Term. of Parent-Child Rel. of M.B., D.B., and D.S. M.B. (Mother) v. Indiana Dept. of Child Services ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited FILED
before any court except for the purpose Apr 24 2012, 8:55 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
court of appeals and
of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER L. ISOM KELLIE E. MEARS
Brand & Morelock Greenfield, Indiana
Greenfield, Indiana
ROBERT J. HENKE
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE TERMINATION )
OF THE PARENT/CHILD RELATIONSHIP OF )
M.B., D.B., and D.S., minor children, )
)
M.B., mother, )
)
Appellant-Respondent, )
)
vs. ) No. 30A04-1110-JT-554
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE HANCOCK CIRCUIT COURT
The Honorable Richard D. Culver, Judge
Cause Nos. 30C01-1101-JT-11, 12, 13
April 24, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
M.B. (“Mother”) appeals the termination of her parent-child relationship with
D.S., M.B., Jr.,1 and D.B., Jr. We affirm.
Issues
Mother raises five issues, which we consolidate, reorder, and restate as:
I. whether the trial court properly denied her motion for
continuance; and
II. whether there is sufficient evidence to support the
termination of her parental rights.
Facts
D.S. was born on September 23, 2006, M.B., Jr., was born on November 10, 2007,
and D.B., Jr., was born on December 4, 2008. Mother and D.B. are married, and D.B. is
the father of M.B., Jr., and D.B., Jr.2
In May 2009, Mother, D.B., and the children were living in a homeless shelter in
Hancock County when Department of Child Services (“DCS”) received a report that
Mother had struck D.S. and caused him injuries. Mother was arrested, charged with
battery, and incarcerated. D.B. indicated to DCS officials that he could not care for the
children and continue to work, and the children were placed in foster care. In June 2009,
DCS filed a petition alleging the children where children in need of services (“CHINS”).
Mother eventually admitted to the allegations in the CHINS petition and, in September
1
M.B., Jr.’s, name is the same as Mother’s. Although her legal name does not include “Junior,” because
many of the exhibits, much of the trial testimony, and the trial court’s order referred to her as M.B., Jr.,
we also refer to her as M.B., Jr.
2
The children’s fathers’ parental rights are not at issue in this appeal. We reference D.B. as necessary to
address the issues raised by Mother in her appeal.
2
2009, the trial court ordered Mother to participate in various services and continued the
children’s placement in foster care. Mother pled guilty to Class D felony battery and was
sentenced to eighteen months suspended followed by eighteen months probation.
In October 2009, the children were returned to Mother’s care. Mother was making
progress in her ability to care for the children and successfully completed home-based
counseling. Mother lived with D.B.’s cousin and was receiving assistance from
community resources and her church.
Before Mother gave birth to another child in December 2009, the children were
temporarily placed in foster care with Mother’s consent. After Mother gave birth, the
children were returned to Mother.3
In February 2010, D.B., who had been living in Porter County, returned to
Greenfield. D.B. and Mother eventually moved into their own apartment. From
February 2010 until May 2010, Mother worked at a fast food restaurant. Other than this
employment, Mother relied on D.B.’s income, TANF, food stamps, and donations.
In July 2010, Mother and D.B. could not pay their rent and were evicted. At that
point, DCS officials held a meeting with Mother and D.B. and various options were
discussed, including Mother and D.B. going to a homeless shelter with the children.
Mother did not want to return to a homeless shelter and agreed that the children should go
to foster care. Mother and D.B. did not secure housing and lived in a minivan. At some
point, D.B. cut the windows out of the minivan with a chainsaw.
3
This child has been the subject of a guardianship since her birth.
3
Mother’s attitude toward and cooperation with DCS deteriorated. During a July
2010 visit with the children, Mother spoke badly of the foster parents in front of the
children and became upset. DCS stopped the visit, and Mother subsequently sent a text
message to the home-based therapist containing an expletive. DCS stopped services until
Mother completed a psychological evaluation, which she completed in September 2010.
The psychologist who conducted the evaluation found several parenting concerns and
concluded it was difficult to see how reunification would be possible in the near future.
In October 2010, Mother was alleged to have violated the terms of her probation.
In December 2010, Mother admitted to violating her probation and agreed to a six-month
executed sentence with no additional probation upon the execution of that sentence.
On January 10, 2011, DCS filed petitions to terminate the parent-child
relationship. On January 24, 2011, Mother was released from jail. On February 16,
2011, Mother was charged with and pled guilty to Class B misdemeanor false informing.
Mother was sentenced to fifty-six days in jail and was released on March 15, 2011. After
her release, Mother contacted DCS, but visitation was not re-established because Mother
did not have employment or her own transportation as had been required by the trial
court. Mother’s last visit with the children was on February 11, 2011.
A hearing on the termination petitions was scheduled for August 24, 2011. On
August 23, 2011, Mother moved to continue the hearing because she was living in Lake
Station near Illinois and did not have transportation to the hearing in Hancock County.
The trial court denied the motion to continue. Instead, the trial court permitted Mother to
participate via telephone, which she did, and Mother’s attorney was present at the
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hearing. On September 14, 2011, the trial court issued detailed orders terminating
Mother’s parental rights.4 Mother now appeals.
Analysis
I. Motion for Continuance
Mother argues that the trial court abused its discretion by denying her motion to
continue the termination hearing.5 “The decision to grant or deny a motion for a
continuance rests within the sound discretion of the trial court.” Rowlett v. Vanderburgh
County Office of Family and Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans.
denied. We will reverse the trial court only for an abuse of that discretion, which may be
found when the moving party has shown good cause for granting the motion. Id. No
abuse of discretion will be found when the moving party has not demonstrated that he or
she was prejudiced by the denial. Id.
Mother argues that her motion to continue should have been granted because she
did not have transportation to get to the hearing and would soon be able to get
transportation to the hearing. She also argues that DCS did not demonstrate it would be
prejudiced by a continuance and that, because no adoptive families had been located for
the children, a continuance would have had little immediate impact on the children.
Even considering these factors, Mother has not established an abuse of discretion.
The trial court denied the motion because, given Mother’s financial circumstances, it was
4
The trial court issued separate orders for each child. The orders are substantially the same as they relate
to Mother’s parental rights. For simplicity, we cite only the order relating to M.B., Jr., throughout this
opinion.
5
Mother does not argue on appeal that the denial of her motion to continue denied her due process.
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unlikely that her transportation issues would be remedied in the near future. More
importantly, Mother’s attorney was present at the hearing, and Mother participated in the
hearing via telephone. The record shows the trial court’s efforts to encourage Mother’s
participation in the hearing by explaining what to do if the call was disconnected and
explaining that, when Mother wanted to speak with her attorney, they would clear the
courtroom to allow her to have a private conversation with her attorney. Under these
circumstances, Mother has not shown the trial court abused its discretion by denying her
motion for continuance.
II. Sufficiency of the Evidence
Mother argues there is not sufficient evidence to support the termination of her
parental rights. “When reviewing the termination of parental rights, we do not reweigh
the evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).
We consider only the evidence and reasonable inferences most favorable to the judgment.
Id. “We must also give ‘due regard’ to the trial court’s unique opportunity to judge the
credibility of the witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court
enters findings of fact and conclusions thereon, as the trial court did here, we apply a
two-tiered standard of review. Id. “First, we determine whether the evidence supports
the findings, and second we determine whether the findings support the judgment.” Id.
We will set aside the trial court’s judgment only if it is clearly erroneous, which occurs if
the findings do not support the trial court’s conclusions or the conclusions do not support
the judgment. Id.
A petition to terminate a parent-child relationship must allege:
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(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.
(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 county office of
family and children 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.
Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear
and convincing evidence. I.A., 934 N.E.2d at 1133.
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Mother contends DCS failed to prove by clear and convincing evidence that the
conditions that led to the children’s removal will not be remedied and that the
continuation of the parent-child relationship poses a threat to the children’s well-being.
Although Mother argues that DCS failed to prove two factors, the current version of the
statute required DCS to allege only one of the three factors listed in Indiana Code Section
31-35-2-4(b)(2)(A). See also Bester v. Lake County Office of Family and Children, 839
N.E.2d 143, 148 n.5 (Ind. 2005) (observing that under the prior version of the statute
DCS was required to prove either of the two factors, not both). Thus, we only need to
address whether the continuation of the parent-child relationship poses a threat to the
children’s well-being.
Mother does not specifically challenge any of the trial court’s findings of fact
related to this factor. Instead, she argues that her poverty and criminal charges, not her
ability to parent, were the basis for the termination. Although Mother initially made
progress and was reunited with the children, after she was evicted in July 2010, Mother
never maintained suitable or stable housing, was not able to support herself, violated her
probation, and committed another criminal offense. Additionally, the results of the
psychological examination, Mother’s conduct during a supervised visit, and other
testimony by Mother supported the trial court’s concerns about her mental and emotional
stability. To the extent Mother urges us to consider evidence of her parenting abilities
before July 2010 and the resolution of her pending criminal cases, she is asking us to
reweigh the evidence, we cannot. Further, a trial court should judge a parent’s fitness to
care for his or her child as of the time of the termination proceeding, taking into
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consideration evidence of changed conditions. Bester, 839 N.E.2d at 152. Accordingly,
we conclude that there is clear and convincing evidence that the continuation of the
parent-child relationship posed a threat to the children’s well-being.
Mother also argues DCS failed to prove by clear and convincing evidence that the
termination of the parent-child relationship was in the children’s best interests. Again,
Mother does not specifically challenge the trial court’s findings on this factor. Instead,
she argues that, although she has been homeless at various times, she has demonstrated
the ability to parent the children and was very close to gaining a place to live. She asserts
there was no timeline for adoption and there was no evidence adoptive parents had been
located. According to Mother, continuing the CHINS to allow her to reestablish stability
was in the children’s best interests.
Mother relies on In re G.Y., 904 N.E.2d 1257 (Ind. 2009), in which the mother
was incarcerated for an offense that occurred before the child was conceived, was
participating in services and educational programs while she was incarcerated, and had
taken steps to provide permanency for G.Y. upon her release. Our supreme court
concluded that G.Y.’s need for permanency through adoption was not a sufficiently
strong reason, either alone or with the trial court’s other reasons, to warrant the
conclusion that termination of the parent-child relationship was in G.Y.’s best interests.
G.Y., 904 N.E.2d at 1265-66.
This case is distinguishable from G.Y. because Mother committed the initial
offense—battery on D.S.—after the children had been born and then violated her
probation and committed another criminal offense while the CHINS and termination
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proceedings were ongoing. More importantly, although Mother was incarcerated for a
period of time, during the time in which she was not incarcerated she was unable to
maintain suitable housing and stable income. Unlike in G.Y., Mother has already had the
opportunity to establish stability for the children and did not do so. Under these
circumstances, we cannot conclude that the trial court erred by denying Mother an
additional opportunity to re-establish stability.
Mother also asserts DCS failed to prove by clear and convincing evidence that it
had a satisfactory plan for the care and treatment of the children. Mother acknowledges
that DCS’s plan for the children is adoption. She points out, however, that the children’s
current foster home is not considered a pre-adoptive placement and that the trial court did
not make any findings regarding this requirement.
Although the trial court’s findings do not reference DCS’s plan for the children,
the trial court concluded, “[t]he Court further finds by clear and convincing evidence that
the DCS has a satisfactory plan for the care and treatment for [M.B.], Jr. which plan is to
pace her for adoption.” App. p. 88. To the extent this is mischaracterized as a conclusion
instead of a finding, “we look past these labels to the substance of the judgment.” Fraley
v. Minger, 829 N.E.2d 476, 482 (Ind. 2005). As such, we disagree with Mother that the
judgment is clearly erroneous because the trial court failed to support its judgment with
findings.
To the extent Mother questions whether the plan for adoption is satisfactory,
adoption is generally considered to be a satisfactory plan under the termination of
parental rights statute. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). For
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a plan to be “satisfactory,” it need not be detailed, so long as it offers a general sense of
the direction in which the child will be going after the parent-child relationship is
terminated. See Lang v. Starke County Office of Family and Children, 861 N.E.2d 366,
374 (Ind. Ct. App. 2007), trans. denied. Although there was evidence that the current
foster parents did not intend to adopt the children, DCS’s plan for adoption offered the
general sense of the direction the children would be going after termination. Mother has
not established that the trial court’s conclusion on this factor is clearly erroneous.
Conclusion
The trial court did not abuse its discretion in denying Mother’s motion for
continuance. Further, there is clear and convincing evidence to support the termination
of Mother’s parental rights. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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