MEMORANDUM DECISION
                                                               Aug 17 2015, 8:40 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
James C. Spencer                                          Gregory F. Zoeller
Datillo Law Office                                        Attorney General of Indiana
Madison, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 17, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of: K.C.                                                  39A01-1501-JT-18
                                                          Appeal from the Jefferson Circuit
And                                                       Court
G.C. (Father),
                                                          The Honorable W. Gregory Coy,
Appellant-Respondent,                                     Special Judge

        v.                                                Cause No. 39C01-1310-JT-08


The Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015    Page 1 of 13
      Bailey, Judge.



                                          Case Summary
[1]   G.C. (“Father”) appeals the termination of his parental rights to K.C.

      (“Child”), upon the petition of the Jefferson County Department of Child

      Services (“the DCS”). We affirm.



                                                    Issues
[2]   Father presents two issues for review:

              I.       Whether the DCS established, by clear and convincing
                       evidence, the requisite statutory elements to support the
                       termination decision; and
              II.      Whether the trial court abused its discretion by denying
                       Father’s motion for a continuance in order to have his parental
                       fitness evaluated after his release from incarceration.


                              Facts and Procedural History
[3]   Child was born in March of 2008 to T.H. (“Mother”) and Father. Mother and

      Father lived together for approximately one to two years after Child’s birth.

      Each of them struggled with drug addiction. In 2010, Mother gave birth to

      another child, whose paternity was established in B.M. In May of 2012, both

      children were removed from Mother’s care due to her substance abuse and

      inability to adequately supervise her children. Father was then incarcerated,

      serving a sentence for Forgery.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 2 of 13
[4]   On November 28, 2012, Child was found to be a Child in Need of Services

      (“CHINS”) and Mother was ordered to participate in services. The CHINS

      dispositional order was later modified to order Father’s participation in services

      after his release from prison. 1 Father was offered intensive outpatient therapy,

      drug screening, and visitation; he participated sporadically. During the

      pendency of the CHINS proceedings, Father was found in contempt of court

      for tampering with drug screens and facilitating visits between Child and

      Mother in violation of a no-contact order involving Father and Mother.


[5]   On October 30, 2013, the DCS petitioned to terminate the parental rights of

      Mother, Father, and B.M. One year later, after change-of-judge proceedings, a

      fact-finding hearing was conducted on October 1 and 2, 2014 and on December

      9 and 10, 2014. Father, who was then incarcerated on a probation violation

      following an arrest for domestic violence, was transported to court. At the

      outset of the hearing, he requested a continuance until his anticipated release

      date of March 20, 2015; the request was denied. During the hearing, Mother

      and B.M. each affirmatively assented to the termination of his or her parental

      rights. The hearing then proceeded as a contested hearing with regard to only

      Father’s parental rights. 2




      1
          Father was incarcerated for Forgery from November 30, 2012 to June 6, 2013.
      2
          Neither Mother nor B.M. is an active party on appeal.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 3 of 13
[6]   At the conclusion of the hearing, the trial court orally granted the termination

      petition. On January 5, 2015, the trial court entered its findings of fact,

      conclusions, and order. Father now appeals.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[7]   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.

      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
[8]   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.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 4 of 13
[9]    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:
               (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.
[10]   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.
       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 5 of 13
       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
[11]   Father contends that insufficient evidence supports the termination decision.

       He does not challenge the trial court’s determination pursuant to Sections 31-

       35-2-4(b)(2)(A) (removal from parent), but 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), (C) (best

       interests), and (D) (satisfactory plan).


[12]   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. Here, Father argues that the DCS failed to establish,

       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). Also, Father is very

       critical of the DCS plan to place Child in a foster home when the prospective

       foster parents have not specifically agreed to adoption and Father will

       ostensibly be ready to parent after a relatively short-term incarceration.

       According to Father, “at the time he was arrested in April 2014 Father was

       otherwise doing everything he needed to do,” he “had a four-month period of

       doing things right,” and “had he not got arrested for a domestic situation and
       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 6 of 13
       jailed for forty-five days followed by a probation violation, it is likely that

       Father’s visitation with K.C. could have resumed and the parent-child

       relationship could have been eventually restored, since his incarceration

       problem had been remedied.” (Appellant’s Br. at 11, 14.)


[13]   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. Initially, the DCS

       removed Child from Mother’s care because of Mother’s drug use and inability

       to provide for her children’s essential needs, including supervision. At that

       time, Father was incarcerated and thus could not provide for Child’s essential

       needs.


[14]   By the time of the termination hearing, Father was again incarcerated.

       Although he claims that he had otherwise been in compliance with the CHINS

       dispositional order, the evidence before the trial court does not support this

       assessment. Father submitted to drug screens, but several of them were not

       usable. Father later admitted to tampering. At least one screen tested positive

       for methamphetamine. Some screens tested positive for prescription drugs but

       Father was unable to produce current prescriptions.


[15]   Father participated in visitation, initially with positive parent-child interactions.

       However, after an unsupervised visit in Father’s home, Child reported

       witnessing an incidence of domestic violence. Father minimized the incident


       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 7 of 13
       and denied that Child had accurately described it. However, Child was very

       agitated and reported to her therapist having witnessed physical violence

       between her parents in the past.


[16]   When visitation was changed back to supervised visitation because of safety

       concerns, Father’s attitude became oppositional and he complained in the

       presence of Child. He cancelled or was a no-show for multiple visits. His

       attendance at therapy sessions also became sporadic. Father was chronically

       plagued by transportation problems, an inability to maintain stable housing,

       and a lack of adequate and verifiable income. 3 During his incarceration, Father

       participated in one self-improvement program. However, he became ineligible

       for continuation in the program after three conduct write-ups.


[17]   Father argues that some of the trial court’s findings of fact are inaccurate or

       unduly critical of Father. In particular, he challenges the findings as to non-

       payment of child support, eviction, employment, and visitation, and the finding

       that he had not had Child in his exclusive care or custody. Father had not been

       ordered to pay child support and this fact was not specifically stated by the trial

       court. However, the trial court’s statement that Father had not paid child

       support is technically correct. Father does not deny multiple evictions during




       3
         Multiple witnesses testified that Father worked and DCS was able to verify that Father was briefly
       employed as a temporary worker at a factory. However, when the management discovered that Father was
       listed as ineligible-for-rehire, his temporary employment was terminated. It appears that he was generally
       able to obtain work with a relative and was paid in cash. However, he could not comply with DCS requests
       for a paycheck stub and the amount of his income was apparently insufficient to reliably meet the needs of
       Father and his family.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015           Page 8 of 13
       the CHINS proceedings, but points out that his wife leased one of the

       residences and he was not a named lessor. As for the trial court’s finding that

       Father missed visitations, causing Child great distress, Father claims that only a

       single missed visit (where Child appeared, cried, and questioned Father’s

       absence) was a cause of distress to Child. Finally, Father argues that the trial

       court should have credited his testimony that he was customarily employed and

       the testimony of Mother that she had frequently relied upon Father to care for

       Child. 4 In short, Father asks that this court reweigh the evidence and accord

       greater weight to the testimony of his efforts and future aspirations. This we

       cannot do. In re A.A.C., 682 N.E.2d at 544.


[18]   As for Child’s best interests and the adequacy of the DCS plan, Father’s

       argument is essentially that Child’s placement with a biological parent would be

       preferential to placement with an unidentified adoptive family. The DCS plan

       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.”

       In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here, the plan for

       Child was placement with her sibling in a pre-adoptive foster home, an

       adequate plan.




       4
         Even so, Mother did not directly contradict the trial court’s finding that Father had not had the exclusive
       care or control of Child. Although Mother testified that Father sometimes had Child more than she did, this
       appears to reference a time when the parents shared custody of Child. Mother testified that she and Father
       lived together for a period of time after Child’s birth. They lived with Father’s sister. Mother described
       leaving Child in Father’s care while she worked. She did not specifically testify that Father had Child in his
       exclusive care or control.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015              Page 9 of 13
[19]   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). Father was

       incarcerated when Child was adjudicated a CHINS. Upon his release, he

       participated sporadically in services but was found in contempt of court for drug

       screen tampering and allowing visitation with Mother in violation of a no-

       contact order. He made some efforts with regard to employment, housing, and

       transportation but was unable to achieve stability in these areas for a significant

       period of time. By the time of the termination hearing, Father was again

       incarcerated, having pled guilty to a battery upon his current wife. The history

       of domestic violence between Father and Mother to which Child had been

       exposed caused her great anxiety. According to her therapist, it had been more

       than an isolated incident and Child had “traumatic memories.” (Tr. at 505.)

       Child’s guardian ad litem opined that Father was unable to achieve stability and

       recommended termination of Father’s parental rights.


[20]   The DCS presented sufficient 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,

       that termination of parental rights was in Child’s best interests, and that there

       was a satisfactory plan for Child.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 10 of 13
                                               Continuance
[21]   Generally, a trial court’s decision to grant or deny a motion to continue is

       reviewed for an abuse of discretion. In re K.W., 12 N.E.3d 241, 243-44 (Ind.

       2014). However, when a motion has been made to continue a termination

       hearing until a parent is no longer incarcerated, some of the factors previously

       applied to a motion to transport “help illuminate,” Id. at 244, a review of

       whether the parent showed good cause for a continuance or if the denial was an

       abuse of discretion. As applied to a motion to transport, these factors were:

               the delay resulting from parental attendance; (2) the need for an early
               determination of the matter; (3) the elapsed time during which the
               proceeding has been pending; (4) the best interests of the child(ren) in
               reference to the parent’s physical attendance at the termination
               hearing; (5) the reasonable availability of the parent’s testimony
               through a means other than his or her attendance at the hearing; (6)
               the interests of the incarcerated parent in presenting his or her
               testimony in person rather than by alternate means; (7) the effect of the
               parent’s presence and personal participation in the proceedings upon
               the probability of his or her ultimate success on the merits; (8) the cost
               and inconvenience of transporting a parent from his or her place of
               incarceration to the courtroom; (9) any potential danger or security
               risk which may accompany the incarcerated parent’s transportation to
               or presence at the proceedings; (10) the inconvenience or detriment to
               parties or witnesses; and (11) any other relevant factors.
       Id. at 244 (citing In re C.G., 954 N.E.2d 910, 922-23 (Ind. 2011).


[22]   Father was physically present and testified at the termination hearing. As such,

       a number of the foregoing factors are not implicated. Father and the DCS focus

       upon the need for an early determination, length of pending proceedings, and

       detriment. “[N]o abuse of discretion will be found in the denial of a motion to


       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 11 of 13
       continue if the movant was not prejudiced as a result.” Id. at 248 (citing Rowlett

       v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct.

       App. 2006), trans. denied.)


[23]   Child had been removed from Mother’s care more than two years before the

       termination hearing. On the first day of the termination hearing, Father orally

       requested a continuance. Father points out that he was requesting a delay of

       only a few months.5 However, the delay was not a few weeks causing “a

       minimal inconvenience to all others involved,” as in In re K.W., 12 N.E.3d at

       248. Too, our Supreme Court has recognized that, while a child’s best interests

       is served by an accurate proceeding, ‘“children have an interest in terminating

       parental rights that prevent adoption and inhibit establishing secure, stable,

       long-term, continuous relationships.”’ Id. (quoting In re C.G., 954 N.E.2d at

       917).


[24]   Father also asserts that he suffered a significant detriment from the denial of the

       continuance, as his parental fitness was assessed during his incarceration.

       Father does not claim that an incarcerated parent has a due process right to

       have his parental fitness assessed after his release from incarceration. Rather,

       he argues that he would much more likely be able to provide for Child after his

       release and the provision of more services; as such, the assessment of parental




       5
        Indiana Code Section 31-35-2-6(a)(2) provides that a trial court is to complete the hearing within 180 days
       after a petition to terminate parental rights has been filed. The failure to meet this deadline requires the trial
       court, upon motion by a party, to dismiss the petition without prejudice. Due to change-of-judge
       proceedings, the 180 day window had already been exceeded in this case.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015                 Page 12 of 13
       fitness should take place when he was in a more favorable situation. However,

       during the CHINS proceedings, Father was not able to adequately benefit from

       services provided and to establish a safe and stable home for Child.


[25]   A delay of several months – to provide Father yet another bite at the apple –

       would have been detrimental to Child’s best interests. We find no abuse of

       discretion in the trial court’s denial of Father’s motion to continue the

       proceedings until after his release from incarceration.



                                               Conclusion
[26]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights. The trial court did not abuse its

       discretion in denying the motion for a continuance of the proceedings until

       Father was no longer incarcerated.


[27]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1501-JT-18 | August 17, 2015   Page 13 of 13
