In the Matter of the Term. of the Parent-Child Relationship of, M.W., (Minor Child) and, J.W., (Mother) v. The Ind. Dept. of Child Services

• Court: Indiana Court of Appeals
• Decided: June 4, 2015
• Docket: 82A01-1410-JT-456
• Status: Published

Opinion

MEMORANDUM

DECISION Jun 04 2015, 10:15 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 Erin L. Berger Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana

Robert J. Henke Abigail R. Miller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the June 4, 2015 Termination of the Parent- Court of Appeals Cause No. Child Relationship of, 82A01-1410-JT-456 Appeal from the Vanderburgh Superior M.W., (Minor Child) Court Cause No. 82D01-1406-JT-66

and, The Honorable Brett J. Niemeier, Judge The Honorable Renee Ferguson, Magistrate J.W., (Mother)

Appellant-Respondent,

Court of Appeals of Indiana | Memorandum Decision |82A01-1410-JT-456 June 4, 2015 Page 1 of 6 v.

The Indiana Department of Child Services, Appellee-Petitioner.

Barnes, Judge.

Case Summary [1] J.W. (“Mother”) appeals the trial court’s termination of her parental rights to

M.W. We affirm.

Issue [2] Mother raises one issue, which we restate as whether the trial court abused its

discretion by denying her motion to continue.

Facts [3] M.W. was born in December 2012, and shortly after M.W.’s birth, the Indiana

Department of Child Services (“DCS”) filed a petition alleging that M.W. was a

child in need of services (“CHINS”) based on Mother’s erratic behavior,

Mother’s positive drug test, and Mother’s arrest on outstanding warrants.

Court of Appeals of Indiana | Memorandum Decision |82A01-1410-JT-456 June 4, 2015 Page 2 of 6 Mother had a pending CHINS case for another of her children, A.W. 1 In

January 2013, the trial court found that M.W. was a CHINS. In February

2013, the trial court entered a dispositional order that ordered Mother to

participate in services. Between February and June 2013, Mother failed to

make progress on the services and visited M.W. only one time. Beginning in

June 2013, Mother was incarcerated on various charges, including dealing in

methamphetamine, and received mental health treatment during her

incarceration.

[4] In June 2014, DCS filed a petition to terminate Mother’s parental rights to

M.W. At the July 29, 2014 pre-trial hearing, Mother requested a continuance

of the scheduled August 6, 2014 hearing on the termination petition. Mother

contended that she expected to be released from incarceration in October 2014,

that she had received extensive mental health treatment, and that she desired to

participate in services upon her release. The State objected to the continuance,

arguing that Mother had a considerable amount of time prior to her

incarceration to participate in services and failed to do so. The trial court

denied Mother’s motion for a continuance. Mother did not renew her motion

to continue at the August 6, 2014 hearing. After the hearing, the trial court

entered findings of fact and conclusions thereon granting the termination of

parental rights. Mother now appeals.

1 Mother’s parental rights to A.W. were terminated in November 2013. On appeal, we affirmed the termination of parental rights. In re A.W., 82A05-1311-JT-581 (Ind. Ct. App. July 30, 2014).

Court of Appeals of Indiana | Memorandum Decision |82A01-1410-JT-456 June 4, 2015 Page 3 of 6 Analysis [5] Mother argues that the trial court erred by denying her motion for a

continuance of the termination of parental rights hearing. 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, 243-44 (Ind. 2014). “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,” but “no abuse of

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

she was prejudiced by the denial.” Id. at 244.

[6] In support of her argument, Mother relies on Rowlett v. Vanderburgh Cnty. Office

of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied.2 In

Rowlett, we concluded that the trial court abused its discretion by denying the

father’s motion to continue a hearing on the termination of his parental rights.

The father was set to be released from incarceration six weeks after the hearing,

and he had not had the opportunity to participate in services directed at

reunifying him with his children. During his incarceration, the father had

participated in numerous services and programs that would be helpful to him in

reaching his goal of reunification with his children. Also, the children had been

in the care and custody of their maternal grandmother since they were

determined to be CHINS nearly three years prior to the hearing, and the

2 Mother also relies on A.J. v. Marion County Office of Family & Children, 881 N.E.2d 706 (Ind. Ct. App. 2008), trans. denied. However, A.J. did not involve a motion for continuance.

Court of Appeals of Indiana | Memorandum Decision |82A01-1410-JT-456 June 4, 2015 Page 4 of 6 children were to be adopted by their maternal grandmother. Thus, we noted

that the continuation of the dispositional hearing until sometime after the father

was released would have had little immediate effect upon the children. We

concluded that, under these circumstances, the trial court abused its discretion

by denying the father’s motion for continuance.

[7] This case, however, is distinguishable from Rowlett. Here, Mother was

incarcerated awaiting trial. At the pre-trial hearing, Mother’s attorney stated:

“She tells me that she has trial in October of this year, so just a couple of

months from where we are now. And expects that even if she is unsuccessful at

trial that her sentence will be time served. So she expects to be released from

incarceration in October of 2014.” Tr. p. 5. Unlike in Rowlett, where the father

was set to be released in six weeks, Mother’s release in October was speculative.

There was no guarantee that Mother’s trial would take place in October, and

there was no guarantee as to her sentence. Moreover, even if Mother was

released in October, Mother would still have to demonstrate over many months

her ability to maintain her mental health, avoid substance abuse, avoid

additional criminal arrests and convictions, and participate in services. More

importantly, in Rowlett, the father had not been able to participate in services

due to his incarceration. Here, Mother had the opportunity for several months

to participate in services and visit M.W. prior to her incarceration, but she

failed to do so.

[8] We acknowledge that Mother claims to have received mental health treatment

and claims that she is doing better. However, she presented no specifics of that

Court of Appeals of Indiana | Memorandum Decision |82A01-1410-JT-456 June 4, 2015 Page 5 of 6 treatment at the time of her motion to continue. Given these facts, we are

unwilling to keep M.W. on a shelf until Mother is capable of caring for her

properly. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989). The

trial court did not abuse its discretion by denying Mother’s motion to continue

because she has not shown good cause or that she was prejudiced by the denial.

Conclusion [9] The trial court did not abuse its discretion by denying Mother’s motion to

continue the hearing. We affirm.

[10] Affirmed.

[11] Riley, J., and Bailey, J., concur.

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