In Re: The Termination of the Parent-Child Relationship of A.C. Jr. and J.C. (Minor Children) A.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Mar 17 2020, 9:46 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nathan D. Hoggatt Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Termination of the March 17, 2020
Parent-Child Relationship of Court of Appeals Case No.
A.C. Jr. and J.C. (Minor 19A-JT-1576
Children); Appeal from the Wells Circuit
A.C. (Father), Court
The Honorable Kenton W.
Appellant-Respondent,
Kiracofe, Judge
v. Trial Court Cause No.
90C01-1809-JT-43
90C01-1809-JT-44
The Indiana Department of
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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[1] A.C. (“Father”) appeals the termination of the parent-child relationship with
his sons A.C., Jr., (“A.C., Jr.”), and J.C. (“J.C.”), collectively (“the children”).1
He contends that: (1) the trial court abused its discretion when it denied his
motion to continue the termination hearing; and (2) there is insufficient
evidence to support the terminations. Finding no abuse of the trial court’s
discretion and sufficient evidence to support the terminations, we affirm the
trial court’s judgment.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion when it
denied Father’s motion to continue the termination
hearing.
2. Whether there is sufficient evidence to support the
termination of the parent-child relationships.
Facts
[3] Father is the parent of A.C., Jr., who was born in April 2014, and J.C., who
was born in April 2015. In January 2016, the children were removed from
Mother and placed in foster care because of Mother’s methamphetamine use.
Father was incarcerated at the time. Mother complied with the terms of what
appears to have been an informal disposition, and the children were returned to
1
The children’s mother’s (“Mother”) parental rights were also terminated. However, she is not a party to
this appeal.
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her in July 2016. After Mother admitted that Father had treated her violently in
the past and that she was scared of him, a DCS case manager worked with
Mother to put in place a safety plan to protect herself when Father was released
from incarceration. The CHINS case was closed in December 2016.
[4] In August 2017, an intoxicated Father, who was on parole for a felony burglary
conviction, forced his way into Mother’s home and attacked her when she
refused to allow him to see the children. The State charged Father with
strangulation, domestic battery committed in the presence of a child less than
sixteen years old, residential entry, resisting law enforcement, battery, and
public intoxication.
[5] Later that month, DCS again removed the children from Mother because of her
methamphetamine use. Father was incarcerated at the time, and the children
were placed with their previous foster family. Father was released from
incarceration in November 2017, and the children were adjudicated to be
children in need of services (“CHINS”) in December 2017.
[6] In January 2018, the trial court entered a dispositional order, which ordered
Father to: (1) complete a substance abuse assessment and successfully complete
all recommendations; (2) complete a psychological assessment and successfully
complete all recommendations; (3) complete a domestic violence assessment
and successfully complete all recommendations; (4) abstain from the use of
alcohol; (5) follow all terms of parole; (6) maintain a legal and stable source of
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income; (7) maintain suitable, safe, and stable housing; and (8) submit to
random drug screens.
[7] One month later, in February 2018, police officers were dispatched to
investigate a report of vandalism and an argument between two men. When
the officers arrived at the scene, they discovered Father outside of Mother’s
home. At the time, there was an order prohibiting Father from contacting
Mother. Father was belligerent and had a knife and a bag of needles in his
possession. His blood alcohol level was .17. The State charged Father with
Class B misdemeanor public intoxication and Class A misdemeanor invasion of
privacy, and he was re-incarcerated.
[8] Seven months later, in September 2018, DCS filed a petition to terminate
Father’s parental rights. In February 2019, the trial court granted Father’s
appointed counsel (“appointed counsel”) a two-month continuance of the
termination hearing because of “some emergency situations.” (Tr. Vol. 2 at
29). The day before the rescheduled hearing, Father’s appointed counsel filed
another motion to continue the termination hearing. She specifically explained
in the motion that she could not be present at the hearing “for unavoidable
health reasons[.]” (App. Vol. 2 at 35).
[9] At the hearing the following day, attorney Scott Harter (“Attorney Harter”)
explained that appointed counsel was very ill. Attorney Harter explained that
he had been assisting appointed counsel on Father’s case for the previous two
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months. When asked if he was prepared for the hearing, Attorney Harter
responded as follows:
You bet I’m prepared; I don’t go into hearings not being
prepared. [Father] deserves adequate assistance, effective
assistan[ce] of counsel, and I’m here to provide that. Would I
have preferred that [appointed counsel] handle this case? Yes,
certainly[.] But I just want, for the record, to be understood that
I am not the primary attorney on this case. . . . I will do my very
best job. I do feel I’m prepared.
(Tr. Vol. 2 at 115, 116).
[10] Counsel for DCS objected to the continuance because “the[] children need[ed]
permanency, and a continuance was already given . . . several months ago . . .
and . . . we would like to move forward today.” (Tr. Vol. 2 at 117). Guardian
Ad Litem Beth Webber (“GAL Webber”) agreed with DCS and pointed out
that this was the second time that the children had been involved with DCS and
that they had spent more time in placement than in the home of either parent.
The trial court denied Father’s motion to continue the termination hearing.
[11] Testimony at the April 2019 hearing revealed that Father was incarcerated for a
parole violation at the time of the hearing. He had not seen the children in over
a year. He had sent them several letters after the termination petition had been
filed. However, A.C., Jr.’s therapist had recommended against giving the
letters to the then three and four-year-old boys.
[12] The evidence further revealed that during the three months that Father had
been released from incarceration from November 2017 through February 2018,
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he had completed the court-ordered substance abuse assessment with a Bowen
Center therapist. During the assessment, Father minimized his alcohol use and
criminal history. Specifically, Father told the therapist that he had not used
alcohol for three and one-half years and that he only had prior convictions for
burglary and aiding and abetting. However, Father had just been charged with
public intoxication. In addition, Father’s criminal history included convictions
for: (1) Class A misdemeanor striking a law enforcement animal in 2008; (2)
Class A misdemeanor battery resulting in bodily injury in 2008; (3) Class A
misdemeanor trespass in 2009; (4) Class A misdemeanor invasion of privacy in
2009; (5) Class B felony burglary in 2010; and (6) Class A misdemeanor battery
resulting in bodily injury in 2013. Father further admitted violating the terms
and conditions of his probation in 2013, 2014, and 2015. Although Father
completed the assessment, he did not successfully complete the therapist’s
recommendation for individual therapy to address his substance abuse issues.
In addition, Father failed to obtain a psychological evaluation or a domestic
violence assessment.
[13] DCS Family Case Manager Laurie Hoffacker (“FCM Hoffacker”) testified that
the children had been involved with DCS for more than one-half of their lives
and that it was important “that we get to the point where we can provide the
permanency for these two . . . so that they have a stable environment to live in
with parents who are gonna meet their basic needs consistently . . . ensure their
safety and be present in their lives.” (Tr. Vol. 3 at 103). When asked whether
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Father had remedied the conditions that had resulted in the initial removal of
his children, FCM Hoffacker responded as follows:
[A]t the time of the detention, [Father] was incarcerated . . . for a
criminal offense[.] While he was . . . out of incarceration . . .
services were not completed[.] He was not able to provide . . . a
stable environment for his children at that time. [H]e has not
received treatment for those . . . issues that led to our
involvement. [S]ince the case has been open, he was arrested on
new charges [and] violated parole.
(Tr. Vol. 3 at 104). In addition, FCM Hoffacker testified that she had met with
Father two weeks before the termination hearing to sign releases of information
and that Father had not asked about the children. According to the family case
manager, termination of the parent-child relationship was in the children’s best
interests.
[14] GAL Webber testified Father had a pattern of conduct and behavior that had
not changed during the course of the proceedings. She also testified that
termination was in the children’s best interests.
[15] In June 2019, the trial court issued a detailed twenty-two-page order
terminating Father’s parental rights. Father now appeals the terminations.
Decision
[16] Father argues that: (1) the trial court abused its discretion when it denied his
motion to continue the termination hearing; and (2) there is insufficient
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evidence to support the terminations. We address each of his contentions in
turn.
1. Denial of Motion to Continue the Termination Hearing
[17] Father first argues that the trial court abused its discretion in denying his
motion to continue the termination hearing. Generally, the decision to grant or
deny a motion to continue is within the sound discretion of the trial court, and
we will reverse only for an abuse of discretion. In re J.E., 45 N.E.3d 1243, 1246
(Ind. Ct. App. 2015), trans. denied. An abuse of discretion occurs when the trial
court’s conclusion is clearly against the logic and effect of the facts and
circumstances before the court or the reasonable and probable deductions to be
drawn therefrom. Id. When a motion to continue has been denied, an abuse of
discretion will be found if the moving party has demonstrated that there was
good cause for granting the motion and that he was prejudiced by the denial.
Id.[18] Here, Father argues that the trial court had good cause to grant his motion “to
give him the opportunity to be released from jail and re-engage in services.”
(Father’s Br. 8). However, at the hearing, Father asked for the continuance
because appointed counsel was ill. A party may not object on one ground at
trial and seek reversal using a different ground on appeal. Showalter v. Town of
Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009) (explaining that the trial
court “cannot be found to have erred as to an issue or argument that it never
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had an opportunity to consider”), trans. denied. Father has waived appellate
review of this issue.
[19] Waiver notwithstanding, we find no error. Our review of the record reveals
that Attorney Harter told the trial court that he was prepared to provide Father
with the effective assistance of counsel and that he would do his very best job.
In addition, DCS pointed out that a continuance had already been granted two
months before and that the children needed permanency. GAL Weber further
pointed out that the children had already spent more time in placement than in
the home of either parent. The trial court did not abuse its discretion in
denying Father’s motion to continue the termination hearing.
2. Sufficiency of the Evidence
[20] Father next argues that there is insufficient evidence to support the termination
of his parental rights. The traditional right of parents to establish a home and
raise their children is protected by the Fourteenth Amendment to the United
States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App.
2015), trans. denied. However, a trial court must subordinate the interests of the
parents to those of the child when evaluating the circumstances surrounding a
termination. Id. at 1188. Termination of the parent-child relationship is proper
where a child’s emotional and physical development is threatened. Id.
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
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terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id.
[21] Before an involuntary termination of parental rights may occur, DCS is
required to allege and prove, 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.
(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 must prove the alleged circumstances by
clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1230 (Ind. 2013).
[22] When reviewing a termination of parental rights, this Court will not reweigh
the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,
628 (Ind. 2016). We consider only the evidence and any reasonable inferences
to be drawn therefrom that support the judgment and give due regard to the
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trial court’s opportunity to judge the credibility of the witnesses firsthand.
K.T.K., 989 N.E.2d at 1229.
[23] Here, Father argues that there is insufficient evidence to support the
termination of his parental rights. Specifically, he first contends that the
evidence is insufficient to show that there is a reasonable probability that: (1)
the conditions that resulted in the children’s removal or the reasons for their
placement outside the parent’s home will not be remedied; and (2) a
continuation of the parent-child relationships poses a threat to the children’s
well-being.
[24] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in the children’s
removal or the reasons for their placement outside the home will not be
remedied.
[25] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
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fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. The trial court may also consider services offered to the parent by
DCS and the parent’s response to those services as evidence of whether
conditions will be remedied. Id. Requiring trial courts to give due regard to
changed conditions does not preclude them from finding that a parent’s past
behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.
[26] Here, our review of the evidence reveals that Father was incarcerated at the
time of the children’s removal from Mother. He was released from
incarceration shortly before the children were adjudicated to be CHINS.
Pursuant to the trial court’s dispositional order, Father completed a substance
abuse assessment where he minimized his alcohol use and criminal history. He
did not successfully complete the assessor’s recommendations. He also failed to
complete both psychological and domestic violence assessments. Two months
later, Father, who has a ten-year criminal history that includes probation
revocations, was arrested on new charges and incarcerated for a parole
violation. At the time of the hearing, he was incarcerated and had not seen the
children for over a year. This evidence supports the trial court’s conclusion that
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there was a reasonable probability that the conditions that resulted in the
children’s removal would not be remedied. We find no error.
[27] Father also argues that there is insufficient evidence that the termination was in
the children’s best interests. In determining whether termination of parental
rights is in the best interests of a child, the trial court is required to look at the
totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),
trans. denied. In so doing, the court must subordinate the interests of the parents
to those of the child involved. Id. Termination of the parent-child relationship
is proper where the child’s emotional and physical development is threatened.
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s
historical inability to provide adequate housing, stability and supervision
coupled with a current inability to provide the same will support a finding that
continuation of the parent-child relationship is contrary to the child’s best
interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting
Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.
denied, superseded by rule on other grounds). Further, the testimony of the service
providers may support a finding that termination is in the child’s best interests.
McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.
Ct. App. 2003).
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[28] Here, both FCM Hoffacker and GAL Webber testified that termination was in
the children’s best interests.2 The testimony of these service providers, as well
as the other evidence previously discussed, supports the trial court’s conclusion
that termination was in the children’s best interests.
[29] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[30] Affirmed.
May, J., and Crone, J., concur.
2
[1] Father has waived appellate review of his argument that GAL Webber’s testimony was inadmissible hearsay for
two reasons. First, he failed to object to her testimony on this ground at the termination hearing. See Showalter, 902
N.E.2d at 342. In addition, Father has failed to support his argument with cogent argument and relevant authority.
See Kentucky Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598 (Ind. Ct. App. 2010) (holding that
argument was waived for failure to cite authority or provide cogent argument).
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