MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 24 2015, 10:39 am 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 ATTORNEY FOR APPELLEE Julianne L. Fox Robert R. Faulkner Evansville, Indiana Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of: July 24, 2015 A.E.G. Court of Appeals Case No. 82A01-1411-AD-475 Appeal from the Vanderburgh A.G., County Superior Court Appellant-Defendant, The Honorable Renee A. Ferguson, Magistrate v. Cause No. 82D07-1405-AD-46 E.R.J., and K.M.J. Appellees-Plaintiffs
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 1 of 7 Case Summary [1] A.G. (“Father”) appeals the trial court’s order denying his motion to continue,
presenting the issue of whether the trial court abused its discretion and denied
him due process by proceeding with a hearing in which it found his consent to
the adoption of A.E.G. (“Child”) unnecessary. 1 We affirm.
Facts and Procedural History [2] On June 9, 2012, Father stabbed and killed his pregnant wife, K.G. (“Mother”),
while then three-year-old Child was present. In 2013, Father was convicted of
murder and, on December 23, 2013, was sentenced to sixty-five years
imprisonment, enhanced by thirty years for being a habitual offender and
twenty years for causing the termination of a human pregnancy. 2
[3] Since Mother’s death, Child has been living with her maternal grandparents,
E.R.J. and K.M.J. (“Grandparents”). On May 7, 2014, Grandparents filed a
petition to adopt Child. Also on May 7, 2014, a notice of adoption was mailed
to Father at the Indiana Department of Correction (“DOC”). The notice was
1 Because we find this issue dispositive, we do not address Father’s alternate argument regarding the timeliness of his motion to contest. 2 Father’s conviction and aggregate 115 year sentence were affirmed by this Court in an unpublished opinion issued in December 2014. Father’s petition to transfer to the Indiana Supreme Court was denied on March 19, 2015. His earliest projected release date is in 2070.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 2 of 7 received on May 9, 2014. Father then filed a motion to contest the adoption on
June 11, 2014. He was appointed indigent counsel on June 13, 2014.
[4] By agreement of counsel, a hearing was scheduled for October 16, 2014. On
the day of the hearing, Father by counsel filed a motion to continue because
counsel had been unable to contact Father via phone. 3 Father requested that
the trial court set two new hearing dates: one so that counsel could contact
Father via a court phone and the second to hear evidence on whether Father’s
consent was necessary.
[5] Grandparents objected, arguing that they were ready to proceed. After a
sidebar conference, 4 the court held a hearing on the necessity of Father’s
consent. Grandparents presented evidence related to Father’s conviction and
sentence in the murder case, including certified copies of the docket, abstract of
judgment, and probable cause affidavits. The trial court also took judicial
notice of its own case.
[6] The trial court found that Father was convicted of and currently incarcerated
for the murder of Mother and Father’s consent to the adoption could be
3 Father’s counsel explained that she could not reach Father because of restrictions imposed by prison management. The trial court confirmed that multiple DOC facilities were not permitting attorneys to call their incarcerated clients, instead insisting that the trial court call. The court explained that “obviously the Court has to remain neutral and unbiased and it would be inappropriate for the Court to contact the inmate. So . . . we’re trying to do a work around where basically the Public Defender has the consent of the Court to call from a Court phone, represent themselves as the Court to the institution for the purpose of getting their . . . client on the phone so they can speak to them.” (Tr. 7-8.) 4 The entire conference was inaudible to the court reporter.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 3 of 7 dispensed with under Indiana Code section 31-19-9-9. 5 The court also found
Father was not entitled to notice under Section 31-19-2.5-4. The court denied
Father’s motion to continue.
[7] The court then heard evidence that Child was “terrified” of Father and, if
Father’s name comes up, “she goes into a bit of recession or hiding.” (Tr. 18.)
Child’s professional therapist also recommended against communication with
Father. After hearing additional evidence regarding the best interests of Child,
the trial court granted Grandparents’ petition to adopt.
[8] Father now appeals.
Discussion and Decision Standard of Review [9] Father argues that the trial court abused its discretion and denied him due
process when the court denied his motion to continue and proceeded to a
hearing in which the court found that Father’s consent could be dispensed with.
[10] The decision to grant or deny a motion for a continuance rests within the sound
discretion of the trial court. In re A.D.W., 907 N.E.2d 533, 537 (Ind. Ct. App.
5 Although the trial court cited Indiana Code section 31-19-9-10 – a statute dispensing with parental consent to adoption where a parent commits neglect of a dependent or certain crimes against the child’s sibling – we think it is clear that the trial court’s findings related to Section 31-19-9-9 (crimes against the child’s other parent). The trial court clearly stated that Father’s “consent to the adoption is not necessary, given that the child’s Mother was the victim of his crime.” (Tr. 10.)
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 4 of 7 2008), trans. denied. This Court will reverse the trial court only when there has
been an abuse of discretion. Id. An abuse of discretion may be found when the
moving party has shown good cause for granting the motion for continuance.
Id. However, no abuse of discretion will be found if the denial did not result in
prejudice to the moving party. Id.
[11] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. Parental consent is not required, however, where (1) at the time the
petition is filed, the parent is convicted of and incarcerated for murder; (2) the
victim of the crime is the other parent; and (3) the court determines, after notice
to the convicted parent and a hearing, that dispensing with the parent’s consent
is in the child’s best interests. I.C. § 31-19-9-9. Notice of the pendency of the
adoption proceedings does not have to be given to a person whose consent is
not required by Section 31-19-9-9. I.C. § 31-19-2.5-4.
[12] Father argues that the trial court abused its discretion in denying his motion to
continue because the ruling effectively denied him due process and his right to
counsel. Specifically, he argues that because the denial prevented him from
speaking with counsel on the phone, he “was prevented from presenting any
evidence regarding the best interests of the child[.]” (Appellant’s Br. 6.)
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 24 2015, 10:39 am 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 ATTORNEY FOR APPELLEE Julianne L. Fox Robert R. Faulkner Evansville, Indiana Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of: July 24, 2015 A.E.G. Court of Appeals Case No. 82A01-1411-AD-475 Appeal from the Vanderburgh A.G., County Superior Court Appellant-Defendant, The Honorable Renee A. Ferguson, Magistrate v. Cause No. 82D07-1405-AD-46 E.R.J., and K.M.J. Appellees-Plaintiffs
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 1 of 7 Case Summary [1] A.G. (“Father”) appeals the trial court’s order denying his motion to continue,
presenting the issue of whether the trial court abused its discretion and denied
him due process by proceeding with a hearing in which it found his consent to
the adoption of A.E.G. (“Child”) unnecessary. 1 We affirm.
Facts and Procedural History [2] On June 9, 2012, Father stabbed and killed his pregnant wife, K.G. (“Mother”),
while then three-year-old Child was present. In 2013, Father was convicted of
murder and, on December 23, 2013, was sentenced to sixty-five years
imprisonment, enhanced by thirty years for being a habitual offender and
twenty years for causing the termination of a human pregnancy. 2
[3] Since Mother’s death, Child has been living with her maternal grandparents,
E.R.J. and K.M.J. (“Grandparents”). On May 7, 2014, Grandparents filed a
petition to adopt Child. Also on May 7, 2014, a notice of adoption was mailed
to Father at the Indiana Department of Correction (“DOC”). The notice was
1 Because we find this issue dispositive, we do not address Father’s alternate argument regarding the timeliness of his motion to contest. 2 Father’s conviction and aggregate 115 year sentence were affirmed by this Court in an unpublished opinion issued in December 2014. Father’s petition to transfer to the Indiana Supreme Court was denied on March 19, 2015. His earliest projected release date is in 2070.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 2 of 7 received on May 9, 2014. Father then filed a motion to contest the adoption on
June 11, 2014. He was appointed indigent counsel on June 13, 2014.
[4] By agreement of counsel, a hearing was scheduled for October 16, 2014. On
the day of the hearing, Father by counsel filed a motion to continue because
counsel had been unable to contact Father via phone. 3 Father requested that
the trial court set two new hearing dates: one so that counsel could contact
Father via a court phone and the second to hear evidence on whether Father’s
consent was necessary.
[5] Grandparents objected, arguing that they were ready to proceed. After a
sidebar conference, 4 the court held a hearing on the necessity of Father’s
consent. Grandparents presented evidence related to Father’s conviction and
sentence in the murder case, including certified copies of the docket, abstract of
judgment, and probable cause affidavits. The trial court also took judicial
notice of its own case.
[6] The trial court found that Father was convicted of and currently incarcerated
for the murder of Mother and Father’s consent to the adoption could be
3 Father’s counsel explained that she could not reach Father because of restrictions imposed by prison management. The trial court confirmed that multiple DOC facilities were not permitting attorneys to call their incarcerated clients, instead insisting that the trial court call. The court explained that “obviously the Court has to remain neutral and unbiased and it would be inappropriate for the Court to contact the inmate. So . . . we’re trying to do a work around where basically the Public Defender has the consent of the Court to call from a Court phone, represent themselves as the Court to the institution for the purpose of getting their . . . client on the phone so they can speak to them.” (Tr. 7-8.) 4 The entire conference was inaudible to the court reporter.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 3 of 7 dispensed with under Indiana Code section 31-19-9-9. 5 The court also found
Father was not entitled to notice under Section 31-19-2.5-4. The court denied
Father’s motion to continue.
[7] The court then heard evidence that Child was “terrified” of Father and, if
Father’s name comes up, “she goes into a bit of recession or hiding.” (Tr. 18.)
Child’s professional therapist also recommended against communication with
Father. After hearing additional evidence regarding the best interests of Child,
the trial court granted Grandparents’ petition to adopt.
[8] Father now appeals.
Discussion and Decision Standard of Review [9] Father argues that the trial court abused its discretion and denied him due
process when the court denied his motion to continue and proceeded to a
hearing in which the court found that Father’s consent could be dispensed with.
[10] The decision to grant or deny a motion for a continuance rests within the sound
discretion of the trial court. In re A.D.W., 907 N.E.2d 533, 537 (Ind. Ct. App.
5 Although the trial court cited Indiana Code section 31-19-9-10 – a statute dispensing with parental consent to adoption where a parent commits neglect of a dependent or certain crimes against the child’s sibling – we think it is clear that the trial court’s findings related to Section 31-19-9-9 (crimes against the child’s other parent). The trial court clearly stated that Father’s “consent to the adoption is not necessary, given that the child’s Mother was the victim of his crime.” (Tr. 10.)
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 4 of 7 2008), trans. denied. This Court will reverse the trial court only when there has
been an abuse of discretion. Id. An abuse of discretion may be found when the
moving party has shown good cause for granting the motion for continuance.
Id. However, no abuse of discretion will be found if the denial did not result in
prejudice to the moving party. Id.
[11] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. Parental consent is not required, however, where (1) at the time the
petition is filed, the parent is convicted of and incarcerated for murder; (2) the
victim of the crime is the other parent; and (3) the court determines, after notice
to the convicted parent and a hearing, that dispensing with the parent’s consent
is in the child’s best interests. I.C. § 31-19-9-9. Notice of the pendency of the
adoption proceedings does not have to be given to a person whose consent is
not required by Section 31-19-9-9. I.C. § 31-19-2.5-4.
[12] Father argues that the trial court abused its discretion in denying his motion to
continue because the ruling effectively denied him due process and his right to
counsel. Specifically, he argues that because the denial prevented him from
speaking with counsel on the phone, he “was prevented from presenting any
evidence regarding the best interests of the child[.]” (Appellant’s Br. 6.)
[13] Father received notice of the adoption proceedings, and received a hearing on
the necessity of his consent. At that hearing, Grandparents introduced evidence
of Father’s parental misconduct, specifically, that Father brutally murdered
Mother by stabbing her in the heart while Child was present. The evidence
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 5 of 7 included certified copies of the docket, abstract of judgment, and probable cause
affidavits from the murder case. The court also took judicial notice of its own
case. Based on the evidence presented, the trial court found that Father’s
consent could be dispensed with. Implicit in the court’s finding was that it was
in Child’s best interests to dispense with Father’s consent and to proceed to the
final adoption. The court also heard evidence that Child was “terrified” of
Father, when Father’s name comes up Child “goes into a bit of recession or
hiding,” and Child’s professional therapist recommended against
communication with Father. (Tr. 18.)
[14] Parents have a right to counsel in proceedings to terminate the parent-child
relationship. I.C. § 31-32-2-5. These rights apply in adoption proceedings
where the petitioners seek to adopt over the objections of one or both of the
natural parents. In re Adoption of Baby W., 796 N.E.2d 364, 375 (Ind. Ct. App.
2003). Here, Father was appointed indigent counsel on June 13, 2014, four
months prior to the hearing. Although counsel was aware of recent barriers to
communicating with incarcerated clients, Father’s counsel did not request a
continuance for this reason until the day of the hearing.
[15] However, even where the moving party has shown good cause for granting the
motion for continuance, we will not find an abuse of discretion if the denial did
not result in prejudice to the moving party. Id. On appeal, Father fails to
identify any evidence or additional facts related to Child’s best interests that
Father would have presented had the court granted his motion to continue. In
re A.D.W., 907 N.E.2d 533, 537 (Ind. Ct. App. 2008), trans. denied. Absent
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 6 of 7 identification of such facts, we cannot say that the trial court’s denial of the
continuance resulted in prejudice to Father, where the evidence presented
established that Father is currently serving a 115-year sentence for murdering
Child’s mother.
Conclusion [16] The trial court did not abuse its discretion in denying Father’s motion to
continue. Having received notice and a hearing on the necessity of his consent,
Father received the process due under the statute.
[17] Affirmed.
Riley, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015 Page 7 of 7