MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                     Mar 21 2017, 8:46 am
court except for the purpose of establishing
                                                                  CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel G. Foote                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 21, 2017
Child Relationship of:                                   Court of Appeals Case No.
                                                         49A02-1610-JT-2365
Ce.S. & Ch.S. (Minor Children),
and                                                      Appeal from the Marion Superior
                                                         Court
C.R.
                                                         The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge

        v.                                               The Honorable Larry E. Bradley,
                                                         Magistrate

The Indiana Department of                                Trial Court Cause No.
                                                         49D09-1512-JT-727
Child Services,                                          49D09-1512-JT-728
Appellee-Petitioner.




Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 1 of 10
                                            Case Summary
[1]   C.R. (“Father”) appeals the termination of his parental rights to Ce.S. and

      Ch.S. (“Children”), upon the petition of the Marion County Department of

      Child Services (“the DCS”).1 We affirm.



                                                      Issues
[2]   Father presents two issues for review:


              I.       Whether he was deprived of a fundamentally fair trial; and


              II.      Whether the DCS established, by clear and convincing
                       evidence, the requisite statutory elements to support the
                       termination decision.


                              Facts and Procedural History
[3]   On November 19, 2014, the DCS received a report that Mother had abandoned

      Children and fled to avoid an arrest warrant. At that time, Father was

      incarcerated. Children were placed in foster care.


[4]   On March 6, 2015, Mother admitted Children were children in need of services

      and Father waived a fact-finding hearing. In a dispositional order of April 10,




      1
       Children’s mother (“Mother”) consented to termination of her parental rights. She is not an active party on
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017           Page 2 of 10
      2015, Father was ordered to contact the DCS within 72 hours of his release

      from incarceration.


[5]   On December 2, 2015, the DCS petitioned to terminate Father’s parental rights.

      On September 21, 2016, the trial court conducted an evidentiary hearing on the

      termination petition. Mother appeared personally and by counsel, and

      consented to termination of her parental rights. Father appeared telephonically

      and by counsel. He testified that his earliest possible release date was in 2024,

      but that he was completing programs with the hope of time cuts. On September

      27, 2016, the trial court entered its findings of fact, conclusions and order

      terminating Father’s parental rights. This appeal ensued.



                                 Discussion and Decision
                                     Fundamental Fairness
[6]   Father claims that his parental rights were terminated in proceedings that were

      fundamentally unfair. More specifically, Father argues that the trial court

      should have sua sponte afforded him additional time to present witnesses, or his

      counsel should have requested this, after the following exchange took place

      during the evidentiary hearing:

              Father: Okay, is – how would I be able to go around calling
              State witnesses?


              Father’s Counsel: Okay, they’re being called right now. There’s
              gonna be another State witness called right now, and so it’ll just
              continue as we have been.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 3 of 10
        Father: Okay, because I wanna – how would I call, how, how
        would I go about getting’, my, like, State witnesses for me,
        witnesses for me –


        Father’s Counsel: If you have any there who are willing to talk,
        then you would just need to communicate with them to come in
        and sit with you in the room, and then you could let me know,
        about that, and we could call them.


        Father: Okay, could, is there any way that we can, maybe do a –
        a continuance?


        Father’s Counsel: No.


        Father: So I can?


        Father’s Counsel: No.


        Father: I thought I was – I thought I was allowed a continuance.


        Father’s Counsel: No. There’s always [sic] been a motion for a
        continuance that’s been denied in this case. Okay, now the room
        is full, [Father], so, you know, everybody’s hearing our
        conversation, so – we’re gonna go forward now, with the case.


(Tr. at 32-33.) According to Father “once it became apparent that Father

wished to consult with his counsel and was plainly uncertain as to whether or

how he could go about calling witnesses, the trial should have been continued –

or at the very least bifurcated – so that Father could call witnesses at another

session in the near future.” Appellant’s Br. at 2-21.



Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 4 of 10
[7]   The decision to grant or deny a motion for a continuance is within the

      discretion of the trial court. Rowlett v. Office of Family & Children, 841 N.E.2d

      615, 619 (Ind. Ct. App. 2006). An abuse of discretion may be found in the

      denial of a motion for a continuance when the movant has shown good cause

      for granting the motion. Id. Here, however, Father simply did not move for a

      continuance. He cites no authority for the proposition that the trial court had a

      sua sponte duty to bifurcate the proceedings. Moreover, he has not identified

      any witness that he would have called given a continuance. Father has

      demonstrated no abuse of discretion.


[8]   Father also argues that his counsel should have more thoroughly consulted with

      him regarding potential witnesses and thus ascertained the need for a

      continuance. The applicable standard of review for alleged underperformance

      of counsel in termination proceedings was set forth by our Indiana Supreme

      Court in Baker v. County Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

      2004):


               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 5 of 10
[9]    The DCS presented multiple witnesses and Father also testified. His counsel

       elicited testimony of Father’s efforts to better himself while in prison, cross-

       examined DCS witnesses, and lodged appropriate objections. On appeal,

       Father does not identify an omitted witness or explain what anticipated

       testimony might have been forthcoming from them. Thus, his bald assertion of

       poor performance has no relevance to the quantum of evidence from which the

       trial court was to evaluate the probability of change and Children’s best

       interests. He has not shown that he was deprived of a fundamentally fair trial.


                   Standard of Review – Sufficiency of the Evidence
[10]   The State is required to prove that termination is appropriate by a showing of

       clear and convincing evidence, a higher burden than establishing a mere

       preponderance. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). When we review

       whether the termination of parental rights is appropriate, we will not reweigh

       the evidence or judge witness credibility. Id. at 1143. We will consider only the

       evidence and reasonable inferences that are most favorable to the judgment. Id.

       In so doing, we give “due regard” to the trial court’s unique opportunity to

       judge the credibility of the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.

       2010). When the trial court has entered findings of fact and conclusions

       thereon, we apply a two-tiered standard of review; first, we determine whether

       the evidence supports the findings, and second, we determine whether the

       findings support the judgment. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 6 of 10
[11]   The judgment will be set aside only if it is found to be clearly erroneous. In re

       R.S., 56 N.E.3d 625, 628 (Ind. 2016). However, the reviewing court may also

       consider the statutory requirement that in a proceeding to terminate parental

       rights, the findings must be supported by clear and convincing evidence. Id.

       Thus, we review the judgment to determine whether the evidence clearly and

       convincingly supports the findings and the findings clearly and convincingly

       support the judgment. Id. Termination of parental rights is a “last resort” to be

       implemented when all other reasonable efforts have failed. Id. at 631.


         Requirements for Involuntary Termination of Parental Rights
[12]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

       of a constitutional dimension, they are not absolute and the law provides for the

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

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

       N.E.2d 143, 147 (Ind. 2005).


[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 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.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 7 of 10
               (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.


                                                    Analysis
[14]   Father contends that insufficient evidence supports the termination decision.

       He concedes that Children have been removed for the requisite time-period. He

       does not specifically challenge the proof as to the element of a satisfactory plan

       or whether there is clear and convincing evidence of a reasonable probability


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 8 of 10
       that he would fail to remedy the conditions that led to Children’s removal or a

       threat to Children from continuation of the parent-child relationship. Father

       focuses upon whether the DCS established by clear and convincing evidence

       that termination is in Children’s best interests.


[15]   The State must prove each element by clear and convincing evidence;

       accordingly, if the State fails to prove any one of the four statutory elements,

       then it is not entitled to a judgment terminating parental rights. In re R.S., 6

       N.E.3d at 629. Where the findings do not support the conclusion that

       termination is in a child’s best interests, the reviewing court need not reach the

       issue of whether other elements were satisfied. See id.


[16]   In determining what is in a child’s best interests, the court must look to the

       totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App.

       2013), trans. denied. In this regard, the trial court made several factual findings:

       Father was incarcerated on Burglary and Neglect of a Dependent convictions,

       with an anticipated release date of September 11, 2014; he had a prior criminal

       history; he had not ever seen his son and had last seen his daughter when she

       was seven months old; Father had made, at most, one effort to communicate

       with Children during his incarceration; Children were bonded with their foster

       parents in a pre-adoptive home; and the foster parents involved Children in

       continuing therapy and implemented the therapy recommendations at home.

       These factual findings were supported by testimony from caseworkers,

       Children’s foster mother, and the Guardian Ad Litem, unanimously opining



       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 9 of 10
       that Children had thrived in foster care and were bonded to their foster parents

       as opposed to Father.


[17]   Indeed, Father’s own testimony supported the trial court’s findings of fact as to

       his inability to care for Children. He stated that his “current” earliest possible

       release date was in 2024, although he hoped for time cuts totaling four years

       and four months. (Tr. at 75.) Father admitted that he had not contacted the

       DCS in thirteen months and had engaged in only one telephone call with his

       daughter. Father conceded that he was unable to care for Children but

       requested that they be placed with his parents. However, a prior placement

       with the paternal grandparents had failed after one day. The DCS showed, by

       clear and convincing evidence, that termination of Father’s parental rights was

       in Children’s best interests.



                                               Conclusion
[18]   Father was not deprived of a fundamentally fair trial. The DCS presented

       sufficient evidence to support the termination decision.


[19]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JT-2365 | March 21, 2017   Page 10 of 10
