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.



Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017             Page 1 of 11
                                                  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.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017           Page 2 of 11
[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



      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 3 of 11
      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


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 4 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 5 of 11
       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
       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 6 of 11
               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.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 7 of 11
[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.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 8 of 11
                        (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

       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 9 of 11
       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.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017            Page 10 of 11
[23]   Judgment affirmed.


[24]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-JT-1455 | March 13, 2017   Page 11 of 11
