In re the Termination of the Parent-Child Relationship of J.C.D. (Minor Child) and J.D. (Father) J.D. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 7, 2018
• Docket: 18A-JT-1411
• 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 Dec 07 2018, 10:21 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 Julianne L. Fox Curtis T. Hill, Jr. Evansville, Indiana Attorney General David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the December 7, 2018 Parent-Child Relationship of Court of Appeals Case No. J.C.D. (Minor Child) and J.D. 18A-JT-1411 (Father) Appeal from the Vanderburgh J.D. (Father), Superior Court The Honorable Brett J. Niemeier, Appellant-Respondent, Judge v. The Honorable Renee Allen Ferguson, Magistrate Indiana Department of Child Trial Court Cause No. Services, 82D04-1711-JT-2206 Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 1 of 12 Case Summary [1] J.D. (“Father”) appeals the termination of his parental rights to his son, J.C.D.

(“Child”). We affirm.

Facts and Procedural History [2] The facts that follow are taken primarily from the trial court’s findings of fact,

none of which Father challenges on appeal.1 In May 2003, Father went to a

tavern with a handgun and opened fire, killing two people and injuring two

others. The day before that shooting, Father shot another person, leaving him a

quadriplegic. Later that month, Father was charged with two counts of murder

and three counts of attempted murder. In December 2003, while Father was

incarcerated awaiting trial, Child was born to S.G. (“Mother”) and Father. In

March 2005 Father pled guilty and was sentenced to 255 years; he was

resentenced to 170 years in March 2014. See 82C01-0305-MR-00529. Father’s

earliest release date is in 2088.2

[3] In May 2015, when Child was eleven years old, the Indiana Department of

Child Services (DCS) received a report of abuse and/or neglect alleging that

1 Because Father does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Maldem does not challenge the findings of the trial court, they must be accepted as true.”). 2 Father stated that his earliest possible release date is 2027, but even if he were released in 2027, Child would be over twenty-one years old. See Tr. p. 20.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 2 of 12 Child’s guardian (his maternal grandmother) used illegal substances while he

was in her care and that Child lacked stable housing. Maternal grandmother

admitted using cocaine. Child as well as his sibling (“Sibling”) (who shares

Child’s Mother but has a different father) were removed from Mother and

maternal grandmother and placed in foster care together. DCS later filed a

petition alleging that Child was a child in need of services (CHINS). Child was

adjudicated a CHINS in June, and a dispositional decree was entered as to

Mother and Father in August.

[4] In January 2017, DCS filed a petition to terminate Mother’s and Father’s

parental rights to Child.3 In February, Mother’s parental rights to Child were

terminated. The plan was for Child and Sibling to be adopted together.

[5] Father’s sister (“Aunt”) was interested in adopting Child. In June 2017, the

trial court ordered placement with Aunt, and DCS “began visitation services to

prepare [Aunt] to adopt [Child].” Id. at 8. On July 11, Father signed a consent

for Aunt to adopt Child. However, Aunt did not follow through with the

adoption process and, eventually, withdrew her petition to adopt Child.

[6] In November 2017, DCS re-filed the petition to terminate Father’s parental

rights. A fact-finding hearing was held in March 2018. Father appeared by

telephone. Family Case Manager (FCM) Rachel Johann testified that Father is

not able to provide “suitable housing,” “income for [Child’s] necessities,”

3 DCS also filed a petition to terminate Mother’s parental rights to Sibling.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 3 of 12 “stability,” or a “crime free environment.” Tr. p. 24. FCM Johann testified

that Child has no bond with Father and that Child “does not have a good

relationship with his Father.” Id. at 26. FCM Johann also testified that Child

has experienced trauma—Child has “been in and out of homes,” “been

homeless,” “witnessed domestic violence,” and “witnessed drug use.” Id. at 29.

FCM Johann recommended that Child be placed in the Special Needs

Adoption Program (SNAP) with his sibling and adopted, and that Father’s

parental rights “be terminated.” Id. at 26. Court Appointed Special Advocate

(CASA) Deborah Gamache testified that she recommended adoption but

“would like to see the adoption by [Aunt] if possible.” Id. at 46. CASA

Gamache testified, however, that she had “lost contact with [Aunt]” so she had

not “talked to [Aunt] recently about re-doing the adoption.” Id. at 48. CASA

Gamache ultimately testified that parental “rights need to be terminated” and

Child “needs to find permanency.” Id. at 51. Father testified that he wants

Aunt to adopt Child so that he can have communication with Child because

Child “needs to understand the struggles that his Father’s gone through.” Id. at

15. Father also testified that the reason Aunt withdrew her adoption petition

was because she would not receive financial assistance and the “cost of livin[g]

is high[.]” Id. at 18.

[7] At the end of the hearing, Father’s attorney called Aunt to testify about her

attempt to adopt Child. Although Aunt was present at the beginning of the

hearing, she could not be found. Father’s attorney requested a continuance due

to Aunt’s absence: “What I’m gonna have to do, Judge, I guess, is to ask for a

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 4 of 12 continuance so I can try to find out what is the reason [Aunt] has disappeared.”

Id. at 55-56. The trial court denied Father’s request for a continuance:

This witness that is unavailable would merely be testifying as to a potential placement or outcome after parental rights are terminated, not testifying as to whether parental rights should be terminated or not. So therefore, the Court denies the motion for continuance.

Id. at 58. The trial court issued an order terminating Father’s parental rights in

May 2018. The order provides, in relevant part:

14. [C]ontinuation of the parent-child relationship poses a threat to [Child’s] well-being. [Child] has experienced a significant amount of trauma and not terminating Father’s rights threatens not only to cause [Child] further trauma, but also to delay [Child] in finding a stable, permanent home.

*****

2. It is in the best interests of [Child] to be adopted due to the inability of [Father] to provide appropriate care and supervision for [Child].

3. DCS and [CASA] believe that termination of Father’s parental rights and adoption are in [Child’s] best interest.

5. DCS considered alternatives before deciding that adoption through SNAP was the plan best-suited for [Child], but those plans were determined to be inappropriate. No other relatives have been identified. DCS plans to place [Child] and sibling in Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 5 of 12 SNAP together, so that they will be adopted into the same home and can remain together.

6. DCS has a satisfactory plan for [Child].

Appellant’s App. Vol. II pp. 7-9.

[8] Father now appeals.

Discussion and Decision [9] Father makes two arguments on appeal. First, Father argues that the trial court

should have granted his motion to continue. Second, Father contends that the

trial court erred when it terminated his parental rights.

I. Motion to Continue [10] First, Father argues that the trial court abused its discretion and violated his

due-process rights when it denied his motion to continue. 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 good cause for granting the motion, but we will reverse the trial

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 6 of 12 court’s decision only if the moving party can show that he was prejudiced by

the denial. Id.

[11] Here, the record shows that Father wanted to call Aunt to testify about her

attempt to adopt Child, not to testify about termination of Father’s parental

rights. Accordingly, the trial court denied the motion to continue. On appeal,

Father does not say how he was prejudiced by the denial of the motion to

continue or set forth what evidence Aunt would have presented had she been

available to testify. Instead, Father attempts a reverse argument—that the trial

court abused its discretion because neither the State or Child would have been

prejudiced by a continuance. As such, we conclude that the trial court did not

abuse its discretion.

[12] To the extent that Father argues that his due-process rights were violated

because he did not have the “opportunity to fully litigate the issues at hand,”

Appellant’s Br. p. 10, we find no merit to this argument. When the State seeks

to terminate the parent-child relationship, it must do so in a manner that meets

the requirements of due process. Hite v. Vanderburgh Cty. Office of Family &

Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006). Due process in parental-

rights cases involves the balancing of three factors: (1) the private interests

affected by the proceeding; (2) the risk of error created by the State’s chosen

procedure; and (3) the countervailing government interest supporting use of the

challenged procedure. Id. There is no doubt that Father’s private interest in his

parental relationship with Child is substantial. See id. Likewise, the

government’s countervailing interest in protecting the welfare of children is also

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 7 of 12 substantial. See id. Here, the record shows that Father was able to testify, cross-

examine DCS’s witnesses, and call his own witnesses. The fact that Aunt (who

was not expected to testify regarding termination anyway) left before she was

called to testify, does not convince us that there was a substantial risk of error

created by the trial court’s denial of the motion to continue. Accordingly, we

cannot say that Father’s due-process rights were violated.

II. Termination [13] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

2013). Rather, we consider only the evidence and reasonable inferences that

are most favorable to the judgment of the trial court. Id. When a trial court has

entered findings of fact and conclusions, we will not set aside the trial court’s

findings or judgment unless clearly erroneous. Id. To determine whether a

judgment terminating parental rights is clearly erroneous, we review whether

the evidence supports the trial court’s findings and whether the findings support

the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[14] A petition to terminate parental rights must allege, 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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 8 of 12 (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. In re K.T.K., 989 N.E.2d at 1231. If the court

finds that the allegations in a petition are true, the court shall terminate the

parent-child relationship. Ind. Code § 31-35-2-8(a).

[15] First, Father challenges the trial court’s conclusion that there is a reasonable

probability that continuation of the parent-child relationship poses a threat to

Child’s well-being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the

disjunctive and requires the trial court to find only one of the two requirements

of subsection (B) has been established by clear and convincing evidence. See In

re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015), trans. denied.

[16] Here, the trial court determined that DCS established, by clear and convincing

evidence, that there is a reasonable probability that the conditions resulting in

Child’s removal will not be remedied, and that continuation of the parent-child

relationship poses a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i),

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 9 of 12 (ii). However, Father only challenges one—that the continuation of his

relationship to Child poses a threat to Child’s well-being. As such, Father has

waived any argument that DCS did not satisfy its burden as to subsection (B).

See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

Nonetheless, given our preference for resolving a case on its merits, we will

review the trial court’s conclusion regarding subsection (B)(ii) of the

termination statute.

[17] A trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that his physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. In re E.S., 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

emotional and physical development of a child in need of services is threatened,

termination of the parent-child relationship is appropriate. Id. Here, Father

“has been incarcerated for the entirety of [Child’s] life.” Appellant’s App. Vol.

II p. 6. Father has never met Child and has never been a caretaker to Child.

Furthermore, the trial court found that Father has an extensive history of

criminal activity, including two counts of murder, and cannot provide Child

with suitable housing, income for necessities, a crime-free environment, or

stability since Father will be in prison until the year 2088. See id. at 5-6.

Accordingly, the trial court did not err when it concluded that there is a

reasonable probability that the continuation of the parent-child relationship

poses a threat to the well-being of Child.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 10 of 12 [18] Next, Father challenges the trial court’s conclusion that termination was in

Child’s best interests because Aunt should adopt Child. To determine what is

in the child’s best interests, the trial court must look to the totality of the

evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

denied. In doing so, the trial court must subordinate the interests of the parent

to those of the child. Id. We have previously held that recommendations by

both the DCS manager and CASA to terminate parental rights, in addition to

evidence that the conditions resulting in removal will not be remedied, is clear

and convincing evidence that termination is in the best interests of the child. Id.

at 1158-59.

[19] Here, FCM Johann and CASA Gamache testified that termination of Father’s

parental rights and adoption are in Child’s best interests. See Appellant’s App.

Vol. II. p. 8; see also Tr. pp. 26, 46. Furthermore, the trial court found that

Child has suffered trauma, and has expressed that he wants permanency and a

home. See Appellant’s App. Vol. II p. 7. Therefore, the trial court did not err

when it determined that termination is in Child’s best interests. See also In re

K.T.K., 989 N.E.2d at 1230 (finding that “children have an interest in

terminating parental rights that prevent adoption and inhibit establishing

secure, stable, long-term, continuous relationships.”).

[20] The gist of Father’s argument—that Aunt should adopt Child—is more

appropriately framed as a challenge to the trial court’s conclusion that there is a

satisfactory plan for Child’s care and treatment. In order for the trial court to

terminate a parent-child relationship, it must find that there is a satisfactory

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 11 of 12 plan for the care and treatment of the child. Ind. Code § 31-35-2-4(b)(2)(D).

That plan need not be detailed, so long as it offers a general sense of the

direction the child will go after the parent-child relationship is terminated. Lang

v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App.

2007), trans. denied. Adoption is generally a satisfactory plan, even when a

potential adoptive family has not been identified. See id. at 375. Part of the

reason for this is that it is within the authority of the adoption court, not the

termination court, to decide whether an adoptive placement is appropriate. In

re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied.

[21] Here, DCS’s plan was adoption. FCM Johann and CASA Gamache agreed

with this plan. Father contends that because CASA Gamache stated that she

would prefer adoption by Aunt be attempted again, adoption is not a

satisfactory plan. However, not only did Aunt withdraw her petition to adopt

Child (which further traumatized Child), but she abruptly left the termination

hearing and could not be found. See Appellant’s App. Vol. II p. 8. Therefore,

the trial court did not err in concluding that adoption was a satisfactory plan for

Child.

[22] Affirmed.

Riley, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1411 | December 7, 2018 Page 12 of 12