In the Termination of the Parent Child Relationship of: S.H. (Minor Child) and B.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2017
• Docket: 21A05-1612-JT-2793
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 29 2017, 10:03 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- June 29, 2017 Child Relationship of: Court of Appeals Case No. 21A05-1612-JT-2793 S.H., Minor Child, Appeal from the Fayette Circuit Court and, The Honorable Beth A. Butsch, Judge B.H., Father, Trial Court Cause No. Appellant-Respondent, 21C01-1603-JT-84

v.

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 1 of 10 Barnes, Judge.

Case Summary [1] B.H. (“Father”) appeals the termination of his parental rights to his daughter 1 S.H. (“Child”). We affirm.

Issue [2] The sole issue Father raises is whether his counsel rendered ineffective

assistance during the termination of parental rights hearing.

Facts [3] Child was born to Mother in May 2014. It appears that, shortly after Child’s

birth, the Department of Child Services (“DCS”) filed a petition alleging Child

to be a child in need of services (“CHINS”) because of Mother’s alleged

1 M.B., Child’s mother (“Mother”) does not participate in this appeal. She voluntarily terminated her parental rights to Child.

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 2 of 10 substance abuse problems. On September 3, 2014, the juvenile court

adjudicated Child a CHINS. Father was identified as Child’s father, paternity

was eventually established, and the court awarded Father custody of Child.

The CHINS case was closed on February 25, 2015, subject to an agreement that

Father would not allow Child to be in Mother’s care while she was under the

influence of drugs.

[4] In August 2015, the police were called because Mother was seen at a local

business under the influence of illegal drugs while Child was in her care.

Apparently, Father had allowed Mother to have parenting time with S.H.

without ensuring that Mother was not under the influence of illegal drugs.

Mother was arrested. DCS filed a second CHINS petition and removed Child

from Father’s custody. The juvenile court held an initial/detention hearing on

August 19, 2015, at which Father admitted that he was homeless; he had not

been employed for approximately two years; and he recently had used heroin.

Child was adjudicated a CHINS and placed in a foster home.

[5] On September 21, 2015, following a dispositional hearing in the CHINS matter,

the court ordered Father to among other things notify DCS of changes in his

address and of any arrests and criminal charges; keep all appointments with

DCS, service providers, and Child’s court appointed special advocate

(“CASA”); maintain appropriate housing; secure and maintain legal and stable

employment; not use illegal drugs; obey the law; complete a psychological

evaluation and parenting assessment and follow all recommendations for

further services; complete a substance abuse assessment and follow all

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 3 of 10 recommendations for treatment; submit to random drug screens; and attend all

scheduled visitations with Child. Father did not participate in any services, did

not attend substance abuse treatment, and did not remain in contact with DCS.

[6] In January 2016, DCS made referrals for services for Father, including referrals

for substance abuse assessment. The DCS family case manager (“FCM”)

offered to transport Father to service providers. Father sent one text message to

the FCM stating that he “really wanted help.” Tr. p. 32. After receiving the

text message, the FCM had no further contact with Father.

[7] At the end of January 2016, Father was arrested and incarcerated on a theft

charge. Father pled guilty, was sentenced, and was released in August 2016.

During Father’s incarceration, the FCM was supportive of Father’s release from

incarceration to attend services, but Father’s CHINS and criminal lawyers

could not reach an arrangement for Father to be able to participate in the

services.

[8] DCS filed its termination petition on March 23, 2016. The juvenile court held

an initial hearing on May 18, 2016, and Father appeared in the custody of the

Fayette County Sheriff. At the initial hearing, Father told the court that he did

not want an attorney appointed to represent him. Following the initial hearing,

the court entered Father’s denial of the allegations and ordered Father to inform

the court, DCS, and any appointed counsel of any changes in his address.

[9] The juvenile court set the termination fact-finding hearing for August 23, 2016.

On August 18, 2016, however, DCS moved the court to continue the

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 4 of 10 termination fact-finding hearing and requested the court appoint Father an

attorney because the CASA informed DCS that “Father appears confused by

the proceedings . . . .” Appellant’s App. Vol. II p. 31. The court continued the

termination fact-finding hearing to October 25, 2016, and ordered Father to

appear at the hearing. At a pretrial conference held on August 24, 2016 (at

which Father appeared in the custody of the Fayette County Sheriff), the court

appointed counsel for Father, and Father was provided with counsel’s business

card.

[10] Father was released from incarceration on August 26, 2016. The FCM

attempted to contact Father at his last known address. She also called the jail,

the probation office, and other telephone numbers provided to her, but she

could not reach Father. Father’s appointed attorney filed his appearance in the

termination matter on October 12, 2016.

[11] At the fact-finding hearing on October 25, 2016, Father did not appear, but his

appointed attorney was present. When the court asked about Father’s

nonappearance, Father’s counsel informed the court that he “never did hear

from [Father],” and that he sought help from the jail and DCS to locate Father,

but both the jail and DCS were unaware of Father’s whereabouts. Tr. p. 27.

[12] The court proceeded with the fact-finding hearing. DCS offered into evidence

twenty exhibits, including orders from Child’s CHINS proceedings, orders from

a CHINS proceeding that involved Father’s and Mother’s other child, A.H.,

and pleadings from Father’s criminal cases. Father’s counsel did not raise any

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 5 of 10 objections to the exhibits, but instead reviewed the exhibits and stipulated to

their admission into evidence.

[13] The FCM testified at the hearing that, per the dispositional order from the

second CHINS proceeding, Father was supposed to attend substance abuse

treatment and participate in case management services and supervised visits.

The FCM further testified that Father did not attend substance abuse treatment

and did not participate in any services; he did not try to visit Child; he did not

remain in contact with DCS; he was incarcerated from January 2016 to August

2016; and he was not able to maintain permanent housing or employment. The

CASA testified that she had concerns about Father’s ability to parent Child

because of Father’s “past history of drug use[,]” “[h]is lack of compliance[,]”

and “his lack of visits with the child [sic] to my knowledge he has not visited

her at all since she’s been in placement so there’s no bond that is built there

with that child.” Id. at 38-39. Father’s counsel did not cross-examine the

witnesses.

[14] On November 15, 2016, the court entered findings of fact and conclusions of

law terminating Father’s parental rights to Child. Father now appeals.

Analysis [15] Although we acknowledge that the parent-child relationship is “one of the

most valued relationships in our culture,” we also recognize that “parental

interests are not absolute and must be subordinated to the child’s interests in

determining the proper disposition of a petition to terminate parental rights.”

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 6 of 10 Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)

(internal quotations omitted). The involuntary termination of one’s parental

rights is the most extreme sanction a court can impose because termination

severs all rights of a parent to his or her children. See In re T.F., 743 N.E.2d

766, 773 (Ind. Ct. App. 2001), trans. denied. As such, termination is intended as

a last resort, available only when all other reasonable efforts have failed. Id.

The purpose of terminating one’s parental rights is not to punish the parent, but

rather to protect the child. Id.

[16] A parent in a proceeding to involuntarily terminate the parent-child relationship

is entitled to representation by counsel. Ind. Code §§ 31-32-2-5, 31-32-4-1.

Where parents whose rights were terminated claim on appeal that their lawyer

underperformed, the focus of the inquiry is whether it appears that the parents

received a fundamentally fair trial whose facts demonstrate an accurate

determination. Baker v. Marion County Office of Family & Children, 810 N.E.2d

1035, 1041 (Ind. 2004). 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. Id.

[17] Father claims his counsel was ineffective for three reasons: 1) counsel failed to

ask the juvenile court for a continuance of the termination fact-finding hearing

when Father did not appear; 2) counsel failed to cross-examine DCS’s witnesses

or make any argument on Father’s behalf; and 3) counsel raised no objections

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 7 of 10 to exhibits DCS offered for admission into evidence. Father argues that his

counsel entered his appearance in the termination cause just two weeks prior to

the fact-finding hearing and that counsel did not contact Father’s probation 2 officer to determine Father’s whereabouts.

[18] We are troubled by the fact that, aside from answering questions posed by the

court regarding Father’s whereabouts and reviewing and stipulating to the

admission of DCS’s exhibits, Father’s counsel’s participation in the termination

fact-finding hearing was minimal. Counsel did not offer objections, any cross-

examination, or a closing statement. Despite Father’s lack of attendance at the

hearing, counsel could, and perhaps should, have requested a continuance,

cross-examined the witnesses, objected to the admission of exhibits, and offered

a closing statement, even if it was doubtful the outcome of the termination case

would have been different. Ultimately, however, the record reveals that counsel

made multiple attempts to locate Father. Although it appears counsel did not

contact the probation office, the FCM testified that she did contact the office to

try to locate Father but was unsuccessful. Nothing in the record indicates that

seeking a continuance would have increased the likelihood that Father would

have been located.

2 Father also alleges that a conflict of interest existed between the lawyers who represented Father and Mother in their CHINS and respective criminal proceedings, and that because of the “conflict of interest,” Father “was unable to take advantage of an opportunity the FCM had arranged for [Father] to be released from jail so he could begin completing services.” Appellant’s Br. p. 10. Because Father does not develop this allegation, we decline to address it.

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 8 of 10 [19] Regarding the witnesses’ testimony and the DCS’s exhibits, Father, on appeal,

does not challenge any specific testimony or exhibits offered by DCS at the fact-

finding hearing, and he does not challenge the sufficiency of the evidence

supporting the trial court’s termination order. See Madlem v. Arko, 592 N.E.2d

686, 687 (Ind. 1992) (providing that when an appealing party fails to challenge

the findings of the trial court, the findings must be accepted as correct). Father

does not indicate how the outcome of the termination hearing could have come

to a more favorable result had his counsel offered objections. See Lang v. Starke

County Office of Family & Children, 861 N.E.2d 366, 376 (Ind. Ct. App. 2007),

trans. denied.

[20] In addition, there was substantial evidence before the juvenile court to indicate

the conditions leading to the removal of Child from Father’s care were unlikely

to be remedied and termination of parental rights was in the best interests of

Child, and Father does not point to anything to show that he received a

fundamentally unfair hearing. At the initial hearing for the second CHINS

proceeding, Father admitted to being homeless, unemployed, and an illegal

drug user. The juvenile court ordered Father to among other things notify DCS

of changes in his address, maintain appropriate housing, secure and maintain

legal and stable employment, not use illegal drugs, obey the law, participate in

case management services, attend substance abuse treatment, and attend all

scheduled visitations with Child. Father did not participate in any services, did

not attend substance abuse treatment, and did not remain in contact with DCS.

Father was incarcerated from January 2016 to August 2016 for a Level 6 felony

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 9 of 10 theft conviction. Father had not obtained permanent housing or employment.

He did not ask to visit with Child, and he had not visited with Child since Child

was removed from his custody. Child was placed in a pre-adoptive foster home

in August 2015, where she is thriving.

[21] Although counsel’s representation of Father was not textbook, applying the

standard set forth by our supreme court in Baker, we find that counsel’s

representation of Father was not so defective as to undermine our confidence in

the juvenile court’s determination to terminate Father’s parental rights to Child.

Thus, Father received effective assistance of counsel and a fundamentally fair

trial. Based on the evidence presented at the termination hearing, we agree

with the juvenile court’s decision that the conditions leading to Child’s removal

from Father’s care were unlikely to be remedied and termination of Father’s

parental rights was in the best interests of Child.

Conclusion [22] Father received effective assistance of counsel and a fundamentally fair hearing.

The order of the juvenile court terminating Father’s parental rights to Child is

affirmed.

[23] Affirmed.

Baker, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 21A05-1612-JT-2793 | June 29, 2017 Page 10 of 10