Termination: MB v. Indiana Deparment of Child Services (mem. dec.) ( 2017 )

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.
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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.
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[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
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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
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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
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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
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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.
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[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.
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(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
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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.
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[23] Judgment affirmed.
[24] Riley, J. and Crone, J., concur.
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