In the Term. of the Parent-Child Relationship of: A.F. (Minor Child), and D.F. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2016
• Docket: 84A05-1604-JT-845
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 30 2016, 9:35 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Spec. Asst. to the State Public Defender Attorney General of Indiana Wieneke Law Office, LLC Robert J. Henke Brooklyn, Indiana David E. Corey Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- November 30, 2016 Child Relationship of: Court of Appeals Case No. 84A05-1604-JT-845 A.F. (Minor Child), Appeal from the Vigo Circuit and Court D.F. (Father) The Honorable David R. Bolk, Appellant-Respondent, Judge The Honorable Daniel W. Kelly, v. Magistrate Trial Court Cause No. The Indiana Department of 84C01-1508-JT-1036 Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 1 of 11 Pyle, Judge.

Statement of the Case [1] D.F. (“Father”) appeals following the involuntary termination of the parent-

child relationship with his child, A.F. On appeal, Father does not challenge

any of the trial court’s findings or conclusions supporting its order to

involuntarily terminate his parental rights. Instead, Father argues that his

counsel rendered ineffective assistance of counsel by: (1) failing to present

evidence of Father’s incarceration as an excuse for why he did not visit with

A.F.; and (2) failing to explain to the trial court that it was permissible to

continue the termination hearing past the statutory deadline. Because Father

has not shown that he was denied a fundamentally fair hearing whose facts

demonstrated an accurate determination, we conclude that his ineffective

assistance of counsel claims fail, and we affirm the trial court’s judgment.

[2] We affirm.1

Issue Whether Father’s counsel rendered ineffective assistance of counsel during the termination of parental rights hearing.

1 The trial court held a separate termination hearing for A.F.’s mother (“Mother”) a few months prior to Father’s termination hearing and involuntarily terminated the parental rights of Mother. She is not involved in this appeal.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 2 of 11 Facts2 [3] On October 2, 2014, the Vigo County Department of Child Services (“DCS”)

removed two-year-old A.F. from Father’s home after Father and Mother were

arrested, leaving A.F. without a caregiver.3 Specifically, Father was arrested on

charges of criminal recklessness, battery resulting in bodily injury, and criminal

trespass.

[4] The following day, the DCS assessment manager, Leigh Elliott (“Elliott”),

visited Father at the Vigo County Jail, and Father refused to take a drug screen.

Elliott gave DCS’s contact information to Father and instructed him to contact

DCS when he was released from jail. Father was released from jail on October

17, 2014, but he never contacted DCS.

[5] DCS filed a petition alleging that A.F. was a child in need of services

(“CHINS”). The trial court subsequently determined that A.F. was a CHINS

and ordered Father to, among other things: maintain weekly contact with

DCS; actively participate in visitation with A.F.; complete a parenting

assessment and a substance abuse assessment; notify DCS of any arrest or

2 Because Mother is not involved in this appeal, we will focus our discussion of the relevant facts to Father’s interaction with A.F. and DCS. 3 DCS had previously received reports regarding Father and Mother’s lack of care of A.F. due to their methamphetamine use and unsanitary home conditions. These previous reports occurred in August 2014, September 2013, February 2013, and November 2013. DCS, however, was unable to complete an assessment at those times because it had been unable to locate Father and Mother.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 3 of 11 criminal charges; refrain from using drugs; and participate in individual

counseling, group counseling, and a Fatherhood Engagement program.

[6] Father, however, did not keep in contact with DCS, never visited with A.F.,

and, with exception of the Fatherhood Engagement program, did not

voluntarily participate in any other court-ordered services.4 Additionally, in

November 2014, during the pendency of the CHINS proceeding, Father was

arrested for Level 6 felony possession of methamphetamine.

[7] On August 18, 2015, DCS filed a petition to terminate Father’s parental rights

to A.F. Thereafter, the trial court appointed Derrick Thompson as the court

appointed special advocate (“CASA”).

[8] On September 18, 2015, the DCS family case manager and the CASA visited

Father at the Putnumville Correctional Facility, where he was serving a two-

year sentence for his Level 6 felony possession of methamphetamine

conviction. Father told them that he did not want to voluntarily terminate his

rights. He stated that he missed A.F., that he was participating in programs in

prison, and that he wanted to get sober and get a job. A few days later, on

September 22, 2015, Father, who was still incarcerated, filed a pro se petition

seeking visitation under INDIANA CODE § 31-14-14-1, the paternity statute for

non-custodial parents seeking to obtain parenting time rights.

4 DCS was able to get Father to complete the Fatherhood Engagement when he was incarcerated sometime after December 2014.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 4 of 11 [9] In November 2015, the CASA filed his report with the trial court. In his report,

the CASA acknowledged that when he visited Father in prison, Father had

stated that he had participated in prison programs for anger management and

addictions counseling and had indicated that he wanted to get a job and an

apartment. The CASA, however, noted that it was in A.F.’s best interest to

have Father’s parental rights terminated based on Father’s criminal history, his

continued incarceration, and the “uncertainty” of Father’s future. (App. 28;

DCS Ex. C).

[10] On February 9, 2016, the trial court held the termination hearing. 5 Father was

present at the hearing and represented by counsel. At the time of the

termination hearing, A.F. was almost four years old and had not had any

contact with Father since his removal from Father’s home in October 2014.

Also at the time of hearing, Father was still incarcerated, with an earliest

possible release date of July 21, 2016. Additionally, Father had pending

charges for two counts of Level 6 felony maintaining a common nuisance and

one count of Class A misdemeanor possession of paraphernalia, and his jury

trial for those charges was set for June 1, 2016.

[11] At the beginning of the termination hearing, Father’s counsel made an oral

motion to continue the termination hearing “for a period of about six months.”

5 The termination hearing for Mother was held on December 28, 2015. The record on appeal reveals that three of DCS’ exhibits—Exhibits A, B, and C—were introduced without objection during Mother’s termination hearing and then carried over to Father’s termination hearing.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 5 of 11 (Tr. 3). Counsel stated that Father believed that he might “possibl[y]” be

released early from prison in April. (Tr. 3). Counsel also stated that Father

wanted an opportunity to be “released back into society” and wanted “to show

how things [were] going to be different in his life” and how it would “impact

his ability to still be a caregiver for his child.” (Tr. 3). DCS objected, noting the

“statutory time frames” associated with termination proceedings and stating

that the termination matter had been pending since August 2015. 6 (Tr. 3-4).

DCS also pointed out that Father still had a pending criminal trial scheduled for

June 1, 2016.

[12] The trial court denied Father’s oral request to continue the hearing, stating, in

relevant part:

Okay. I think due to the law requiring that these be conducted in a timely manner that it would be almost impossible . . . I think it would be impossible. We’re pretty much at the limit now of when we’re supposed to have these concluded by. But obviously, that doesn’t prevent Father from raising evidence of what his circumstances in the near future will be, which I expect we’ll hear. So we’ll go ahead and proceed then with the hearing.

(Tr. 4). Father’s counsel responded, “Thank you.” (Tr. 4).

6 Pursuant to INDIANA CODE § 31-35-2-6(a)(2), a trial court is required to complete a termination hearing within 180 days after a petition to terminate parental rights has been filed. Here, DCS filed the termination petition on August 18, 2015, and 180 days from that date was February 14, 2016.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 6 of 11 [13] Thereafter, DCS presented its witnesses, and Father’s counsel cross-examined

each of them. In relevant part, the DCS family case manager, Nicholas Davis

(“FCM Davis”), testified regarding Father’s failure to complete court-ordered

services. He also testified about Father’s criminal history 7 and stated that he

believed that Father had been incarcerated from October 2-17, 2014 and then

again in June 2015 until the time of the termination hearing. FCM Davis also

testified that Father had neither contacted DCS nor had any visitation with

A.F. during the time period when he was out of jail. Additionally, he testified

that it was in A.F.’s best interest to have Father’s parental rights terminated.

[14] Father’s counsel cross-examined FCM Davis about Father’s criminal history

and specifically questioned him about Father’s September 2014 charges and

arrest that had led to A.F.’s removal from the home. When Father’s counsel

asked whether Father had been convicted of any of those charges, FCM Davis

referred to a chronological case summary (“CCS”) to answer the question.

Because FCM Davis was referring to a CCS, the DCS attorney offered to mark

it as an exhibit, and Father’s counsel declined, stating “I would just like to

know whether . . . if he was convicted and what he was convicted of. That’s all

7 FCM Davis testified that Father had been arrested for: operating a vehicle without a license in February 2011; possession of methamphetamine and driving while suspended in December 2013; criminal recklessness, battery resulting in bodily injury, and criminal trespass in September 2014; resisting law enforcement in October 2014; possession of methamphetamine and driving while suspended in November 2014; and maintaining a common nuisance and possession of paraphernalia in June 2015.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 7 of 11 I’d like to know.” (Tr. 26).8 Thereafter, FCM Davis responded that Father had

pled guilty to and had been convicted of criminal recklessness and criminal

[15] After DCS rested, Father’s counsel requested a brief recess to talk to Father.

Father did not testify or present any witnesses. Thereafter, the trial court

entered an order involuntarily terminating Father’s parental rights to A.F. In

relevant part, the trial court concluded that the conditions leading to A.F.’s

removal would not be remedied and that termination was in A.F.’s best

interest. Father now appeals.

Decision [16] On appeal, Father does not challenge any of the trial court’s findings or

conclusions supporting its order to involuntary terminate his parent-child

relationship with A.F. Additionally, Father does not appeal the denial of his

motion for a continuation of the termination hearing. Instead, he presents a

single issue for our review and argues that his counsel rendered ineffective

assistance during the termination hearing. Specifically, he contends that

counsel was ineffective by: (1) failing to present evidence of his incarceration—

which he considers to be “favorable evidence”—as an excuse for why he did

not visit with A.F. between mid-November 2014 and late January 2015; and (2)

8 In his appellate brief, Father incorrectly asserts that it was Father’s counsel who inquired whether the CCS should be marked as an exhibit and that it was the trial court who responded that it just wanted to know whether Father had been convicted of any charges. The transcript, however, clearly shows otherwise.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 8 of 11 failing to explain to the trial court that it was permissible to continue the

termination hearing past the statutory deadline.

[17] Our Indiana Supreme Court has set forth the standard of review for an

ineffective assistance of counsel claim that stems from a termination of parental

rights proceeding:

Where parents whose rights were terminated upon trial claim on appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination. The question is not whether the lawyer might have objected to this or that, but whether the lawyer’s overall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child’s best interest.

Baker v. Marion Cnty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

2004).9

[18] Applying this standard to Father’s claims of ineffectiveness, we conclude that

his claims are without merit. Father has failed to show how counsel’s

purportedly deficient performance rendered the termination hearing unfair or

9 The Baker Court noted that this review of the effectiveness of counsel in a termination proceeding is “similar” to the review of the effectiveness of post-conviction counsel set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). Baker, 810 N.E.2d at 1041 n.6 (explaining that the focus of an ineffective assistance of post- conviction counsel claim was whether counsel “in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of a court”).

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 9 of 11 how it would undermine this Court’s confidence in the accuracy of the trial

court’s conclusions.

[19] Rather than focusing on counsel’s overall performance—as we are directed to

do by the Baker Court—Father’s ineffectiveness arguments focus on his

counsel’s specific actions or omissions (i.e., failing to introduce specific evidence

regarding his incarceration and lack of visitation and failing to rebuke the trial

court for its understanding of the termination statute’s provision regarding the

time period to conduct a termination hearing). Additionally, as noted above,

Father does not challenge the trial court’s conclusion that the conditions

leading to A.F.’s removal would not be remedied nor the conclusion that

termination was in A.F.’s best interest. Indeed, Father does not dispute that,

from the time A.F. was removed in October 2014 to the time of the termination

hearing in February 2016, Father never visited A.F. or contacted the DCS

family case manager. Thus, Father has not shown that his counsel’s overall

performance was so defective that it would leave our Court unable to conclude

with confidence that the conditions leading to the removal of A.F. from

Father’s care were unlikely to be remedied and that termination was in the

child’s best interest.

[20] Moreover, Father has failed to point to anything to show that he received a

fundamentally unfair hearing whose facts demonstrate an inaccurate

determination. Our review of the record reveals that Father’s counsel carefully

cross-examined each of DCS’s witnesses. In fact, Father’s counsel objected to

part of the CASA’s testimony and had the objection sustained, thereby

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 10 of 11 excluding the objected-to testimony. During his cross-examination of FCM

Davis and the CASA, Father’s counsel introduced an exhibit into evidence and

elicited testimony regarding their visit to Father while he was incarcerated in

September 2015 and regarding Father’s report that he had been participating in

some prison programs and that he wanted to visit with A.F. Moreover, the

record reveals that Father’s counsel consulted with Father before determining

that they would not present any further evidence during Father’s case-in-chief.

[21] Given Father’s counsels’ efforts and the underlying facts of Father’s failure to

engage in services and visit with A.F. (which he does not challenge on appeal),

we conclude that Father’s termination hearing was not fundamentally unfair,

and we can say with confidence that DCS adequately proved its case in favor of

termination of Father’s parental rights. Accordingly, we affirm the trial court

order terminating Father’s parental rights to A.F. See, e.g., Baker, 810 N.E.2d at

1042 (holding that the parents’ ineffective assistance of counsel claim to be

“untenable” because there was no showing that they had a fundamentally

unfair hearing); In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App. 2008)

(concluding that the father had not shown that his counsel rendered ineffective

assistance and affirming the termination of the father’s parental rights), reh’g

denied.

[22] Affirmed.

Bradford, J. and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A05-1604-JT-845 | November 30, 2016 Page 11 of 11