MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                    Jan 29 2019, 9:18 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
Steven E. Ripstra                                         Curtis T. Hill, Jr.
Ripstra Law Office                                        Attorney General of Indiana
Jasper, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 29, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: R.L., L.L., and                          18A-JT-2253
A.L. (Minor Children),                                    Appeal from the Dubois Circuit
                                                          Court
and                                                       The Honorable Nathan A.
                                                          Verkamp, Judge
T.L. (Father) and O.S. (Mother),                          Trial Court Cause Nos.
Appellants-Respondents,                                   19C01-1805-JT-162
                                                          19C01-1805-JT-163
        v.                                                19C01-1805-JT-164

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019                     Page 1 of 13
      Bradford, Judge.



                                           Case Summary
[1]   T.L. (“Father”) is the father of R.L., L.L., and A.L. (“the Children”). The

      Department of Child Services (“DCS”) removed the Children from Father’s

      care due to concerns of domestic violence and drug abuse by Father and the

      Children’s mother. The Children were subsequently determined to be children

      in need of services (“CHINS”) and Father was ordered to participate in and

      complete certain services. While Father did participate in some services, he

      failed to consistently participate in or successfully complete any of the services.

      He also failed to abstain from using drugs. Given Father’s failure to abstain

      from using drugs and to successfully complete the court-ordered services, which

      were aimed at helping him address his drug abuse issues and deficiencies in

      providing adequate care for the Children, DCS sought the termination of

      Father’s parental rights in the Children.


[2]   At the beginning of the evidentiary hearing, Father requested a thirty-day

      continuance so that he could allegedly enter an in-patient drug-treatment

      program. The juvenile court denied Father’s request and the evidentiary

      hearing proceeded as scheduled. Following the conclusion of the evidentiary

      hearing, the juvenile court granted DCS’s petitions to terminate Father’s

      parental rights in the Children. On appeal, Father contends that the juvenile

      court abused its discretion and violated his due process rights by denying his

      request for a continuance. Concluding otherwise, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 2 of 13
                              Facts and Procedural History
[3]   Father is the biological father of the Children. 1 On July 18, 2017, DCS filed

      petitions alleging that the Children were CHINS. In these petitions, DCS

      alleged that the Children were the victims of neglect due to parental domestic

      violence and drug use. Following a limited admission by Father, the juvenile

      court found the Children to be CHINS on August 23, 2017. The juvenile court

      subsequently ordered Father to participate in certain services aimed at

      reunification. Father was required to contact the family case manager (“FCM”)

      on a weekly basis; notify the FCM of any changes in address or employment;

      enroll in all programs recommended by the FCM; keep all appointments with

      service providers; maintain suitable, safe, and stable housing; secure and

      maintain a legal and stable source of income; assist in the formulation and

      implementation of a protection plan for the Children; refrain from using drugs

      or alcohol; complete a substance abuse assessment and successfully complete all

      treatment recommendations; submit to random drug screens; meet all personal

      medical and mental health needs; and attend all scheduled visitations with the

      Children.


[4]   During a November 20, 2017 review hearing, the juvenile court found that

      Father had not complied with the Children’s case plans and was not




      1
         Although Mother’s parental rights were also terminated, she does not participate in this appeal. As such,
      we will limit our discussion to facts pertinent to the juvenile court’s orders terminating Father’s parental
      rights in the Children.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019                  Page 3 of 13
      consistently participating in services. Specifically, Father had not consistently

      participated in parent-aide or home-based counseling sessions, only submitted

      to thirteen of the twenty-six ordered drug screens and had tested positive on

      seven of the thirteen screens, and attended seventeen of the twenty-one

      scheduled visitation sessions. Given Father’s inconsistent participation and

      positive drug screens, the juvenile court found that Father had not enhanced his

      ability to fulfill his parental obligations.


[5]   Another review hearing was held on February 20, 2018. During this hearing,

      the juvenile court again found that Father had not complied with the Children’s

      case plans and was not consistently participating in services. Specifically,

      Father did not attend any of the seven scheduled parent-aide sessions or any of

      the three scheduled home-based therapy sessions. He submitted to only six of

      the eighteen scheduled drug screens, and of those six, tested positive on five.

      Father attended only seven of the seventeen scheduled visits with the Children.

      Based on Father’s inconsistent participation and positive drug screens, the

      juvenile court again found that Father had not enhanced his ability to fulfill his

      parental obligations.


[6]   A permanency hearing was held on April 17, 2018. During this hearing, the

      juvenile court again found that Father had not complied with the Children’s

      case plans and was not consistently participating in services. Specifically,

      Father did not attend any of the three scheduled parent-aide sessions. Father

      submitted to only two of the eleven scheduled drug screens and tested positive

      on both. He attended four of the five scheduled visits with the Children.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 4 of 13
      Further, while Father did participate in two therapy sessions scheduled through

      Lifeline, his prior therapy treatment offered through Raintree was closed due to

      Father’s non-compliance. In addition, as of the date of the hearing, Father had

      completed only one half of his court-ordered psychological evaluation. At the

      conclusion of the hearing, the juvenile court changed the permanency plan to

      termination and adoption.


[7]   DCS filed petitions seeking the termination of Father’s parental rights in the

      Children on May 16, 2018. The juvenile court held an evidentiary hearing on

      July 11, 2018. During the evidentiary hearing, Father requested a thirty-day

      continuance. In making this request, Father indicated that he wished to enroll

      in an in-patient drug-treatment program. The juvenile court denied Father’s

      request and the evidentiary hearing continued as scheduled. On July 20, 2018,

      the juvenile court issued orders terminating Father’s parental rights in the

      Children.



                                 Discussion and Decision
[8]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise his child. Bester v. Lake

      Cty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Although

      parental rights are of a constitutional dimension, the law allows for the

      termination of those rights when a parent is unable or unwilling to meet his

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 5 of 13
       subordinated to the best interests of the child. Id. Termination of parental

       rights is proper where the child’s emotional and physical development is

       threatened. Id. The juvenile court need not wait until the child is irreversibly

       harmed such that his physical, mental, and social development is permanently

       impaired before terminating the parent—child relationship. Id.


[9]            In considering whether the termination of parental rights is
               appropriate, we do not reweigh the evidence or judge witness
               credibility. We consider only the evidence and any reasonable
               inferences therefrom that support the judgment … and give due
               regard to the trial court’s opportunity to judge the credibility of
               the witnesses firsthand. Where a trial court has entered findings
               of fact and conclusions of law, we will not set aside the trial
               court’s findings or judgment unless clearly erroneous. In
               evaluating whether the trial court’s decision to terminate parental
               rights is clearly erroneous, we review the trial court’s judgment to
               determine whether the evidence clearly and convincingly
               supports the findings and the findings clearly and convincingly
               support the judgment. Clear and convincing evidence need not
               reveal that the continued custody of the parents is wholly
               inadequate for the child’s very survival. Rather, it is sufficient to
               show by clear and convincing evidence that the child’s emotional
               and physical development are threatened by the respondent
               parent’s custody.


       K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1229–

       30 (Ind. 2013) (internal citations and quotations omitted).


                                      I. Motion to Continue
[10]   In challenging the termination of his parental rights, Father bases his “broad

       assertions not on a failure of the State or the court to comply with the technical

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 6 of 13
       terms of the applicable statutes.” Appellant’s Br. p. 15. “The gravamen of his

       argument is the court’s refusal to give him a brief continuance to receive in-

       patient treatment for his addiction.” Appellant’s Br. p. 15.


[11]   “Generally speaking, a trial court’s decision to grant or deny a motion to

       continue is subject to abuse of discretion review.” In re K.W., 12 N.E.3d 241,

       244 (Ind. 2014).


               We will reverse the trial court only for an abuse of that
               discretion. An abuse of discretion may be found in the denial of
               a motion for a continuance when the moving party has shown
               good cause for granting the motion. However, no abuse of
               discretion will be found when the moving party has not
               demonstrated that he or she was prejudiced by the denial.


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

       Ct. App. 2006) (internal citations omitted), trans. denied.


[12]   Father points to our decision in Rowlett in support of his contention that the

       trial court abused its discretion by denying his request for a thirty-day

       continuance. In Rowlett, the father requested a continuance of the upcoming

       evidentiary hearing. 841 N.E.2d at 618. The father, who was scheduled to be

       released from prison approximately six weeks after the scheduled hearing,

       argued that the continuance was necessary to allow him the opportunity to

       complete court-ordered services and work toward reunification with his

       children. Id. at 619. In concluding that the trial court abused its discretion in

       denying the request for a continuance, we noted that while incarcerated, the

       father had participated in numerous services and programs offered by the
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 7 of 13
       correctional facility aimed toward helping him reach his goal of reunification

       with his children. Id. We further noted that because the children had been in

       the care of their maternal grandmother since they were determined to be

       CHINS and DCS’s plan was for them to be adopted by maternal grandmother,

       under those specific circumstances, “continuation of the dispositional hearing

       until sometime after [the father] was released would have had little immediate

       effect upon the children.” Id. Rowlett, however, is distinguishable from the case

       now before us.


[13]   Unlike in Rowlett, Father’s lack of participation was a result of Father’s choices,

       not some other barrier. For instance, Father was not incarcerated or otherwise

       denied the opportunity to complete the court-ordered services. He admitted

       that he was offered services, such as counseling to address his drug-abuse issues,

       but he did not substantially participate in the services offered. Father admitted

       that he continued to use drugs during the underlying CHINS and termination

       proceedings.


[14]   Father asserts that DCS never offered him the opportunity to participate in an

       in-patient drug-treatment program. Father, however, does not indicate that he

       ever communicated any desire to do so prior to the evidentiary hearing. He

       also does not explain why he waited until the evidentiary hearing to

       communicate his alleged desire to participate in an in-patient drug-treatment

       program.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 8 of 13
[15]   “A parent may not sit idly by for such an extended period without asserting a

       need and desire for services and then successfully argue that [he] was denied

       services to assist [him] with [his] parenting.” Jackson v. Madison Cty. Dep’t of

       Family & Children, 690 N.E.2d 792, 793 (Ind. Ct. App. 1998), trans. denied.

       Moreover, we reject Father’s suggestion that his failure to achieve and maintain

       sobriety in a timely fashion can be blamed on either the trial court or DCS. As

       we stated in Prince v. Department of Child Services, 861 N.E.2d 1223, 1231 (Ind.

       Ct. App. 2007),


               [f]rom one parent to the next, the DCS and trial court have no
               way to know whether addictions treatment is failing because the
               treatment is not the most appropriate for the parent or because
               the parent simply does not care enough about reunification to
               maintain sobriety under any form of treatment. Accordingly, we
               will not place a burden on either the DCS or the trial court to
               monitor treatment and to continually modify the requirements
               for drug and alcohol treatment until a parent achieves sobriety.
               Rather, the responsibility to make positive changes will stay
               where it must, on the parent. If the parent feels the services
               ordered by the court are inadequate to facilitate the changes
               required for reunification, then the onus is on the parent to
               request additional assistance from the court or DCS.


[16]   This is not a situation where Father actively participated in the services offered

       but nonetheless required additional intensive services to overcome his

       addiction. Instead, the record reveals that Father demonstrated little interest in

       participating in any of the drug-treatment programs offered by DCS. For

       instance, the record reveals that Father attended only one of the fifteen offered

       parent-aide sessions. He only attended one home-based therapy session, even

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 9 of 13
       though at least three others were offered. He submitted to only twenty-one of

       the fifty-five scheduled drug screens. Of the twenty-one, he tested positive for

       drugs fourteen times. In addition, Father only completed one half of the court-

       ordered psychological evaluation. Further, while Father did participate in two

       scheduled therapy sessions offered through Lifeline, his previous therapy

       services scheduled through Raintree were closed due to his “non-compliance

       [with] those services.” Ex. p. 95.


[17]   Father admitted that his participation in visitation with the Children was

       inconsistent, blaming his inconsistent attendance on a lack of communication

       and transportation. Specifically, Father stated that he (1) did not have a phone

       and therefore could not call to inform DCS that he would attend a visitation

       session and (2) lacked transportation. 2 Father acknowledged, however, that he

       could have accessed a phone and walked to visitation sessions if he had truly

       been motivated to do so.


[18]   Father also admitted that he was unemployed as of the date of the evidentiary

       hearing. When asked what he does during the day, Father indicated that he

       “mainly sit[s] around” and tries to “think of ways to get help” but will

       ultimately “just shrug it off” and “think of ways to get high.” Tr. p. 53. Father




       2
        The requirement that Father call prior to a visitation session was put into place after “multiple occasions
       where [the] kiddos were transported to the [visitation center] and [Father] no-call, no showed.” Tr. p. 77.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019                 Page 10 of 13
       also admitted that he did not have “a residence [he] live[s] at” and was “in

       between places.” Tr. p. 55.


[19]   He further admitted that although he had been offered counseling to address his

       issues stemming from his drug use, he did not substantially participate in the

       counseling. Father blamed his failure to substantially participate in services on

       the removal of the Children from his care, explaining “[i]t’s hard to do anything

       consistent when you don’t have your kids right there to look at.… Now we

       don’t have our kids, we can forget every second.” Tr. pp. 57–58. Father

       acknowledged that he continued to use drugs and that he was currently unable

       to provide the Children with stability.


[20]   While Father admitted that the Children “shouldn’t have to wait” on him to

       progress to the point where he could provide them with stability, he also stated

       “But if I could ask my kids to wait another [thirty-one] days, that would be

       great.” Tr. p. 61. Father acknowledged that he had not yet scheduled an

       appointment with any in-patient treatment facility, but merely suggested that he

       might be able to live drug-free and provide stability for the Children if he

       entered in-patient treatment “for [thirty] days … maybe [thirty-one] days.” Tr.

       p. 55. Father, however, also indicated that he did not believe that it was

       necessary for children to live in a drug-free home.


[21]   Father’s apparent disinterest in participating in the services offered or in living a

       drug-free lifestyle coupled with the fact that he waited until the day of the

       evidentiary hearing to request the opportunity to complete an in-patient drug-


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 11 of 13
       treatment program suggests that this request is more of a delay tactic than a true

       desire to get the treatment necessary to help him become an effective parent.

       Further, given Father’s failure to consistently participate in the services that

       were offered, there is nothing in the record to suggest that DCS could have

       reasonably believed that Father would be interested in participating in more

       intensive services, such as an in-patient drug-treatment program. As such, we

       cannot say that he was prejudiced by the denial of his motion for a continuance.

       We therefore conclude that the trial court did not abuse its discretion in denying

       Father’s motion. See Rowlett, 841 N.E.2d at 619 (providing that no abuse of

       discretion will be found when the moving party has not demonstrated that he

       was prejudiced by the denial of his request for a continuance).


                                II. Sufficiency of the Evidence
[22]   While Father generally claims that DCS presented insufficient evidence to

       prove that the conditions resulting in the Children’s removal from his care

       would not be remedied, the continuation of the parent—child relationship

       posed a threat to the Children, and termination was in the Children’s best

       interests, 3 Father’s claims are limited to his contention that the juvenile court

       abused its discretion by denying his motion to continue. Father does not point

       to any alleged deficiencies in DCS’s evidence or allege that any of the juvenile




       3
         These factors are the factors alleged in accordance with Indiana Code section 31-35-2-4(b)(2)(B) and (C).
       Father does not challenge the sufficiency of the evidence to prove any of the factors alleged under Indiana
       Code section 31-35-2-4(b)(2)(A) and (D), namely that the Children have been removed from his care for at
       least six months and that DCS has a satisfactory plan for the care and treatment of the child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019                Page 12 of 13
       court’s findings of fact or conclusions thereon relating to these factors are

       clearly erroneous. Therefore, to the extent that Father raises a separate

       sufficiency challenge, Father has waived any such challenge. See generally, In re

       B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (providing that because the

       parent did not specifically challenge the trial court’s findings or conclusions,

       any argument that the trial court’s findings or conclusions were clearly

       erroneous was waived), trans. denied.


[23]   The judgment of the juvenile court is affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2253 | January 29, 2019   Page 13 of 13
