MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Apr 18 2018, 10:55 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kyle K. Dugger                                            Curtis T. Hill, Jr.
Monroe County Public Defender                             Attorney General
Bloomington, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 18, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.S. (Minor                               53A01-1710-JT-2340
Child)                                                    Appeal from the Monroe Circuit
and                                                       Court
                                                          The Honorable Stephen R. Galvin,
X.S. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          53C07-1607-JT-472
        v.

Indiana Department of Child
Services,
Appellee-Petitioner



Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018              Page 1 of 12
                                           Case Summary
[1]   X.S. (“Father”) appeals the termination of his parental rights to his daughter,

      arguing that the trial court should have granted his motion to continue the

      termination hearing. We agree and remand for further proceedings.



                            Facts and Procedural History
[2]   This is an appeal from the termination of Father’s parental rights by Monroe

      Circuit Court 7, but the case revolves around Father’s history of drug-related

      criminal charges in Monroe Circuit Court 2. In 2007, Father was charged with

      Class B felony possession of cocaine (“Case 1186”). He pled guilty and was

      sentenced to twenty years with ten years suspended. He was released to

      probation in March 2012. Two years later, in April 2014, Father was charged

      with Class D felony possession of cocaine, Class D felony strangulation, and

      Class A misdemeanor domestic battery (“Case 468”). At the same time, the

      State petitioned to revoke Father’s probation in Case 1186. Father pled guilty

      as charged in Case 468 and was sentenced to one year in Community

      Corrections, to be served on home detention. The court also ordered Father to

      serve one year of his suspended sentence in Case 1186 on home detention,

      running consecutive to the sentence in Case 468, for a total of two years on

      home detention.


[3]   On December 9, 2014, while Father was serving his home-detention sentence,

      his daughter, A.S., was born. At birth, A.S. exhibited drug-withdrawal


      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 2 of 12
      symptoms, so hospital staff ran a drug screen, which came back positive for

      cocaine. The Department of Child Services (DCS) was contacted and began

      working with Father and A.S.’s mother.1 DCS offered the parents substance-

      abuse treatment through its Sobriety Treatment and Recovery Team (START)

      program. Both parents, however, continued to use illegal drugs and failed drug

      screens. On December 22, two weeks after A.S. was born, DCS removed her

      from the home. The next day, DCS filed a child in need of services (CHINS)

      petition in Circuit Court 7.


[4]   One week after A.S. was removed from the home, Father was arrested for

      violating the terms of his home detention in Case 468. However, Circuit Court

      2 allowed him to continue serving his sentence on home detention. In January

      2015, Father voluntarily completed a substance-abuse evaluation, and it was

      recommended that he begin intensive outpatient treatment (IOP). On February

      12, a hearing was held on the CHINS petition, Father admitted to the

      allegations, and A.S. was adjudicated a CHINS. A dispositional hearing was

      scheduled for March 9. Before that hearing, Father voluntarily began IOP.

      After the dispositional hearing, the court ordered Father to participate in

      services with DCS, including individual therapy, IOP, and supervised visits

      with A.S.




      1
       A.S.’s mother consented to A.S. being adopted and is not a party to this appeal. Accordingly, we discuss
      only the facts relevant to Father’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018           Page 3 of 12
[5]   DCS was in the process of setting up services for Father when, on April 27, he

      was arrested and charged with three counts of dealing in cocaine, a Level 5

      felony (“Case 397”). The charges were pending for fifteen months, and the

      record includes very little information regarding what transpired in the CHINS

      case over this time. We only know that Father remained incarcerated at the

      Monroe County Jail, that he exercised visits with A.S. every sixty days, and

      that he completed eight sections of a cognitive-skills workbook that focused on

      cognition mapping, traditional versus criminal values, relationships, personal

      inventories, boundaries, and anger management. Tr. Vol. II p. 39.


[6]   In July 2016, Father pled guilty to one count of dealing in cocaine in Case 397.

      Circuit Court 2 sentenced Father to four years in the Department of Correction

      (DOC) and also ordered him to serve the remainder of his suspended sentence

      in Case 1186—nine years—consecutive to his sentence in Case 397, for a total

      of thirteen years. The State recommended Father for Purposeful Incarceration,

      which is a nine-to-eleven-month program for “chemically addicted offenders”

      whose addictions “are directly related to their criminal behavior.” Purposeful

      Incarceration, www.in.gov/idoc/2798.htm. The program combines group and

      individual counseling to address substance-abuse recovery, rational thinking,

      criminal lifestyles, dysfunctional families, work stress, anger management, and

      relapse prevention. Tr. Vol. II pp. 40-41. The court followed the State’s

      recommendation, referred Father to Purposeful Incarceration, and stated that it

      would “modify Defendant’s sentence if he successfully complete[d] Purposeful

      Incarceration.” Father’s Ex. 1.


      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 4 of 12
[7]   Less than a week after Father was sentenced in his criminal cases, DCS

      petitioned to terminate his parental rights in Circuit Court 7. A termination

      hearing was scheduled for March 27, 2017. Ten days before that hearing, DCS

      moved to continue, and the hearing was reset for April 24. On April 24, DCS

      sought another continuance, and the court rescheduled the hearing for July 6.

      The trial court, on its own motion, continued the hearing until July 31. On July

      10, Father moved to continue because of DCS’s failure to meet discovery

      deadlines, and DCS joined his motion. The hearing was once again

      rescheduled, this time for September 5. Father sought another continuance on

      August 24, stating that he would graduate from Purposeful Incarceration on

      September 29 and that the criminal court had guaranteed him a sentence

      modification upon graduation. He asked that the hearing be scheduled after he

      completed Purposeful Incarceration. The trial court denied Father’s motion,

      and the termination hearing was held on September 5.


[8]   The morning of the hearing, Father renewed his motion to continue, but his

      request was denied. Father attended the hearing telephonically because in-

      person attendance “could cause a delay in graduating from” Purposeful

      Incarceration. Tr. Vol. II p. 4. Father testified that he expected to be released

      from prison by the end of 2017 based on his completion of Purposeful

      Incarceration. Father believed he would be released to a transitional housing

      program and that he would be re-hired by his former employer. Regarding

      A.S., Father continued to have supervised visits with her every sixty days in

      prison and had not missed a visit. They ate together, read, and played. At the


      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 5 of 12
       visit before the termination hearing, A.S. waved goodbye to Father and blew

       him a kiss.


[9]    Family Case Manager (FCM) Branan Neeley stressed that Father’s release date

       was still listed as 2022 and that he had an “extensive criminal history”

       involving cocaine. Id. at 36. FCM Neeley stated that Father had not

       participated in any services with DCS because he had been incarcerated since

       April 2015. At the time of the arrest, DCS was working on getting Father’s

       services in place, but it had not made any referrals for him. See id. at 33.

       However, FCM Neeley acknowledged that Father had completed eight sections

       of the cognitive-skills workbook while in jail and was about to graduate from

       Purposeful Incarceration.


[10]   FCM Neeley emphasized that Purposeful Incarceration does not specifically

       address parenting skills. However, when asked about Father’s parenting skills,

       FCM Neeley said that he had never observed Father with A.S. He admitted

       that all of the reports he had received about Father’s parenting were positive:

       Father asks A.S. age-appropriate questions, asks DCS case workers about A.S.’s

       development and routine, and is attuned to A.S.’s needs during visits. FCM

       Neeley said, “[T]here [have] never been any concerns about his appropriateness

       with [A.S.], his discussions with her, um and that kind of stuff.” Id. at 42.

       FCM Neeley also acknowledged that A.S. is affectionate toward Father during

       their visits, sitting in his lap while he reads to her.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 6 of 12
[11]   Throughout the duration of the CHINS and termination proceedings, A.S. has

       been placed with the same foster-care family. The home was pre-adoptive and

       DCS’s plan was for A.S. to be adopted by the family should Father’s parental

       rights be terminated. After the hearing, the trial court entered findings of fact

       and conclusions and terminated Father’s parental rights to A.S.


[12]   Father now appeals.



                                  Discussion and Decision
[13]   Father raises two issues on appeal. First, he claims that the trial court should

       have granted his motion to continue. Second, he argues that the evidence is

       insufficient to support the termination of his parental rights. Because we agree

       with Father that the trial court should have granted his continuance, we do not

       address his second argument or take a position on the merits of the decision to

       terminate his parental rights.


[14]   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 good cause for granting the motion, but we will


       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 7 of 12
       reverse the trial court’s decision only if the moving party can show that he was

       prejudiced by the denial. Id.


[15]   Father analogizes his situation to that of the father in Rowlett v. Vanderburgh

       County Office of Family and Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans.

       denied. In Rowlett, the father was arrested and charged with dealing in

       methamphetamine two months after his children were adjudicated CHINS.

       The father was unable to participate in services with the Office of Family and

       Children (OFC) because of his incarceration, but he participated in “nearly

       1,100 hours of individual and group services” directed at reunification with his

       children. 841 N.E.2d at 622. The OFC petitioned to terminate the father’s

       parental rights while he was incarcerated. At a pre-trial conference in January

       2005, the father informed the court that he would be released in June 2005 and

       asked that the termination hearing be set after his release. The court denied his

       request and set the hearing for April 2005, approximately six weeks before the

       father’s release date. The father’s parental rights were terminated.


[16]   The father appealed and claimed that the trial court abused its discretion when

       it denied his motion for continuance. He argued that he should have been

       given the opportunity to engage in reunification services and establish himself

       within his community. The OFC, on the other hand, stated that the children

       had been removed from the father for over two years and needed permanency.

       The children had been placed with their maternal grandmother for the duration

       of the CHINS and termination proceedings, and the OFC’s plan was for her to

       adopt the children if the father’s rights were terminated.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 8 of 12
[17]   This Court held that good cause for granting the father’s continuance existed

       because it would have granted him an opportunity to “participate in services

       offered by the OFC directed at reunifying him with his children upon his release

       from prison.” Id. at 619. The OFC would have to wait only six weeks for the

       father to be released. We also held that the father was prejudiced by the

       decision because the trial court assessed his ability to care for his children “as of

       the date of the hearing he sought to have continued.” Id. We went on to say

       that termination was “particularly harsh where Father, while incarcerated,

       participated in numerous services and programs . . . which would be helpful to

       him in reaching his goal of reunification with his children.” Id. Because the

       OFC’s plan was for the children to be adopted by the maternal grandmother

       and they had been in her care since removal, we concluded that continuation of

       the termination hearing “would have little immediate effect upon the children.”

       Id. We ultimately concluded that the trial court abused its discretion in denying

       the father’s motion for continuance and that the hearing should have been reset

       “after Father was given a sufficient period following his release to demonstrate

       his willingness and ability to assume parental duties.” Id. at 620.


[18]   We agree that Father is situated similarly to the father in Rowlett. First, like the

       father in Rowlett, Father was on the verge of significant, favorable change in his

       incarceration status. He was twenty-four days shy of graduating from

       Purposeful Incarceration, which would result in a guaranteed sentence

       modification. Second, any additional delay in the termination proceedings

       would not negatively impact A.S. Similar to the children in Rowlett, A.S. has


       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 9 of 12
       been in the same foster home since her removal, and DCS’s plan was for her

       foster parents to adopt her if Father’s parental rights were terminated. A.S. was

       also bonded with Father and was affectionate toward him, sitting in his lap

       when he read to her and blowing him kisses and waving goodbye. For these

       reasons, we conclude that good cause existed at the time of Father’s motion and

       that the trial court should have continued the case at least long enough to see if

       Father graduated from Purposeful Incarceration and, if so, the extent to which

       Circuit Court 2 modified his sentence.


[19]   Father has also shown that he was prejudiced by the denial of his motion. The

       denial allowed DCS to argue repeatedly, and the court to find, that Father

       would not be released from prison until 2022, even though everyone involved

       knew that there was a very good chance that Father would be released much

       sooner. Like the father in Rowlett, Father was judged as an incarcerated parent,

       rather than as a parent whose incarceration status was about to change. See id.

       at 619.


[20]   DCS contends that Rowlett is distinguishable from this case for two reasons.

       First, it claims that “unlike in Rowlett, Father had the opportunity to participate

       in reunification services. Instead, Father chose criminal activity over the

       opportunity to engage in reunification services and parent [A.S.].” Appellee’s

       Br. p. 16 (citations omitted). But Father had no more of an opportunity to

       engage in reunification services than the father in Rowlett. Both Father and the

       father in Rowlett were arrested two months after their CHINS adjudication

       hearings and remained incarcerated for the duration of their CHINS and

       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 10 of 12
       termination proceedings. As we did in Rowlett, we credit Father for the efforts

       he has taken while incarcerated to better himself and reunify with A.S.; he

       completed multiple sections of a cognitive-skills workbook and was about to

       graduate from Purposeful Incarceration. DCS’s argument is also flawed

       because Father did voluntarily engage in services before his arrest. Specifically,

       he completed a substance-abuse evaluation and began IOP. To the extent that

       he did not participate in additional services, FCM Neeley testified that, at the

       time of Father’s April 2015 arrest, DCS had not yet set up any services for

       Father.


[21]   DCS also emphasizes that the father in Rowlett had an imminent release date

       when his termination hearing was held, whereas Father’s release date was

       approximately five years away. DCS acknowledges that Father would “likely

       receive a sentencing modification for completing Purposeful Incarceration” but

       contends that the extent of the modification was uncertain. Id. at 15 (emphasis

       added). Initially, we note that the modification of Father’s sentence wasn’t just

       “likely”; it had already been promised should Father graduate from Purposeful

       Incarceration. Circuit Court 2 explicitly “agree[d] to modify Defendant’s

       sentence if he successfully complete[d] Purposeful Incarceration.” Father’s Ex.

       1. And while we acknowledge that the extent of the expected modification was

       unknown, we do not find the distinction to be dispositive. Even though

       Father’s anticipated release date was 2022 at the time of the hearing, it is

       undisputed that he was on track to graduate from Purposeful Incarceration in

       less than one month and that he would then receive a potentially significant

       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018   Page 11 of 12
       modification of his sentence. Because of this, Circuit Court 7 should have

       continued the case long enough to see if Father completed Purposeful

       Incarceration and, if so, the extent of the sentence modification granted by

       Circuit Court 2. If the modification made Father’s release date imminent, a

       Rowlett-style continuance would have been in order, giving Father the

       opportunity to engage with DCS and demonstrate his willingness and ability to

       parent A.S.2 For the foregoing reasons, we reverse the termination of Father’s

       parental rights and remand for further proceedings.


[22]   Reversed and remanded.


       May, J., and Altice, J., concur.




       2
         A review of the dockets in Case 397 and Case 1186 shows that Father did graduate from Purposeful
       Incarceration and that his sentence was modified. On October 10, 2017—thirty-five days after Father’s
       continuance was denied—the DOC submitted a “Progress Report, Treatment Summary, and Release
       Recovery Plan” to Circuit Court 2. A sentence-modification hearing was held, and on December 6, the court
       found Father was eligible for Re-Entry Court and referred him to that program. The Re-Entry Court
       accepted Father’s case and ordered that Father was to be released from prison, that he was to participate in
       the Community Transition Program, and that the remaining sentences in Cases 397 and 1186 be stayed.
       Father was released from prison on January 22, 2018. Father is expected to be released from the Community
       Transition Program on May 21, 2018, and is to continue participating in Re-Entry Court until January 2020.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-JT-2340 | April 18, 2018         Page 12 of 12
