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.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020                      Page 1 of 14
[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.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020                  Page 2 of 14
      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




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 3 of 14
      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




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 4 of 14
       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,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 5 of 14
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 6 of 14
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 7 of 14
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 8 of 14
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 9 of 14
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 10 of 14
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 11 of 14
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 12 of 14
       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).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020   Page 13 of 14
[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).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1576 | March 17, 2020                          Page 14 of 14
