In the Matter of the Termination of the Parent-Child Relationship of A.E.S.H., P.M.H. & J.G.A.H., Minor Children, K.M.H., Mother v. The Indiana Department of Child Services (mem. dec .)

• Court: Indiana Court of Appeals
• Decided: February 16, 2017
• Docket: 40A01-1608-JT-1998
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 16 2017, 6:25 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Robert J. Henke Marjorie Newell Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 16, 2017 of the Parent-Child Relationship Court of Appeals Case No. of A.E.S.H., P.M.H. & 40A01-1608-JT-1998 J.G.A.H., Minor Children, Appeal from the Jennings Circuit K.M.H., Mother, Court The Honorable Jon W. Webster, Appellant-Respondent, Judge v. Trial Court Cause Nos. 40C01-1602-JT-10 40C01-1602-JT-11 The Indiana Department of 40C01-1602-JT-12 Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 1 of 10 Brown, Judge.

[1] K.M.H. (“Mother”) appeals the involuntary termination of her parental rights

with respect to her children A.E.S.H., P.M.H., and J.G.A.H. (the “Children”).

Mother raises one issue which we revise and restate as whether the trial court

abused its discretion in denying Mother’s motion to continue the termination

fact-finding hearing. We affirm.

Facts and Procedural History

[2] Mother and C.H. (“Father”) had J.G.A.H., born February 20, 2003, P.M.H.,

born February 15, 2005, and A.E.S.H., born November 21, 2006. On June 13,

2014, the Indiana Department of Child Services (“DCS”) filed verified petitions

alleging that the Children were children in need of services (“CHINS”). DCS

alleged that Mother had failed to ensure consistent attendance, proper behavior,

and/or adequate academic achievement of the Children at school, failed to

provide a safe and sanitary home with functioning utilities and appliances,

failed to ensure proper hygiene for the Children, had verbally agreed to an

informal adjustment but then not followed through, and that DCS had an

extensive history with this family for substantially the same issues. The

Children were removed because the home conditions were very poor with no

furniture, water, stove, or refrigerator.

[3] On October 8, 2014, the court adjudicated the Children to be CHINS, and on

November 20, 2014, it held a dispositional hearing at which Mother appeared.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 2 of 10 The court ordered Mother to participate in all services and programs as

recommended by DCS and service providers.

[4] On June 26, 2015, the court entered an Order Approving Permanency Plan

finding that Mother had not completed her mental health assessment, not

followed through with the recommendation of individual therapy stemming

from the assessment, not consistently utilized her parent aide services, refused

to submit to any drug screens, attended only half of her scheduled supervised

visitations during the current reporting period, and had not visited the Children

since visits were moved from the family home on March 16, 2015.

[5] On February 10, 2016, DCS filed petitions for the involuntary termination of

Mother’s parental rights. On February 12, 2016, the court entered an order

which scheduled an initial hearing for February 22, 2016, and a trial for April 5,

2016, and which stated: “The parents must appear for trial, or they may lose

forever, their right to contest termination of their parental rights.” Appellant’s

Appendix at 24.

[6] In an Entry on Initial Hearing dated February 29, 2016, the court indicated that

it held a hearing on February 22, 2016, at which Mother was present. The

court’s order found that it informed Mother of her rights including the right to a

fact-finding hearing, to subpoena witnesses, and to cross-examine witnesses,

and that Mother understood her rights and had no questions regarding her

rights.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 3 of 10 [7] On March 29, 2016, Mother’s counsel filed a motion for continuance of the

April 5, 2016 trial. 1 That same day, the court granted a continuance and

scheduled a hearing for July 7, 2016.

[8] On July 7, 2016, the court held a hearing at which it stated that a fact finding

hearing was scheduled, that Mother was not present, that her attorney was

present, and that Mother had called the court that morning and spoke to one of

the court’s staff. Mother’s counsel stated that she received a phone call from

Mother indicating that Mother’s ride did not come to pick her up, and Mother’s

counsel moved for a continuance. DCS’s counsel objected to the continuance

on the basis that Mother knew of the hearing and did not reach out to DCS or

the court appointed special advocate for transportation. The court denied the

motion for a continuance and stated:

The Court notes that this is a Fact Finding hearing, has been set sent [sic] March 29th. – More than ample time for [Mother] to make reliable, dependable – plans to have, to be here or to get transportation for this hearing. – These cases are put on a fast track for a reason and that is because we need finality for all involved.

Transcript at 4.

[9] Zenda Rogers, a wraparound facilitator responsible for case management and

facilitating child and family team meetings, testified that she stressed it several

1 The record does not contain a copy of this motion.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 4 of 10 times that Mother had the opportunity to call her to have someone transport

them and that Mother had been provided transportation several times to

meetings. Rebecca Cunningham, a therapist at Centerstone, testified that she

completed an intake evaluation of Mother in January 2016 and recommended

individual therapy, family therapy, and case management services.

Cunningham scheduled an appointment a week after the evaluation, but

Mother failed to show for that appointment as well as a subsequent

appointment. Cunningham did not hear back from Mother.

[10] Pam Ball, a family support specialist, testified that Mother was inconsistent

with showing up for appointments and visitations. Ball also testified that she

offered Mother transportation. Specifically, Ball stated that Mother and Father

would just call and say that they could not make it because they did not have

transportation, that she would offer transportation, and then Mother and Father

would say that they were not at home. She testified that the first visit in the

parents’ home occurred in February 2015, the home was unsanitary, there were

dangerous items such as tools laying around the home, and there were animals

in the home “that appeared to be less than friendly.” Id. at 58. The home was

cleaned up to pass DCS inspection, but it deteriorated quickly resulting in no

running water and an enormous amount of pests, cockroaches, and rodents.

She indicated that visits were moved from the home and Mother came to a visit

at Centerstone in March 2015 and said that she “would not bring her a-- back

into Centerstone.” Id. at 60. Ball also testified that Mother had not made

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 5 of 10 contact with her or attended any visitation through Centerstone since March

23, 2015.

[11] Debra Satterfield, a DCS supervisor, testified that there had been thirty reports,

eleven substantiated assessments, and three previous cases over the years. She

testified that she had problems contacting Mother and that she would not

answer her door. She stated that she offered Mother transportation and had

transported her to court several times, to an assessment, and occasionally to

visits. She testified that the home was cleaned near the end of January 2015 but

at the time the home visits ended in March 2015 it was roach infested, dirty,

trash was piled up outside and inside the home, and they had no water again.

[12] Julia Barnette, a family case manager, testified that she had been the family

case manager since September 2015 and that she did not hold a transition

meeting with the parents because she was unable to make contact with them.

Barnette testified that she went to the home twice, but no one answered the

door, that she made a referral for a gas voucher to help with transportation, and

that Mother did not comply with recommendations while she was the case

manager. She also testified that Mother missed appointments and did not

contact her prior to those appointments to indicate that she needed help with

transportation.

[13] On August 1, 2016, the court entered an order terminating Mother’s parental

rights. The order contains detailed findings of fact and concludes that there is a

reasonable probability that the conditions which resulted in the Children’s

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 6 of 10 removal and continued placement outside the home will not be remedied, that

the continuation of the parent-child relationship poses a threat to the Children’s

well-being, that termination of Mother’s parental rights is in the Children’s best

interests, and that adoption is a satisfactory plan for the Children.

Discussion

[14] The issue is whether the trial court abused its discretion by denying Mother’s

motion to continue the termination hearing. Mother argues that the court

abused its discretion in denying her motion to continue because she was denied

the opportunity to stand and confront the witnesses against her and provide her

own reasons and renditions of the facts. She asserts that she was unable to

provide her counsel with advice and information in preparing for questions.

She also asserts that she was not afforded the opportunity to attend and

participate. In support of her argument, Mother relies on Rowlett v. Vanderburgh

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

denied. 2

[15] DCS argues that Mother had over two months to arrange transportation to the

hearing, DCS and others offered to provide Mother transportation when she

needed it, Mother did not show good cause for a continuance, and Mother has

not shown any specific harm caused by her failure to appear and has not

2 Mother does not challenge the trial court’s conclusions that there is a reasonable probability that the conditions which resulted in the Children’s removal and continued placement outside the home will not be remedied, that the continuation of the parent-child relationship poses a threat to the Children’s well-being, that termination of Mother’s parental rights is in the Children’s best interests, or that adoption is a satisfactory plan for the Children.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 7 of 10 disclosed any testimony she would have offered to overcome the substantial

evidence supporting the termination of her parental rights.

[16] 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, 244 (Ind. 2014) (citing Rowlett,

841 N.E.2d at 619). Ind. Trial Rule 53.5 provides that a court may grant a

continuance upon a showing of “good cause.” Discretion is a privilege afforded

a trial court to act in accord with what is fair and equitable in each

circumstance. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 43

(Ind. Ct. App. 2004), trans. denied. A decision on a motion for continuance will

be reversed only upon a showing of an abuse of discretion and prejudice

resulting from such an abuse. 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,” 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. The Indiana Supreme Court has explained that an abuse of

discretion analysis consists of an “evaluation of facts in relation to legal

formulae. In the final analysis, the reviewing court is concerned with the

reasonableness of the action in light of the record.” Id. at 44 (citing Tapia v.

State, 753 N.E.2d 581, 585 (Ind. 2001)). Thus, a trial court’s ruling should be

set aside only if it is clearly against the logic and effect of the facts and

circumstances before the court, and we will not substitute our judgment for that

of the trial court. Id.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 8 of 10 [17] In Rowlett, the father, who was incarcerated, had expressed a desire for

reunification starting on the very day his children were removed and was active

in the CHINS case. 841 N.E.2d at 618-619. The father requested a

continuance of the termination hearing until after his release, which was denied

by the trial court. Id. at 618. This Court concluded that the trial court abused

its discretion in denying the request for a continuance and noted that father had

been incarcerated for all but two months of the action and had not been given a

full opportunity “to participate in services offered by the OFC directed at

reunifying him with his children upon his release from prison.” Id. at 619.

[18] Unlike the incarcerated father in Rowlett, who lacked an opportunity to

participate in services and took substantial advantage of the resources available

to him while he was incarcerated, Mother was not incarcerated and has been

offered services over the course of the two-year period of the underlying CHINS

case to improve her fitness to parent the Children. Mother was represented by

counsel at the hearing, she does not specifically indicate what evidence she

would have produced had she been present, and she does not challenge any of

the trial court’s findings or conclusions. The wraparound facilitator, the family

support specialist, the DCS supervisor, and the family case manager all testified

regarding their offer to assist or assistance with transportation including the

DCS supervisor’s testimony that she had transported Mother to court several

times. We also note that Mother was previously granted a continuance and the

hearing was rescheduled from April 5, 2016, to July 7, 2016. Under the

circumstances, we cannot say that Mother has shown good cause for another

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 9 of 10 continuance or demonstrated that she was prejudiced. We cannot say that the

court abused its discretion in denying Mother’s motion for a continuance.

Conclusion

[19] For the foregoing reasons, we affirm the termination of Mother’s parental

[20] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017 Page 10 of 10