In the Termination of the Parent-Child Relationship of: Ce.S. & Ch.S. (Minor Children), and C.R. v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 21, 2017
• Docket: 49A02-1610-JT-2365
• 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 21 2017, 8:46 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 Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- March 21, 2017 Child Relationship of: Court of Appeals Case No. 49A02-1610-JT-2365 Ce.S. & Ch.S. (Minor Children), and Appeal from the Marion Superior Court C.R. The Honorable Marilyn A. Appellant-Respondent, Moores, Judge

v. The Honorable Larry E. Bradley, Magistrate

The Indiana Department of Trial Court Cause No. 49D09-1512-JT-727 Child Services, 49D09-1512-JT-728 Appellee-Petitioner.

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 1 of 10 Case Summary [1] C.R. (“Father”) appeals the termination of his parental rights to Ce.S. and

Ch.S. (“Children”), upon the petition of the Marion County Department of

Child Services (“the DCS”).1 We affirm.

Issues [2] Father presents two issues for review:

I. Whether he was deprived of a fundamentally fair trial; and

II. Whether the DCS established, by clear and convincing evidence, the requisite statutory elements to support the termination decision.

Facts and Procedural History [3] On November 19, 2014, the DCS received a report that Mother had abandoned

Children and fled to avoid an arrest warrant. At that time, Father was

incarcerated. Children were placed in foster care.

[4] On March 6, 2015, Mother admitted Children were children in need of services

and Father waived a fact-finding hearing. In a dispositional order of April 10,

1 Children’s mother (“Mother”) consented to termination of her parental rights. She is not an active party on appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 2 of 10 2015, Father was ordered to contact the DCS within 72 hours of his release

from incarceration.

[5] On December 2, 2015, the DCS petitioned to terminate Father’s parental rights.

On September 21, 2016, the trial court conducted an evidentiary hearing on the

termination petition. Mother appeared personally and by counsel, and

consented to termination of her parental rights. Father appeared telephonically

and by counsel. He testified that his earliest possible release date was in 2024,

but that he was completing programs with the hope of time cuts. On September

27, 2016, the trial court entered its findings of fact, conclusions and order

terminating Father’s parental rights. This appeal ensued.

Discussion and Decision Fundamental Fairness [6] Father claims that his parental rights were terminated in proceedings that were

fundamentally unfair. More specifically, Father argues that the trial court

should have sua sponte afforded him additional time to present witnesses, or his

counsel should have requested this, after the following exchange took place

during the evidentiary hearing:

Father: Okay, is – how would I be able to go around calling State witnesses?

Father’s Counsel: Okay, they’re being called right now. There’s gonna be another State witness called right now, and so it’ll just continue as we have been.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 3 of 10 Father: Okay, because I wanna – how would I call, how, how would I go about getting’, my, like, State witnesses for me, witnesses for me –

Father’s Counsel: If you have any there who are willing to talk, then you would just need to communicate with them to come in and sit with you in the room, and then you could let me know, about that, and we could call them.

Father: Okay, could, is there any way that we can, maybe do a – a continuance?

Father’s Counsel: No.

Father: So I can?

Father: I thought I was – I thought I was allowed a continuance.

Father’s Counsel: No. There’s always [sic] been a motion for a continuance that’s been denied in this case. Okay, now the room is full, [Father], so, you know, everybody’s hearing our conversation, so – we’re gonna go forward now, with the case.

(Tr. at 32-33.) According to Father “once it became apparent that Father

wished to consult with his counsel and was plainly uncertain as to whether or

how he could go about calling witnesses, the trial should have been continued –

or at the very least bifurcated – so that Father could call witnesses at another

session in the near future.” Appellant’s Br. at 2-21.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 4 of 10 [7] The decision to grant or deny a motion for a continuance is within the

discretion of the trial court. Rowlett v. Office of Family & Children, 841 N.E.2d

615, 619 (Ind. Ct. App. 2006). An abuse of discretion may be found in the

denial of a motion for a continuance when the movant has shown good cause

for granting the motion. Id. Here, however, Father simply did not move for a

continuance. He cites no authority for the proposition that the trial court had a

sua sponte duty to bifurcate the proceedings. Moreover, he has not identified

any witness that he would have called given a continuance. Father has

demonstrated no abuse of discretion.

[8] Father also argues that his counsel should have more thoroughly consulted with

him regarding potential witnesses and thus ascertained the need for a

continuance. The applicable standard of review for alleged underperformance

of counsel in termination proceedings was set forth by our Indiana Supreme

Court in Baker v. County Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

2004):

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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 5 of 10 [9] The DCS presented multiple witnesses and Father also testified. His counsel

elicited testimony of Father’s efforts to better himself while in prison, cross-

examined DCS witnesses, and lodged appropriate objections. On appeal,

Father does not identify an omitted witness or explain what anticipated

testimony might have been forthcoming from them. Thus, his bald assertion of

poor performance has no relevance to the quantum of evidence from which the

trial court was to evaluate the probability of change and Children’s best

interests. He has not shown that he was deprived of a fundamentally fair trial.

Standard of Review – Sufficiency of the Evidence [10] The State is required to prove that termination is appropriate by a showing of

clear and convincing evidence, a higher burden than establishing a mere

preponderance. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). When we review

whether the termination of parental rights is appropriate, we will not reweigh

the evidence or judge witness credibility. Id. at 1143. We will consider only the

evidence and reasonable inferences that are most favorable to the judgment. Id.

In so doing, we give “due regard” to the trial court’s unique opportunity to

judge the credibility of the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.

2010). When the trial court has entered findings of fact and conclusions

thereon, we apply a two-tiered standard of review; first, we determine whether

the evidence supports the findings, and second, we determine whether the

findings support the judgment. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 6 of 10 [11] The judgment will be set aside only if it is found to be clearly erroneous. In re

R.S., 56 N.E.3d 625, 628 (Ind. 2016). However, the reviewing court may also

consider the statutory requirement that in a proceeding to terminate parental

rights, the findings must be supported by clear and convincing evidence. Id.

Thus, we review the judgment to determine whether the evidence clearly and

convincingly supports the findings and the findings clearly and convincingly

support the judgment. Id. Termination of parental rights is a “last resort” to be

implemented when all other reasonable efforts have failed. Id. at 631.

Requirements for Involuntary 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.” In re

Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

of a constitutional dimension, they are not absolute and the law provides for the

termination of those rights when the parents are unable or unwilling to meet

their parental responsibilities. Bester v, Lake Co. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005).

[13] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

allege and prove by clear and convincing evidence to terminate a parent-child

relationship:

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

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 7 of 10 (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made. (iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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.

Analysis [14] Father contends that insufficient evidence supports the termination decision.

He concedes that Children have been removed for the requisite time-period. He

does not specifically challenge the proof as to the element of a satisfactory plan

or whether there is clear and convincing evidence of a reasonable probability

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 8 of 10 that he would fail to remedy the conditions that led to Children’s removal or a

threat to Children from continuation of the parent-child relationship. Father

focuses upon whether the DCS established by clear and convincing evidence

that termination is in Children’s best interests.

[15] The State must prove each element by clear and convincing evidence;

accordingly, if the State fails to prove any one of the four statutory elements,

then it is not entitled to a judgment terminating parental rights. In re R.S., 6

N.E.3d at 629. Where the findings do not support the conclusion that

termination is in a child’s best interests, the reviewing court need not reach the

issue of whether other elements were satisfied. See id.

[16] In determining what is in a child’s best interests, the 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 this regard, the trial court made several factual findings:

Father was incarcerated on Burglary and Neglect of a Dependent convictions,

with an anticipated release date of September 11, 2014; he had a prior criminal

history; he had not ever seen his son and had last seen his daughter when she

was seven months old; Father had made, at most, one effort to communicate

with Children during his incarceration; Children were bonded with their foster

parents in a pre-adoptive home; and the foster parents involved Children in

continuing therapy and implemented the therapy recommendations at home.

These factual findings were supported by testimony from caseworkers,

Children’s foster mother, and the Guardian Ad Litem, unanimously opining

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 9 of 10 that Children had thrived in foster care and were bonded to their foster parents

as opposed to Father.

[17] Indeed, Father’s own testimony supported the trial court’s findings of fact as to

his inability to care for Children. He stated that his “current” earliest possible

release date was in 2024, although he hoped for time cuts totaling four years

and four months. (Tr. at 75.) Father admitted that he had not contacted the

DCS in thirteen months and had engaged in only one telephone call with his

daughter. Father conceded that he was unable to care for Children but

requested that they be placed with his parents. However, a prior placement

with the paternal grandparents had failed after one day. The DCS showed, by

clear and convincing evidence, that termination of Father’s parental rights was

in Children’s best interests.

Conclusion [18] Father was not deprived of a fundamentally fair trial. The DCS presented

sufficient evidence to support the termination decision.

[19] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017 Page 10 of 10