                                                                                      Oct 10 2013, 5:37 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:

JILL M. ACKLIN                                        ROBERT J. HENKE
Acklin Law Office, LLC                                DCS Central Administration
Westfield, Indiana
                                                      PATRICK M. RHODES
                                                      Indiana Department of Child Services
                                                      Indianapolis, Indiana



                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE INVOLUNTARY TERMINATION                     )
OF THE PARENT-CHILD RELATIONSHIP OF                   )
R.C. and M.C.:                                        )
                                                      )
Ro.C. (Father)                                        )
                                                      )
       Appellant-Respondent,                          )
                                                      )
                 vs.                                  )       No. 49A02-1303-JT-194
                                                      )
THE INDIANA DEPARTMENT OF CHILD                       )
SERVICES,                                             )
                                                      )
       Appellee-Petitioner.                           )
                                                      )


                       APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Marilyn Moores, Judge
                           The Honorable Larry Bradley, Magistrate
                              Cause No. 49D09-1209-JT-37595
                              Cause No. 49D09-1209-JT-37596


                                           October 10, 2013
                    MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge


          R.C. (Father) appeals the involuntary termination of his parental rights to Ro.C. and

M.C. (collectively, the Children) and argues that his trial counsel’s allegedly deficient

performance entitles him to a new trial.

          We affirm.

          Re.C. (Mother) gave birth to Ro.C. on June 7, 2010 and M.C. on August 6, 2011.1

Father is the alleged father of the Children. At the time of her birth, M.C. tested positive for

opiates. On September 12, 2011, the Marion County Department of Child Services (DCS)

filed a petition alleging that the Children were children in need of services (CHINS). The

petition alleged that M.C. had tested positive for opiates at birth and Mother had admitted to

a history of substance abuse, including regular drug use throughout her pregnancy. The

petition also alleged that Father had a history of drug use and that Mother’s older child, A.D.,

had witnessed drug use and domestic violence in the home.2 The petition further alleged that

Father had physically abused A.D. on multiple occasions and that Ro.C. had special needs

that were not being met by the parents. On the same day, the juvenile court held an initial

hearing at which Father appeared and counsel was appointed for him. At the hearing, the

court ordered the Children placed in Mother’s care on a temporary trial in-home visit,




1
    The juvenile court also terminated Mother’s parental rights. Mother does not participate in this appeal.
2
    The petition also alleged that A.D. was a CHINS. A.D. is not a subject of this appeal.

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contingent upon Mother’s participation in services. The court also authorized Father to have

supervised parenting time.

       Over the next year, there were more than ten hearings in the CHINS proceedings, but

Father rarely appeared. At a hearing on November 7, 2011, at which Father failed to appear,

the juvenile court ordered the Children removed from Mother’s care and authorized

placement in foster care or relative care. At a hearing held on February 9, 2012, at which

Father again failed to appear, Father’s attorney waived Father’s right to a fact-finding hearing

and the juvenile court adjudicated the Children CHINS based on Mother’s admissions. On

March 22, 2012, Father again failed to appear and the juvenile court entered a parental

participation order requiring Father to establish paternity. Because paternity had not yet been

established, Father was not ordered to complete any additional services at that time.

Nevertheless, Family Case Manager (FCM) Marie Skelton provided Father with referrals for

home-based services, domestic violence education, substance abuse counseling, and random

drug screens. Aside from briefly participating in home-based services and completing a few

drug screens (some of which tested positive for the presence of drugs), Father failed to

follow through with services, telling FCM Skelton that “it was just too much.” Transcript at

71. Although Father initially participated in supervised visitation, his attendance became

inconsistent and, as a result, visitation was suspended. Additionally, throughout the CHINS




                                               3
proceedings, Father lacked stable housing and was only sporadically employed. Father also

failed to establish paternity as ordered.3

        On September 20, 2012, the juvenile court conducted a review hearing at which the

Children’s permanency plan was changed from reunification to adoption because, among

other things, Father had failed to establish paternity. On September 25, 2012, the DCS filed

a petition to terminate Mother’s and Father’s parental rights. Father failed to appear at the

initial TPR hearing on October 12, 2012, and the hearing was continued until October 19,

2012. Father appeared at the October 19 hearing, and the juvenile court appointed counsel

for him. Father appeared with counsel at the evidentiary hearing on the TPR petition on

January 28, 2013. At the conclusion of the evidence, the trial court took the matter under

advisement. On February 4, 2013, the juvenile court entered its order terminating Mother’s

and Father’s parental rights. The juvenile court entered the following relevant findings and

conclusions:

        10. Paternity had not been established and no services were ordered for
        [Father] except that he was first to establish paternity. The Court takes judicial
        notice of In re M.R. v. State Department of Child Services, 934 N.E.2d 1253
        (Ind. Ct. App. 2010), holding that without first establishing paternity to
        determine an alleged father is indeed a “parent” under [the] statutory
        definition, the court is without authority to enter a parental participation
        decree.
                                               ***
        20. [Father] has not established paternity o[f] the children although ordered to
        do so in March of 2012. Testimony was that he was waiting for someone to

3
  At the termination hearing, Father claimed to have established his paternity to Ro.C., but provided no
evidence to support his assertion. Additionally, Father attempted to stipulate to his paternity of the Children,
but it is beyond dispute that paternity may not be established in this manner. See In re M.R., 934 N.E.2d 1253,
1255 (Ind. Ct. App. 2010) (holding that “[t]he exclusive means to establish a man’s paternity is through an
action filed pursuant to the paternity statute or by executing a paternity affidavit”). The juvenile court found
that Father had not established paternity.

                                                       4
call him. He had met with Mr. Thompson, who facilitates the process, early in
the case.
21. Although not ordered, the [DCS] referred services of domestic violence
education, urine screens and home based case management for [Father]. He
participated in home based services for a short period of time.
22. The C[H]INS Court found at its June 28, 2012 Review Hearing that
[Father] had visited the children inconsistently, refused to participate in
services and openly admits to continued use of marijuana and vicodin. Based
on that finding and [Mother’s] non-participation, the Court scheduled the next
hearing as a Permanency Hearing at which time it was found to be in the
children’s best interests that the permanency plan be changed to adoption.
23. If paternity was established, [Father] would need to complete domestic
violence education.
24. If paternity was established, [Father] would need to complete a substance
abuse program. He started using marijuana when he was age twelve. He
reported he last used one and one-half months before the trial in this matter.
He also admitted taking non-prescribed vicodin.
25. If paternity was established, [Father] would need to complete home based
case management and therapy. [Father] has a history of instability. At the
time of trial in this matter, [Father] was unemployed and lived in a one
bedroom residence with [Mother’s] sister and child.
26. [Father] worked at a restaurant for three weeks and has done roofing and
yard work. He testified he was paid “under the table” in cash. If paid by
check, child support for another child would be taken out, not leaving him with
much.
27. [Father] agreed that he was very inconsistent in visiting the children. His
visits were suspended by the C[H]INS Court on June 28, 2012.
28. In November of 2012, two months after the Permanency Hearing on
September 20, 2012, [Father] looked into services with the help of his
girlfriend.
29. On January 7, 2012, [Father] started participating in Fathers and Families,
working on his G.E.D. and parenting. He has plans to take domestic violence
classes, substance abuse classes and a welding course.
30. If his parental rights are not terminated, [Father] and his girlfriend plan on
obtaining housing for the two children, [Father] and his girlfriend, and her
three children.
31. There is a reasonable probability that the conditions that resulted in the
removal and continued placement of the children out of the home will not be
remedied by their alleged father. From September 2011 until January of 2013,
[Father] did little in his C[H]INS case. He has failed to take the initial step of
establishing paternity. If he establishes paternity, he would still not only have
to successfully complete services originally referred but must also obtain and

                                        5
       maintain adequate income and appropriate, stable housing as well as overcome
       transportation issues.
       32. Continuation of the parent-child relationship poses a threat to the
       children’s well-being. Without successfully completing services, neither
       parent can provide a safe and stable environment for the children or meet their
       basic needs, let alone [Ro.C.’s] special needs. [Mother] has virtually
       abandoned the children, and [Father’s] last minute participation is “too little
       too late” when considering that continuation of the parent-child relationship
       only poses a barrier to obtaining permanency for the children.

Appellant’s Appendix at 18-19. Father now appeals.

       On appeal, Father does not challenge the sufficiency of the evidence or the legal

merits of the juvenile court’s decision to terminate. Rather, Father’s sole argument is that his

appointed counsel’s performance was so deficient that he is entitled to a new termination

hearing. In Baker v. Marion Cnty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

2004), our Supreme Court set forth the standard applicable to such claims as follows:

       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.

(footnote omitted).

       The sole basis asserted for Father’s contention that his trial counsel underperformed is

that counsel’s “primary theory of the case does not find support under applicable Indiana

law.” Appellant’s Brief at 6. Father asserts that trial counsel “repeated[ly] mention[ed] that

[Father] was court-ordered to establish paternity in the CHINS action but did not do so[,]”


                                               6
but that counsel “pointed to no authority, and there is none, that a parent can avoid TPR

consequences by simply failing to establish [paternity].” Id. at 8. Father argues that

counsel’s alleged repeated references to Father’s failure to establish paternity were harmful

to Father.

       As an initial matter, our review of the transcript does not reveal excessive references

by Father’s counsel to Father’s failure to establish paternity. Moreover, to the extent that

counsel did make reference to Father’s failure to establish paternity, counsel’s purpose in

doing so was apparent. As the DCS explains, “Father’s counsel was merely trying to point

out that DCS could not use Father’s failure to complete services against Father because the

juvenile court in the CHINS proceeding only ordered Father to establish paternity in its

Parental Participation order” and, further, counsel was “trying to impress upon the court the

fact that Father participated in services despite not being ordered to do so.” Appellee’s Brief

at 13. Although counsel’s tactic of highlighting the fact that Father had not been ordered to

participate in services because he had not established paternity may not be a conventional

strategy, this is more a reflection of the bleak factual scenario with which counsel was

presented than any failure on counsel’s part.

       In any event, aside from the conclusory assertion that “[i]t cannot be said with

confidence that [Father] received a fair trial with a trial counsel whose theory of the case is

not supported by the law”, Appellant’s Brief at 9, Father has made no attempt to explain how

counsel’s purportedly deficient performance rendered the trial unfair or undermines this

court’s confidence in the accuracy of the juvenile court’s conclusions. In light of the


                                                7
introduction of documents from the CHINS proceedings and testimony of other witnesses, it

is clear that the juvenile court was already well aware that Father had not established

paternity; it is not as if the court might have overlooked this very significant fact in the

absence of counsel’s reminders. Even if we believed that counsel’s performance was

somehow deficient (which we do not), the purported harm falls far below the threshold

necessary to establish entitlement to a new TPR hearing.

       Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.




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