Rowlett v. Office of Family and Children

• Decision Date: 01 February 2006
• Docket Number: No. 82A01-0506-JV-244.,82A01-0506-JV-244.
• Citation: 841 N.E.2d 615
• Parties: John ROWLETT, Father, Appellant-Respondent, v. VANDERBURGH COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.
• Court: Indiana Supreme Court

841 N.E.2d 615

John ROWLETT, Father, Appellant-Respondent, v. VANDERBURGH COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.

No. 82A01-0506-JV-244.

Court of Appeals of Indiana.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Erin L. Berger, Vanderburgh County Public Defender Agency, Evansville, for Appellant.

Katharine Vanost Jones, Evansville, for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, John Rowlett, challenges the trial court's order terminating his parental rights to his children, A.R. and C.R. Upon appeal, Rowlett presents two issues for our review: (1) whether the trial court abused its discretion in denying his motion for continuance of the termination hearing, and (2) whether the Vanderburgh County Office of Family and Children ("OFC") proved the statutory factors required to terminate parental rights by clear and convincing evidence.

We reverse.

The record reveals that Tosha Brooks ("Mother") and Rowlett ("Father") are the biological parents of C.R., born July 8, 1999, and A.R., born June 21, 2000.¹ On June 5, 2002, police responded to a report that C.R. and A.R. were running around outside unsupervised for more than thirty minutes.² The police then notified the OFC and requested the OFC investigate the living conditions at the home where C.R. and A.R. resided with Mother.³ An investigator with the OFC arrived at the home and observed that the home was "very dirty" and in disrepair. Transcript at 64. Specifically, the investigator observed trash all over the floor, dirty dishes piled in the sink, and "old food" strewn throughout the home, including a package of bacon in Mother's bedroom, cheese slices on a coffee table, and "ketchup that was everywhere." Transcript at 61. The investigator also noted that a window was missing in the children's room through which the children could have easily climbed out, that the bed in the children's room was broken, and that an air conditioning vent was missing leaving a four-by-ten-inch hole in the floor in an area where the children had access. As for the children, the investigator noted that C.R. and A.R. were "very dirty" and wearing only pull-up diapers. Transcript at 60. While inspecting the conditions in the home, the investigator watched A.R. pull a hot dog out of the trash and take a bite of it.

Given the conditions of the home, the OFC took C.R. and A.R. into protective custody. As the investigator was getting ready to leave, Father arrived and asked to speak with the OFC investigator. The investigator asked Father to come to the OFC's offices so she could talk to him. At that meeting, Father admitted that he had recently been released from jail on drug-related charges⁴ and explained that he was trying to establish paternity so he could get custody of C.R. and A.R. The OFC investigator told Father that the children could not be placed with him until he established paternity and further informed Father of the date and time of the court hearing concerning the children. The OFC placed the children with their maternal grandmother and step-grandfather.

On June 7, 2002, the OFC filed separate petitions alleging C.R. and A.R. to be children in need of services ("CHINS"), and an initial hearing was held. Father did not appear at the hearing.⁵ Father did, however, appear in person at a hearing on June 19, 2002, at which he admitted to the allegations in the CHINS petitions. At that hearing, the court granted Father supervised visitation with C.R. and A.R.

Shortly thereafter, on August 26, 2002, Father was arrested and charged under Cause No. 82C01-0208-FB-910 with dealing in methamphetamine and possession of precursors with intent to manufacture methamphetamine. On November 26, 2002, Father pleaded guilty under Cause No. 405 to possession of methamphetamine as a Class D felony and was sentenced to three years incarceration.⁶ Father also pleaded guilty to the possession charge under Cause No. 910 and was sentenced, on December 16, 2002, to three years incarceration, to be served consecutive to the sentence imposed under Cause No. 405. Father was incarcerated from the time of his August 26 arrest until June 2005.

On October 22, 2003, the OFC filed under separate causes verified petitions to terminate Father's parental rights to C.R. and A.R. Following a couple of status hearings, the dispositional hearing on the petitions was originally set for January 25, 2005. Apparently upon Father's motion, the January dispositional hearing date was subsequently vacated, but the parties appeared at the scheduled time for a pre-trial hearing. At that hearing, Father's counsel informed the court that Father would be released from prison in June 2005 and requested that the dispositional hearing be reset for some time after his release. The court denied Father's request and reset the trial for April 12, 2005, six weeks prior to Father's release. On February 28, 2005, Father filed a motion for continuance of the April 12 hearing date, which the court denied following a hearing on March 16, 2005. The dispositional hearing on the petitions to terminate Father's parental rights was held as scheduled on April 12, 2005. The trial court entered orders terminating Father's parental rights to C.R. and A.R. on April 21, 2005. After filing a notice of appeal under both causes, Father filed a motion to consolidate the appeals, which this court granted.

Upon appeal, Father argues that the trial court abused its discretion in denying his motion for continuance of the dispositional hearing date on the petition to terminate his parental rights. In support of his motion for continuance, Father asserted that because he was incarcerated he was unable to assist his attorney in preparing his case. Father further asserted that he would be released from prison in June 2005, just six weeks after the scheduled dispositional hearing on the termination of his parental rights. Father explained that he wanted an opportunity to become established in the community and to participate in services directed at reunifying him with C.R. and A.R. The OFC opposed Father's motion for continuance, asserting that the children had been under the supervision of the OFC for over two years and that the children would benefit from the permanent placement by way of adoption by the maternal grandmother.

The decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind.Ct.App.2000). We will reverse the trial court only for an abuse of that discretion. Id. 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. Id. However, no abuse of discretion will be found when the moving party has not demonstrated that he or she was prejudiced by the denial. Id.

Here, we conclude that Father showed good cause for granting his motion to continue the dispositional hearing—an opportunity for him to participate in services offered by the OFC directed at reunifying him with his children upon his release from prison. We acknowledge that Father requested a continuance because he would still have been incarcerated on the date of the scheduled hearing and recognize that such incarceration was by his own doing. Nevertheless, Father was set to be released only six weeks after the scheduled dispositional hearing. Further, Father has demonstrated prejudice by the denial of his motion for continuance in that his ability to care for his children was assessed as of the date of the hearing he sought to have continued. At that time, Father was incarcerated and had not had the opportunity to participate in services offered by the OFC or to demonstrate his fitness as a parent. The result was that his parental rights were forever and unalterably terminated. This result is particularly harsh where Father, while incarcerated, participated in numerous services and programs, although offered by the correctional facility and not the OFC, which would be helpful to him in reaching his goal of reunification with his children.

In deference to the trial court and the OFC, we recognize the compulsion to proceed with termination of Father's parental rights, which is likely brought about by Indiana's statutory response to the federal requirements and time constraints of the Adoption Assistance and Welfare Act. The purpose behind the time constraints is to "ensure that children [do] not spend long periods of their childhoods in foster care or other settings designed to be temporary." Phelps v. Sybinsky, 736 N.E.2d 809, 813 (Ind.Ct.App.2000), trans. denied. Here, however, the children have been in the care and custody of their maternal grandmother since they were determined to be CHINS nearly three years prior to the dispositional hearing Father sought to continue. The OFC's plan for the children was that they would be adopted by the maternal grandmother. Thus, continuation of the dispositional hearing until sometime after Father was released would have had little immediate effect upon the children. We conclude that under these circumstances, the trial court abused its discretion in denying Father's motion for continuance. The trial court should have granted Father's continuance and reset the dispositional hearing after Father was given a sufficient period following his release to demonstrate his willingness and ability to assume parental duties.

Father also argues that the OFC did not prove the statutory factors required to terminate his parental rights by clear and convincing evidence. This court has long had a highly deferential standard of review in cases concerning termination of parental rights. Parental rights are of a constitutional dimension, but the law provides for the termination of those rights when the parents are unable or unwilling to meet their parental responsibilities. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001). We will not set...