the children in over

a year. He had sent them several letters after the termination petition had been

filed. However, A.C., Jr.’s therapist had recommended against giving the

letters to the then three and four-year-old boys.

[12] The evidence further revealed that during the three months that Father had

been released from incarceration from November 2017 through February 2018,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 5 of 14 he had completed the court-ordered substance abuse assessment with a Bowen

Center therapist. During the assessment, Father minimized his alcohol use and

criminal history. Specifically, Father told the therapist that he had not used

alcohol for three and one-half years and that he only had prior convictions for

burglary and aiding and abetting. However, Father had just been charged with

public intoxication. In addition, Father’s criminal history included convictions

for: (1) Class A misdemeanor striking a law enforcement animal in 2008; (2)

Class A misdemeanor battery resulting in bodily injury in 2008; (3) Class A

misdemeanor trespass in 2009; (4) Class A misdemeanor invasion of privacy in

2009; (5) Class B felony burglary in 2010; and (6) Class A misdemeanor battery

resulting in bodily injury in 2013. Father further admitted violating the terms

and conditions of his probation in 2013, 2014, and 2015. Although Father

completed the assessment, he did not successfully complete the therapist’s

recommendation for individual therapy to address his substance abuse issues.

In addition, Father failed to obtain a psychological evaluation or a domestic

violence assessment.

[13] DCS Family Case Manager Laurie Hoffacker (“FCM Hoffacker”) testified that

the children had been involved with DCS for more than one-half of their lives

and that it was important “that we get to the point where we can provide the

permanency for these two . . . so that they have a stable environment to live in

with parents who are gonna meet their basic needs consistently . . . ensure their

safety and be present in their lives.” (Tr. Vol. 3 at 103). When asked whether

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 6 of 14 Father had remedied the conditions that had resulted in the initial removal of

his children, FCM Hoffacker responded as follows:

[A]t the time of the detention, [Father] was incarcerated . . . for a criminal offense[.] While he was . . . out of incarceration . . . services were not completed[.] He was not able to provide . . . a stable environment for his children at that time. [H]e has not received treatment for those . . . issues that led to our involvement. [S]ince the case has been open, he was arrested on new charges [and] violated parole.

(Tr. Vol. 3 at 104). In addition, FCM Hoffacker testified that she had met with

Father two weeks before the termination hearing to sign releases of information

and that Father had not asked about the children. According to the family case

manager, termination of the parent-child relationship was in the children’s best

interests.

[14] GAL Webber testified Father had a pattern of conduct and behavior that had

not changed during the course of the proceedings. She also testified that

termination was in the children’s best interests.

[15] In June 2019, the trial court issued a detailed twenty-two-page order

terminating Father’s parental rights. Father now appeals the terminations.

Decision [16] Father argues that: (1) the trial court abused its discretion when it denied his

motion to continue the termination hearing; and (2) there is insufficient

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 7 of 14 evidence to support the terminations. We address each of his contentions in

turn.

1. Denial of Motion to Continue the Termination Hearing

[17] Father first argues that the trial court abused its discretion in denying his

motion to continue the termination hearing. Generally, the decision to grant or

deny a motion to continue is within the sound discretion of the trial court, and

we will reverse only for an abuse of discretion. In re J.E., 45 N.E.3d 1243, 1246

(Ind. Ct. App. 2015), trans. denied. An abuse of discretion occurs when the trial

court’s conclusion is clearly against the logic and effect of the facts and

circumstances before the court or the reasonable and probable deductions to be

drawn therefrom. Id. When a motion to continue has been denied, an abuse of

discretion will be found if the moving party has demonstrated that there was

good cause for granting the motion and that he was prejudiced by the denial.

Id.

[18] Here, Father argues that the trial court had good cause to grant his motion “to

give him the opportunity to be released from jail and re-engage in services.”

(Father’s Br. 8). However, at the hearing, Father asked for the continuance

because appointed counsel was ill. A party may not object on one ground at

trial and seek reversal using a different ground on appeal. Showalter v. Town of

Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (explaining that the trial

court “cannot be found to have erred as to an issue or argument that it never

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 8 of 14 had an opportunity to consider”), trans. denied. Father has waived appellate

review of this issue.

[19] Waiver notwithstanding, we find no error. Our review of the record reveals

that Attorney Harter told the trial court that he was prepared to provide Father

with the effective assistance of counsel and that he would do his very best job.

In addition, DCS pointed out that a continuance had already been granted two

months before and that the children needed permanency. GAL Weber further

pointed out that the children had already spent more time in placement than in

the home of either parent. The trial court did not abuse its discretion in

denying Father’s motion to continue the termination hearing.

2. Sufficiency of the Evidence

[20] Father next argues that there is insufficient evidence to support the termination

of his parental rights. The traditional right of parents to establish a home and

raise their children is protected by the Fourteenth Amendment to the United

States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App.

2015), trans. denied. However, a trial court must subordinate the interests of the

parents to those of the child when evaluating the circumstances surrounding a

termination. Id. at 1188. Termination of the parent-child relationship is proper

where a child’s emotional and physical development is threatened. Id.

Although the right to raise one’s own child should not be terminated solely

because there is a better home available for the child, parental rights may be

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 9 of 14 terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id.

[21] Before an involuntary termination of parental rights may occur, DCS is

required to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

[22] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 10 of 14 trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[23] Here, Father argues that there is insufficient evidence to support the

termination of his parental rights. Specifically, he first contends that the

evidence is insufficient to show that there is a reasonable probability that: (1)

the conditions that resulted in the children’s removal or the reasons for their

placement outside the parent’s home will not be remedied; and (2) a

continuation of the parent-child relationships poses a threat to the children’s

well-being.

[24] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in the children’s

removal or the reasons for their placement outside the home will not be

remedied.

[25] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 11 of 14 fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. Requiring trial courts to give due regard to

changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.

[26] Here, our review of the evidence reveals that Father was incarcerated at the

time of the children’s removal from Mother. He was released from

incarceration shortly before the children were adjudicated to be CHINS.

Pursuant to the trial court’s dispositional order, Father completed a substance

abuse assessment where he minimized his alcohol use and criminal history. He

did not successfully complete the assessor’s recommendations. He also failed to

complete both psychological and domestic violence assessments. Two months

later, Father, who has a ten-year criminal history that includes probation

revocations, was arrested on new charges and incarcerated for a parole

violation. At the time of the hearing, he was incarcerated and had not seen the

children for over a year. This evidence supports the trial court’s conclusion that

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 12 of 14 there was a reasonable probability that the conditions that resulted in the

children’s removal would not be remedied. We find no error.

[27] Father also argues that there is insufficient evidence that the termination was in

the children’s best interests. In determining whether termination of parental

rights is in the best interests of a child, the trial court is required to look at the

totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

historical inability to provide adequate housing, stability and supervision

coupled with a current inability to provide the same will support a finding that

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

providers may support a finding that termination is in the child’s best interests.

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 13 of 14 [28] Here, both FCM Hoffacker and GAL Webber testified that termination was in

the children’s best interests.2 The testimony of these service providers, as well

as the other evidence previously discussed, supports the trial court’s conclusion

that termination was in the children’s best interests.

[29] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[30] Affirmed.

May, J., and Crone, J., concur.

2 [1] Father has waived appellate review of his argument that GAL Webber’s testimony was inadmissible hearsay for two reasons. First, he failed to object to her testimony on this ground at the termination hearing. See Showalter, 902 N.E.2d at 342. In addition, Father has failed to support his argument with cogent argument and relevant authority. See Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598 (Ind. Ct. App. 2010) (holding that argument was waived for failure to cite authority or provide cogent argument).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020 Page 14 of 14