Termination: MB v. Indiana Deparment of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 13, 2017
• Docket: 71A03-1606-JT-1455
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 13 2017, 10:17 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Robert J. Henke Deputy Attorney General

Marjorie Newell Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.B., March 13, 2017 Appellant-Respondent, Court of Appeals Case No. 71A03-1606-JT-1455 v. Appeal from the St. Joseph Probate Court Indiana Department of Child The Honorable James N. Fox, Services, Judge Appellee-Petitioner Trial Court Cause No. 71J01-1501-JT-9

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 1 of 11 Case Summary

[1] M.B. (Father) appeals the involuntary termination of his parental rights to his

son, M.H. (Child). He raises two issues on appeal:

1. Did the trial court abuse its discretion by denying Father’s oral motion for a continuance made at the beginning of the final hearing?

2. Did the trial court erroneously conclude that continuation of the parent-child relationship between Father and Child posed a threat to Child’s well-being?

[2] We affirm.

Facts & Procedural History1

[3] Child was born to C.H. (Mother) and Father in September 2007, and lived in

Indiana with Mother following his birth. Father, who lives in Michigan, visited

Child once or twice a week for about four months following Child’s birth.

Visits became more sporadic thereafter until the Indiana Department of Child

Services (DCS) became involved when Child was about two years old. Father

visited twice a week with Child at that point for about six months, and then

visits again became sporadic.

1 Mother does not challenge the termination of her parental rights. Accordingly, we will focus on only those facts related to Father.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 2 of 11 [4] Shortly after Child turned six years old, DCS once again became involved with

the family due to Mother’s mental health issues and Child’s behavior. Mother

and DCS entered into an informal adjustment agreement in early December

2013, which “ended very promptly unsuccessfully”. December 10, 2015

Transcript at 29. DCS determined that Child’s safety was in jeopardy and

removed him from Mother’s home on or about December 17, 2013. Around

this same time, DCS family case manager (FCM) Bridget Murray discussed the

possibility of placement with Father. He refused to take Child, indicating that

he lived in Michigan and was a registered sex offender. Father also indicated

that he would not consider moving to Indiana so he could care for Child. He

suggested that Child be placed with Child’s half-sister, P.H. Child was placed

in P.H.’s care on December 27, 2013, where he has remained.

[5] CHINS proceedings commenced, and on January 9, 2014, Father admitted that

Child was a CHINS. Child was adjudicated a CHINS as to Mother also on

April 2, 2014, and a parental participation order and dispositional decree

followed on May 7, 2014. Among other things, Father was ordered to keep all

appointments, complete a parenting assessment and successfully complete all

recommendations developed as a result of the assessment, and attend all

scheduled visitations with Child.

[6] Father did not complete the required parenting assessment until August 11,

2014, which was three months after the referral. The delay was the result of

Father cancelling the May appointment and not rescheduling. Father

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 3 of 11 completed the parenting assessment only after being found noncompliant by the

trial court at the progress hearing on August 6, 2014.

[7] As a result of the parenting assessment, Father was directed to participate in

family and individual therapy, obtain a medical evaluation, and attend

supervised visits with Child. Thereafter, Father never had a medical evaluation

and did not seek individual therapy until July 2015, despite being referred nine

months earlier. He attended only three sessions and then was referred, on

September 4, 2015, for a psychological evaluation. Father delayed once again

and did not complete the psychological evaluation until November 20, 2015.

[8] Father never maintained consistency with visitation. As of the August 2014

review hearing, Father had not seen Child since May 17, 2014, and had only

visited with him five times since Child’s removal in December 2013. After

going a few months without visiting Child, he began visiting again in August

2014. However, visits continued to be sporadic, as he regularly cancelled or

was a no show. This had a negative effect on Child, especially with Child’s

diagnosed PTSD. As a result, the trial court suspended Father’s visits with

Child on October 8, 2014. Father last saw Child in September 2014.

[9] At the December 17, 2014 permanency hearing, the court changed Child’s

permanency plan to concurrent plans of adoption and reunification. Thereafter,

DCS filed the instant termination petition. The final termination hearing was

originally scheduled for July 30, 2015, but was continued on Father’s motion.

On July 15, 2015, the trial court rescheduled the final hearing for December 10

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 4 of 11 and 14, 2015. At the start of the final hearing, Father orally moved for another

continuance, which the trial court denied.

[10] At the final hearing, FCM Deborah Banghart testified in detail regarding

Father’s persistent noncompliance with services. She explained that his pattern

was typically to reinitiate or start services just before a scheduled hearing and

then become noncompliant again. Further, FCM Banghart opined that it was

in Child’s best interests for Mother’s and Father’s parental rights to be

terminated. Similarly, the CASA for Child testified that termination and

adoption by P.H. was in Child’s best interests.

[11] P.H. testified that she wished to adopt Child, and Child’s therapist, among

others, testified that this was what Child wanted too. By all accounts, Child has

thrived in P.H.’s care. Although P.H. indicated that Child enjoyed his visits

with Father, she explained that Father missed at least half of the scheduled

visits. She also noted that Father has always talked about her keeping Child

and has “never seemed to want him”. December 14, 2015 Transcript at 51.

Indeed, throughout the CHINS and termination proceedings, Father never

sought custody of Child. In his proposed order, Father made clear that he only

sought “a continued relationship with [Child], while [P.H.] retains custody.”

Appellant’s Appendix at 43.

[12] On April 22, 2016, the trial court issued its order terminating Mother and

Father’s parental rights. DCS filed a motion to correct error, which resulted in

the trial court issuing a corrected termination order on May 26, 2016. Father

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 5 of 11 appeals the termination of his parental rights. Additional facts will be provided

below as needed.

Discussion & Decision

1. Denial of Continuance

[13] Father contends that the trial court abused its discretion by denying his oral

request for a second continuance made at the start of the final hearing. We

review the denial of a motion for a continuance for an abuse of discretion.

Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 449 (Ind. Ct. App.

2007). We will not disturb a trial court’s denial of a continuance “absent a

showing of clear and prejudicial abuse of discretion.” Id. On appeal, Father

must establish good cause for the granting of his motion and prejudice resulting

from its denial. Rowlett v. Vanderburgh Cty. Office of Family & Children, 841

N.E.2d 615, 619 (Ind. Ct. App. 2006).

[14] On December 10, 2015, counsel for Father explained to the trial court the basis

for the motion for continuance:

[Father], we met about a week ago. I think he was not too certain when the date was. He thought it was later in December that our hearing was. He appeared with a lot of material. A lot of this we haven’t sat down and reviewed and the exhibits that I think he has, witnesses that maybe we haven’t talked about and I think this date sort of snuck up on him, but of more importance, because the Court can certainly say that’s our fault, but there was a report by Dr. Sibilla that was ordered in the CHINS case for a psychological evaluation. That was done in November. We received that report this week and [Father] hadn’t had a chance Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 6 of 11 to actually meet with me to review it himself. I’ve read it to him over the phone, parts of it. He’s actually reading it now and his question to me at 4:15 was don’t I have a right to hire my own psychologist if I disagree with their report, to hire my own doctor to do an evaluation and submit that as evidence, and I said, yes …, so I think more than the fact that we haven’t met as much as we ought to meet and review his witnesses and such, I think this evaluation which apparently is going to be offered by Dr. Sibilla and I think my client certainly now that he’s just got the report this week certainly has the right to hire a doctor of his own choosing to do an evaluation that we can submit.

December 10, 2015 Transcript at 12-13.

[15] The record establishes that the final hearing dates had been set for nearly five

months, giving Father ample time to meet with his attorney and gather

evidence. Moreover, the delay in obtaining Dr. Sibilla’s report was directly due

to Father’s noncompliance. He was referred to Dr. Sibilla for a diagnostic

psychological parenting evaluation on September 4, 2015. Father, however, cut

his initial appointment short and then did not show up for the rescheduled

appointment. As a result, Father did not finish his clinical interview with Dr.

Sibilla until November 20. Dr. Sibilla completed his written report and sent it

to DCS at the end of November. DCS then promptly emailed the report to

Father’s counsel on December 3, which was one week before the final hearing.

Father then waited until the day of trial to move for a continuance. Under the

circumstances, we cannot say that the trial court abused its discretion by

denying Father’s motion.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 7 of 11 [16] Moreover, Father has failed to establish that he was prejudiced by the denial of

his motion for continuance. Dr. Sibilla’s report was not particularly

remarkable, and the trial court did not expressly rely on the report or Dr.

Sibilla’s testimony in the termination order. The focus of DCS’s case against

Father and the trial court’s order was Father’s consistent noncompliance with

services and lack of visitation with Child.

2. Sufficiency

[17] Father argues that DCS failed to present sufficient evidence to support the

termination of his parental rights. He asserts that the evidence merely

established that he “had some difficulty fully complying with some visitations

with the child and fully complying with some appointments with doctors and

DCS workers.” Appellant’s Brief at 7. He challenges only the trial court’s

finding that continuation of the relationship between Father and Child would

pose a threat to Child’s well-being.

[18] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, 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 71A03-1606-JT-1455 | March 13, 2017 Page 8 of 11 (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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child and that there is a

satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

4(b)(2)(C), (D).

[19] Father challenges the trial court’s findings only as to the threat the relationship

posed to Child’s well-being. We note, however, that I.C. § 31-35-2-4(b)(2)(B) is

written in the disjunctive and only one of the three requirements must be

established by clear and convincing evidence. Here, the trial court found that

DCS presented sufficient evidence to satisfy two of those requirements, namely,

that there is a reasonable probability the conditions resulting in Child’s

removal, including continued placement outside Father’s care, will not be

remedied and that the 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), (ii). Standing

alone, the unchallenged finding regarding the likelihood that conditions would

not change satisfies the requirement listed in subsection (B).

[20] Moreover, Father’s brief challenge to the threat finding is simply a request for

us to reweigh the evidence regarding the degree of his noncompliance. In sum,

Father argues that the evidence showed only that he “perhaps had some issues”

and that he “did not exercise all of his visitations” due to “transportation

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 9 of 11 issues.” Appellant’s Brief at 10. He notes that he had a parenting assessment and

participated in individual therapy sessions.

[21] On review, we will not reweigh the evidence or judge the credibility of

witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

denied. Rather, we will consider only the evidence and reasonable inferences

that are most favorable to the judgment. Id. Accordingly, we reject Father’s

blatant request for us to reweigh the evidence.

[22] The evidence establishes that during the two years following Child’s removal,

Father rarely visited Child and regularly failed to comply with service

providers, timely follow up on referrals, or follow the trial court’s orders. The

pattern he established was to do the bare minimum immediately before a

scheduled hearing.2 Further, at no time did Father seek custody of Child or

offer the stability Child had so obviously not been receiving from Mother. His

preference was for P.H. to continue raising Child and for him to be able to visit

Child. FCM Banghart opined, however, that a continued relationship between

Father and Child would pose a threat to Child’s well-being given Father’s

complete lack of follow through and consistency, which exacerbates Child’s

PTSD symptoms. In sum, we conclude that Father has failed to establish that

the trial court’s threat finding was erroneous.

2 For example, Father was referred for individual therapy on October 1, 2014, but he did not attend his first session until nine months later. He attended a matter of weeks before the then-scheduled final termination hearing in July 2015.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 10 of 11 [23] Judgment affirmed.

[24] Riley, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017 Page 11 of 11