In the Matter of the Termination of the Parent-Child Relationship of: M.B. (Minor Child) and S.B. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Jan 30 2015, 8:23 am
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
Amy Karozos Gregory F. Zoeller
Greenwood, Indiana Attorney General of Indiana

Robert J. Henke
Abigail R. Miller
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 30, 2015
of the Parent-Child Relationship Court of Appeals Cause No.
of: 49A04-1407-JT-326
Appeal from the Marion Superior
M.B. (Minor Child) Court
and The Honorable Larry Bradley,
Magistrate
S.B. (Father) The Honorable Marilyn A. Moores,
Judge
Appellant-Respondent, Cause No. 49D09-1312-JT-16342

The Indiana Department of Child
Services
Appellee-Petitioner

Bailey, Judge.
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Case Summary
[1] S.B. (“Father”) appeals the termination of his parental rights to M.B. upon the

petition of the Marion County Department of Child Services (“the DCS”). We

affirm.

Issues
[2] Father presents two issues for review:1

Whether the trial court abused its discretion by denying his motion for a

continuance until such time as his criminal appeal was resolved; and

1
Father articulates a third issue, alleging that he was denied due process in the CHINS proceedings.
Procedural irregularities in CHINS proceedings may be so significant that they deprive a parent of procedural
due process with respect to the termination of his parental rights. A.P. v. Porter Cnty. Office of Family &
Children, 734 N.E.2d 1107, 1112-13 (Ind. Ct. App. 2000), trans. denied. Father asserts he was denied due
process because the DCS did not – during Father’s incarceration – “make reasonable efforts to preserve the
family as is required by law.” Appellant’s Br. at 21. However, Father concedes that the DCS need not, in
termination proceedings, plead and prove its provision of services because such is not a requisite element to
support termination of parental rights. See In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (recognizing
that provision of services is not a requisite element of the termination statute and a failure to provide services
does not serve as a basis on which to directly attack a termination order as contrary to law). However,
Father baldly asserts in his Reply Brief that he was denied due process because “Father was not on notice
that he risked termination of his parental rights by not completing services while incarcerated.” Reply Brief
at 6. He fails to direct us to any testimony or other evidence concerning CHINS advisements to Father or
Father’s knowledge of termination procedures. Because Father presents no cogent argument supported by
relevant authority and appropriate record citation as to his alleged denial of due process in the CHINS
proceedings, we do not address the purported issue. See Ind. Appellate Rule 46(A)(8)(a).

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Whether the DCS established, by clear and convincing evidence, the requisite

statutory elements to support the termination decision.

Facts and Procedural History
[3] On December 24, 2012, M.B. was born and tested positive for cocaine and

opiates. At the hospital, M.B. was removed from the care of her mother. 2 The

DCS alleged M.B. to be a Child in Need of Services (“CHINS”) and further

alleged that her father was unknown. M.B. was found to be a CHINS.

[4] In early 2013, Father was incarcerated at the Marion County Jail when he

encountered DCS caseworker Kiyanna Harris (“Harris”) and informed Harris

that M.B. was his child. Paternity was established in Father following DNA

testing.

[5] Later in 2013, Father was convicted of Possession of a Firearm by a Serious

Violent Felon. He was sentenced to twelve years imprisonment.

[6] On December 27, 2013, the DCS petitioned for termination of Father’s parental

rights. During the pendency of that action, Father’s criminal conviction was

2
The mother’s parental rights were eventually terminated and she is not an active party to this appeal.

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reversed by a panel of this Court. Blount v. State, 4 N.E.3d 787 (Ind. Ct. App.

2014). The State sought transfer to the Indiana Supreme Court and Father

remained incarcerated.

[7] On June 9, 2014, the DCS and Father’s counsel appeared for an evidentiary

hearing in the termination proceeding. At the outset of the hearing, Father’s

counsel advised the trial court of the developments in the criminal case and

requested a continuance in the termination case. The DCS opposed a

continuance, observing that Father had a history of incarceration. The trial

court proceeded with the hearing, at which Father appeared telephonically.

[8] On June 18, 2014, the trial court issued an order terminating Father's parental

rights. This appeal ensued.

Discussion and Decision
Motion for Continuance
[9] A ruling on a non-statutory motion for a continuance is within the sound

discretion of the trial court. J.M. v. Marion Cnty. Office of Family and Children,

802 N.E.2d 40, 43 (Ind. Ct. App. 2004), trans. denied. The trial court is afforded

discretion to “act in accord with what is fair and equitable in each

circumstance” and its decision will be reversed only upon a showing of an

abuse of discretion and prejudice resulting from such an abuse. Id.

[10] Here, Father can show no prejudice resulting from the denial of his motion to

continue the proceedings until resolution of his criminal appeal. On December
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17, 2014, finding that the admission of hearsay evidence at Father’s trial was

harmless, the Indiana Supreme Court affirmed Father’s conviction. Blount v.

State, WL 7181352 (Ind. 2014). Accordingly, Father is subject to a twelve-year

criminal sentence. During this time, he would be unable to provide for M.B.’s

care. Father has failed to demonstrate an abuse of discretion and resultant

prejudice.3

Sufficiency of the Evidence
Standard of Review
[11] Our standard of review is highly deferential in cases concerning the termination

of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This

Court will not set aside the trial court’s judgment terminating a parent-child

relationship unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544

(Ind. Ct. App. 1997). When reviewing the sufficiency of the evidence to

support a judgment of involuntary termination of a parent-child relationship,

we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

3
Even so, we observe that motions for continuances of termination proceedings pending the resolution of
criminal appeals should not be denied as a matter of routine course. A litigant such as Father has
constitutionally protected rights, both as a parent and as a litigant with an absolute right to an appeal. Our
Indiana Supreme Court has reiterated that "parental rights are precious and protected by our Federal and
State constitutions” and that “Indiana is particularly solicitous of the right to appeal,” guaranteeing an
absolute right to one appeal in all cases. In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013).

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We consider only the evidence that supports the judgment and the reasonable

inferences to be drawn therefrom. Id.

Requirements for Involuntary Termination of Parental Rights
[12] Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights when the parents are unable or unwilling to meet

their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not

to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,

208 (Ind. Ct. App. 1999), trans. denied.

[13] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

allege and prove by clear and convincing evidence in order to terminate a

parent-child relationship:

(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 local office 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:

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(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;

(D) that there is a satisfactory plan for the care and treatment of the
child.

[14] If the court finds that the allegations in a petition described above are true, the

court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial

court must judge a parent’s fitness to care for his or her child at the time of the

termination hearing, taking into consideration evidence of changed conditions.

In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial

court must also “evaluate the parent’s habitual patterns of conduct to determine

the probability of future neglect or deprivation of the child.” Id.

Analysis
[15] Father contends that insufficient evidence supports the termination order. He

does not challenge the trial court’s determinations pursuant to Sections 31-35-2-

4(b)(2)(A) (removal from parent), or (D) (satisfactory plan). He challenges the

determinations relating to Sections 31-35-2-4(b)(2)(B) (reasonable probability

conditions will not be remedied or relationship poses a threat to child’s well-

being) and (C) (best interests).

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[16] Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

therefore the court needed only to find that one of the three requirements of

subsection (b)(2)(B) had been established by clear and convincing evidence. See

L.S., 717 N.E.2d at 209. Because we find it to be dispositive under the facts of

this case, we consider only whether the DCS established, by clear and

convincing evidence, that there is a reasonable probability that the conditions

resulting in the removal or reasons for placement outside the home will not be

remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply

focus on the initial basis for removal for purposes of determining whether a

parent’s rights should be terminated, “but also those bases resulting in the

continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind.

Ct. App. 2005), trans. denied.

[17] Initially, the DCS removed M.B. from her mother’s care because M.B. was

born with drugs in her bloodstream and her mother admitted having used

cocaine and heroin during her pregnancy. At the time of M.B.’s birth, Father

was incarcerated on a felony charge.

[18] Father, born in 1981, has been incarcerated for much of his adult life. In 2006,

he was convicted of Attempted Robbery. In 2007, he was convicted of

Possession of Paraphernalia. The following year, he was convicted of

Possession of Paraphernalia, Fraud, and Theft. In 2010, he was convicted of

Possession of Cocaine. In 2013, he was convicted of Unlawful Possession of a

Firearm by a Serious Violent Felon. His earliest projected release date is

November 5, 2018.

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[19] Father has never met M.B. He has four other children and has established

paternity with respect to one of them. Previously, he paid two dollars per week

for the support of that child. As of the time of the termination hearing, Father

was not paying child support. He testified that he was currently unable to

parent M.B.

[20] The DCS presented clear and convincing evidence from which the trial court

could conclude that there was a reasonable probability that the conditions

resulting in the removal or reasons for placement outside the home would not

be remedied.

[21] As for the best interests of M.B., Father’s one-paragraph argument consists of

his assertion that the DCS was required to show that he would be unable to care

for M.B. upon his release from incarceration and also to show that termination

of parental rights was preferable to continuing foster care or allowing M.B. to

live with a paternal relative. He does not accurately portray the burden of proof

upon the DCS when the trial court is asked to determine the best interests of a

child in a termination proceeding.

[22] In determining what is in a child’s best interests, the trial court is required to

look beyond the factors identified by the DCS and consider the totality of the

evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “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

termination of the parent-child relationship is in the child’s best interests.”

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Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.

2006), trans. denied.

[23] Here, the trial court’s findings included the following: Father had been

incarcerated throughout M.B.’s life; Father had been convicted of several

felonies and had been in and out of jail throughout his adult life; Father had

never met M.B.; M.B. was in a pre-adoptive placement with her half-sibling;

M.B. was bonded with her pre-adoptive family; and the Guardian Ad Litem

recommended adoption as being in M.B.’s best interests. The findings of fact

adequately support the conclusion that termination of Father’s parental rights

was in M.B.’s best interests.

Conclusion
[24] Father has shown no abuse of discretion in the trial court’s ruling on a motion

for a continuance. The DCS established by clear and convincing evidence the

requisite elements to support the termination of parental rights.

[25] Affirmed.

Robb, J., and Brown, J., concur.

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