In the Matter of the Term. of the Parent-Child Rel. of A.K., F.C. v. Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ADAM C. SQUILLER WENDY J. GENSCH
Squiller Law Office, P.C. DCS, Noble County Office
Auburn, Indiana Albion, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
FILED
IN THE Apr 23 2012, 9:31 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
IN THE MATTER OF THE TERMINATION OF ) tax court
THE PARENT-CHILD RELATIONSHIP OF )
A.K., Minor Child, )
)
F.C., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 57A03-1108-JT-374
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE NOBLE SUPERIOR COURT
The Honorable Michael J. Kramer, Judge
Cause No. 57D02-1102-JT-3
April 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
F.C. (Father) appeals the termination of his parental rights to A.K., and presents three
issues:
1. Whether the juvenile court abused its discretion when it denied his motion to
dismiss the involuntary termination proceedings;
2. Whether the juvenile court abused its discretion when it denied his motion for
continuance; and
3. Whether the juvenile court committed clear error when it determined there was
a reasonable possibility the conditions that resulted in A.K.’s removal would
not be remedied.
We affirm.
FACTS AND PROCEDURAL HISTORY
A.K. was born to C.K. (Mother) on July 31, 2009. On August 13, she was removed
from Mother’s care because A.K. tested positive for marijuana and cocaine. On August 14,
Mother admitted A.K. was a Child in Need of Services (CHINS) and A.K. was adjudicated
as such. The juvenile court returned A.K. to Mother’s custody, provided Mother resided at
Noble House.1 While Mother had custody, she took A.K. to visit the man Mother thought
might be A.K.’s father (Father) and Father’s grandmother. In November 2009, Mother
decided to move to Ohio to be closer to her family. The court removed A.K. from Mother’s
custody and placed her in foster care.
1
The record does not make clear what type of facility Noble House is.
2
Father testified he believed A.K. was his child, but claimed he “didn’t really have an
address to write” and “was sleeping” when the DCS case manager returned Father’s call
regarding establishment of A.K.’s paternity. (Tr. at 67.) On April 22, 2010, Father pled
guilty to Class D felony possession of methamphetamine, and the trial court pronounced an
eighteen-month sentence on September 30. In October 2010, the juvenile court ordered
Father to establish paternity of A.K. On January 19, 2011, the court determined Father was
A.K.’s father.
On February 17, 2011, DCS filed a motion to involuntarily terminate Father’s parental
rights to A.K.2 On July 7, the day before the hearing on termination, Father filed a motion to
dismiss DCS’s petition and to continue the proceedings. The juvenile court denied both
motions the next day. During the termination hearing, Father, A.K.’s foster parents, the
Court Appointed Special Advocate (CASA), and the DCS case manager all testified Father
did not communicate with A.K. after his incarceration and establishment of paternity. On
July 11, 2011, the court issued an order terminating Father’s rights to A.K.
DISCUSSION AND DECISION
1. Motion to Dismiss
The day before the termination hearing, Father filed a motion to dismiss DCS’s
petition to involuntarily terminate his rights to A.K. because “services were not provided to
the natural father under the case plan, and said services are substantial and material to
2
Mother voluntarily relinquished her parental rights and consented to the adoption of A.K. by the foster
parents.
3
implement safe return of the child to the child’s home.” (App. at 26.) The judge denied the
motion, stating, “I guess considering that I, I guess at this point I’m going to deny it[.] I
think it really depends on the evidence.” (Tr. at 3.) Father argues the juvenile court erred in
denying his motion to dismiss because it did not hear evidence regarding the assertions made
in the motion to dismiss, and had evidence been heard, the motion to dismiss would have
been granted. We disagree.
DCS is not required to offer reunification services or visitation while a parent is
incarcerated. See Rowlett v. Vanderburgh County OFC, 841 N.E.2d 615, 622 (Ind. Ct. App.
2006) (“[T]he OFC did not, nor was it required to, provide Father with services directed at
reuniting him with his children.”), trans. denied; see also In re H.L., 915 N.E.2d 145, 148
(Ind. Ct. App. 2009) (absence of services due to Father’s incarceration, not lack of action of
DCS). Therefore, the juvenile court did not need to consider evidence Father was not
provided services. As we assume the court knows and properly applies the law, Boone
County REMC v. Layton, 664 N.E.2d 735, 739 (Ind. Ct. App. 1996), trans. denied, we cannot
hold the juvenile court erred when it denied Father’s motion to dismiss.
2. Motion to Continue
In his motion to dismiss, Father proposed, in the event the juvenile court denied his
motion to dismiss, it instead “continue the Termination Dispositional Hearing to a time when
the natural father will be released from incarceration and have a chance to become
4
established in the community and to participate in reunification services.” (App. at 26.) The
judge denied the motion due to “statutory timelines.”3 (Tr. at 4.)
The decision to grant or deny a continuance rests within the sound discretion of the
juvenile court. Rowlett, 841 N.E.2d at 619. We will reverse the court’s decision only for an
abuse of that discretion. Id. An abuse of discretion occurs when the party requesting the
motion for continuance has shown good cause for granting the motion and the juvenile court
denies it. Id. No abuse of discretion will be found when the moving party is not prejudiced
by the denial of its motion. Id.
Father argues the facts of his situation are similar to those in Rowlett, where the trial
court abused its discretion when it denied Rowlett’s motion to continue termination
proceedings involving his two children. We disagree. Unlike Father, who did not establish
paternity or a relationship with his child prior to his incarceration, Rowlett took affirmative
steps to establish paternity and visit his children prior to his incarceration. Additionally,
Rowlett was due to be released six weeks after the scheduled termination hearing, while
Father’s earliest possible release date was eight months after the termination hearing.4
In addition to those facts, Father testified he would need hip replacement surgery after
release from prison. Thus, he could not speculate when he would recover sufficiently from
surgery to parent A.K. We hold the juvenile court did not abuse its discretion when it denied
3
Although the trial court provided no further explanation, we presume it was referring to the Adoption
Assistance and Welfare Act, the purpose of which is to “ensure that children [do] not spend long periods of
their childhoods in foster care or other settings designed to be temporary.” Phelps v. Sybinsky, 736 N.E.2d
809, 813 (Ind. Ct. App. 2000). Further prolonging the termination process would frustrate that goal.
4
Father had a chance to reduce his time incarcerated by four months on completion of the CLIFF program.
5
Father’s motion to continue the termination proceedings. See, e.g., C.T. v. Marion County
DCS, 896 N.E.2d 571, 587 (Ind. Ct. App. 2008) (appellate court affirmed denial of Brown’s
motion for continuance in part because Brown was not due to be released from prison for at
least four months), trans. denied.
3. Involuntary Termination of Parental Rights
We review termination of parental rights with great deference. In re K.S., D.S., and
B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.
Instead, we consider only the evidence and reasonable inferences most favorable to the
judgment. Id. In deference to the trial court’s unique position to assess the evidence, we will
set aside a judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S.
1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions thereon,
we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence supports the
findings and second whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either directly or by
inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and
inferences support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
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protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666
N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must subordinate the interests
of the parents to those of the child, however, when evaluating the circumstances surrounding
a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not
be terminated solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
To terminate a parent-child relationship, the State must allege and prove:
(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.
7
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof of these
allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court
finds the allegations are true, it must terminate the parent-child relationship. Ind. Code § 31-
35-2-8.
On appeal, Father argues the State did not prove there was a “reasonable probability
that the conditions which resulted in the child’s removal or the reasons for placement outside
the home of the parents will not be remedied” as required by Ind. Code § 31-35-2-
4(b)(2)(B)(i).
In terminating Father’s parental rights, the juvenile court found:
A. There is a reasonable probability that the conditions that resulted in the
children’s [sic] removal and reasons for the placement outside the child’s
home will not be remedied because [Father] made minimal effort to remedy
the reason for the removal of the child.
***
C. [Father] cannot care for or support the child because of his incarceration.
D. [Father] has continued to use illegal drugs after the date that he claims to have
stopped.
E. [Father] made no attempt to establish paternity or to care for or support the
child prior to his incarceration.
F. Currently, [Father] will be incarcerated for an additional eight (8) months.
After his release, [Father] will undergo surgery and will be unable to care for
the child for some time period after his release.
G. Any time within which the ability of [Father] to establish a stable and
appropriate life can be verified will be relatively long term as opposed to the
facts in In re J.M., 908 N.E.2d 191 (Ind. 2009).
(App. at 5.) Father claims findings A and E are not supported by the evidence. We disagree.
A. Reasonable Probability Conditions would not be Remedied
Father likens his case to in In re J.M., 908 N.E.2d 191, 194 (Ind. 2009), in which our
8
Indiana Supreme Court found the State did not prove, among other things, the conditions that
resulted in J.M.’s removal would not be remedied. J.M. is distinguishable.
In J.M., the parents had an ongoing relationship with J.M. for three years before they
were incarcerated. In the instant case, Father testified he visited A.K. when she was an
infant, but had not communicated with her since establishing paternity.
In J.M., both parents completed multiple court-ordered self-improvement courses
while incarcerated, J.M.’s mother was on course to complete her bachelor’s degree, and
J.M.’s father testified he had employment and transportation on his release. Here, by
contrast, Father testified he was on step four of eight of the CLIFF substance abuse recovery
program, but he could not identify the program goals he had completed. He testified he had
registered for a parenting class, but there is no indication he completed it. He testified he
would need hip replacement surgery on his release, and was unclear how long his recovery
would last. In light of these distinctions, J.M. does not control.5
The State presented evidence Father had a history of substance abuse, did not have
stable housing, had health problems including the need for a hip replacement, and did not
have a relationship with A.K. We acknowledge Father’s arguments he could care for A.K.
following his release, but we may not reweigh the evidence. See In re D.D., 804 N.E.2d at
265 (appellate court cannot reweigh the evidence presented at juvenile court level).6
5
Father also argues In re G.Y., 904 N.E.2d 1257 (Ind. 2009), reh’g denied, applies. G.Y.’s mother was his
primary caregiver for the first twenty months of his life, and the two had a strong bond. Such is not the case
with Father and A.K.. Father had not communicated with A.K. for almost a year between his incarceration and
the termination hearing, and had seen A.K. only a few times prior to his incarceration.
6
Father claims the juvenile court’s finding he “made no attempt to establish paternity or to care for or support
the child prior to his incarceration,” (App. at 5), is not supported by the evidence. The finding does not affect
9
CONCLUSION
The trial court did not err when it denied Father’s motion to dismiss because the
grounds upon which his motion were premised do not apply to Father. The trial court did not
abuse its discretion when it denied Father’s motion to continue because further delay in the
proceedings would frustrate the goal of permanency for A.K. The State presented clear and
convincing evidence the conditions that resulted in A.K.’s removal would not be remedied.
Accordingly, we affirm the termination of Father’s parental rights to A.K.
Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.
the factors considered when deciding whether to terminate Father’s rights to A.K., and therefore is surplusage.
Hence, even if the finding was erroneous, it does not warrant reversal. See Lasater v. Lasater, 809 N.E.380,
398 (Ind. Ct. App. 2004) (“Findings, even if erroneous, do not warrant reversal if they amount to mere
surplusage and add nothing to the trial court’s decision”).
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